FAMILY COURT OF AUSTRALIA
| SELLERS & BURNS | [2019] FamCAFC 111 |
| FAMILY LAW – APPEAL – PROCEDURAL – DISQUALIFICATION – Where the husband appeals from the primary judge’s refusal to recuse himself from further proceedings between the husband and wife – Consideration of the test in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”) – Whether a fair-minded lay observer might reasonably apprehend that the primary judge might not bring an impartial mind to the resolution of the question to be decided – Where the primary judge made comments during the enforcement application reflective of a formed opinion – Where it is contended that the primary judge’s response to the application to recuse himself was sarcastic – Whether directions made by the primary judge in response to the request for adjournment were dismissive and intimidating –Where the comments leading to the adjournment being granted raised the required apprehension – Error established – Where an injunction granted to restrain the husband’s solicitor and all employees of that firm was in excess of the injunction sought – Whether this gives rise to an apprehension of bias adverse to the husband –No error made out – Whether the primary judge erred in the application of the two step test in Ebner – Where the primary judge erred in isolating the matters complained of as opposed to the cumulative effect – Where error is established in relation to step one – Consideration of the logical connection – Where no error established in this part – Whether his Honour, in restricting his attention to the enforcement application, prevented a consideration of the effect on the fair-minded lay observer in relation to all hearings involving the parties – Where his Honour erred in his approach to determining the issue of recusal – Error established – Orders set aside – Primary judge disqualified from hearing further proceedings between the parties. FAMILY LAW – APPEAL – COSTS – Costs certificates sought and granted. |
| Family Law Act 1975 (Cth) s 94(2) Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9 |
| APPELLANT: | Mr Sellers |
| RESPONDENT: | Ms Burns |
| FILE NUMBER: | PAC | 5854 | of | 2016 |
| APPEAL NUMBER: | EA | 118 | of | 2018 |
| DATE DELIVERED: | 28 June 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Alstergren CJ, Ainslie-Wallace & Kent JJ |
| HEARING DATE: | 7 March 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 August 2018 |
| LOWER COURT MNC: | [2018] FamCA 617 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Campton SC |
| SOLICITOR FOR THE APPELLANT: | Taperell Rutledge Lawyers |
| COUNSEL FOR THE RESPONDENT: | Dr Barnett |
| SOLICITOR FOR THE RESPONDENT: | Karras Partners Lawyers |
Orders
The appeal against the orders of Foster J made on 15 August 2018 is allowed.
That Foster J be disqualified from hearing any further application in the proceedings PAC 5854 of 2016.
There be no order as to costs.
The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in relation to the appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sellers & Burns has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 118 of 2018
File Number: PAC 5854 of 2016
| Mr Sellers |
Appellant
and
| Ms Burns |
Respondent
REASONS FOR JUDGMENT
Mr Sellers (“the husband”) appeals Foster J’s refusal to recuse himself from hearing further proceedings between the husband and Ms Burns (“the wife”).
The application was based on the assertion that his Honour’s comments made during interlocutory proceedings on 1 May 2018 and 23 May 2018, and an order made by him on 23 February 2018 raised an apprehension that he might not bring an impartial mind to the resolution of issues to be decided in matters concerning the husband.
To found a recusal it must be established that a “fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question”[1] to be decided.[2]
[1]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [6] (“Ebner”).
[2] In Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 (“Royal Guardian”) at [232] the New South Wales Court of Appeal said “that the hypothetical observer is taken to be a rational person who is neither complacent nor unduly sensitive or suspicious and to be someone who is aware of the oath or affirmation taken by judges and their judicial obligations more generally”.
To satisfy that test, the applicant must first identify the matter that it is said might lead the judge to not bring an impartial mind to the resolution of the issue and,[3] secondly the applicant must demonstrate a logical connection between the identified matter and the possibility that the judge might depart from impartial decision making.[4]
[3]Ebner, [8].
[4]Ebner, [8].
Before considering the matters identified by the husband which it was said raised the relevant apprehension, it is helpful to traverse some of the background of the proceedings between the parties to give context to the appeal.
Background
The parties are involved in both parenting and property settlement proceedings. Neither proceeding has reached the stage of a final hearing. There have however been a number of interlocutory applications.
The parties commenced living together in about late 2009 and married in 2013. There are two children of the relationship, one born in 2010 and the other born in 2013. The children live primarily with the wife and spend time with the husband.
In May 2017 the wife sought interim financial orders; spouse maintenance and an order for partial property settlement.
The matter came before the primary judge on 19 July 2017 who dealt with the matter based on the evidence filed and the submissions of the parties. His Honour correctly indicated that there were issues in contest which could not be resolved without a full hearing, for example, each party alleged that the other had not made full financial disclosure and that matter clearly could not then be resolved.
At the time of the interim hearing the husband’s property consisted of shareholdings and an interest in a trust. At that time there had been no valuation of the trust although a valuer had been appointed for that purpose.
The husband was also the beneficiary of his mother’s estate of which the principal asset is a house in Suburb T which the husband said was worth about $2.5 million. Probate had not been granted on the husband’s mother’s estate and thus title to the property had not passed to the husband. A further complicating factor was an agreement that the partner of the husband’s mother could live in the property until his death.
On 14 November 2017 his Honour made interim financial orders which required the husband to pay spouse maintenance to the wife in the sum of $3,250 per week and which also provided for the payment to her of $150,000 being a partial property adjustment. That sum was ordered to be made in two instalments.
The husband appealed these orders and sought a stay in relation to both the spouse maintenance and the partial property orders. The primary judge stayed the spouse maintenance order on the basis that, in lieu of the sum ordered, the husband pay to the wife the sum of $1,850 per week. The application to stay the partial property order was refused.
Judgment is reserved in relation to both of these appeals.
On 23 February 2018 on the wife’s application for an injunction to restrain the husband’s solicitor from further acting for him in the proceedings, the primary judge made the injunction as sought in relation to the husband’s solicitor but also extended the injunction to the solicitor’s partners and employed solicitors thus preventing the entire firm from acting for the husband in the proceedings. That order was subject to appeal on which judgment is reserved.
It seems that the husband did not pay the reduced spouse maintenance in accordance with the stay orders and did not make the payments in relation to the partial property settlement.
On 10 January 2018 the wife brought proceedings seeking enforcement of the financial orders. The application came before the primary judge on 1 May 2018 for case management. On that day the husband was represented by a solicitor. The matter was adjourned to 23 May 2018 when the husband appeared unrepresented.
At a point in the proceedings on 23 May 2018 the husband told the primary judge that he proposed to ask him to disqualify himself and sought an adjournment for that purpose. Eventually the adjournment was granted. The application was heard on 15 June 2018 and on 15 August 2018 the primary judge refused the application and delivered reasons.
The husband appeals his Honour’s order of 15 August 2018.
The appeal
The thrust of the appeal is that based on what the primary judge said on the two occasions when the enforcement application matter was before him namely 1 May and 23 May 2018 and in reference to the injunction made on 23 February 2018, an apprehension arose that the primary judge had formed a view adverse to the husband’s credibility and honesty such that he would not determine the issue then before him and in subsequent matters on their merits and therefore his Honour erred in failing to recuse himself.
Proceedings on 1 May 2018
On 1 May 2018 the wife’s enforcement application came before the primary judge. On that day the husband was represented by a solicitor, Mr KK, who said that he had come into the matter “five minutes” ago.[5]
[5] Transcript 1 May 2018, p.3 line 30.
The wife’s solicitor told the primary judge that in addition to the application for enforcement the wife had commenced bankruptcy proceedings against the husband in the Federal Circuit Court of Australia. Those proceedings had not yet been heard.
There was a general discussion between the primary judge and the wife’s solicitor as to the effect a sequestration order would have on the enforcement proceedings and the primary judge stood the enforcement application over until 23 May 2018 pending the determination of the bankruptcy proceedings while indicating that if a sequestration order was made before that date, the listing of the enforcement proceedings could be vacated.
The discussion then turned to the principal proceedings between the parties and the outstanding valuation evidence.
His Honour raised the valuation of the trust and associated corporate entities. The wife’s solicitor told his Honour that the appointed valuer had requested the “usual suite” of information and said some of that information, the 2017 accounts, had been provided by the husband but he said that there were enquiries outstanding.[6] The wife’s solicitor told the primary judge that the husband said he could not provide all the requested documents because he is not a majority shareholder of the related entities.[7]
[6] Transcript 1 May 2018, p.13 lines 40 – 44.
[7] Transcript 1 May 2018, p.13 lines 44 – 46.
At this point there was a discussion about the provision of documents to the valuer and his Honour said:[8]
HIS HONOUR: Well, [the valuer’s] entitled to get that because he’s a single expert valuer.
MR [KK]: Well, it’s a matter of who he obtains that from.
HIS HONOUR: Yes.
MR [KK]: And in this case - - -
HIS HONOUR: The difficulty, of course, is that if I get this stonewalling at a trial, then, you know, one knows what happens when there’s non-disclosure.
…
HIS HONOUR: So your client and his family better get their act together and start behaving sensibly for once in these proceedings. And I’m glad you’re in it so perhaps some common sense can be brought to this. Look, you know, simply putting up some Chinese wall to prevent valuations is not going to help anybody.
(Emphasis added)
[8] Transcript 1 May 2018, p.14 line 38 to p.15 line 6.
The discussion continued:[9]
HIS HONOUR: Because I’m sure that [the wife] would be delighted to have the [house] at [Suburb T] subject to a very elderly gentleman living in there for the next couple of years as her settlement, or otherwise.
…
HIS HONOUR: I’m certainly able to do that. Certainly that wouldn’t disturb his occupation. She would just wait until he dies.
MR [KK]: Your Honour, I’m not so far advanced in the matter to be able to - - -
HIS HONOUR: Well, I think it’s about time somebody got up to speed. So at this stage, we will see what happens at the case management hearing when you’re before the registrar on the 22nd at 2.15. …
MR [KK]: Look, I understand that, your Honour. But your Honour mentions the family – the particular interests that the valuer is seeking information about – and I believe it’s commercially sensitive material – relates to, not the interests of the trust itself, but of the investments in the trusts that are in companies that, as far as I know, are not directly linked with family. And in respect of which the trust is a minority shareholders. So it’s – in circumstances where my client takes the position that he does not have control over that entity to require it to do those things. There is a subpoena that was issued that could be prosecuted by the respondent wife. That hasn’t occurred, your Honour.
[9] Transcript 1 May 2018, p.15 lines 10 – 37.
The matter concluded with his Honour saying:[10]
Well, let’s hope that there’s some sense when you’re able to get some decent instructions and be properly retained, Mr [KK].
(Emphasis added)
[10] Transcript 1 May 2018, p.16 lines 9 – 10.
Proceedings on 23 May 2018
Next, the husband relies on comments made by the primary judge on 23 May 2018. It is to be recalled that the enforcement application was listed on that date subject to the outcome of the wife’s bankruptcy proceedings against the husband in the Federal Circuit Court of Australia.
The husband appeared unrepresented on this day. At the outset, the solicitor for the wife indicated that he wished to press the wife’s application for enforcement and to cross examine the husband on that application.
His Honour observed that the husband had not filed a Financial Statement in response to the enforcement proceedings and said:[11]
That can generate a fine of $5000.
[11] Transcript 23 May 2018, p.2 line 19.
The wife’s solicitor agreed and added that at that time the husband “actually stands in breach of two obligations, in relation to the one Act”.[12] His Honour said:[13]
How surprising. …
(Emphasis added)
[12] Transcript 23 May 2018, p.2 lines 33 – 34.
[13] Transcript 23 May 2018, p.2 line 35.
The wife’s solicitor then proceeded to move on the enforcement application.
The following exchange took place:[14]
HIS HONOUR: Thank you. All right. Mr [Sellers], come up into the witness box, please, and you will be sworn, and you will be cross-examined, on oath. Leave your documents on the bar table. …
[14] Transcript 23 May 2018, p.3 lines 24 – 26.
At this point the husband said that he had been led to believe that until there was an outcome in the bankruptcy proceedings, any further hearing in relation to Family Court matters would be put on hold. He informed the primary judge that the bankruptcy matter was back before the Federal Circuit Court on 25 July 2018.
After some discussion the primary judge told the husband that the enforcement application was proceeding and invited him to enter the witness box to give evidence on oath.
The husband said:[15]
MR [SELLERS]: Before we do that, your Honour, I would like to say something else. I would like to seek leave to get legal advice. I would like to file an application that you disqualify yourself from hearing this matter due to your bias against me from the outset.
HIS HONOUR: Really?
MR [SELLERS]: That’s correct, your Honour.
HIS HONOUR: In the witness box.
(Emphasis added)
[15] Transcript 23 May 2018, p.4 line 41 to p.5 line 3.
The following exchange then occurred:[16]
MR [SELLERS]: I would like to seek leave to get legal advice.
HIS HONOUR: No. No.
MR [SELLERS]: I’m not legally represented.
HIS HONOUR: It’s only an examination, Mr [Sellers]. You don’t need legal advice. Mr Karras wants to ask you some questions as a consequence of you not complying with orders of this court. So he – you can give that. You don’t need legal advice about that. You’re just required to tell the truth on oath. …
(Emphasis added)
[16] Transcript 23 May 2018, p.5 lines 5 – 14.
His Honour later in response to the husband’s insistence that he obtain legal advice said:[17]
[17] Transcript 23 May 2018, p.8 line 28.
What, as to whether you tell the truth or not or whether - - -
(Emphasis added)
His Honour then said apropos the husband’s application for an adjournment to make an application that his Honour recuse himself:[18]
HIS HONOUR: All right. Well, I’m happy to hear your submission now.
MR [SELLERS]: Well, I would like legal advice before I - - -
HIS HONOUR: Mr [Sellers], I don’t keep adjourning cases interminably simply because it suits your convenience. …
(Emphasis added)
[18] Transcript 23 May 2018, p.5 lines 20 – 25.
The injunction
As we have said, on 23 February 2018, the primary judge having been asked by the wife to enjoin the husband’s solicitor from continuing to act for him, made an order which not only restrained the solicitor from continuing to act for the husband but extended the order to the solicitor’s partners and employed solicitors in his firm.
We thus turn to the challenges to his Honour’s order.
The conduct complained of
Grounds 3, 5 and 6 contend that his Honour was wrong in failing to conclude that the effect of the matters complained of might cause a fair-minded lay observer reasonably to apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided.[19]
[19]Ebner, [6].
Turning then to his Honour’s comments made on 1 May 2018. It was uncontested that there was no evidence before the primary judge that the apparent delay in obtaining the valuations was because the husband was deliberately standing in the way of their being obtained. Further it was agreed that there was no evidence before the primary judge that the husband’s “family” had failed to make disclosure or had in any way obstructed the valuation process. Equally, although both the husband and the wife had alleged the other had failed to make full disclosure, there had been no finding that the husband had failed to make proper disclosure.
It was submitted that his Honour’s reference to “stonewalling” and “Chinese walls” in reference to both the husband and his “family” were statements which went to the husband’s credibility and honesty and also impugned his “family”.
It was further argued that his Honour’s comment to the husband’s then solicitor: “[w]ell, let’s hope that there’s some sense when you’re able to get some decent instructions”[20] would convey to the fair-minded lay observer that the husband and his “family” had not in the past behaved sensibly or given sensible instructions.
[20] Transcript 1 May 2018, p.16 lines 9 – 10.
For the wife, it was argued that looked at in context, his Honour’s comments of 1 May 2018 reflected his Honour attempting to move the principal proceedings between the parties forward and counsel for the wife contended that the proper complexion of his Honour’s comments were as reflected in R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 264 where the plurality after noting that the impugned remarks occurred during an interlocutory proceeding said:
… During the course of argument a judge will often follow the common, and sometimes necessary, course of formulating propositions for the purpose of enabling their correctness to be tested, and as a general rule anything that a judge says in the course of argument will be merely tentative and exploratory. …
In our view his Honour’s comments were neither couched as nor conveyed the impression of being tentative or exploratory in nature, rather, in our view his Honour’s comments would have conveyed the impression that they were reflective of a formed opinion.
We agree with the submissions of the husband that the effect on the fair-minded lay observer would have been compounded in the knowledge that there was not one scrap of evidence before his Honour that the husband’s “family” had done anything to hamper the production of valuations. Nor had the primary judge determined that either the husband or his “family” been found not to have made proper disclosure.
Turning then to his Honour’s comments to the husband on 23 May 2018. In effect three matters are complained of by the husband.
It was argued that his Honour’s comments “how surprising”[21] in response to being told that the husband had failed to file a financial document and his Honour’s comment of “really”[22] in response to the husband informing him that he proposed to ask him to recuse himself were sarcastic. It was said that in response to the husband’s request for an adjournment, his Honour’s peremptory direction “in the witness box” was dismissive and intimidating especially to an unrepresented litigant.[23]
[21] Transcript 23 May 2018, p.2 line 35.
[22] Transcript 23 May 2018, p.4 line 46.
[23] Transcript 23 May 2018, p.5 line 3.
It was contended that this would have conveyed to the fair-minded lay observer that his Honour was disdainful and antipathetic towards the husband especially if that hypothetical observer understood that the application for recusal was of a nature that it should be determined by the primary judge before proceeding further.
It was also contended that his Honour’s comment to the husband reflected in the exchanges about his not needing legal advice and referring to the requirement to tell the truth would have conveyed two things to the hypothetical observer; that the primary judge was directing the husband to give evidence in circumstances where it could be reasonably regarded as being against his interests and, secondly that his Honour’s reference to telling the truth conveyed some expectation that the husband would not in fact tell the truth or, that the husband needed to be reminded to tell the truth.
It was said that his Honour’s comment about “adjourning cases interminably” to suit the husband’s convenience would have conveyed to the observer that the husband had been making repeated,[24] unwarranted applications to adjourn for no good reason where it was submitted, and apparently agreed, that the husband had not and thus his Honour’s criticism was unfounded and wrong.
[24] Transcript 23 May 2018, p.5 line 24.
The wife contended that although his Honour’s comments could be interpreted as having a “sarcastic” undertone his Honour ultimately did grant the husband the adjournment he sought.
That his Honour did eventually grant the husband the adjournment does not derogate from or, as counsel for the wife rather eloquently put it take the “sting out of” his Honour’s remarks.[25] It is not the ultimate result that is relevant but the primary judge’s comments on the way to that result which, in our view, raise the required apprehension.
[25] Transcript 7 March 2019, p.42 line 39.
In Ebner the plurality said:
7 The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
(Emphasis as per the original)
We are of the view that the matters complained of and which we have set out when viewed as a whole, and, indeed in respect of some, taken individually, are such that a fair-minded lay observer might apprehend that the primary judge might not bring an impartial mind to the resolution of issues concerning the husband. So too, these things having been said, it is a ready step to find a logical connection between his Honour’s remarks and the fear that he might not bring an impartial mind to the resolution of the issues between the husband and the wife.
Before passing from the exchanges between the primary judge, the wife’s solicitor and the husband on 23 May 2018, at one point the primary judge, having determined to grant the husband an adjournment said, of the foreshadowed application:[26]
If unsuccessful, there will clearly be an order for costs and we will get on with all the other applications before the court.
[26] Transcript 23 May 2018, p.11 lines 28 – 29.
The reference to there being a costs order was raised as being a further matter which it was said might give rise to the necessary apprehension. However, this comment was not brought to his Honour’s attention during the recusal application on 15 June 2018 and it was argued by counsel for the wife, with reliance on Metwally v University of Wollongong (1985) 60 ALR 68 (“Metwally”) that the husband ought not be permitted to raise it on appeal. We are not persuaded that the failure to raise the costs point in the recusal application falls within that category of case to which Metwally refers, that is where there is an attempt to raise on appeal an argument which had not been raised at trial and where had it been raised, evidence may have been led which may have prevented the point from succeeding.
However, even if it might be thought that either by operation of Metwally or mere fairness, the complained of comment ought to have been raised with his Honour on the application, it may readily be assumed in the circumstances of this case, that the primary judge’s conclusion about his recusal would be no different and thus not material to the resolution of the issue. We are disinclined to allow the point to be argued on appeal.
The challenges raised in these grounds are established.
Ground 4 - The injunction
It was argued that in making the scope of the injunction significantly in excess of that sought, in circumstances where neither the husband nor his legal representatives were given notice by his Honour of his intention to extend the scope of the order, nor were they given an opportunity to address the Court on the proposed order might give rise to the apprehension that the primary judge was willing to make an order adverse to the husband without affording him procedural fairness.
While his Honour’s reasons for decision delivered on 23 February 2018 for making the order for injunction are silent as to why his Honour extended the scope of the injunction made, in his reasons in relation to the recusal application his Honour said:
26. Counsel for the husband made complaint that earlier orders restraining the husband’s solicitors from further acting demonstrated apprehended bias. This notwithstanding that the orders were made in the context of a discrete application for such an order and that the order is now the subject of an appeal to the Full Court.
27. It is contended on behalf of the husband that such order was made in error as to the scope of the order that restrained the solicitor and “[DD Lawyers] and any employee or partner of that firm”.
28. A solicitor has personal obligations under rule 27 of the Australian Solicitors Conduct Rules 2015 but the scope of any order made by a court is a matter for the court in the exercise of its jurisdiction touching upon the proper administration of justice. Whether the order was made in error is now a matter for the Full Court.
Thus it is apparent that his Honour’s decision to extend the scope of the injunction sought by the wife beyond that requested was deliberate and reflective of his Honour’s view that the protection of the Court’s processes required it.
As we have said, the husband argued that to extend the scope of the injunction without hearing from the husband or giving him notice that it was his Honour’s intention would convey to the fair-minded lay observer that his Honour was indifferent to whether the husband was afforded procedural fairness.
Counsel for the wife agreed that given his Honour’s comments at [28] it is clear that his Honour’s order was not inadvertent however she argued that it did not have the effect on the mind of the fair-minded lay observer contended for by the husband. Counsel for the wife argued that his Honour’s order says more about the primary judge’s views about the husband’s ex-solicitor than the husband himself.
There is force in the wife’s argument and we are not persuaded that the extension of the injunction would have caused or contributed to the relevant apprehension in the hypothetical observer.
This ground is not made out.
The primary judge’s application of the Ebner principles
Ground 7
By this ground the husband described his Honour as having erred in the application of the two steps set out in Ebner.
As we have said, the two step test for establishing apprehended bias developed in Ebner first “requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits”.[27] Secondly, there “must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”.[28]
[27]Ebner, [8].
[28]Ebner, [8].
In his Honour’s consideration of this issue he said, perhaps infelicitously, at [14] that the husband must “firmly establish the ‘logical connection’ between his complaints and the feared deviation”.
The law does not require the logical connection to be “firmly established”. What is required to be “firmly established” is as described by French CJ in British American Tobacco Services Ltd v Laurie (2011) 242 CLR 283 (“British American Tobacco”) at [45] citing Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100:
When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker’s mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her.
(Emphasis removed)
French CJ continued in British American Tobacco at [45]:
The requirement that an apprehension of bias, based on judicial conduct, be “firmly established” is consistent with the most recent decisions of this Court and gives content to the requirement that an apprehension of bias, in that class of case, be reasonable.
However, while this misstatement by his Honour was mentioned by counsel for the husband in passing, it was not the focus of this ground which is that his Honour conflated or perhaps mistook what is required in satisfaction of the two parts of the process.
The error, it was argued was two-fold. First, it was contended that his Honour, rather than considering the complained of matters as a whole to see whether those matters might raise the relevant apprehension, instead, considered each of the complained of matters individually and in relation to each, asked whether that complained of matter might raise the relevant apprehension. Secondly, it was argued that in moving to the second step in Ebner, that is the consideration of the logical connection between the complained of matters and the feared deviation from deciding the case on its merits, his Honour misapprehended the work of the second step in Ebner and, instead there considered the cumulative effect of the complaints.
His Honour at [18] said under the heading “The Basis of the Application for Recusal”:
Counsel for the husband outlined that the present application was based on and arose from:
a) the transcript of proceedings before me on 1 May 2018;
b) the transcript of proceedings before me on 23 May 2018; and
c)the previous orders made by me restraining the husband’s solicitor and any employee or partner of his firm from further acting on behalf of the husband or any other party in these proceedings.
The husband submits that notwithstanding this, his Honour did not in fact consider the complained of matters as a whole and did not “stand back” and consider the effect of the complaints cumulatively. Rather, it was said, his Honour approached his task by taking each asserted complaint and, in relation to each one, considered whether in relation to that matter, the fair-minded lay observer might apprehend that his Honour might not bring an impartial mind to the resolution of the issues before him. His Honour rejected each contention in turn. This approach, as if working through a list, was described as his Honour adopting a “tick and flick” approach to considering the complaints and it was further argued that in so doing failed to turn his mind to and “appreciate and evaluate the aggregate effect of that which was contended”.[29]
[29] Husband’s Summary of Argument at paragraph 21.
We agree that to isolate each complaint as his Honour did fails to take into account the effect on the fair-minded lay observer the combined and cumulative effect of the comments and fails to consider whether that combined and cumulative effect gives rise to the necessary apprehension.[30]
[30] AJH Lawyers Pty Ltd v Careri (2011) 3 VR 236, 254 - 255 where the Court of Appeal upheld a claim of apprehended bias based on an accumulation of comments made by the primary judge over a number of days; Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577, 611.
This, of itself is sufficient for error to be established.
Nonetheless, we turn to consider the second aspect of this ground namely that his Honour erred in his application of the second step in Ebner because rather than consider the logical connection between the asserted apprehension and the feared deviation, his Honour considered the complaints as a whole and it was argued that his Honour did so in error.
The husband relied on the following passages of his Honour’s reasons where he said:
30. It is incumbent on the husband to demonstrate the logical connection between his various complaints and the fear perceived by the reasonable lay observer that the case would not be decided on its merits.
…
32. None of the husband’s “complaints” have substance for the reasons given above. In the absence of any complaint of substance there is no logical connection that can be demonstrated. Nor indeed was there any cogent submission as to any asserted logical connection that would arise in the mind of the fair minded lay observer.
33. This “logical connection” with the feared deviation from the course of deciding the ultimate case on its merits has not been established by any of the contentions or the contentions as a whole.
(Emphasis added)
Thus it was argued that his Honour conflated the effect of the comments on the fair-minded lay observer with the necessity of demonstrating a logical connection.
We do not agree that his Honour’s reasons do in fact conflate the two steps. Rather, his Honour, having found no matter which would raise the required apprehension was not required to go on and consider the second step. We are inclined to the view that his Honour’s comment about the contentions taken as a whole was a reflection of his conclusion about the strength of the argument about the apprehension rather than a consideration of the logical connection.
This part of the ground is not established although we have found his Honour’s approach to the complained of comments did lead him into error.
Grounds 1 and 2
These grounds contend that the primary judge misdirected his consideration of the recusal application by focussing solely on the proceeding then before him, the enforcement application, rather than understanding that the application for recusal was in the context of the entirety of the proceedings and related to any future applications and applying the necessary test as against that wider context.
The error is said to be that as a result, his Honour looked at the matters complained of only in the context of the enforcement hearing and through that prism considered only whether in that context that is, an enforcement application, a fair-minded lay observer hearing those comments might reasonably apprehend that the judge “might not bring an impartial mind to the resolution of the question” to be decided in the enforcement hearing.[31]
[31]Ebner, [6].
The foundation for this argument that his Honour erroneously focussed on the application then in front of him is easy to understand. At the outset of the recusal hearing the primary judge said to counsel then appearing for the husband:[32]
HIS HONOUR: And Mr Finnane, this application is made in the context of the only current proceedings before me are enforcement summons, nothing else. So all I’m sitting to determine is the enforcement or otherwise of some arrears, financial arrears.
MR FINNANE: Well, our application was that your Honour should disqualify yourself.
HIS HONOUR: I understand that, in respect of the enforcement hearing, which actually simply requires me to allow Mr Karras to cross-examine Mr [Sellers] about his financial affairs, so Mr Karras can then, I think, Mr Karras, formulate some orders that he might seek in terms of enforcement of some asserted outstanding financial sums.
MR FINNANE: Well, your Honour, we would take the view that we’re seeking to have you disqualified from the entire proceedings.
[32] Transcript 15 June 2018, p.3 lines 6 – 21.
Notwithstanding senior counsel’s submission that the application for recusal was of wider effect than the application then before his Honour, on several occasions during that hearing, the primary judge returned to the point that the application for recusal related only to the enforcement proceedings. For example the following exchange took place well into the submissions on the recusal application:[33]
HIS HONOUR: Yes, but, Mr Finnane, remember, all I have before me is an enforcement summons. You want me to disqualify myself from hearing simply an enforcement summons, where I sit here and listen to your client’s evidence on oath. I make no findings. Mr Karras thereafter may formulate some application for an order for enforcement by way of sequestration of property, garnishment, you name it. I don’t know what he will do at the end, but it’s just to have him examined. I will just sit here and listen to him giving his evidence on oath. That’s all I have before me.
[33] Transcript 15 June 2018, p.18 lines 18 – 25.
Turning then to his reasons for decision on the recusal application his Honour said:
1. The present application for determination is the application by the husband for me to recuse myself from further hearing the application on foot for enforcement of financial orders and indeed from hearing any further or subsequent aspect of proceedings as between the husband and wife.
Although his Honour referred at [1] to the disqualification relating to further proceedings in the matter, it was argued that what follows in his Honour’s reasons makes it clear that he did not in fact consider the complained of matters in the wider context of other, future, hearings between the parties, but instead restricted his consideration of the effect of the complained matters to the context of the enforcement application. So much can be seen, it was argued, from his Honour’s observations in the paragraph immediately following at [2] in which his Honour refers to the application being made “in the context of a pending enforcement application”.
After extensive citations from the well-known authorities, his Honour said:
15. It is also important to again note the context in which the present application is made. The only matter for determination before me was the discrete enforcement application. Such application requiring the examination of the husband as to his financial circumstances and thereafter perhaps orders as to enforcement.
The husband argued that his Honour’s references to the enforcement application demonstrates that his Honour’s focus when considering the recusal application was solely on the proceeding then before him.
By way of example, counsel for the husband referred to [31] where his Honour said:
The application is made in the context of a discrete application for enforcement which has limited evidentiary and financial scope. Just how that application would not be decided on the merits is not the subject of any submission. Just how the present application extends to proceedings not even before me remains a mystery.
and argued that had his Honour’s mind been directed to the wider effect of the recusal application rather than on that then before him, it would not have been a “mystery”.
It was contended that his Honour in restricting his attention to the enforcement application prevented him from considering the effect on the fair-minded lay observer of the comments in relation to the enforcement hearing and the contemplated future hearings.
The wife relied on his Honour’s comments at [16] in which he referred to there being no “docket system” in the Family Court in the context of a discussion of whether the matter would or would not return to his Honour’s list in any event. The wife contended that this paragraph in the judgment together with his Honour’s comments to similar effect during the proceedings indicated that his Honour did in fact consider the application in a context wider than that of the enforcement application.
While it may have been the case that the parties’ matter may have come before another judge in the ordinary event, that is not relevant to the issue of recusal nor, in our view, does it answer the argument of the husband that his Honour’s focus was on proceedings wider than the enforcement. In our opinion, his Honour’s comments particularly his remark at [31] lend significant force to the husband’s contention.
We conclude that his Honour’s reasons and comments made during the hearing demonstrate that he measured whether the fair-minded lay observer might apprehend that he might not bring an impartial mind to the resolution of the issue only in the context of the enforcement application rather than, as he was informed was the case, against his continuing to hear matters concerning the husband and wife.
We agree and conclude that in taking this approach to the determination of the issue of recusal his Honour erred.
The appeal will thus succeed and we will set aside his Honour’s order of 15 August 2018.
The husband sought an order that, in the event the appeal succeeded and his Honour’s order was set aside, we would order that his Honour be disqualified from further hearing the proceedings between the parties being an order made pursuant to s 94(2) of the Family Law Act 1975 (Cth). We propose to make that order.
Costs
It was agreed that if the appeal succeeded, the parties each sought a Costs Certificate in relation to the appeal. We will accordingly make orders for Costs Certificates.
I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Alstergren CJ, Ainslie-Wallace & Kent JJ) delivered on 28 June 2019.
Associate:
Date: 28 June 2019
- AGLC
- SELLERS & BURNS [2019] FamCAFC 111
- Case
- [2019] FamCAFC 111
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the primary judge's conduct met the threshold for recusal as established in Ebner v Official Trustee in Bankruptcy. The court considered whether a fair-minded lay observer might reasonably apprehend that the primary judge might not bring an impartial mind to the resolution of the question to be decided. The court also examined whether the primary judge erred in his application of the two-step test in Ebner by isolating the matters complained of instead of considering their cumulative effect. Furthermore, the court considered whether the primary judge's error in restricting his attention to the enforcement application prevented a consideration of the effect on the fair-minded lay observer in relation to all hearings involving the parties.
The court found that the primary judge's comments and conduct established an error in the recusal process. The court noted that the primary judge's response to the application to recuse himself was indeed perceived as sarcastic, and his directions in response to the adjournment request were dismissive and intimidating. The court concluded that the primary judge's approach to determining the issue of recusal was erroneous, as he failed to consider the cumulative effect of the matters complained of. The court set aside the orders made by the primary judge and disqualified him from hearing any further application in the proceedings. The court also granted costs certificates to both parties, allowing the Attorney-General to authorise payments to cover the costs incurred in relation to the appeal.
Orders
Orders of the court
1.
The appeal against the orders of Foster J made on 15 August 2018 is allowed.
2.
That Foster J be disqualified from hearing any further application in the proceedings PAC 5854 of 2016.
3.
There be no order as to costs.
4.
The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.
5.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in relation to the appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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