Shala & Shala
[2025] FedCFamC2F 339
•27 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Shala & Shala [2025] FedCFamC2F 339
File number(s): HBC 80 of 2023 Judgment of: JUDGE TAGLIERI Date of judgment: 27 February 2025 Catchwords: FAMILY LAW – recusal application – alleged actual bias or apprehended bias – inadmissible hearsay evidence – false assertions about personal or social relationship between lawyer who prepared financial agreements and judge – vague and unsubstantiated assertions that judges of this court decide matters other than on merits and according to law – recusal application dismissed.
FAMILY LAW – practice and procedure – proceedings to which the Evidence Act 1995 (Cth) applies – hearsay evidence inadmissible
Legislation: Evidence Act 1995 (Cth) Cases cited: Charisteas & Charisteas (2021) 273 CLR 289
Ebner & Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson & Johnson (2000) 201 CLR 488
Minister for Immigration and Multicultural Affairs & Jia Legeng [2001] HCA 17
Stephens & Stephens [2010] FamCA 184
Australian Law Reform Commission, Without Fear or Favour: Judicial Impartiality and the Law on Bias (ALRC Report No 139, December 2021)
Division: Division 2 Family Law Number of paragraphs: 26 Date of hearing: 27 February 2025 Place: Hobart For the Applicant: In person For the Respondent: In person ORDERS
HBC 80 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SHALA
Applicant
AND: MR SHALA
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
27 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 18 February 2025 (“the Application in a Proceeding”) in as far as it seeks a transfer to Division 1 of the Federal Circuit Court and Family Court of Australia in Melbourne is adjourned to 9 April 2025 at 2:15pm (“the transfer hearing”).
2.The Application in a Proceeding in the alternative seeking recusal of Judge Taglieri will be determined today 27 February 2025.
3.The Application in a Proceeding in the alternative seeking recusal of Judge Taglieri is dismissed.
4.Within 28 days of the date of these Orders, the Respondent Husband file and serve any affidavit material on which he intends to rely at the transfer hearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Judge Taglieri
By Application in a Proceeding filed on 18 February 2025, the Applicant seeks two outcomes: first, transfer of these property-related proceedings to Division 1 of the Federal Circuit and Family Court of Australia in the Melbourne Registry; second, if the first application is refused, she applies for my recusal and disqualification from presiding over these proceedings.
Because the Respondent has only been served on 25 February 2025 with the Application in a Proceeding and supporting affidavit, although I cannot be certain that he has read it or that service was effective, I do not propose to hear the transfer application and I will not determine it today. The Respondent indicated that he opposed the transfer application, and it is necessary that he be given an opportunity to file an affidavit replying to the evidence relied upon by the Applicant and setting out the basis why he seeks to retain the proceedings in the Hobart Registry.
As explained a number of times, the recusal application is ultimately for the Court, and the Respondent submitted that it was a matter of my discretion as to whether I should hear the recusal application today. I consider it in the interests of justice, and consistent with the case management principles of this Court, that I determine the recusal application today, particularly because there have been assertions about my impartiality previously. It is not in the interests of justice to delay resolution of such serious allegations, such serious allegations that are now made by the Applicant and not the Respondent.
The Applicant relied on her affidavit filed 18 February 2025 and made short submissions orally. I inquired of the Applicant as to why Mr B was not called in person to give evidence, as to what the Applicant states at [18] of her affidavit. The Applicant did not provide a satisfactory response, in my view. Whether she could afford to pay a lawyer is not related to calling a witness who allegedly has made serious allegations, and in any event the Applicant also stated that she has a friend who is a lawyer with whom she could have consulted earlier.
The application for my recusal and disqualification is vague in its terms and fails to identify any grounds of recusal.
The affidavit upon which the Applicant relies filed 18 February 2025 at [18] addresses matters relevant to the recusal affidavit and constitutes hearsay evidence, reporting statements alleged to have been made by Mr B, the lawyer who had prepared the financial agreements which are the subject of the initiating application brought by the wife.
Doing the best I can, and based on the hearsay evidence at [18] of her affidavit, the Applicant appears to be alleging that due to a conversation or conversations she had with Mr B in 2023 and possibly after, she considers that:
(a)I will be biased because I have prejudged the outcome of the proceedings; or
(b)Due to my personal connection with him and things I am alleged to have said to Mr B, there is an apprehension of bias.
The hearsay evidence relied upon by the Applicant s inadmissible as the Evidence Act 1995 (Cth) applies to an application of this nature. However, the hearsay evidence involves serious assertions as to the following:
(a)That I have known Mr B for many years and I have worked at Legal Aid when he did;
(b)That I am friendly with Mr B, have socialised with him and continue to socialise with him;
(c)That judges of this Court, including in Mr B’s own property case, were handling cases in a particular but unidentified way; and
(d)That I had discussed the Applicant’s case with Mr B at some identified time, and that based on that discussion, I had already made up my mind without having seen all the material.
Overall, the allegations appear to be that I had already decided something, without identifying what. Alternatively, it appears to be an allegation that because I am friendly with Mr B, I would decide the case in a manner that is favourable to accepting his evidence, potentially.
Taking the Applicant’s case at its highest, it seems to be asserting that I should recuse myself from determining the proceedings on the grounds of actual bias, or alternatively, apprehended bias. Noting the oral submissions made by the Applicant in Court today, she seems to squarely rely on apprehended bias, but, for the avoidance of doubt, I will address both an assertion of actual bias and apprehended bias.
LEGAL PRINCIPLES
The legal principles applying to recusal or disqualification of a judge from deciding the case on the grounds of apprehended bias are settled and uncontroversial. They are referred to in Ebner & Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”), also, in Johnson & Johnson (2000) 201 CLR 488, and more recently in the context of family law proceedings in Charisteas & Charisteas (2021) 273 CLR 289.
Apprehended bias requiring disqualification arises when a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.
Ascertaining if there is apprehended bias requires two steps: first, the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits, and second, there must be articulated a logical connection between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.
The principles applicable to actual bias are discussed in Stephens & Stephens [2010] FamCA 184 (“Stephens”) at [22] to [26].
I respectfully adopt the reasons of Strickland J in Stephens at paragraph 22. His Honour stated:
An allegation of actual bias is a very serious matter. Allegations of actual bias are uncommon and actual bias is rarely found by courts. For a judicial officer to be disqualified, it is usually sufficient to establish a reasonable apprehension of bias. Where actual bias exists, reasonable apprehension of bias will also exist. It is therefore generally considered unnecessary for allegations of actual bias to be considered or determined. [emphasis added]
The test for actual bias is stricter than apprehended bias because it is a subjective test. This was explained by French J in Minister for Immigration and Multicultural Affairs & Jia Legeng [2001] HCA 17, as requiring the applicant to establish that there is a pre-existing state of mind which disables the decision-maker from undertaking or rendering the task of undertaking a proper evaluation of the relevant materials before him or her. In the same decision, Gleeson CJ and Gummow J stated that the inquiry was one about whether the judge’s mind was open to persuasion.
There is ample authority that an application for disqualification or recusal should be made promptly and decided by the judge who has carriage of the proceedings and who is sought to be disqualified. For that reason, I have heard this matter myself and I will determine it myself. As authority for those propositions, I referred to the decision of Ebner and also the final report of the Australian Law Reform Commission, Without Fear or Favour, at page 232.[1]
[1] Australian Law Reform Commission, Without Fear or Favour: Judicial Impartiality and the Law on Bias (ALRC Report No 139, December 2021), p232
I turn to evaluate whether the recusal application should be granted. Allegations of bias against a judge, as I have stated, are serious and should not be made lightly, and should not be made in the absence of probative reliable evidence. As the Evidence Act 1995 (Cth) applies, hearsay evidence is inadmissible to prove the truth of a fact allegedly stated by a person unless that person is a witness before the Court. For this reason, the Applicant’s affidavit at [18] is inadmissible. The Applicant should have had Mr B swear an affidavit and appear in Court, but she has not done so, and I give the second-hand assertions in her affidavit at [18] no weight.
I give them no weight for two reasons: first, because they are inadmissible evidence, but secondly, for the reasons I shall now explain.
What Mr B reputedly said to the Applicant about my relationship with him or conversations with him are false. Particularly, as is evident from information mostly available publicly, for example, and not limited to records of the Law Society of Tasmania, the Supreme Court of Tasmania, and the Tasmanian Bar Association, I have never been employed at or worked for Legal Aid Tasmania or any other Legal Aid authority in Australia, or indeed elsewhere:
(a)I have been a Commissioner of the Legal Aid Commission of Tasmania in the years 2008 to 2012. That was a board position, not a day-to-day operational position where I interacted with lawyers. It was a governance position, and I was nominated by the Law Society of Tasmania to serve as the Commissioner of Legal Aid. At no time in this period did I have any dealings with Mr B, and to my knowledge and recollection, he was no longer at Legal Aid in those years;
(b)Next, the allegations or assertions apparently said by Mr B are false, because when I was working as a legal practitioner at the firm Phillips Taglieri between the years 1995 and 2008, I only knew Mr B as a legal practitioner who practised as a sole practitioner in private practice, and I had occasional interaction with him in relation to professional matters only;
(c)Next, the assertions are false because I have never socialised with Mr B; and
(d)Finally, they are false because I have never spoken to Mr B about either party in these proceedings or the proceeding itself.
My sister-in-law worked as a secretary at Legal Aid Tasmania for a number of years until about the late 1990s. She has the same surname as me. If Mr B did make the statements referred to at [18] of the Applicant’s affidavit, he may be confused.
Regardless of whether he did make the statements to the Applicant, they are untrue. That they are untrue can be verified by the public records that I have referred to.
For avoidance of doubt, I have never spoken to my sister-in-law about this proceeding or either party. I understand full well that it is not proper for a judge to discuss cases that she is presiding over with anybody.
As I only know Mr B as a legal practitioner in Tasmania with whom I have had very limited contact, I do not accept that an objective bystander would form the view that I have a personal or social connection with him, or that I would treat his evidence more favourably. The assertion that judges in this Court decide cases “in particular ways” or that I have prejudged this case is vague, incomprehensible and unsupported by any evidence whatsoever. There is no basis to conclude that I am unable to decide the case objectively, fairly and on its merits.
Furthermore, for completeness, I have not presided over Mr B’s own legal proceedings in this Court. The only knowledge I have of those is that I made a Chambers order, meaning there was not a hearing in court and I did not hear any evidence or any submissions or anything else. I made a Chambers order transferring this proceeding to Division 1 of the Court in May 2023.
In conclusion, this application has been brought very late. According to the information in the Applicant’s affidavit at [18], the conversations that were reputedly had between the Applicant and Mr B occurred from May 2023 onwards. Stating the obvious, it is now February 2025. The application, for that reason alone, raises serious concerns about the bona fide purpose of the application.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Taglieri. Associate:
Dated: 18 March 2025
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