Shipton & Garwood
[2024] FedCFamC1A 83
•14 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Shipton & Garwood [2024] FedCFamC1A 83
Appeal from: Garwood & Shipton (No 7) [2023] FedCFamC1F 935 Appeal number: NAA 332 of 2023 File number: 14 MAY 2024ADC4995 of 2018 Judgment of: AUSTIN, WILLIAMS & RIETHMULLER JJ Date of judgment: 14 May 2024 Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – DE FACTO THRESHOLD – Whether leave to appeal is required – Where by way of Application in an Appeal the respondent sought summary dismissal of the Appeal based on the applicant’s purported breach of the appealed orders and disregard of the overarching principles of proper conduct for litigation – Where the applicant contends apprehended bias on the part of the primary judge – Where the applicant contends denial of procedural fairness and the reasons for judgment were infected by legal and discretionary error – Consideration as to the revival of biased conduct in reasons for judgment – Consideration of the test outlined in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 – Where the applicant is taken to have waived her right to raise apprehended bias on the part of the primary judge – Where the primary judge did not deny the applicant procedural fairness – No error on the part of the primary judge established – Application for leave to appeal dismissed – Application in an Appeal dismissed – Applicant ordered to pay respondent’s costs in a fixed sum. Legislation: Family Law Act 1975 (Cth) Pt VII and Pt VIIAB, s 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17
Federal Court andFederal Circuit and Family Court Regulations 2022 (Cth) reg 4.02
Cases cited: British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2
Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246; [1981] HCA 20
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50
Concrete Pty Ltd v Paramatta Design and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Feldman v Nationwide News Pty Ltd (2020) 103 NSWLR 307; [2020] NSWCA 260
1 Garwood & Shipton(No 6) [2023] FedCFamC1F 813
Garwood & Shipton(No 7) [2023] FedCFamC1F 935
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Licul v Corney (1976) 180 CLR 213; [1976] HCA 6
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48
NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419; [2023] HCA 15
Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Number of paragraphs: 119 Date of hearing: 19 March 2024 Place: Adelaide Counsel for the Applicant: Mr Whitington KC and Ms Hume Solicitor for the Applicant: Angela Ferdinandy Pty Ltd Counsel for the Respondent: Mr Manetta Solicitor for the Respondent: Mills Oakley Lawyers ORDERS
NAA 332 of 2023
ADC 4995 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS SHIPTON
Applicant
AND: MR GARWOOD
Respondent
ORDER MADE BY:
AUSTIN, WILLIAMS & RIETHMULLER JJ
DATE OF ORDER:
14 MAY 2024
THE COURT ORDERS THAT:
1.The application for leave to appeal as contained in the Amended Notice of Appeal filed 28 February 2024 is dismissed.
2.The Application in an Appeal filed 1 March 2024 is dismissed.
3.The applicant pay the respondent’s costs of the application for leave to appeal, fixed at $16,000.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Shipton & Garwood has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, WILLIAMS & RIETHMULLER JJ
By an Amended Notice of Appeal filed 28 February 2024, the applicant seeks leave to appeal Order 2 of the orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 3 November 2023 (“the appealed order”). By that order, the primary judge ordered the applicant to pay the respondent’s costs thrown away, fixed at $25,000, arising from an application for disqualification, which the applicant abandoned shortly prior to the hearing date.
The applicant contended in her Summary of Argument apprehended bias on the part of the primary judge, denial of procedural fairness, and that the reasons for judgment were infected by legal and discretionary error.
The respondent resisted the application for leave to appeal.
For the reasons that follow, leave to appeal will not be granted, and the application will be dismissed.
BACKGROUND
The substantive dispute between the parties includes both proceedings under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) and a threshold jurisdiction question of whether the parties were in a de facto relationship, so as to enliven the court’s jurisdiction under Pt VIIAB of the Act.
At a mention hearing on 31 August 2022, the primary judge informed the parties of a possible need to recuse herself because she may have acted for the respondent’s former wife. The matter was adjourned for further mention on 1 September 2022, so that the parties were afforded an opportunity to make any enquiries deemed necessary.
On 1 September 2022, neither party took any objection to the primary judge hearing the trial.
The trial commenced on 5 September 2022 and continued before the primary judge for twelve days but did not conclude. Additional final hearing dates were allocated for a further thirteen sitting days, commencing on 17 April 2023.
In February 2023 the applicant became self-represented, and in March 2023 the applicant obtained new legal representation. On 14 March 2023, an order was made by the primary judge restraining the parties from filing any further interlocutory applications without leave of the court.
On 12 April 2023 the dates for resumption of the trial were vacated.
On 5 May 2023 new final hearing dates were allocated for fifteen sitting days commencing 7 August 2023.
Between May 2023 and August 2023, various interlocutory applications and cross applications were filed by each of the parties, including an application filed by the applicant on 3 August 2023, seeking orders restraining the respondent’s solicitor and solicitor’s firm from acting on his behalf.
On Sunday 6 August 2023, the applicant filed an Amended Application in a Proceeding, seeking the respondent’s senior counsel also be restrained from acting in the trial.
On 7 August 2023, the court was advised the respondent’s solicitor sought leave to withdraw and cease acting for him, prior to the respondent terminating the retainer of both his solicitor and the firm of solicitors. By order of the primary judge, the resumption of the final hearing was adjourned to 14 August 2023.
On Sunday 13 August 2023, the night before the scheduled resumption of the trial and contrary to the order of 14 March 2023, the applicant filed a Further Amended Application in a Proceeding. The application sought an order seeking the primary judge to recuse herself from hearing the substantive proceeding (“the disqualification application”). The circumstances giving rise to the disqualification application are referred to at [19] and [20] of the reasons.
At the hearing on 14 August 2023, the part heard trial dates were again vacated and new trial dates were allocated for seventeen sitting days commencing 5 February 2024. The proceedings were adjourned for mention to 21 August 2023. On 21 August 2023, a further procedural hearing was listed for 29 August 2023 and the disqualification application was listed for hearing on 6 September 2023.
On 29 August 2023 procedural orders were made for the hearing on 6 September 2023.
On 31 August 2023, the applicant’s solicitors advised the respondent’s solicitors the disqualification application was withdrawn.
On 6 September 2023, the primary judge was informed the applicant withdrew the disqualification application and the respondent pressed his costs thrown away, as sought in the Response to an Application in a Proceeding filed 28 August 2023.
On 6 September 2023 procedural orders were made, and the costs application was listed for interim hearing on 15 September 2023.
On 15 September 2023, the primary judge heard the costs application and delivered ex tempore reasons for why she did not accept the Outline of Case (referred to as ‘written submissions’ in the Amended Notice of Appeal) of the applicant and did not intend to sit beyond the allocated time (Garwood & Shipton(No 6) [2023] FedCFamC1F 813 (“Garwood & Shipton (No 6)).
On 3 November 2023, the primary judge made the appealed order and delivered her reasons (Garwood & Shipton(No 7) [2023] FedCFamC1F 935).
LEAVE TO APPEAL
In her Amended Notice of Appeal, the applicant sought leave to appeal. Contrary to the Amended Notice of Appeal, her senior counsel submitted leave was not required because the appealed order was final and not interlocutory.
Section 28(3)(e)(i) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provides that leave is required to appeal a prescribed judgment of the Federal Circuit and Family Court of Australia (Division 1) constituted by a single judge. A prescribed judgment is an interlocutory decree (other than a decree in relation to a child welfare matter) (reg 4.02 Federal Court andFederal Circuit and Family Court Regulations 2022 (Cth)).
Whether an order is final or interlocutory is determined by applying the test: does the judgment or order, as made, finally dispose of the rights of the parties (Licul v Corney (1976) 180 CLR 213 at 225). In applying that test, regard must be had to the “legal rather than the practical effect of the judgment” (Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246 at 248).
The subject order in this instance, being an order which determines liability for costs in relation to only a tangential interlocutory dispute, does not determine the final rights of the parties in respect of the underlying causes of action or their overall liability for costs with respect thereto. It is an interlocutory order and leave to appeal is required.
The test to be applied in applications for leave to appeal is whether, in all of the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered by the appellate court and whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Medlow & Medlow (2016) FLC 93-692 at [57].
Because the merits of any proposed appeal are relevant to the success of the appeal, we will address the proposed grounds of appeal before returning to the question of leave to appeal. We will also deal with the Application in an Appeal filed by the respondent.
APPLICATION IN AN APPEAL
On 1 March 2024, the respondent filed an Application in an Appeal seeking summary dismissal of the Application to Appeal filed 1 December 2023. The Application in an Appeal was founded on the applicant’s breach of orders and rules, and her flagrant disregard of the overarching principles for proper conduct of litigation. The Application in an Appeal was resisted by the applicant.
Because the merits of the proposed appeal are also relevant to an application for summary dismissal, at the commencement of the hearing the court advised counsel for the respondent that we would first deal with the proposed grounds of appeal. We will return below to the summary dismissal application.
THE APPEAL
We now turn to the grounds of appeal referred to in the Amended Notice of Appeal filed 28 February 2024.
Ground 8 and Ground 5
Ground 5 contends for apprehended bias and Ground 8 complains of a denial of procedural fairness. Prior to considering Ground 8, we comment on the relief sought at Part F of the Amended Notice of Appeal. Paragraph 3 states:
In the event that the final ground of appeal is made out, declare a mistrial and order that the proceedings be remitted to another judge for hearing and determination.
The relief of a declaration of a mistrial and an order for a remittal of the substantive proceedings is entirely misconceived and cannot possibly be a competent remedial order arising from a claim of apprehended bias vitiating a costs order. The Full Court cannot now make an original decision about whether the primary judge should be disqualified from hearing and determining the original proceeding. Any such application would have to be made to, and decided by, the primary judge. We therefore will consider this ground as an appeal solely against the costs order.
We will address the issue of bias and denial of procedural fairness, then each of the subsequent grounds of appeal. This is because a finding of either apprehended or real bias must result in a retrial, irrespective of the outcome of the findings on other issues. In Concrete Pty Ltd v Paramatta Design and Developments Pty Ltd (2006) 229 CLR 577, Kirby and Crennan JJ said at [117]:
… An intermediate appellate court dealing with allegations of apprehended bias, coupled with other discrete grounds of appeal must deal with the issue of bias first. It must do this because, logically, it comes first. Actual or apprehended bias strike at the validity and acceptability of the trial and its outcome. It is for that reason that such questions should be dealt with before other, substantive, issues are decided. It should put the party making such an allegation to an election on the basis that if the allegation of apprehended bias is made out, a retrial will be ordered irrespective of possible findings on other issues. …
We first turn to apprehended bias.
The relevant test to be applied to determine apprehended bias is set out in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”), where the plurality of the High Court of Australia (“the High Court”) said at [6]:
… a judge is disqualified if 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. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
(Footnotes omitted)
The application of the apprehension of bias principle involves a two-step analysis. First, the identification of what is said might lead a decision maker to decide a case other than on its legal and factual merits, and second, the articulation of a logical connection between the matter and the feared departure from the judge deciding the case on its merits (Ebner at [8]). Per Ebner, once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.
In Webb v The Queen (1994) 181 CLR 41 at 74 (“Webb”) Deane J identified “at least four distinct, though sometimes overlapping, main categories”, which include disqualification by interest, whether pecuniary or otherwise, conduct, association, or extraneous information.
Surprisingly, neither the applicant’s Summary of Argument, nor the oral submissions of senior counsel specifically identified the first step in the required analysis, nor the logical connection between the matter and the feared departure from the judge deciding the case on its merits (Ebner at [8]), or any factors or considerations relevant to the assessment of the reasonableness of the asserted apprehension of bias. Rather, to a significant degree the submissions focused on past events, findings which the applicant seeks in the substantive proceedings, and the applicant’s obvious dissatisfaction with the unfavourable costs determination.
Notwithstanding the deficiencies in the applicant’s submissions, it would seem the relevant categories of disqualification relied upon in the first step of analysis of apprehended bias (although not specifically identified as such) were the conduct of the primary judge both prior to 15 September 2023 and during the hearing of the costs application on 15 September 2023 in addition to comments in the reasons for judgment. Senior counsel for the applicant also submitted the quantum of costs was indicative of apprehended bias on the part of the primary judge.
The applicant’s complaints about the conduct of the primary judge and her alleged lack of impartiality prior to the actual costs hearing were varied and numerous.
First, the “differential treatment” of the parties, including the primary judge repeatedly accepting documents filed late by the respondent, and directing the unrepresented applicant to confer with the respondent’s solicitor and senior counsel who had extensively cross-examined her, and failing to advise the applicant, when unrepresented, that she had a right to object to receiving the Outline of Case dated 28 February 2023.
Secondly, prior to the scheduled resumption of the trial on 7 August 2023, the primary judge permitted the respondent’s solicitor to withdraw without requiring any explanation, when the applicant asserts there was compelling evidence from disclosed documents demonstrating serious misconduct by the solicitor.
Thirdly, comments of the primary judge at the hearing on 7 August 2023 that she was “deeply, deeply troubled” by the late filing of the applicant’s application, when her Honour should have been more concerned about the conduct of the respondent’s solicitor and her failure to withdraw as solicitor on the record. The primary judge’s asserted confrontational attitude at that hearing, including questioning the applicant’s counsel about people sitting in the gallery of the court was also relevant, as was her “heavy criticism” of the applicant filing a further affidavit on 31 July 2023, which was supposedly necessary and arose from a box of documents produced mid-trial during re-examination of the applicant.
Fourthly, aspects of the reasons for judgment of the primary judge delivered on 3 November 2023, which we discuss below.
As to the second step and the reasonableness of the asserted apprehension of bias, the following propositions can be gleaned from the authorities. The inquiry is objective (Johnson v Johnson (2000) 201 CLR 488 at [12] (“Johnson”)), does not require a conclusion about the judge’s actual state of mind (QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419 at [68]) and all circumstances must be considered (Re JRL; Ex parte CJL (1986) 161 CLR 342 at 371. See also CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at [20] (“CNY17”)). The criterion is concerned with “possibility (real and not remote), not probability” (Ebner at [7]), the apprehension is from the perspective of a fair-minded observer, meaning “it is the court’s view of the public’s view, not the court’s own view” that is determinative (Webb at 52), and the qualities and attributes of the fair-minded observer must be taken into consideration.
In Johnson at [13] and [53] the plurality of the High Court stated these qualities and attributes include an observer who is neither complacent nor unduly sensitive or suspicious, who is also taken to be reasonable, is all too aware of the reality that the judge is human, is not conceived of as a lawyer but a member of the public served by the courts and is not to be assumed to have a detailed knowledge of the law, or the character or ability of a particular judge.
As we have remarked, there were no submissions about the logical connection between the alleged conduct of the primary judge prior to the costs hearing and the objective apprehension the primary judge might not determine the costs application on its merits or the reasonableness of the asserted apprehension of bias. The logical connection is not apparent to us, and we are unable to conclude the conduct of the primary judge prior to the costs hearing could amount to apprehended bias.
As to the conduct of the primary judge during the hearing of the costs application on 15 September 2023, the applicant categorises the complained of conduct as both apprehended bias and a denial of procedural fairness.
The applicant is critical of her Honour rejecting the applicant’s Outline of Case, restricting the oral submissions to 20 minutes and failing to receive further evidence, namely an affidavit of the applicant filed 14 September 2023. We will deal with each allegation.
An examination of the transcript demonstrates the applicant’s Outline of Case was electronically filed on the morning of the hearing at 11.38 am, shortly before the primary judge commenced court.[1] Counsel for the respondent opposed the applicant’s reliance on the Outline of Case. After a discussion between the primary judge and senior counsel for the applicant about the late filing of the Outline of Case, including that there were no orders requiring the filing of such a document, senior counsel for the applicant told the primary judge he could say everything in the outline orally.[2] The primary judge responded that she would not receive the Outline of Case and senior counsel could make submissions orally.[3] Sometime later, senior counsel for the applicant resisted oral submissions.[4] Thereafter, the primary judge said:[5]
HER HONOUR: Well, [senior counsel for the applicant], if I take out that submission and I accept notionally for the moment that I will be assisted by the written submission, then, to be fair, the other side need a chance to consider it and take instructions, and what flows from that then is that I adjourn the matter with costs today.
[1] Transcript 15 September 2023, p.2 lines 24–26.
[2] Transcript 15 September 2023, p.7 lines 6–7.
[3] Transcript 15 September 2023, p.7 lines 13–17.
[4] Transcript 15 September 2023, p.9 line 45 to p.10 line 5.
[5] Transcript 15 September 2023, p.10 lines 7–10.
The following exchange occurred between the primary judge and senior counsel for the applicant:[6]
HER HONOUR: [Senior counsel for the applicant], if you want me to have the outline, what I propose to do is adjourn today’s hearing with costs.
[Senior counsel for the applicant]: Your Honour, I will read the outline orally, your Honour.
HER HONOUR: Well, we will not be finishing by 1 o’clock then.
[Senior counsel for the applicant]: I don’t press – I don’t press the - - -
HER HONOUR: And I’m not going to sit beyond 1 o’clock. You will each have – I will carve up time equally between you, but you will each have the same amount of time to make your submissions.
[6] Transcript 15 September 2023, p.10 line 38 to p.11 line 3.
After the primary judge stated she would allocate the remaining time equally between counsel for the parties, and following the submissions of the respondent’s counsel, senior counsel for the applicant proceeded with his oral submissions.
It is apparent from the transcript the primary judge provided senior counsel for the applicant the option of adjourning the costs application to enable consideration of the late filed Outline of Case, and the respondent an opportunity to also file an Outline of Case, which was declined by the applicant’s senior counsel. After some discussion, senior counsel for the applicant elected to read out to the court the written submissions.
As to the assertion the primary judge improperly limited the time for submissions, the transcript demonstrates that submissions commenced at 12.20 pm, almost 50 minutes after court began.[7] The majority of that time was taken up by senior counsel for the applicant. Thereafter, the primary judge equally divided the remaining time between both counsel in circumstances where they were both aware the court would rise at 1.00 pm, as had been expressed by the primary judge at the procedural hearing on 6 September 2023. We are not persuaded that this was insufficient time to efficiently put the arguments relevant to the costs application.
[7] Transcript 15 September 2023, p.14 line 20.
Under Ground 5, the applicant asserts justification for the late filing of the applicant’s affidavit (by 2 hours and 26 minutes), which arose because of the lengthy response required to adequately address the respondent’s affidavit. Although the primary judge responded to counsel for the respondent’s submission about the late filing of the affidavit,[8] there was no suggestion she should disregard the affidavit, other than the expert report which was annexed.
[8] Transcript 15 September 2023, p.5 lines 28–29.
The following exchange occurred between the primary judge and counsel for the respondent:[9]
[9] Transcript 15 September 2023, p.5 line 27 to p.6 line 20.
HER HONOUR: Well, there’s a number of things that might occur. At the moment you’re only objecting to the outline. You have made the point about the affidavit being filed well outside the timeframe. Is there an objection to that? I assume you have made that point for more than one reason.
[Counsel for the respondent]: Yes. Yes, your Honour. We object to your – the affidavit consists of 20 pages of – what I – of submission, I suppose, of – of explanation for the – ill-fated application, plus a 200-page valuation from AS Company. We ask you to disregard the valuation. There was no permission under the Rules to file an expert’s report, and it is filed for a highly contested purpose.
HER HONOUR: Is it just the annexure to the affidavit that you object to, or is it the entire document? I’m a little unclear.
[Counsel for the respondent]: Well, I object – I think what I can do, your honour, is I think the points that are made in the affidavit will undoubtedly be made in oral submissions, so to that extent, I’m happy to take your Honour to certain paragraphs in that affidavit in order to expedite the time. But I’m not in a position to respond in detail offhand, and I don’t know that – I don’t know that it will be necessary. So to some extent, we’re happy to take your Honour – we’re happy for your Honour to look at that affidavit.
HER HONOUR: Is the point you’re making – so to the extent that the affidavit – leaving aside the annexure to which the specific objection is taken, but to the extent that the affidavit contains submissions, they should be given little weight in the form of evidence from [the applicant]. They are – should be treated as submissions.
[Counsel for the respondent]: Yes.
HER HONOUR: Which will ultimately be made by [senior counsel for the applicant].
[Counsel for the respondent]: That’s right, your Honour.
HER HONOUR: That’s – is that the effect of what you’re telling me?
[Counsel for the respondent]: Yes. And also we – and tied up with that is a submission we will make that this is a lawyer’s affidavit and doesn’t – and can’t be taken to represent the genuine thought process of a lay litigant.
HER HONOUR: All right. So there’s a specific objection to the annexure.
[Counsel for the respondent]: Yes.
The applicant has failed to articulate any prejudice incurred by not being permitted to rely on the Outline of Case, nor particularised any submissions her senior counsel was unable to make orally. It was a matter for the applicant’s senior counsel how he utilised the allocated hearing time.
On 15 September 2023, the primary judge delivered ex tempore reasons for her decision not to accept the Outline of Case, and not to sit beyond 1.00 pm that day (Garwood & Shipton(No 6)). The applicant’s allegation of bias and failure to accord procedural fairness could, and should, have been raised by the applicant’s senior counsel during the costs hearing, or shortly thereafter, rather than adopting a “wait and see” approach. The primary judge did not deny the applicant procedural fairness, nor can her conduct possibly be regarded as demonstrative of apprehended bias.
Counsel for the respondent submitted the applicant had waived her right to assert apprehended bias on the part of the primary judge, because none of her complaints had previously been raised in a timely manner.
The appropriate time to raise objections of bias is at the hearing itself, at the time of the impugned conduct of the judge: Vakauta v Kelly (1989) 167 CLR 568 (“Vakauta”) at 572-574.
In Vakauta, Brennan, Deane and Gaudron JJ said at 572:
Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to standby until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrain from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it is likely that the judgment would be allowed to stand only if proved to be unfavourable to him or her.
Counsel for the respondent submitted the application for disqualification of the primary judge should have been made promptly after the hearing on 15 September 2023, or at the very least, prior to delivery of reasons. It was not permissible for the applicant to adopt a “wait and see” approach and defer the disqualification application until she received an unfavourable result, particularly because she has failed to explain the delay. There is no “revival” of allegedly biased conduct in the decision itself, which might find a fresh argument of bias, as occurred in Vakauta, and the applicant must be taken to have waived her right to object.
As can be seen from the background of the dispute, prior to the trial commencing, the primary judge listed the matter to advise both parties of her concerns that she may have previously acted for the former partner of the respondent. Her Honour then provided the parties an opportunity to make relevant enquiries, prior to listing the matter for further mention the next day. No application for disqualification was made by either party at that time.
In any event, we do not accept the disclosures of the primary judge would cause the applicant any concerns regarding lack of impartiality. Rather, it is the respondent who would be entitled to assert apprehended bias on the part of the primary judge, and he elected not to do so. We reject the submission of senior counsel for the applicant that the primary judge, if she had acted for the respondent’s former partner, might have formed some sort of relationship with her and the alleged risk of conscious or unconscious bias against the applicant or compensatory bias against the respondent, particularly because it was subsequently established the primary judge had not acted for the respondent’s former partner. That submission is contrary to the applicant’s position at the hearing on 1 September 2022, which is referred to in the respondent’s affidavit of 28 August 2023 [16]–[18], including extracts of the transcript. The transcript clearly demonstrates the applicant’s then senior counsel accepted the issue of the primary judge’s disqualification was a decision for the respondent, and the applicant took no issue with the respondent’s decision.
The first tranche of the trial commenced before the primary judge on 5 September 2022 for 13 hearing days and thereafter was listed for multiple interlocutory and procedural hearings, prior to the costs hearing on 15 September 2023. Apart from a brief period in February 2023 when she was self-represented, the applicant had multiple occasions while represented, including by senior counsel, to raise complaints of apprehended bias on the part of the primary judge and failed to do so. Similarly, at the costs hearing on 15 September 2023, when represented by senior counsel, she also had an opportunity to raise her asserted perception of the primary judge’s lack of impartiality prior to, and during the hearing, and again failed to do so. She did not provide any explanation for her failure to do so at any of the hearings or explain the delay in eventually seeking the disqualification of the primary judge in August 2023, nearly a year after the trial commenced. Nor did she explain why she now asserts apprehended bias on the part of the primary judge, when she withdrew her disqualification application on 31 August 2023.
As to a revival of the biased conduct in the reasons, senior counsel for the applicant did not identify anything about the reasons which, in the context of earlier actions or comments of the primary judge “have the effect of conveying an appearance of impermissible bias in the actual decision to a reasonable and intelligent lay observer” as per Brennan, Deane and Gaudron JJ in Vakauta at 573.
As a result of her own inaction and failure to explain her delay, the applicant has waived her right to raise apprehended bias on the part of the primary judge, arising from her Honour’s conduct prior to and during the costs hearing.
Even if we had not concluded the applicant has waived her right to assert apprehended bias, we are not persuaded that a fair-minded lay observer might consider the events between February 2022 and August 2023, the conduct of the primary judge prior to the costs hearing, or her Honour’s conduct during the costs hearing, either individually or cumulatively, might demonstrate apprehended bias on the part of the primary judge. That is particularly so, bearing in mind the attributes and circumstances of the reasonable observer, which include that “the observer is taken to be reasonable” (Johnson at [12]), and the person being observed is a “professional judge whose training, tradition and oath or affirmation require [the judge] to disregard the irrelevant, the immaterial and the prejudicial”; Vakauta at 584-585 per Toohey J.
We now turn to the submissions relevant to the reasons for judgment.
Senior counsel for the applicant submitted the reasons for judgment may be reviewed as part of a retrospective inquiry to ascertain apprehended bias, although there was no identification of what part of the reasons were objectionable. Rather, he asserted the failure of the primary judge to refer in her reasons to the respondent’s knowledge, as of 1 August 2022, that her Honour had not acted for the respondent’s former partner and had failed to convey that information to the applicant, demonstrated apprehended bias. According to the applicant’s senior counsel, had the respondent acted properly and advised the applicant, she would not have made the disqualification application.
Senior counsel relied on the following three authorities to support his submission that reasons for judgment are relevant to an enquiry to ascertain apprehended bias.
As discussed above, in Vakauta the High Court per Brennan, Deane and Gaudron JJ at 573 referred to the concept of revival of biased conduct in reasons for judgment.
In NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 (“NADH”) Allsop CJ said at [117] and [120]:
117.The apprehension of this possibility of apprehended bias would be strengthened by certain other aspects of the conduct of the hearing and the balance of the reasoning process.
…
120.… Standing alone they may well be viewed as matters within the fact-finding role and within jurisdiction. However, here, in circumstances where two central aspects of the performance of the task of the tribunal are so startling and open to question as to raise an apprehension of the kind to which I have referred, these latter strong, brief and in some respects unreasoned conclusions do nothing to counteract, indeed they tend to strengthen, the apprehension.
In CNY17 at [135] Edelman J said:
Apprehended bias must be assessed by reference to all the circumstances existing at the relevant time of enquiry. If apprehended bias is assessed at the conclusion of the hearing, as the appeal in this case requires, then the reasons for decision might reveal matters relevant to the consideration of whether a reasonable apprehension exists. It would be absurd if, on the one hand, remarks made by the decision maker during the course of the hearing could be considered as part of an assessment of the presence of reasonable apprehension of bias but, on the other hand, remarks at the conclusion of the proceeding could not. However, remarks at the conclusion of a proceeding or in reasons for decision are only one of the circumstances to take into account. In Michael Wilson &Partners Ltd v Nicholls, a joint judgment of four members of this Court cautioned against the error of assuming a reasonable apprehension of a decision maker’s bias and using comments in the reasons for judgment by the decision maker to “confirm, enhance or diminish the existence of a reasonable apprehension of bias”.
(Footnotes omitted)
In CNY17 the statement of Edelman J regarding “remarks at the conclusion of the proceeding”, refers to remarks of a judge at a subsequent court event, “where… the judge in question later explains in court what he or she intended to convey by an earlier statement in court” and not remarks in subsequently published reasons for judgment; see British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 at [83].
Notwithstanding the authorities relied upon by applicant’s senior counsel, there is a clear divergence of judicial opinion about whether apprehended bias can be gleaned from reasons for judgment and authoritative remarks that it cannot.
In Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427, the High Court, per Gummow ACJ, Hayne, Crennan and Bell JJ said at [67]:
As pointed out earlier in these reasons, an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been "the crystallisation of that apprehension in a demonstration of actual prejudgment" impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side's arguments or otherwise, demonstrates prejudgment.
(Footnote omitted)
In Feldman v Nationwide News Pty Ltd (2020) 103 NSWLR 307 the New South Wales Court of Appeal, Bell JA (with whom Macfarlan JA and Payne JA agreed) said at [41] and [45]:
41. It seems that these two matters were advanced by the applicant as some evidence of the fact that there was actual bias. This argument is fundamentally misconceived. If the matters are advanced in support of an allegation of “apprehended bias”, the possibility that a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the relevant question is not to be assessed with the benefit of hindsight, but at the time of the event or events said to give rise to that possibility in the first place. See, for example Ebner at [7]–[9] and [33].
…
45.As already noted, the attack on the primary judge’s refusal to recuse himself apprehended bias must be assessed by reference to the arguments made at the time of the application for recusal. …
It is not necessary to resolve the judicial controversy, as even if we accepted reasons for judgment played a part in the apprehended bias enquiry, for the following reasons such an enquiry would not assist the applicant in this case.
At [25] of the reasons, the primary judge refers to the applicant’s concerns argued in the withdrawn disqualification application. At [26] her Honour identifies that the respondent filed two affidavits in response to the disqualification application, on 28 August 2023 and 31 August 2023. At [27] her Honour refers to the respondent’s statements in his affidavit filed 31 August 2023, that he had made enquiries with his former wife’s solicitors on 25 August 2023 (with permission from his former wife) and he received a response via a letter dated 31 August 2023, to the effect that the primary judge had no involvement with his former wife. At [28] the primary judge notes an affidavit filed by the applicant on 4 September 2023, referring to the applicant’s solicitors having received a letter from the respondent’s solicitors on 31 August 2023 informing them of the response from the respondent’s former wife’s solicitors, whereupon the applicant advised she no longer pressed the disqualification application. At [29] the primary judge expressed her surprise that between 31 August 2023 and 6 September 2023, neither party advised the court the disqualification application would not be pressed.
Senior counsel for the applicant relied on the respondent’s statement in his affidavit of 28 August 2023 at [3] where he deposed to events on 31 August 2022 and at [10] deposed to having telephoned his former wife that evening, who told him the primary judge had not acted on her behalf. The applicants senior counsel submitted the failure to refer to a critical matter in the reasons for judgment demonstrated apprehended bias on the part of the primary judge.
As we have noted above, as of 1 September 2022, the applicant’s then senior counsel accepted it was the respondent’s prerogative to seek disqualification of the primary judge, and effectively waived any bias objection. According to counsel for the respondent, and we agree, in this context the respondent had no legal obligation to advise the applicant of the conversation with his former wife, as the respondent had waived any potential objection to the primary judge and the issue had been resolved at the hearing on 1 September 2022. The applicant’s senior counsel in the appeal conceded that submission was “possibly right”. Furthermore, if the applicant had any residual concerns, she did not make any further enquiries of the solicitors acting on behalf of the respondent’s former wife, nor provide any explanation why not. Rather, she waited until 13 August 2023, some eleven months later, to make an application for disqualification of the primary judge founded on past events, which was when the respondent became aware the issue of apprehended bias was once again a ‘live’ issue.
In any event, the omission of the primary judge was not material to the outcome of the costs determination and was irrelevant to the merits of the costs application. A trial judge’s reasons are not required to mention every fact or argument relied upon by the losing party as relevant to an issue: see Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62] per Gleeson CJ, McHugh and Gummow JJ.
Even if the primary judged erred in omitting reference to the date the applicant or the respondent knew the primary judge had not acted for the respondent’s former wife in her reasons, senior counsel for the wife was unable to explain why a factual error established apprehended bias on the part of the primary judge. There were no submissions pertaining to the requisite two step enquiry as outlined in Ebner. There were also no submissions how the asserted omission of critical facts by the primary judge could be considered a revival of biased conduct.
Senior counsel for the applicant submitted the quantum of costs ordered of $25,000 was excessive, tantamount to indemnity costs, egregious and indicative of apprehended bias.
An examination of the reasons demonstrates the primary judge embarked on a careful and detailed consideration of whether a costs order was appropriate and if so, the quantum thereof.
At [32] of the reasons, the primary judge referred to the calculation of the respondent’s claimed costs, and at [35] and [36] referred to r 12.17(1) and r 12.17(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) which provides a method of calculation of costs and matters which may be considered in the calculation of costs. At [57], [58] and [59], her Honour considered the circumstances which might justify indemnity costs, at [60] had regard to the various bases of the calculation of the respondent’s costs, and at [62] commented the respondent’s incurred costs were significant, prior to concluding [63] indemnity costs were not warranted.
At [64] the primary judge considered “the significance of the application in the broader context of the litigation and the part heard final hearing” and the likelihood of “some significant overlap in the counsel fees incurred” in the application before her and the substantive proceedings.
The amount fixed by the primary judge was less than half of the costs claimed by the respondent and should be considered in the context of the astronomical costs incurred by the parties in the substantive litigation. The letter dated 6 February 2024 from the applicant’s solicitor to the applicant, which was forwarded to the court on the eve of the appeal hearing, demonstrates her costs to date in the substantive proceedings to be significantly more than $2 million. Her costs incurred in the appeal proceedings are $82,787 although expressed to “be recovered only in the event of a successful costs application and to the extent of the order for costs”. It is untenable to suggest the primary judge did anything other than correctly apply established principles in reaching her decision to fix costs. The quantum arrived at after considered deliberation was entirely appropriate and not egregious, disproportionate nor indicative of apprehended bias.
For the foregoing reasons, we do not accept the conduct of the primary judge at the identified times, the reasons for judgment nor the quantum of costs fixed demonstrates apprehended bias on the part of the primary judge, nor did her Honour’s conduct during the costs hearing constitute a denial of procedural fairness to the applicant.
Grounds 8 and 5 must fail.
Ground 1, 2 and 3
We will deal with these grounds together, as the applicant’s complaints under each ground are the same. The generic complaints about the primary judge ignoring evidence and failing to take the applicant’s submissions into account are not genuine grounds of appeal complaining of either legal or discretionary error.
These complaints relate to the conduct of the primary judge during the costs hearing on 15 September 2023 and her failure to find and consider, that in bringing the apprehended bias application the applicant relied on statements of the primary judge on 31 August and 1 September 2022.
Firstly, the applicant asserts the primary judge ignored the further evidence of the applicant, although there is no identification or particularisation of which evidence the trial judge ignored.
It is evident from the reasons the applicant relied upon, that the primary judge took into account, an affidavit filed 4 September 2023 [28] and an affidavit filed 14 September 2023 [40], which was filed pursuant to procedural orders made on 6 September 2023 [18] and [30].
As referred to above, during the costs hearing, counsel for the respondent objected to an annexure to the applicant’s affidavit of 14 September 2023, and otherwise the affidavit was admitted into evidence. There was no objection from the applicant’s senior counsel. The primary judge did not ignore the applicant’s evidence.
Secondly, the applicant complains the primary judge ignored the related submissions of the applicant’s counsel, although there is no identification or particularisation of which submissions. As referred to above, the primary judge did not ignore the submissions of the applicant’s senior counsel. Rather, she refused to accept the late filed Outline of Case and heard the oral submissions of senior counsel.
Thirdly, the applicant complains the primary judge failed to find the applicant properly relied on her statements in court on 31 August 2022 and 1 September 2022. The particulars in grounds 1.3, 2.3 and 3.3-3.6 seek to justify why it was reasonable for the applicant to bring an apprehended bias application and to attempt to argue the merits of the application, which was filed eleven months after the statements in court, and which the applicant voluntarily withdrew on 31 August 2023. The submissions of the applicant’s senior counsel at the relevant times in 2022 are dealt with above, in particular the applicant’s acceptance that it was for respondent to seek disqualification of the primary judge, if he so sought and not the applicant. The applicant’s complaints about the respondent’s failure to disclose to her the conversation with his former wife in August 2022, are also dealt with above.
There is no merit in these grounds, and they must fail.
Ground 4
The trial judge erred as a matter of law and principal in failing to record any or any proper weight to, and applying, the usual rule in s 117(1) of the Family Law Act 1975 (Cth): that each party should bear their own costs.
Under this ground, the applicant seeks to challenge the primary judge’s attribution of weight to the s 117(1) of the Act presumption.
In relation to appeals which allege that a primary judge exercising discretion failed to give appropriate weight to particular matters, in Gronow v Gronow (1979) 144 CLR 513 at 519–520, Stephen J said:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.
The primary judge was clearly aware of the presumption, because at [33] of the reasons, her Honour refers to s 117 of the Act governing costs applications. The applicant did not identify anywhere in the reasons where the primary judge failed to attribute weight to the presumption, or indeed accept the submission of the respondent’s counsel, that costs should follow the event. Senior counsel for the applicant did not identify in the relevant transcript where the primary judge failed to attribute weight to the presumption.
The applicant did not demonstrate nor attempt to address how the primary judge was plainly wrong; see CDJ v VAJ (1998) 197 CLR 172 at 230–231 per Kirby J.
There is no merit in this ground, and it must fail.
Ground 6
The learned trial judge erred in having regard to the timing of the disqualification application and the timing of when the disqualification application was withdrawn.
This complaint asserts a discretionary error by the primary judge because she took into account an irrelevant consideration, although it is incorrectly referred to as an error of law.
At [46] of the reasons, in the context of the conduct of the parties, the primary judge refers to both the timing of the disqualification application (on the evening before the part heard trial was to recommence), and the circumstances and timing of the applicant ultimately withdrawing the application.
Section 117(2A)(c) of the Act requires the court to consider the conduct of the parties in the proceedings, which her Honour correctly did. The timing of the application and the circumstances of the applicant withdrawing the application were but two of many factors the primary judge considered, prior to reaching her determination.
We refer to our discussion above pertaining to discretionary error and the difficulty of appellate challenge. Under this ground, there was no attempt to address how the primary judge was plainly wrong.
There is no merit in this ground.
Ground 7
The learned trial judge erred in fixing costs to be paid and in fixing the amount at $25,000.
The applicant contends the primary judge made an error of law by both fixing costs to be paid, and by fixing the amount at $25,000.
In our discussion of the applicant’s senior counsel’s submission that the quantum of costs ordered was so egregious as to demonstrate apprehended bias, we have addressed the reasons of the primary judge relevant to this complaint and her analysis of the quantum sought. We have also addressed the proportionality of the quantum of costs so ordered. The costs ordered to be paid are not egregious nor excessive, particularly in the context of the disproportionate solicitor/client costs of $82,787 (per the applicants Costs Notice dated 6 February 2024 and emailed to the Appeals Registry on 18 March 2024) notionally expended by the applicant in the appeal. We see no error on the part of the primary judge.
This ground is devoid of merit and must fail.
For these reasons, there is no merit in any of the proposed grounds of appeal.
CONCLUSION AND COSTS
As noted earlier, given the lack of merit of the appeal it is necessary to return to both the question of leave and the Application in an Appeal filed 1 March 2024.
For the reasons we have provided, we are not satisfied the applicant has established reasonable prospect of success or that the primary judge’s reasons are attended by sufficient doubt to warrant reconsideration by the Full Court.
The application for leave to appeal will be dismissed, and therefore it is not necessary to further consider the Application in an Appeal.
The applicant submitted if leave to appeal were granted, costs of $26,000 should be payable by the respondent. The respondent submitted if leave to appeal was dismissed, the applicant should pay the respondents costs of $16,000. Neither counsel sought to be heard against the costs submissions of the other.
Because the application was devoid of merit, we are persuaded that there are circumstances justifying an order for costs. We will therefore order the applicant pay the respondent’s costs of the appeal fixed at $16,000, such sum being fixed pursuant to the power reposing in r 12.17(1)(a) of the Rules.
I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Williams and Riethmuller. Associate:
Dated: 14 May 2024
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