Shipton & Garwood

Case [2024] FedCFamC1A 83

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…

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Shipton & Garwood [2024] FedCFamC1A 83
Case
[2024] FedCFamC1A 83
Decision Date

CaseChat Overview and Summary

In the case of Shipton v Garwood, the Federal Circuit and Family Court of Australia was asked to determine whether the applicant, Ms Shipton, should be granted leave to appeal the decision of the primary judge and whether the application in the appeal should be dismissed. The substantive dispute between the parties involved proceedings under Part VII of the Family Law Act 1975 (Cth) and a jurisdictional question concerning whether the parties were in a de facto relationship. The primary judge had previously indicated a potential need to recuse herself due to a possible conflict of interest, but no objections were raised by either party, and the trial proceeded.

The legal issues before the court included whether the applicant had established a reasonable prospect of success on appeal and whether the primary judge's reasons were sufficiently doubtful to warrant reconsideration. The applicant argued that the primary judge had exhibited apprehended bias, denied her procedural fairness, and made legal and discretionary errors in the judgment. The court considered the test outlined in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 to determine if there was a real possibility of bias. The court found that the applicant had waived her right to raise apprehended bias by not objecting to the primary judge's involvement at the initial mention hearing. Furthermore, the court concluded that the primary judge had not denied procedural fairness and found no error in her reasons.

Based on the court's reasoning, it dismissed the application for leave to appeal and the application in the appeal. The applicant was also ordered to pay the respondent's costs of the appeal, fixed at $16,000. This decision underscores the importance of timely objections to potential bias and the consequences of failing to raise such concerns promptly. The court's order highlights the necessity for parties to adhere to procedural requirements to preserve their rights to challenge the judge's impartiality and the judgment's validity.

Orders

Orders of the court

NAA 332 of 2023

ADC 4995 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

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).

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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