Spencer and Spencer (No 2)
[2020] FamCAFC 108
•5 May 2020
FAMILY COURT OF AUSTRALIA
| SPENCER & SPENCER (NO 2) | [2020] FamCAFC 108 |
| FAMILY LAW – APPEAL – RECUSAL APPLICATION – Where the mother was declared vexatious pursuant to s 102QB(2)(b) of the Family Law Act 1975 (Cth) – Where the mother was subsequently refused leave to initiate parenting proceedings pursuant to s 102QE – Where the mother appeals from that dismissal – Where the hearing before the Full Court of the Family Court of Australia took place on 8 May 2019 – Where the mother filed an Application in an Appeal on 12 May 2019 seeking the recusal of the three judges comprising the Full Court – Where the mother’s bases for recusal include receiving an amended costs schedule from the father’s counsel at hearing and certain comments made by the Full Court – Where the relevant test is well established by Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 and Johnson v Johnson (2000) 201 CLR 488 – Where the test is not satisfied – Where the three judges give individual reasons – Where the balance of the orders sought by the mother in her application depend upon the success of her recusal application – Where the mother’s application ought be dismissed. |
| Family Law Act 1975 (Cth) ss 102QB(2)(b), 102QE |
| Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Spencer & Spencer [2016] FamCAFC 212 |
| APPELLANT: | Ms Spencer |
| RESPONDENT: | Mr Spencer |
| FILE NUMBER: | PTW | 7180 | of | 2010 |
| APPEAL NUMBER: | WEA | 45 | of | 2018 |
| DATE DELIVERED: | 5 May 2020 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Aldridge, Kent (both appearing by video link from Melbourne) and Duncanson JJ |
| HEARING DATE: | 15 July 2019 30 October 2019 |
| LOWER COURT JURISDICTION: | Family Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 13 December 2018 |
| LOWER COURT MNC: | [2018] FCWA 249 |
REPRESENTATION
| THE APPELLANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Biddulph & Turley |
Orders
The appellant mother’s Application in an Appeal filed on 12 May 2019 be dismissed.
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 Spencer & Spencer (No 2) 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 PERTH |
Appeal Number: WEA 45 of 2018
File Number: PTW 7180 of 2010
| Ms Spencer |
Appellant
And
| Mr Spencer |
Respondent
REASONS FOR JUDGMENT
Aldridge J
On 12 May 2019, Ms Spencer (“the mother”) filed an Application in an Appeal seeking that the three judges who heard her appeal WEA 45 of 2018 on 8 May 2019, disqualify themselves. These are my reasons for refusing that application.
The relevant background is helpfully set out in the reasons of Kent J.
The mother seeks that I disqualify myself for the following reasons:
·The bench permitted counsel for Mr Spencer (“the father”) to hand up an amended costs schedule on which the mother was questioned, although she was not given a copy of it;
·When counsel for the father said that her silence on allegations made against her by the mother was not an admission of liability, I said that “we wouldn’t have taken it otherwise” (Transcript 8 May 2019, p.84 line 22); and
·The bench failed to do anything about the poor conduct of the father’s lawyers.
The question is whether a fair-minded lay observer might reasonably apprehend from these matters that I would not bring an impartial mind to bear on the resolution of the appeal.
As to the first point, I adopt, as if they were my reasons, those of Kent J
at [27]–[35]. As those reasons make clear, the mother had a copy of the document which was to be replaced by the amended copy of the costs schedule that had been handed up by counsel for the father. The amendments were trivial, were explained to the mother and did not change the amount of costs claimed by the father. I do not see any unfairness in that process and I am unable to see how this could lead to an apprehension that the appeal would not be decided impartially.
As to the second point, the relevant exchange was as follows:
[MS GILES]: Your Honour, may I just raise one matter, and I don’t wish to detain you, but many, many allegations have been made against me and my instructors this morning, which are very familiar to me and my instructor. Could I just indicate that my failure not to deny those allegations should not be taken as any kind of acceptance of them?
ALDRIDGE J: We wouldn’t have taken it otherwise, Ms Giles.
[MS GILES]: Thank you, your Honour.
(Transcript 8 May 2019, p.84 lines 15–25)
All that occurred in that passage was that I accepted the proposition from counsel for the father that mere silence in the face of allegations did not amount to an acceptance of them. That is, not to express a view about the merits of the allegations themselves but to acknowledge that obvious proposition.
The appellant submitted :
[MS SPENCER]: …One thing in particular that I do recall with clarity that raised the perception of bias against your Honours and, in particular, Aldridge J was that when Ms Giles claimed that her silence, in effect, didn’t amount to her admitting any liability for their wrongdoing, your Honour said words to the effect that you wouldn’t – or the bench, I understand, was what you were referring, not just your Honour personally wouldn’t see it any other way. But, with respect, as the self-litigant and from an objective person’s point of view, I think they would concede that there was a perception of bias.
(Transcript 30 October 2019, p.5 line 43 to p.6 line 3)
The test is not satisfied by the assertion that the mother, as a self–represented litigant, has the perception of partiality or that she considers that an objective bystander would come to such a view. It is an objective test with the hypothetical bystander not being involved in the proceedings. Applying that test, I cannot see how the statement I made could lead to the perception that I would not determine the appeal on its merits.
Finally, the failure to accept or even enquire into the allegations made against the lawyers acting for the father during the course of the hearing of the appeal does not point to an acceptance or rejection of them. Indeed, having regard to the nature of them, it would not be proper to do so during the course of the hearing.
There is no basis for any fair minded lay observer to have any apprehension of partiality. I decline to disqualify myself.
As the balance of the orders sought by the mother in her application filed on 12 May 2019 depend upon the outcome of her disqualification application, that application should be dismissed.
Kent J
The litigation in this matter has a long and complex history spanning almost a decade since property and parenting proceedings were commenced in December 2010 and January 2011 respectively.
For present purposes, it is unnecessary to recount all of that history. It suffices to record the following events of central relevance.
On 28 August 2013, a trial judge in the Family Court of Western Australia made orders for, inter alia, the father to have parental responsibility for the parties’ only child and for the child to reside with the father. The mother’s application for an extension of time to appeal those orders was dismissed in July 2014, and the mother’s application for special leave to appeal was refused by the High Court of Australia in December 2014.
Further orders made by the trial judge between 21 January 2014 and December 2014 were the subject of some six appeals by the mother, all of which were dismissed by the Full Court on 3 November 2016 (Spencer & Spencer [2016] FamCAFC 212). One of those orders was the order made by the trial judge on 28 October 2014 declaring the mother a vexatious litigant pursuant to s 102QB(2)(b) of the Family Law Act 1975 (Cth) (“the Act”).
Since 2014, there have been at least 15 applications made by the mother seeking variations or reopening of parenting orders, which applications were unsuccessful, prior to the application which is the subject of this appeal.
On 13 December 2018, the primary judge dismissed the mother’s application for leave, pursuant to s 102QE of the Act to institute parenting proceedings.
The mother appeals that dismissal and, on 8 May 2019, a Full Court constituted by Aldridge and Duncanson JJ and I heard the appeal. At the conclusion of that hearing, judgment was reserved.
Subsequent Application in an Appeal filed on 12 May 2019
Some four days after the appeal hearing had been completed, namely on 12 May 2019, the mother filed an Application in an Appeal seeking various orders including an order that the proceedings on 8 May 2019 – the appeal hearing – be declared a “mistrial” on grounds asserting a lack of procedural fairness to the mother and “perceived bias” against her – which, from the mother’s arguments in support of her complaint, can be taken to be a complaint of apprehended bias on the part of each member of the Full Court. The balance of the orders sought by the mother in her application depend upon the members of this Court being persuaded that we ought disqualify ourselves.
Given that content within the mother’s application, it was necessary for the appeal proceedings to be relisted before the Full Court for the application that each member of the bench disqualify themselves to be dealt with. Given that each member of the Full Court is resident in a different state, it was necessary for the further hearing to occur by video/electronic means.
The appeal proceedings were again listed for this purpose on 15 July 2019.
However, at the hearing on 15 July 2019 the mother sought an adjournment, essentially so that she might consider her position and/or obtain legal advice. The essence of the mother’s stated position on 15 July 2019 and her stated need for an adjournment was that she had then recently discovered “evidence” allegedly concerning a 2014 complaint “against a psychologist” (involved in the parenting proceedings) and as against the mother herself. The mother contended that this further evidence was highly relevant to the integrity of the determination of the 2014 parenting orders. The mother ultimately contended before us on 15 July 2019, in summary, that she wished to have an opportunity to obtain legal advice as to whether her appeal should be withdrawn in order for the mother to instead pursue proceedings at trial level in light of the further evidence the mother sought to advance.
Thus, on 15 July 2019, there being no opposition from the father to an adjournment on this basis, the proceedings were adjourned on the condition that the mother inform the Court in writing, on or before 29 July 2019, as to whether she wished to discontinue her appeal or to proceed with her appeal from the 13 December 2018 orders and thus her application for the disqualification by the members of this Full Court. To that end, the mother was directed to file a Notice of Discontinuance of her appeal or, alternatively, provide a letter advising the Court of her intention, on or before 29 July 2019.
In the result, the mother gave notice that she wished to proceed with her application for disqualification. The proceedings were again listed for the purpose of that application being heard on 30 October 2019.
It is obviously necessary for each member of this Court to determine the application for disqualification individual to each member. These are my reasons for rejecting the application as it concerns me.
The mother’s complaint
One of the procedural orders made in appeals is to the effect that any party who intends to seek costs of the appeal must file and serve in advance of the sittings an itemised schedule of the costs sought. In this case, that order was made on 13 August 2018 and each party filed such a schedule on 30 April 2019.
The gravamen of the mother’s complaint in support of her application for disqualification is the contention that each member of this Court appeared to place trust and confidence in counsel for the father when, at the hearing of the appeal on 8 May 2019, counsel was advancing submissions concerning the father’s itemised schedule of costs as sought, in the event the appeal were to be dismissed.
The mother advanced references to numerous authorities directed to the proposition she advanced, in summary, as to a miscarriage of justice occasioned by counsel’s conduct where it can be said that by reason of such conduct an order is obtained contrary to justice. Authority for that proposition is unnecessary.
However, leaving aside that no order as to costs has yet been determined with respect to the appeal, which itself is yet to be determined by judgment, the mother’s complaint about counsel for the father’s conduct – seemingly a proposition she has agitated in several previous proceedings – must be placed in its proper context.
There is no issue that in advance of the appeal hearing on 8 May 2019 the mother had received the father’s itemised costs schedule which had been filed on 30 April 2019. Thus, the mother had the itemisation contained in that schedule of costs and knew the total claim so itemised amounted to $9,022.94. The mother thus had the opportunity to agitate, at the hearing on 8 May 2019, any complaints or challenges she wished to advance, save only in respect of one minor amendment now to be discussed.
In the course of submissions, counsel for the father noted that a minor error appeared with respect to the description of one item within the costs schedule. Thus, counsel was given leave to submit an amended costs schedule correcting that error. I set out as follows the Amended Itemised Schedule of Costs in full to demonstrate the minor nature of the amendment made with respect to one item on “09.05.2019” (emphasis as per original):
Amended Itemised Schedule of Costs For the Respondent, [Mr Spencer]
| WEA45/2018 ' | |||||||||||
| Date | Item | Description.. | Cost | ||||||||
| 28.12.2018 | 104 | Letter from FCWA | 19.64 | ||||||||
| 07.01.2019 | 104. | Email [Mr C] to Biddulph & Turley | 9.82 | ||||||||
| 104 | Notice of Appeal (6 pages) | 147.30 | |||||||||
| 104 | Letter Appellant to FCWA re Accepting Appeal | 9.82 | |||||||||
| 104 | Letter from FCWA to Appellant re Appeal and Procedure | 58.92 | |||||||||
| 103 | Email to client | 58.20 | |||||||||
| 08.01.2019 | 104 | Email from Appellant to Biddulph & Turley re Attendance Electronic Means | 9.82 | ||||||||
| 103 | Email re Attending Electronic Means | 24.10 | |||||||||
| 14.01.2019 | 104 | Email from [Mr C] to Biddulph & Turley enclosed cover letter to Appeals Registrar | 9.82 | ||||||||
| 22.01.2019 | 103 | To client | 58.20 | ||||||||
| 104 | Email from client | 39.28 | |||||||||
| 03.02.2019 | 104 | Email from [Mr C] to Biddulph & Turley | 9.82 | ||||||||
| 104 | Draft Appeal Book Index | 58.92 | |||||||||
| 104 | Letter from Appeals Registrar to Appellant | 9.82 | |||||||||
| 103 | Email to client | 58.20 | |||||||||
| 04.02.2019 | 104 | Email Appellant to Biddulph & Turley re appearance at hearing | 9.82 | ||||||||
| 103 | Email from Biddulph & Turley to Appellant | 24.10 | |||||||||
| 19.02.2019 | 108 | Attend Court re Regional Appeals Registrar | 246.33 | ||||||||
| 109 | Travel to and from Court | 119.76 | |||||||||
| 27.02.2019 | 104 | Email from Appeals Registrar to Appellant | 9.82 | ||||||||
| 07.03.2019 | 104 | Letter from FCWA to Appellant and Solicitors | 9.82 | ||||||||
| 103 | Email to client | 24.10 | |||||||||
| 15.03.2019 | 104 | Email from Appellant to FCWA | 39.28 | ||||||||
| 17.03.2019 | 104 | Email Appellant to FCWA re Amended 45/2018 Appeal Index | 39.28 | ||||||||
| 104 | Letter from Appellant to FCWA | 9.82 | |||||||||
| 104 | Amended Appeal Book Index | 39.28 | |||||||||
| 103 | Email to client | 58.20 | |||||||||
| 25.03.2019 | 104 | Email [Mr C] to Biddulph & Turley | 9.82 | ||||||||
| 01.04.2019 | 104 | Email and letter from FCWA to Appellant | 39.28 | ||||||||
| 02.04.2019 | 104 | Email Appellant to FCWA | 9.82 | ||||||||
| 04.04.2019 | 104 | Email Appellant to FCWA | 19.64 | ||||||||
| 104 | Draft Contentious Appeal Book Index | 19.64 | |||||||||
| 103 | Email to client . | 24.10 | |||||||||
| 05.04.2019 | 104 | Email Appellant to FCWA re requesting no WA Judge | 9.82 | ||||||||
| 09.04.2019 | 104 | Email [Mr C] to FCWA ' | 9.82 | ||||||||
| 104 | Email [Ms Spencer] to FCWA Appeals Registrar | 19.64 | |||||||||
| 18.04.2019 | 104 | Email [Mr C] to FCWA re Practice Directions | 19.64 | ||||||||
| 22.04.2019 | 104 | Email [Mr C] to FCWA re Fee Exemption and Amended Form 21s | 19.64 | ||||||||
| 104 | Email Appellant to Biddulph & Turley re service of List of Authorities, cover letters to Full Court re Contentious Appeal Book Index | 98.20 | |||||||||
| 23.04.2019 | 104 | Email Appellant to FCWA re Practice Directions and Appeal Summary | 9.82 | ||||||||
| 103 | Draft Email to Counsel | 58.20 | |||||||||
| 104 | Email from Counsel | 19.64 | |||||||||
| 103 | Draft Email to Counsel | 24.10 | |||||||||
| 103 | Draft Email to Appellant | 24.10 | |||||||||
| 104 | Email from [Mr C] to Biddulph & Turley re Tracking | 9.82 | |||||||||
| 108 | Telephone attendance [Mr C] and Appellant (30 minutes) | 123.16 | |||||||||
| 103 | Draft Email to [Mr C] | 24.10 | |||||||||
| 24.04.2019 | 108 | Read Appeal Books and Contentious Appeal Books - Volume 1 - 240 pages Volumes 1, 2 and 3 - 690 pages (5 hours) | 1,231.65 | ||||||||
| 26.04.2019 | 103 | Draft Email to Appellant re Service of Summary of Argument | 24.10 | ||||||||
| 109 | Telephone attendance in Family Court WA | 15.96 | |||||||||
| 108 | Attendance upon Counsel | 492.66 | |||||||||
| 28.04.2019 | 109 | Various emails to Counsel re preparation of Appeal, providing documents and responding to queries. In excess of but say two hours | 492.66 | ||||||||
| 29.04.2019 | 104 | Email from [Mr C] to FCWA re costs sought | 29.46 | ||||||||
| 108 | Preparation for Appeal Hearing including List of Authorities, Summary Argument and correspondence with Counsel | 492.66 | |||||||||
| 9.05.2019 | 108 | Anticipated attendance at appeal hearing 3 hours x ½ | 369.50 | ||||||||
| Counsel's Work $418 per hour | |||||||||||
| 201 | Perusing two appeal books and related documents and drafting outline of argument - 5 hours | 2,090.00 | |||||||||
| 202 | | 936.00 | |||||||||
| 203 | Appearance at Appeal on 8 May 2019 - one half times half a day | 1,045.00 | |||||||||
| TOTAL | $9,022.94 | ||||||||||
(As per the original)
Taken from the transcript of the appeal hearing, commencing with discussion with the mother about her costs schedule filed on 30 April 2019, there were a number of exchanges. For completeness, I set out the relevant part from the transcript concerning the submissions about costs (Transcript 8 May 2019, p.77 line 35 to p.83 line 42) of proceedings :
ALDRIDGE J: All right. Thank you. Now, the court’s going to [r]eserve its decision in this matter. It’s the court’s practice to take submissions on costs now, as you probably both know, to save everyone coming back, but we have to take them in the hypothetical, both where the appeal succeeds and fails. In the event the appeal succeeds, you seek costs in the amount set out in your schedule; is that right, [Ms Spencer]?
[MS SPENCER]: Yes, your Honour. There has been a slight alteration to them. It’s only an increase of about $50 on both of them.
ALDRIDGE J: All right. Well - - -
[MS SPENCER]: Paperwork. So - - -
ALDRIDGE J: - - - you want add 50 - - -
[MS SPENCER]: Effectively, it’s around $50.
ALDRIDGE J: So 950 would be the amount - - -
[MS SPENCER]: Yes.
ALDRIDGE J: - - - in total, thereabouts.
[MS SPENCER]: That was in round figures. It’s just - - -
ALDRIDGE J: Okay. All right. And you would say that’s because you were wholly successful on the appeal. All right. Thank you. We’ll come back to you shortly. Ms Giles, if the appeal is successful, do you oppose that order?
[MS GILES]: I do, your Honour, and the reason I oppose it in this particular case is because my client, due to the matters that have been discussed, was not present at the hearing before Her Honour Sutherland J. He chose not to be involved and has really come here before your Honours to defend Her Honour’s decision, but more as a friend of the court, rather than as a vigorous respondent opposing Sutherland Js decision. It was made without the benefit of the respondent’s submissions and you have heard the view of the respondent that he is of the view that it is correct, and there is no arguable error, but - - -
ALDRIDGE J: Well, this is if the appeal is successful. So obviously, we would have found an error.
[MS GILES]: Indeed. Indeed. I do, however, note, your Honour, the extraordinary amount of fees that have been spent on this matter by my client. I know the appeal is now not before you, but there are details there concerning the close to a million dollars spent on parenting and property proceedings by my client in legal fees.
ALDRIDGE J: All right. Now, if the appeal is unsuccessful?
[MS GILES]: If the appeal is unsuccessful – may I quickly take instructions? I’m instructed that we are seeking a contribution towards my client’s costs.
ALDRIDGE J: All right. Now, you’ve filed a costs schedule.
[MS GILES]: I did.
ALDRIDGE J: First of all, is that calculated on scale?
[MS GILES]: It is. However, I should advise your Honour that there is an error in it, which I only detected this morning. It refers to a conference regarding the Tenancy Act.
ALDRIDGE J: That’s the one on the third last – second last one.
[MS GILES]: Yes. I’ve had that corrected. So I have a correct version to - - -
ALDRIDGE J: All right.
[MS GILES]: - - - hand up, if your Honour wouldn’t mind receiving that, and I’ll arrange for [Ms Spencer] to have - - -
ALDRIDGE J: All right.
[MS GILES]: - - - a copy of the corrected version.
ALDRIDGE J: All right. Do you want to hand that up, please.
[MS GILES]: I apologise for the error, sir. Thank you.
ALDRIDGE J: So it’s the same summons. It’s just the details have been
- - -
[MS GILES]: That’s correct, sir.
ALDRIDGE J: All right. All right. And you seek that sum?
[MS GILES]: We do, sir.
ALDRIDGE J: And that’s on the basis that the appeal was entirely unsuccessful and your client has borne a very considerable costs burden in the proceeding so far.
[MS GILES]: That is correct, sir.
ALDRIDGE J: All right. Thank you. Now, [Ms Spencer], what do you say in response to that?
[MS SPENCER]: In response to that, as I’ve been trying to say to your Honours before, is that this costs schedule is not accurate. It doesn’t reflect - - -
ALDRIDGE J: All right. Well, in what way is it not accurate?
[MS SPENCER]: It doesn’t reflect the email streams and communications between the parties.
ALDRIDGE J: Well, this is simply a schedule of the costs they are claiming from you. There may be lots of other charging in relation to lots of other things that aren’t on the schedule. This is just the ones that they seek to have paid from you. So it may not be an exhaustive list of what the lawyers have done. This is simply a selection of what they are seeking from you in relation to this appeal. So the fact that there could be other things that might be referred to doesn’t make this erroneous, it seems to me, of itself.
[MS SPENCER]: Sorry, your Honour, but if, in the light of what they prepared for this appeal, this doesn’t go with the affidavits that they’ve tried to produce – so what they’ve tried to produce and wasn’t - - -
KENT J: Well, are you saying these items refer to emails that don’t exist, for example? Is that what you mean? In other words, they’ve included items that, in fact, don’t exist, or – see, if you look at it, it’s got item by item - - -
[MS SPENCER]: Yes. Okay.
KENT J: - - - dates, etcetera, and the dates might be wrong, etcetera - - -
[MS SPENCER]: Yes.
KENT J: - - - but are you challenging whether the emails were sent or received or perused or - - -
[MS SPENCER]: What I’m challenging is the fact that if you put this with the documents that they tried to put up to your Honours at the last minute, which weren’t accepted. We’ve been through that umpteen times today, I know, but - - -
KENT J: Please just answer my question.
DUNCANSON J: Can you give an example? I’m sorry.
[MS SPENCER]: Yes.
KENT J: Could you please just answer my question.
[MS SPENCER]: They’ve omitted - - -
KENT J: Are you saying there are items in here that don’t exist? In other words, there’s no basis for charging for an email on a particular date, because it doesn’t exist, or are you submitting there are a whole lot of other things that aren’t in here?
[MS SPENCER]: There’s things that aren’t in here.
KENT J: Well, that doesn’t matter, then, doesn’t it, because they’re not asking for costs in respect of those other things. They’re only asking for the items that are itemised. So you’ve only got a complaint if you say, “Well, hang on, I don’t think there was a latter of such and such, or an email of such and such”. Is that what you’re submitting or not?
DUNCANSON J: Can you give an example, [Ms Spencer]?
[MS SPENCER]: Yes. Perhaps that’s the easiest way.
DUNCANSON J: Just give one example from this schedule.
[MS SPENCER]: Okay. So what’s the best example? The best example I can think of is my summary of argument. Now, I know that’s not before you now. It’s been accepted, but to give you that example, every piece of correspondence where the respondent’s counsel were given or asked something about the summary of arguments was removed from the schedule. What was put in and what was put in in evidence in Ms Turley’s affidavit was documents that they had sent to me, including what gets listed on here for billing for their client, saying that they’ve requested documents I haven’t given when I have.
So what I’m saying is it’s – for instance, if this went for taxing, and I’ve never been there and the emails come up next to the things, you’d find that what they’ve billed their client for and what they’ve tried to put before the court, what they’ve given me to prepare for the court, are just not matching.
KENT J: So the short point is you would want the costs assessed. You wouldn’t agree to them being fixed in this amount.
[MS SPENCER]: Most definitely, if that’s what - - -
KENT J: Okay. No. We understand your position.
ALDRIDGE J: There aren’t a great deal of emails to you and they don’t seem to be costing very much. Are you suggesting that nonetheless you’d still want to go through the costs and expense of a taxation?
[MS SPENCER]: I’m not sure where it should go, your Honour. I honestly don’t know. All I know is that at this stage, the documents I’ve been given just before the hearing – so I haven’t had an opportunity to get any legal advice or anything – are trying to put falsehoods before the court. Now, they weren’t accepted by the court to look at today. We’ve been through that.
KENT J: Well, we can’t go through an assessment process in that kind of detail.
[MS SPENCER]: No. But - - -
KENT J: But the short point is – see, litigants in your position either have the opportunity to say, “Well, look, rather than going through the time, stress, inconvenience of an assessment of costs”, because it is time consuming and expensive, usually, in terms of at least emotional cost, time cost, “I’ll agree to a sum of money as put up by a schedule. Whether or not I think it’s perfect or not, I’ll agree to it, rather than go through the assessment process”, but you’d prefer to go through the assessment process, at risk that it might come out at more than these items, or less.
[MS SPENCER]: I’m not sure whether – because I’ve never been to the taxing. So I’m not - - -
KENT J: No. I understand your position, but you don’t want to agree to us fixing the sum for costs in the event that the appeal is dismissed. You’d rather us order that you all go off to an assessment.
[MS SPENCER]: I understand Ms Giles asked for a contribution anyway, but she didn’t specify - - -
KENT J: Yes. This amount.
[MS SPENCER]: Yes.
ALDRIDGE J: All right. So are you saying it would be appropriate for us if we thought appropriate to find a smaller amount, a lesser amount?
[MS SPENCER]: Well, yes. Obviously that’s my understanding of what Ms Giles’ - - -
KENT J: All right. We understand that.
[MS SPENCER]: - - - submission was, but obviously I don’t agree that I should be paying their costs - - -
KENT J: No. I get that.
[MS SPENCER]: - - - for what they’ve been doing.
KENT J: But do you want to nominate a figure or not? Because, I mean, we can only fix costs if we are satisfied it seems reasonable, irrespective of your position, or alternatively, if you’ve got a good basis for saying, “No. No. Don’t fix the sum. It should go to an assessment”. The amount, as Justice Aldridge has pointed out to you, in terms of that expense and looking at appeals, it’s not out of kilter, I’ve got to say, speaking for myself, in terms of an appeal of this nature, but I don’t know that we can help any further or suggest any further. Do you have a sum in mind? It’s on the basis if the appeal is dismissed.
[MS SPENCER]: Number 1, I don’t think the appeal should be dismissed.
KENT J: Yes. No. I get that.
[MS SPENCER]: Number 2, the respondent has been paid costs already for what he has done in this court. So - - -
KENT J: All right. Well - - -
[MS SPENCER]: Number 3, how you would fix it I don’t really know, but number 4, being the person that’s done predominantly all the work and come up with the figures I’ve done for how much it’s cost, that’s about how much I think the respondent’s counsel, in all honesty, with the deceitful stuff I was given, would be worth.
KENT J: Yes. Okay
(As per the original)
As is clear from the transcript, counsel for the father noted, on the morning of the hearing of the appeal, the minor error with respect to the description of one item within the schedule, which was remedied by the amendment. The substance of the minor correction about wording was made clear.
There was no other amendment and importantly no amendment of the total for any item or the overall total of costs sought by the father. In short, the amendment was minor and immaterial. Moreover, the mother was afforded every opportunity to address the question of whether, in the event the appeal were dismissed, there ought be any order as to costs and, if so, whether costs should be ordered in a fixed sum or be the subject of an assessment.
Resolution
The law concerning disqualification of a judge by reason of apprehended bias is well-settled: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Johnson v Johnson (2000) 201 CLR 488.
In my judgment, the mother does not identify anything at all in support of her application as would support any conclusion to the effect that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of her appeal. Insofar as it is directed to me, I dismiss the mother’s application for my disqualification. It follows that her application filed on 12 May 2019 ought be dismissed.
Application for review
At the hearing on 31 October 2019 the mother sought, notwithstanding her extant disqualification application directed to all three members of the Full Court, that the Court deal with an application for review of an Appeal Registrar’s decision filed on 27 August 2019. We declined to entertain that application pending the determination by each member of this Court of the application for disqualification. Obviously, that application will need to be dealt with if the currently constituted Full Court continues with the ultimate determination of the appeal.
Duncanson J
On 12 May 2019, the mother filed an Application in an Appeal in which she seeks the following orders:
1.Court to use inherent powers to effectively declare the proceedings on the 8th May 2019 as a mistrial on the grounds of a (a) a lack of procedural fairness against a self-litigant &/or (b) perceived bias.
2.The costs of the above to be paid for by the Respondent &/or his counsel.
3.The proceedings known as WEA 45 of 2018 to be re-heard with Appeal WEA 21 of 2018 & WEA 15 of 2019 in order to prevent the duplication of facts.
4.Court to direct the transference of the combined proceedings to an impartial coram – including the disqualification of any WA Justice from the Family Court of WA due to the involvement of the conduct of WA Counsel.
(As per the original)
The mother seeks that I, as a member of the Full Court, disqualify myself on the following grounds:
·I permitted the father’s counsel to hand up an amended costs schedule, of which the mother was not provided a copy, but upon which she was questioned, (Transcript 30 October 2019, p.4) and in doing so;
·I did not deal with the conduct of the father’s counsel whom the mother said did not address the Court in an honest manner (Transcript 30 October 2019, p.4).
I refer to the reasons of Kent J, which sets out the relevant background.
I adopt the reasons of Kent J at [27]–[35].
The mother had received a copy of the father’s costs schedule filed on 30 April 2019. She was not provided with a copy of the amended schedule handed up at the appeal hearing on 8 May 2019. The amendment was to correct a minor error in that it deleted the words “Tenants Act” and substituted the word “Counsel’s”. It did not alter the substance of the costs schedule and, in particular, the amount claimed by the father. The mother had an opportunity to address us in relation to the costs schedule and she did so. It was clear she did not agree with the content of the costs schedule (Transcript 8 May 2019, p.81) and she did not agree she should pay the father’s costs (Transcript 8 May 2019, p.83).
To found a recusal it must be established that a fair minded lay observer might apprehend that the Judge might not bring an impartial mind to the resolution of the question to be decided (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Johnson v Johnson (2000) 201 CLR 488).
In the circumstances as set out above, it is my view that a hypothetical observer would not apprehend that I would not bring an impartial mind to the resolution of the appeal. Accordingly, the application that I recuse myself will be dismissed. I agree with Aldridge and Kent JJ that it follows that the application filed on 12 May 2019 ought be dismissed.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Aldridge, Kent & Duncanson JJ) delivered on 5 May 2020.
Associate:
Date: 5 May 2020
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