Stephens & Stephens

[2010] FamCA 184

FAMILY COURT OF AUSTRALIA

STEPHENS & STEPHENS [2010] FamCA 184

FAMILY LAW - COURTS AND JUDGES – DISQUALIFICATION – WAIVER – application by the husband seeking disqualification of the judge on the ground of actual bias or alternatively apprehended bias – whether the husband has waived his right to object to the judge continuing to hear the matter on the ground of bias – where judgment was delivered in 2005 – where there were subsequent hearings before the trial judge and appeals to both the Full Court and the High Court – where no allegation of bias was raised until the matter came before the trial judge with respect to outstanding costs issues in April 2009 – application of the principles from Vakauta v Kelly (1989) 167 CLR 568 – right to object waived.

FAMILY LAW - COURTS AND JUDGES – DISQUALIFICATION – BIAS – whether the judge demonstrated actual bias – whether a fair-minded lay observer would reasonably apprehend the judge may not bring an impartial and unprejudiced mind to the resolution of the matter – where the husband submitted the 2005 reasons for judgment and the judge’s conduct and attitude towards the husband during subsequent hearings displayed bias – where the husband submitted the listing of the wife’s outstanding costs application for a directions hearing displayed bias – neither actual nor apprehended bias established – application dismissed.

Family Law Act 1975 (Cth)

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488
Re JRL; Ex parte CJL (1986) 161 CLR 342
Vakauta v Kelly (1989) 167 CLR 568
Smits and Another v Roach and Others (2006) 228 ALR 262
Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71
SCAA v Minister for Immigration and Indigenous Affairs [2002] FCA 688

APPLICANT: Mr Stephens

RESPONDENT: Ms Stephens

FILE NUMBER: MLF 2847 of 2002

DATE DELIVERED: 10 March 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 20 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms Macmillan

SOLICITOR FOR THE RESPONDENT: Kennedy Wisewoulds Solicitors

Orders

1. That the Application in a Case filed by the husband on 29 April 2009 be dismissed and removed from the active pending cases list.

IT IS NOTED that publication of this judgment under the pseudonym Stephens & Stephens is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: MLF 2847 of 2002

Mr Stephens

Applicant

And

Ms Stephens

Respondent

REASONS FOR JUDGMENT

Introduction

1. I have before me an Application in a Case filed by the husband on 29 April 2009 in which he seeks the following orders:

   “1.  That Justice Strickland disqualify himself from hearing or judging any proceeding in which [Mr Stephens] is a party (whether in his personal capacity or as trustee), on the ground of actual bias or reasonable apprehension of bias.

   2.    That Justice Strickland not sit in any such proceeding.

   3.    That the first-named respondent pay the applicant’s costs of and incidental to this application.”

2. The wife, in her Response to an Application in a Case filed on 13 May 2009, seeks that the husband’s application be dismissed and that the husband pay the wife’s costs of and associated with the application on an indemnity basis.

Brief Background

1. These are long running proceedings between the husband and the wife for property settlement. The parties’ four children and the trustees of the W Stephens Trust, the X Stephens Trust, the Y Stephens Trust and the Z Stephens Trust (collectively known as “the children’s trusts”) intervened in the proceedings.  

2. The wife commenced proceedings in this Court for property settlement in April 2002.

3. In August 2005 I heard the trial in this matter and reserved judgment.

4. On 30 November 2005 I delivered my reasons for judgment and made final orders. In summary, I set aside pursuant to s 106B of the Family Law Act 1975 (Cth) a number of instruments and dispositions made by the husband in 1998 and 2002, and I ordered that the husband pay to the wife the sum of $2,182,302.

5. On 14 December 2005 the husband filed a Notice of Appeal against orders 2, 3, 4, 6 and 7 of the orders of 30 November 2005. The trustees of the children’s trusts (Mr J and the husband) cross-appealed against order 3.

6. On 15 December 2005 the husband filed an Application in a Case seeking that certain of the orders of 30 November 2005 be stayed pending the determination of his appeal against the orders.

7. On 13 February 2006 orders were made by consent staying the orders of 30 November 2005 pending determination of the appeal and cross appeal.

8. On 2 March 2006 the wife, via a facsimile to my associate, indicated she wished to pursue an application for costs against the husband and sought to file written submissions.

9. On 22 March 2006 there was a directions hearing in relation to the wife’s application for costs.

10. On 1 June 2006 I heard argument as to whether the wife could pursue an application for costs. The wife submitted that her Amended Application included an order seeking that the husband pay her costs on an indemnity basis. However, no order for costs was made on 30 November 2005. The husband and the interveners submitted that as final orders were made removing all applications from the pending cases list (order 10 of the orders of 30 November 2005), the Court was functus officio and the wife could only make an application in compliance with the Rules, namely within 28 days after the final orders were made.  Therefore the wife would have been required to file an application for an extension of time to bring her application. 

11. On 2 June 2006 I delivered reasons for judgment on this issue, finding that the Court was not functus officio and that the wife’s application for costs contained in her Amended Application was properly before the Court. The wife indicated that she also sought an order for the costs of the hearing. I made orders for the parties to file written submissions with respect to the costs applications.

12. On 13 and 14 June 2006 the appeal against my orders was heard by the Full Court of this Court (Bryant CJ, Finn and Warnick JJ).

13. On 6 July 2006 I made orders by consent suspending compliance with my orders of 2 June 2006 until 1 September 2006.

14. On 13 July 2007 the Full Court dismissed both the appeal and the cross appeal.  It was common ground that the amount the husband was to pay to the wife pursuant to order 4 of the orders of 30 November 2005 should be amended to the amount of $2,043,684, on account of a mathematical miscalculation arising from figures provided to the Court.

15. In March 2008 the husband was granted special leave to appeal to the High Court of Australia.

16. In September 2008 the appeal was heard by the High Court (French CJ, Gummow, Hayne, Heydon and Kiefel JJ). 

17. In December 2008 the High Court dismissed the husband’s appeal.

18. On 8 April 2009 I held a directions hearing to ascertain whether the wife was proceeding with her applications for costs. The wife confirmed that she was. I therefore intended to set up another regime for the filing of written submissions, as previously ordered on 2 June 2006. However, the husband indicated at that time that he intended to file an application seeking my disqualification from further hearing this matter. As recorded above, the husband formally filed that application on 29 April 2009. It is obviously necessary that this application for disqualification be determined prior to the wife’s applications for costs. 

The law

1. The husband seeks my disqualification on the grounds of actual bias, or alternatively apprehended bias.

Actual bias

1. An allegation of actual bias is a very serious matter. Allegations of actual bias are uncommon and actual bias is rarely found by courts. For a judicial officer to be disqualified, it is usually sufficient to establish a reasonable apprehension of bias. Where actual bias exists, reasonable apprehension of bias will also exist. It is therefore generally considered unnecessary for allegations of actual bias to be considered or determined.

2. In Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, Kirby J said in obiter dicta at 541:

   “Until recently it was extremely rare for parties before Australian courts to assume the last of establishing “actual bias” on the part of a decision-maker. Sometimes, in the heat of disappointment or distress caused by an adverse decision, actual bias was alleged. Usually such allegations were later withdrawn. This was because, as the law of natural justice concerning the right to an impartial decision-maker has developed in Australia, it was ordinarily sufficient for the complainant to establish “imputed”, “apparent”, “apprehended”, “suspected”, “notional” or “deemed” bias (“imputed bias”). Although the two kinds of bias obviously overlap, imputed bias does not require the complainant to establish anything about the subjective motives, attitudes, predilections or purposes of the decision-maker. It is enough to show that “in all the circumstances the parties or the public might entertain a reasonable apprehension that [the decision-maker] might not bring an impartial and unprejudiced mind to the resolution of the question involved in it”. A party would be foolish needlessly to assume a heavier obligation when proof of bias from the perceptions of reasonable observers would suffice to obtain relief.” (Footnotes omitted)

3. Actual bias is more difficult to establish, there being a subjective, rather than objective test, requiring an examination of the decision maker’s subjective state of mind. 

4. In Minister for Immigration and Multicultural Affairs v Jia Legeng (supra) it had been submitted that both the trial Judge and the Full Court of the Federal Court had adopted a test of actual bias which was unduly favourable to the Minister. At first instance, the test adopted by French J was that there “must be a pre-existing state of mind which disables the decision-maker from undertaking or renders him unwilling to undertake any or any proper evaluation of the materials before him or her which are relevant to the decision to be made.” Gleeson CJ and Gummow J said at 531 with respect to actual bias in the context of prejudgment:

   “The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion.  The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.

   The test which was applied both by French J and by the Full Court was orthodox.  It accords with the decisions of this Court in Laws v Australian Broadcasting Tribunal and Johnson v Johnson.  The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.  Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.”  (Footnotes omitted, emphasis added)

5. Determining an allegation of actual bias therefore involves different considerations than where an allegation of apprehended bias is made. In Minister for Immigration and Multicultural Affairs v Jia Legeng (supra) Kirby J said when considering the “broader ambit of imputed bias” at 548:

   “Quite different considerations are raised with an allegation of imputed bias is made in this Court. An applicant in such a case is not concerned, as such, with the state of mind or attitude of the decision-maker. The focus of attention is on the decision itself and the manner in which it was apparently arrived at. The criteria are not subjective to the decision-maker. They are wholly objective. The issue raised is decided not by reference to a serious accusation of deliberate wrong-doing and misuse of office. It is judged by the much more readily established consideration of how the decisions, and the process of arriving at it, might appear to the persons affected and to the public, judged reasonably and objectively.”

Apprehended Bias

1. The law with respect to the disqualification of a judicial officer on the grounds of apprehended bias is well settled. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, the plurality of the High Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) held at 344-345:

   “6.     Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), 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.

   7.     The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.

   8.     The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.”

2. In the earlier decision of Johnson v Johnson (2000) 201 CLR 488, the plurality of the High Court (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) held, at 492:

   “11.  … It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias … is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.

   12.    That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision”. The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial".” (Emphasis added, footnotes omitted)

3. The test is therefore whether a fair-minded lay observer might reasonably apprehend that the judge may not bring an impartial and unprejudiced mind to the resolution of the issue. 

4. I also note that Mason J in an earlier decision of Re JRL; Ex parte CJL (1986) 161 CLR 342 outlined, at 352, that an apprehension of bias must be “firmly established”. His Honour said this:

   “It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be "firmly established": Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw.” (Emphasis added, footnotes omitted) 

Waiver

1. An objection to a judicial officer continuing to hear a matter on the ground of bias can be waived by a party, and such waiver can be implied.

2. The leading authority with respect to waiver of the right to object is the High Court decision of Vakauta v Kelly (1989) 167 CLR 568. The majority (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 stand by 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 a 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 refrained 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 was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her.” (Emphasis added)

1. Dawson J said on the issue at 577:

   “There can, I think, be no doubt that an objection upon the ground of bias can be waived. Even where it is a question of the public apprehension of bias, the parties themselves must be competent to waive the objection. Although justice must manifestly be seen to be done, where a party, being aware of his right to object, waives that right, there will be little danger of the appearance of injustice. In the case of a criminal prosecution where the public is directly interested in the outcome, it may be different, but even in such a case, Isaacs J, in Dickason v Edwards, was clearly of the view that a party may waive the objection.

   …

   There is abundant authority which establishes, at all events in civil cases, that a party may waive his right to object on the ground of bias.

   …

   In my view, where a party in civil litigation, being aware of the circumstances giving rise to a right to object, allows the case to continue for a sufficient time to show that he does not presently intend to exercise that right, he may be held to have waived it.”  (Emphasis added, footnotes omitted)

2. At 587, Toohey J said:

   “There is no reason why, in authority or in principle, a litigant who is fully aware of the circumstances from which ostensible bias might be inferred, should not be capable of waiving the right later to object to the judge continuing to hear and dispose of the case.

   …

   In the result, when a party is in a position to object but takes no steps to do so, that party cannot be heard to complain later that the judge was biased. It was suggested during argument that this situation may be one, not of waiver, but of estoppel. The distinction between waiver and estoppel was drawn by Isaacs J in Craine v Colonial Mutual Fire Insurance Co Ltd, in a passage which has been referred to on many occasions. See also Spencer, Bower and Turner, Estoppel by Representation, 3rd ed (1977), pp 317-320. Notwithstanding the difficulties that do arise from time to time in distinguishing between waiver and estoppel, the situation here is more akin to the former than to the latter. Waiver involves a decision by the party against whose case bias is shown to raise no objection. It is this conduct which is in question rather than the conduct of the other party. The other party does not alter his position in reliance on that decision, although it is true that, had objection been taken at the time, the trial judge may have disqualified himself and the action could have been heard before another judge without serious loss of time. The situation is one in which the law prevents a party to litigation from taking up two inconsistent positions; he is held to his election. While, of course, the community has an interest in knowing that cases are decided impartially, that interest is not affected adversely by a doctrine which refuses a party to litigation the opportunity to resile from a position he has taken.” (Emphasis added, footnotes omitted)

3. The High Court most recently affirmed the decision of Vakauta v Kelly (supra) in Smits and Another v Roach and Others (2006) 228 ALR 262, where the majority (Gleeson CJ, Heydon and Crennan JJ) said at 274:

   “It has been held in this Court, on a number of occasions, that an objection to the constitution of a court or tribunal on the ground of apprehended bias may be waived, and that, if a litigant who is aware of the circumstances constituting a ground for such objection fails to object, then waiver will result. The general principle is not in contest in this appeal.”

4. Kirby J in a separate judgment said at 296:

   “However, it is now settled law in this court that where a litigant, aware of circumstances providing a ground for objection on the basis of disqualification, fails to object promptly, that litigant will be taken to have waived the objection and cannot later rely on it. Obviously, this conclusion represents a practical approach, even if at the cost of some doctrinal purity…

It is clear that any objection to a judge’s participation in a trial on the ground of disqualification for association must be made promptly, once the affected party becomes aware of the suggested cause of the disqualification.”

The evidence

1. The husband was unrepresented at the hearing, and he relied on his affidavit filed in support of his application on 29 April 2009. 

2. Ms Macmillan appeared as counsel for the wife, and she relied on the affidavit of the wife’s solicitor filed on 13 May 2009.

3. Ms Macmillan raised objection to the affidavit of the husband. She did not object to the affidavit line by line, but raised a general objection to the content of the affidavit. She submitted that the majority of the husband’s affidavit was in the form of submissions, not evidence, and that many of these submissions were offensive. Further, much of what purported to be evidence was inadmissible in any event.

4. I indicated during the hearing that parts of the husband’s affidavit were clearly inadmissible and I would have no regard to those parts as evidence in support of the application. For example, there was paragraph 25 of the affidavit which incorporated a letter to the Chief Justice of the Family Court and the narrative accompanying that letter setting out what is described as an objection to me hearing matters. Other obvious examples were paragraphs 11 and 13 of that same affidavit. However, instead, given its nature I was prepared to treat the affidavit generally as comprising the husband’s submissions. Indeed, in making his oral submissions, the husband simply reiterated what was in his affidavit.

Submissions of the husband

1. The husband alleges bias on a number of bases in support of his application seeking my disqualification. 

2. The husband’s primary area of complaint relates to my judgment delivered in this matter on 30 November 2005. The husband referred to a number of findings and comments contained in my reasons to support his allegations of bias. 

3. Firstly, Mr Stephens submits that I made a number of “extraordinary assertions” in my judgment which were “wrong in law” and “gravely contrary” to the interests of the husband and favourable to the interests of the wife. The husband in particular refers to “assertions” which he says the Full Court did not accept on appeal.

4. The husband also takes issue with my finding with respect to his control of trust assets.  He submits that my reasoning was “clearly erroneous and biased.” [At [6] of the husband’s affidavit.]

5. It is also alleged by the husband that I “suppressed” facts and that such suppression was “dishonest”. [At [7] and [8] of the husband’s affidavit.]

6. Other claims made by the husband with respect to the reasons for judgment include that I had a “wish to damage” the husband, that I ignored evidence, [at [9] of the husband’s affidavit] and was “malicious” with respect to findings of credit I made against him. 

7. The husband contends that bias is evident from the apportionment I made in favour of the husband. He also complains about my analysis of the parties’ contributions, claiming the process was “skewed” in favour of the wife and “hostile” towards the husband. [At [18] of the husband’s affidavit.]

8. The husband submits that the judgment, read as a whole, shows the “animosity and bias that Strickland J displayed.”

9. Reliance is also placed on events surrounding the wife’s costs application. The husband alleges that I displayed bias towards him and favour towards the wife in allowing the wife’s application for costs to proceed, which he contends was out of time. The husband maintains that the wife failed to bring the application for costs within the 28 day time limit and was therefore required to seek leave. The husband maintains that I am functus officio in this matter despite my judgment of 2 June 2006.

10. The husband also submits that I have displayed bias by bringing the wife’s application for costs on for a directions hearing on my own motion without being approached by the parties.

11. Finally, the husband complains about my conduct towards him during the hearings on consequential matters and costs. He submits that I have adopted a “harsh and hostile manner” towards him [at [23] of the husband’s affidavit], that I spoke “aggressively” to him and unreasonably threatened to award costs against him. The husband submits that I was “obviously finding it difficult to control [my] animosity.”

12. Mr Stephens submits [at [27] of the husband’s affidavit] that when the foregoing matters are taken together, actual bias and a reasonable apprehension of bias are “clearly evident”.

13. With respect to the issue of waiver, the husband denied that a letter from his solicitor of 15 January 2009 prevented him from objecting on the ground of bias. In this letter, referred to by the wife (Annexure “OEG 1” to the affidavit of the wife’s solicitor filed 13 May 2009) the husband’s solicitor indicated he had instructions to have the matter listed before me to seek clarification with respect to previous orders.

14. The husband submitted that where bias arises from a succession of events, that it not necessary to object after each event, provided that the whole series has not been waived. He submitted that it is clear that there has been no waiver in this case.

Submissions of the wife

1. Ms Macmillan for the wife submitted that the law with respect to bias is well settled and that the husband has not established either actual or apprehended bias.

2. Ms Macmillan raised that it is relevant that in determining the costs application I will not be required to determine issues of credit or to revisit matters previously determined. The application is based fairly and squarely on the reasons for judgment.

3. Ms Macmillan submitted that the fact that I have made findings of fact and law adverse to the husband is not of itself enough to establish bias, and that if this was the case, no trial judge would ever be able to entertain a costs application following the determination of a matter.

4. Ms Macmillan contended that the husband’s propositions in support of his application were extraordinary, offensive, scandalous and possibly contemptuous, and that Mr Stephens as a legal professional, should know that such propositions are inappropriate.

5. Ms Macmillan argued that it was highly relevant that my decision was the subject of an appeal by the husband when many of the matters referred to in this application were raised and determined. Indeed, she made the point that the husband is ignoring the fact that my decision has been upheld both by the Full Court of this Court and the High Court of Australia, and that neither any findings of fact nor my exercise of discretion were overturned.

6. It was submitted that the husband has not established any connection between the asserted “incorrect” findings and the suggestion of bias. Ms Macmillan contends that even if there were, for example, findings in the judgment that were wrong, that the husband has not established the next step, namely that the findings were wrong because of bias. It was reiterated that the test is high, and that bias must be “firmly established.” A trial Judge is not biased merely because there are matters in a judgment that a party does not like. 

7. It was the wife’s position that there was nothing inappropriate about the listing of her costs application, which was an outstanding matter before the court. Ms Macmillan correctly highlighted the increasing involvement of Judges in the management of cases. 

8. It is Ms Macmillan’s position that even if the husband had met the test for bias, he has waived his right to object. The husband has not raised his concerns regarding bias previously, and in particular no appeal ground relied on by the husband ever related to bias.

9. I was referred to the letter from the husband’s former solicitors (Annexure “OEG 1” to the affidavit of the wife’s solicitor filed 13 May 2009) mentioned previously. Ms Macmillan submitted that the letter evidences that as recently as 15 January 2009 the husband had no concerns about me hearing this matter.

10. Ms Macmillan argued that the submission of the husband that it is not necessary to raise objection after each event giving rise to possible bias is not correct or logical. Ms Macmillan contended that an assertion that the Judge was biased at trial should have been raised at the first available opportunity. It was submitted that where no objection was raised, a further opportunity to object does not arise just because something happens subsequently which also may give rise to an allegation of bias.

Discussion

1. The husband seeks that I disqualify myself on the grounds of actual bias, or alternatively apprehended bias.  However, during the hearing he did not seek to differentiate his submissions, alleging only bias generally and submitting that the allegations that he made “give rise to a reasonable apprehension of bias and indicate actual bias”.

2. I will need to deal with both bases of the application, but before doing that, it is necessary for me to address the wife’s submission that the husband has waived his right to object.

3. In my view there is substance in this submission.

4. The hearing took place over four days from 1 to 4 August 2005 when I reserved my judgment. There was a brief consequential hearing on 31 August 2005, and my judgment was delivered on 30 November 2005. The husband then filed a Notice of Appeal on 14 December 2005. On 15 December 2005 he filed an application for a stay, and a consent order was made on that application on 13 February 2006. There was a directions hearing on 22 March 2006. Then, on 1 June 2006 I heard argument as to whether the wife could pursue an application for costs and I delivered reasons for judgment on 2 June 2006 making certain orders. The appeal to the Full Court of this Court was heard and subsequently dismissed on 13 July 2007, and then the husband’s appeal to the High Court of Australia was heard and later dismissed on 3 December 2008. On 15 January 2009 the letter was sent by the husband’s solicitor referred to in paragraph 63 above. At no point prior to 8 April 2009 when I was looking to make further orders for the filing of written submissions on costs and complete that outstanding application by the wife did the husband raise any allegation of bias. He also did not raise any allegation of bias in any of his grounds of appeal.

5. He complains of me adopting “a harsh and hostile manner” and speaking aggressively towards him, yet he chose not to object or have his counsel raise an objection to me continuing to hear the case at the time. He did not raise any objection to my hearing the matter when making his application for a stay, or during the directions hearing on 22 March 2006 or during the hearing on costs concluded on 2 June 2006, and he was perfectly comfortable with me hearing issues flowing from the judgment of the High Court of Australia pursuant to the liberty to apply.

6. Applying the principles emanating from Vakauta v Kelly (supra), the husband’s failure to object when he had the opportunity to do so must result in a waiver of his right to object, and the husband is no longer able to rely on the allegations of bias that he raises as a reason for disqualification.

7. As to the husband’s claim that it is not necessary to object after each event where there are a series of events, I agree with the submission of the wife’s counsel that that is not “correct or logical” in this case. The authorities clearly establish that an objection must be raised at the time that a party is in a position to do so, and if no steps are taken and the case is allowed to continue then that is the prime example of a waiver of the right to object.

8. With respect to comments made by a Judge, the requirement that a party object at the time the issue arises is justified because it provides the Judge with an opportunity to correct any wrong impression of bias or decline to further hear the matter. Public interest considerations also arise, in that a party should not be able to wait until final judgment is known before objecting, effectively allowing them to chose whether to accept the judgment or not (see Vakauta v Kelly (supra) at 572).

9. The husband suggested that he was not relying on any of the individual allegations that he makes “in isolation”, but that is not consistent with the nature of each allegation. In other words, I consider that each allegation, if true, does raise the issue of bias. Further, it is not for the husband to determine how his allegations are to be treated, that is for the Court hearing his application. However, even if the husband is correct that it was open to him to await the completion of an alleged series of events, then it is apparent that that point had been reached well before the husband in fact raised the issue. In other words, on the husband’s argument the opportunity to raise the objection was clearly available at the hearing on 1 June 2006 given that the initial trial had taken place in August 2005, my judgment was delivered in November 2005 and that hearing was the culmination of all outstanding applications. However, no objection was raised and thus on any view of this matter the husband’s right to object was certainly waived at that point.

10. However, in the event that I am wrong about this issue I turn to consider whether the husband’s claim of bias is made out.

Actual bias

1. Because the husband did not differentiate between actual bias and apprehended bias it is difficult to identify on what basis he suggests that actual bias is demonstrated. He makes allegations for example that I have been “dishonest”, that I have sought to “damage” him, and that I have acted “maliciously”, but there is no evidence that he presents, for example of my state of mind, to establish these allegations. Indeed, that is the difficulty in claiming actual bias and why a test of reasonable apprehension of bias has been developed. As Callinan J said in Minister for Immigration and Multicultural Affairs v Jia Legeng (supra), at 564:

   “The development and application of a test of reasonable apprehension of bias avoids any need for a court, which is asked to prohibit a decision-maker from going further or to set aside a decision which has already been made, to attempt some analysis of the likely or actual thought processes of the decision-maker. It objectifies what otherwise would be a wholly subjective inquiry and it poses the relevant question in a way that avoids having to predict what probably will be done, or to identify what probably was done, by the decision-maker in reaching the decision in question.”

2. In any event, as referred to above, the test to be applied where prejudgment is alleged is that set out in Minister for Immigration and Multicultural Affairs v Jia Legeng (supra), by Gleeson CJ and Gummow J, namely that the decision-maker’s mind is “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.” Now, applying this test here I find that there is no evidence presented by the husband that satisfies that test.

3. Bias can also be occasioned by interest in the outcome, by affection or enmity, but again there is no evidence presented by the husband that would establish any of these bases.

4. Actual bias need not be intentional or conscious. It is possible for “actual bias [to] exist even if the decision-maker did not intend or did not know of their prejudice, or even where the decision-maker believes … that they have not prejudged a case” (Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71, per North J at 135). However, here the husband is clearly alleging intentional bias on my part, yet to repeat, there is no evidence of any subjective state of mind.

5. What the husband puts forward primarily is what is contained in my reasons for judgment. However, as von Doussa J said in SCAA v Minister for Immigration and Indigenous Affairs [2002] FCA 688 at [38]:

   “In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision-making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision-maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more it is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion.”

1. His Honour did go on and suggest that where in addition a hostile attitude is apparent from the Judge in the same hearing then it may be possible to imply bias, but that would still be “rare and exceptional”. Here of course the husband does allege that in hearing applications in regard to consequential matters and cost I have adopted “a harsh and hostile manner” towards him and that I have “spoken aggressively towards him”, but there is no allegation of such an attitude during the hearing in August 2005. Thus prima facie that does not assist the husband.

2. The husband though sought to promote those allegations as part and parcel of an overall picture of bias on my part. However, he presented no evidence in support of these allegations. He did allege that I “threatened to award costs against (him)” but after being admonished by Mr T J North SC did not do so.” This allegation relates to the hearing on 31 August 2005, and I can say that the husband has completely mis-represented what happened and what was said at that hearing. There was no threat by me and the issue of costs was in fact raised by the wife’s Senior Counsel. There was also no “admonishment” of me by Mr North SC. Indeed, this is an example of how outrageous the claims made by the husband in this application really are.

3. I further note that even if there had been evidence presented by the husband of these allegations, he would still need to establish that either individually or in combination with his complaints about the judgment they were indicative of bias. In my view the husband has not done this. Just as he has failed to establish any connection between the asserted “incorrect” findings in my reasons for judgment and the suggestion of bias, he has likewise failed to establish any connection between the allegations of my attitude in subsequent hearings and the suggestion of bias.

4. Thus, putting aside for this purpose my finding that the husband has waived his right to object and seek my disqualification, I reject the allegation of the husband that I have demonstrated actual bias and I refuse to disqualify myself for that reason.

Reasonable apprehension of bias

1. The test is not whether the husband considers me to be biased. The test is whether a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the matter. As emphasised by Mason J in Re JRL; Ex parte CJL (supra), a reasonable apprehension of bias must be “firmly established”.

2. The fact that the husband has made complaints about and is not happy with findings and comments in my judgment does not establish the test for disqualification on the ground of bias. Mason J said in Re JRL; Ex parte CJL (supra) that “[i]t needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party.” (emphasis added)

3. The husband has appealed my judgment to both the Full Court and the High Court, yet my decision stands. The husband is clearly not satisfied with that and this application smacks of nothing more than the husband attempting to raise the same complaints again despite the outcome of those appeals. However, to repeat, what he thinks of the judgment is not the test and I do not accept that the husband has established a reasonable apprehension of bias on the basis of my reasons for judgment. This is apart from the fact that many of his own assertions about my reasons are simply incorrect or exaggerated.

4. I refer again to what the plurality of the High Court said in Ebner v Official Trustee in Bankruptcy (supra), as to the application of the apprehension of bias principle requiring “two steps”. Here, even if it could be argued that the husband has satisfied the first step in identifying in my reasons for judgment some of “what it is said might lead a Judge to decide (the) case other than on its legal and factual merits”, that is certainly not the case with the second step. The husband has not articulated “the logical connection” between the relevant matters identified and the “feared deviation from the course of deciding the case on its merits.”

5. With respect to the husband’s argument regarding the wife’s costs application, and specifically my findings as to her ability to pursue the application, I made findings and delivered judgment on this issue in June 2006. If the husband had concerns with my decision and the orders that I made, the appropriate course was for him to have appealed those orders at the time, but he did not do so. I do not accept that my decision that the wife’s costs application was properly before the court and that I was not functus officio would lead a fair minded lay observer to a reasonable apprehension that I will not bring an impartial and unprejudiced mind to the ultimate determination of the costs issues and that I would favour the wife in any order for costs I may make.

6. I similarly reject the husband’s submission with respect to the listing of the wife’s costs application for a directions hearing before me in April 2009. As raised by Ms Macmillan, active case management is now an integral practice of this court. The wife’s costs application was, and still is, an outstanding application. Once all avenues of appeal had been exhausted, it was appropriate for this matter to be brought back before the court for resolution. The wife’s solicitor explains, in her affidavit filed 13 May 2009, that the application was brought on following comments made by Coleman J, when the matter was before his Honour on 17 and 18 February 2009, that if monies were to be frozen pending determination of the costs issues, that the wife should prosecute her application expeditiously.

7. With respect to the husband’s complaints about my conduct towards him during the various hearings in this matter I refer to what I have said earlier in these reasons about that. The husband presented no evidence in support of these allegations and thus they cannot result in a finding of reasonable apprehension of bias. Here the husband has not even satisfied the required first step.

8. Therefore I am not satisfied that the husband has established that a fair minded lay observer may reasonably apprehend that I would not bring an impartial and unprejudiced mind to the resolution of this matter. 

9. In the circumstances I propose to dismiss the application.

I certify that the preceding 92 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 10 March 2010.

Associate