Strahan and Strahan

[2009] FamCA 186

FAMILY COURT OF AUSTRALIA

STRAHAN & STRAHAN [2009] FamCA 186

FAMILY LAW – COURTS AND JUDGES – Disqualification – application by wife seeking disqualification of judge on ground of apprehended bias – whether comments made by the judge during hearings following the application for disqualification would lead to a reasonable apprehension of bias or show prejudgment – where the wife was previously employed by the judge and another legal practitioner – where a written reference was provided to the wife – 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 due to the wife’s previous employment and the circumstances surrounding the termination of that employment – application for disqualification dismissed

Family Law Act 1975 (Cth)

Johnson v Johnson (2000) 201 CLR 488
Re JRL; Ex parte CJL (1986) 161 CLR 342
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577
S & M Motor Repairs Pty Ltd & Ors v Caltex Oil (Australia) Pty Ltd & Anor (1988) 12 NSWLR 358

APPLICANT: Ms Strahan

RESPONDENT: Mr Strahan

INDEPENDENT CHILDREN’S LAWYER: Ann Bills

FILE NUMBER: ADF 228 of 2005

DATE DELIVERED: 13 March 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 26 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Pyke QC with
Mr Holland

SOLICITOR FOR THE APPLICANT: Pederick Lawyers

COUNSEL FOR THE RESPONDENT: Mr Ackman QC with
Ms Macmillan

SOLICITOR FOR THE RESPONDENT: Robinson & Mason

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs West

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ann Bills & Associates

ORDERS

1. That the Application in a Case filed by the wife on 20 January 2009 and the Response filed by the husband on 25 February 2009 be dismissed and removed from the active pending cases list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 228 of 2005

MS STRAHAN

Applicant

And

MR STRAHAN

Respondent

REASONS FOR JUDGMENT

Introduction

1. I have before me an Application in a Case filed by the wife on 20 January 2009 in which she seeks that I be disqualified from further hearing this matter on the ground of apprehended bias.  The husband, in his Response to an Application in a Case filed on 25 February 2009, seeks that the wife’s application be dismissed and that the wife pay the husband’s costs on an indemnity basis.  The Independent Children’s Lawyer also opposes the application.

Brief Background

1. These are long running proceedings in which the parties seek orders with respect to both parenting issues and property settlement.

2. The husband and the wife are both aged 46 years.  They married in 1994 and separated in January 2005.  There is one child of the marriage, namely a son S, born in June 1996 and who is now aged 12 years. 

3. The wife outlines in her affidavit filed on 20 January 2009 in support of her application the events which give rise to her application for disqualification.  In the final analysis the husband did not seek to cross examine the wife in relation to the contents of that affidavit and therefore I accept the truth of the facts contained therein.

4. From 19 October 1981 until 23 December 1981 the wife worked as a secretary for Mr JF, Barrister, and myself.  The wife says she obtained this employment as a result of a referral from the Commonwealth Employment Service. 

5. The wife says she was initially employed on a three month contract and that during her employment she was the only secretarial staff member and “worked closely” with Mr JF and myself.

6. The wife says that complaints were made as to the standard of her work but she does not specify by whom the complaints were made.  In any event, she says that her employment was terminated after two months because her performance with respect to typing was not satisfactory.  She says she was told this by Mr JF.

7. A written reference was provided to the wife (Annexure “ES1” to the affidavit of the wife filed 20 January 2009) dated 23 December 1981 which was signed by Mr JF, on behalf of his company, and myself.  The reference provides as follows:

   “To Whom It May Concern,

   [The wife] was employed as a legal secretary by this firm and another legal practitioner from the 19th October, 1981 until the 23rd December 1981.  She was engaged in the duties of general typing, shorthand and reception work.

   During the time [the wife] spent with us we found her always polite and courteous and she displayed a very high standard of grooming.  Within the limits of her experience, she discharged her duties keenly and with a willingness to learn.

   In the right environment, we are confident that [the wife] could develop into a competent and efficient secretary.”

8. The wife states that I placed this reference on her desk in an envelope “without any comment”.

9. The wife says that she believes the circumstances in which her employment was terminated and the terms of the reference “show that the Honourable Justice Strickland did not have a high opinion of me”.

10. The wife commenced proceedings in this Court on 15 February 2005.

11. On 30 May 2006 Dawe J ordered that this matter be specially managed by me. 

12. On 21 June 2006 the wife raised with her then solicitors Donaldson Walsh the issue of me hearing this matter.  She states she felt “uncomfortable” with me hearing the case due to her “previous association” with me.  She annexes to her affidavit of 20 January 2009 an email (annexure “ES2”) sent to Donaldson Walsh regarding this matter and which said as follows:

    “Dear Stuart,

    I have always been suspicious that Justice Strickland would be managing the case and the court order dated 30^th May, 2006 has confirmed my suspicion.

    Justice Strickland has always been [the husband’s] preferred Judge.  Can you please explain to me how the decision on Justice Strickland was made.

    I will apply to refuse to proceed in the family court [sic] based on the above mentioned grounds and for many other reasons.

    …

    Regards,

    [The wife]”

13. The wife received a response from her solicitors dated 22 June 2006 (Annexure “ES3” to the affidavit of the wife filed 20 January 2009), in which they set out the possible reasons why I was appointed to judge manage this case, before concluding:

    “…

    5.Based on the above events which are totally outside the influence of [sic] control of [the husband] it appears that the sole remaining judge , Justice Strickland is likely to take the role to manage your case .

    The Family Court may still make changes to this arrangement.”

14. I first made orders in this matter on 23 August 2006.  I have made numerous orders and delivered a number of judgments in this matter since that time with respect to both parenting and property settlement issues.

15. The wife says she again raised the subject of her employment by Mr JF and myself at a conference with her solicitors on a date which she cannot recall.  She states on this occasion her solicitor, Mr Stuart Fowler “shrugged his shoulders” and said words to the effect of “it was so long ago, he won’t remember you”.  She states her solicitor Mr Alan Branch repeated that “he won’t remember you”.  The wife states she again believed she had no avenue to challenge my appointment as judge manager of her case.

16. The wife says she next raised this issue after judgment was delivered by the Full Court on 9 November 2006 in her appeal against parenting orders made by me.  The wife received an email in reply from her solicitor, Mr Justin Dowd of Watts McCray Lawyers, on 10 November 2006 (Annexure “ES4” to the affidavit of the wife filed 20 January 2009) which said as follows:

    “Dear [Ms Strahan],

    …

    Justice Strickland

    As you know, Justice Strickland has been appointed by the Court to be the Judge Manager of the case.  As such, the Court’s procedure is that all applications be listed before him and he has the role of taking [sic] all procedural and interim decisions I [sic] appreciate that you have been dissatisfied with decisions made by Justice Strickland.

    It is not possible for us to comply with your request to have the Poletti application lodged before another Judge.  Whilstever [sic] Judge [sic] Strickland is the Judge Manager, all applications will be listed before him.

    The only way of avoiding Judge [sic] Strickland is to make an application that he be disqualified from further hearing of the case.  Such an application would have to involve alleging that he is biased, or that there is a reasonable belief that he is biased against you.  Such an application would have to be made first to him, and if unsuccessful, then to the Full Court.

    I do not believe there is any prospect Justice Strickland would disqualify himself, nor that the Full Court would make such an order, particularly given the Judgemnt [sic] of the Full Court handed down yesterday  . [sic]  Again, a costs order against you would automatically flow from any such application.”

17. On 29 November 2006 the wife again sent an email to her solicitor Mr Justin Dowd regarding her concerns about my hearing this case  (Annexure “ES5” to the wife’s affidavit filed 20 January 2009) which said as follows:

    “Dear Justin,

    I believe that it is time that you inform the family court [sic] that I was an employee working for Mr Strickland’s [sic] legal firm [JF] and Partners during 1981 in Adelaide.

    This matter needs to be attended to.

    Regards,

    [the wife]” (Original emphasis)

18. Mr Dowd responded to the wife’s email on 12 December 2006 (Annexure “ES6” to the affidavit of the wife filed 20 January 2009) as follows:

    “Dear [Ms Strahan],

    …

    I have also your email of 29 November 2006 noting that during 1981 you were an employee working for Justice Strickland’s legal firm, [JF] and Partners.  We have considered that issue and believe that it does not amount to a circumstance which would justify an Application for the disqualification of the Judge.  It is clearly many years ago and it would not be thought by the Court that this would amount to an apprehension that he was either biased for or against you.”

19. This matter was listed for final hearing before me in September 2007, and then again in March 2008.  Both of these listings were vacated on the application of and with the consent of both parties.

20. A new Notice of Address for Service was filed by the wife on 9 April 2008   informing that she was now represented by Pederick Lawyers.  Pederick Lawyers continue to act for the wife at this time.

21. On 16 January 2009 the wife advised her current solicitor, Ms Pederick, for the first time that she had worked for Mr JF of JF & Co Barristers and Solicitors and myself.

22. The wife states that at no time prior to the 16 January 2009 was she asked by any of her solicitors to provide any more information regarding her employment and in particular the circumstances surrounding her termination.  The wife admits she did not show any of her previous solicitors the written reference (Annexure “ES1”) as she did not discover it in her possession until her current solicitor requested she provide any further information regarding her previous employment.

23. On 19 January 2009 this matter came before me for further case management directions.  It was envisaged that on this date I would be determining whether the trial or at least some aspects of it could proceed in February of this year.  At the commencement of this hearing junior counsel for the wife informed the Court that the wife was looking to file an application seeking an order that I disqualify myself.  I was told that there was an affidavit that had an error in it and needed to be resworn before it could be filed.  I adjourned further consideration to 20 January 2009 to allow the application and affidavit of the wife to be filed.

24. On 20 January 2009 the wife filed her Application in a Case and supporting affidavit and the matter again came before me.  On that occasion I discussed with counsel how this application was to be determined, and in particular whether another judge was required to hear the application given the nature of the circumstances being relied upon.  I advised counsel that I wished to consider this issue and I adjourned the matter to 23 January 2009.

25. On 23 January 2009 I indicated to counsel that as the husband at that time wished to challenge whether the wife did in fact form the belief that she deposed to in her affidavit filed in support of her application, I did not consider that I could hear that issue and another judge would need to be arranged.

26. On 3 February 2009 the matter again came before me, principally to deal with case management issues to ensure the progress of this matter whilst the application for disqualification was on foot.  On this occasion I raised with counsel that it was my view that another judge would only need to hear and determine the issue of whether the wife did or did not form the opinion as set out in her affidavit, and that if the application for disqualification still proceeded thereafter that I should then hear the remainder of the application.   Both counsel for the husband and wife wished to consider their positions on this issue, and the matter was listed for argument on 12 February 2009.

27. On 6 February 2009 at my request my associate contacted the solicitors for the parties to advise them that I had decided that I would hear the disqualification application in its entirety.

28. The matter came on for directions on 10 February 2009.  Counsel for the husband advised on this occasion that they did not intend to cross examine anyone at the hearing of the disqualification application and the matter was listed for hearing on 26 February 2009.

The Law

1. The law with respect to the disqualification of a judicial officer on the grounds of apprehended bias is well settled.  In Johnson v Johnson (2000) 201 CLR 488, the majority 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.” (Emphasis added)

2. Their Honours continued, also at 492:

   “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"..

   13.    Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of ``the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case.''  Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.” (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.  Both parties accepted that this is the test to be applied in determining this application.

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   [29] ; Watson   [30] ; Re Lusink; Ex parte Shaw “ (Emphasis added, footnotes omitted)

Discussion

1. Ms Pyke QC, senior counsel for the wife, identified at the hearing that there were three separate issues for determination.  The first issue, in addition to the basis for disqualification outlined in the wife’s affidavit filed 20 January 2009, is that I should not hear the application for disqualification because of apprehended bias arising from comments made by me at the hearings on 19 January, 20 January, 23 January and 3 February 2009.  The second issue for determination is the application for disqualification arising from the wife’s employment in 1981 and the events surrounding the termination of that employment.  The third issue is whether the wife has waived her right to bring that application.  I will deal with each of these in turn.

Comments made during the hearings

1. The wife submits that as a result of comments made by me at the hearings on 19 January, 20 January, 23 January and 3 February 2009 a fair-minded lay observer might reasonably apprehend that I may not bring an impartial and unprejudiced mind to the resolution of the application for disqualification.  Ms Pyke took me to various extracts from the transcripts of those proceedings in support of this submission.

2. The first comment referred to by Ms Pyke is a comment I made at the hearing on 19 January 2009 with respect to the wife’s proposed application that “[c]learly there's nothing in this per se.”  The extract below from the transcript (p 9, line 43) puts this comment in context:

   HIS HONOUR:   I mean, that's the issue, Mr Holland.  I mean, is there further evidence to come on which you base your application? 

   MR HOLLAND:   Yes, there will be. 

   HIS HONOUR:   It's not just the fact that I - well, take it at face value - employed her and provided a reference to her ‑ ‑ ‑

   MR HOLLAND:   No. 

   HIS HONOUR:   - - - which is what - this is as far as that takes it, of course.

   MR HOLLAND:   Yes.  It's more than that.

   HIS HONOUR:   Clearly there's nothing in this per se. 

   MR HOLLAND:  Yes, well, there will be some evidence about the circumstances surrounding it, but that's the basis of the relationship, if you like, for the purpose of the application.  There will be some other things in the affidavit aside from that.

   HIS HONOUR:   Thank you.  All right, which would go to, you say, apprehended bias.  All right.  Mr Ackman, I mean, I still need to see - I mean, just as Mr Holland has indicated, there's more to come. 

   MR ACKMAN:   I knew that. 

   HIS HONOUR:   My immediate reaction to this is not necessarily as blunt as "So what?"  This takes it to a certain degree, but it doesn't ‑ ‑ - (Emphasis added)

3. This comment needs to be viewed in the context of what was before me on 19 January 2009.  On that date no application or supporting affidavit had yet been filed by the wife with respect to disqualification and I was dependent on what counsel told me from the bar table.  Counsel for the wife only raised that the wife had been employed by me in 1981 and he provided me with a copy of the wife’s reference from this employment.  Mr Holland said with respect to the proposed application (at p 2, line 21 of transcript):

   “If I might generally indicate the basis of the application, it is that your Honour and Mr [JF] solicitor, employed the wife between - in October 1981 and December 1981 and terminated her services, and then a reference was written which is signed by your Honour and Mr [JF] with respect to that.  Now, that's the basis of it and that's what I've told our opponents, if your Honour pleases, and Ms West.”

   Mr Holland did not outline the circumstances surrounding the termination of the wife’s employment nor any belief held by the wife regarding my opinion of her. 

4. My comment therefore was no more than a preliminary view based on the very limited information which had been provided to me at that hearing, namely that the wife had been employed by me, that that employment was terminated, and a reference had been provided.

5. In Johnson v Johnson (supra) the High Court clearly said that trial judges are able to express tentative views and raise issues during the hearing of a case without such comments amounting to prejudgment, and that judges are not required to remain silent during a hearing.  I refer again to what the majority said in paragraph 13 of their judgment and which I set out in paragraph 31 above.

6. I do not accept that a fair minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the determination of this application based on this comment.

7. Ms Pyke next took me to a comment I made on 20  January 2009 (at p 18, line 43 of transcript):

   HIS HONOUR:   Only if that's the issue.  If the issue is - accepting that - and I'm not going to sit in judgment on that - the question of waiver rears its head quite directly, in my view.

   MR ACKMAN:   I'd be assisted - I'm not quite certain I properly understand your Honour.  The fact is, your Honour ‑ ‑ ‑

   HIS HONOUR:   The wife can make this application now.

   MR ACKMAN:   Today? 

   HIS HONOUR:   At all. 

   MR ACKMAN:   Would your Honour just excuse me.  I think I know what your Honour is saying but I'm not confident.  It's not your Honour's job to instruct me, but I'd still like to know what your Honour is saying before I answer it and commit myself. 

   HIS HONOUR:   The issue for me is the question of waiver.  You termed it "acquiescence" yesterday. 

   MR ACKMAN:   I'm sorry.  That's what I was - I thought your Honour was talking about waiver of privilege.

   HIS HONOUR:   My term, and the term that I use in these cases, is "waiver".

   MR ACKMAN:   Acquiescence, I'm sorry.  Then I do understand what your Honour is saying.  Yes, well, of course ‑ ‑ ‑

   HIS HONOUR:   If that's something you're still suggesting ‑ ‑ ‑

   MR ACKMAN:   Absolutely. 

   HIS HONOUR:   - - - it's certainly something that's exercising my mind. … (Emphasis added)

8. Ms Pyke submitted that I was there indicating that the wife could not make an application “at all” and that this comment shows prejudgment on the issue of waiver.  Unfortunately, the comment “at all” does not appear to follow on from the previous comments, and as Ms Pyke conceded there may be something missing from the transcript.  In any event I do not accept that this passage shows prejudgment on the issue of waiver or that I was suggesting that due to waiver the wife was unable to bring an application for disqualification “at all”.  Given the circumstances surrounding the application, whether the wife had waived any right to object to my hearing this case almost three years after I was appointed judge manager was an obvious issue for consideration, albeit subject to whether the test for disqualification was satisfied or not.

9. The final aspect of Ms Pyke’s submission with respect to comments made by me during the hearings relates to alleged concerns arising from my initial indication that it was not appropriate for me to deal with the “first step” of the disqualification application and that there was a need for another judge to determine the application, and me subsequently deciding to hear the matter in its entirety.  The so called “first step” of the application was whether the wife formed the belief outlined in her affidavit, namely that I did not have a “high opinion” of her - essentially an issue with respect to the wife’s credit.  Ms Pyke also raised the issue, as she put it, of me “pressing” Mr Ackman QC, senior counsel for the husband, as to whether he wished to pursue this “first step” in the application.

10. Ms Pyke took me to a number of specific references in the transcripts of 20 January, 23 January and 3 February 2009, in this regard which I will set out below.

11. On 20 January 2009, (at p 19, line 31 of the transcript) the following exchange took place:

    HIS HONOUR:   - - - it's certainly something that's exercising my mind.  To repeat, I have no intention of sitting in judgment of what was said or not said in 1981.  Now, if that's the issue, then your submission is perfectly appropriate, that it should be another judge ‑ ‑ ‑

    MR ACKMAN:   Well ‑ ‑ ‑

    HIS HONOUR:   - - - if that's going to be agitated. 

    MR ACKMAN:   Of course. 

    HIS HONOUR:   But, Mr Ackman, are you saying that you would seriously agitate that issue and test that? 

    MR ACKMAN:   We would test two things, your Honour:  the honesty of what she's saying and then, even if she says - even if the court were satisfied that she did feel that way, then we'd say there are two steps.  Either the court is saying, "This is recent invention.  We don't believe that you ever felt offended by the judge," and therefore the matter goes out in that way.  The court could come to the view that she did believe that but she's acquiesced. 

    HIS HONOUR:   We're in heated agreement.  You can pursue that, and that can be an argument you put and a submission you make, and I won't be hearing that submission or that argument.  It will have to be before another judge.  Sorry, I shouldn't have queried you as to whether you were seriously saying that, but I just wondered whether that was a position that you were wanting to pursue. 

    MR ACKMAN:   Yes, your Honour.  The two steps, in case I haven't made it clear, are firstly recent invention ‑ ‑ ‑

    HIS HONOUR:   Yes.  All right. 

    MR ACKMAN:   - - - and then the second one is that - even if the court said, "No, we accept that she always genuinely felt that way," the next step would be, "Well, why didn't you" - part of the argument was, "Why didn't you raise it before?" but if we fail on that one, we'd say, "Well, you've acquiesced." 

    HIS HONOUR:   Okay.  Well, fine.  Then I understand what you're saying to me and I assume you understand what I've said to you. 

    MR ACKMAN:   I certainly understand, but more importantly, whether I do or I don't, your Honour will make the judgment and we'll be bound by it.

    HIS HONOUR:   The question is:  if you want to pursue the first step, as you've called it, then there's no way I'm going to hear that. 

    MR ACKMAN:   Thank you.  That would be our position.  We're certainly going to pursue it.  We're not going to accept, your Honour, that she ‑ ‑ ‑

12. On 23 January 2009, (at p 17, line 10 of the transcript) this was said:

    Mr Ackman, I just want to be absolutely 100 per cent certain that you wish to proceed to challenge the formation of that opinion by the wife ‑ ‑ ‑ 

    MR ACKMAN:   Yes, we do, your Honour. 

    HIS HONOUR:   - - - because my position is, having thought about it, that I cannot hear that.  Thus we would need to find another judge to hear the application for disqualification.  As far as I'm concerned, there is no difficulty whatsoever, though, if you weren't pursuing that issue, to hear the application for disqualification.  In other words, proceeding on the basis that:  accept the wife formed that opinion, apply the objective test and consider the question of waiver.

    I have no difficulty whatsoever in hearing the application in relation to those issues.  Mr Ackman, I'd want to be absolutely clear about you still wanting to pursue that first issue. 

    MR ACKMAN:   Your Honour, subject to anybody in the court over there disagreeing - this is a matter we've discussed.  Unless there has been a change of circumstances, which I presume from the silence over there there hasn't been, our position remains that the wife is not bona fide in asserting that she had genuine concerns about your Honour's attitude.  That's the first string to our bow.  The second would be, if we lost that one, that we would say, "Well, you've slept on your rights."

    HIS HONOUR:   Yes, I understand that.  I just want to be absolutely clear, because the effect of it is, Mr Ackman, that I won't be hearing the application and I don't know when it will be heard.  I can tell you now that there's no judge in this registry, currently, who can hear it.  I haven't checked with Burr J because he's away.  Dawe J can't.  We will have to get an interstate judge.  I can tell you, there is no possibility of that happening inside a matter of months.

    MR ACKMAN:   I take your Honour's point.  We're defending this, not putting it, and your Honour would understand ‑ ‑ ‑ 

    HIS HONOUR:   I know you are, but I'm just wanting you to clarify that you are pursuing it.  I'm not going to make any comment about it.  It would be inappropriate for me to do so.  I just want to be clear whether you're intending to pursue it.  You are.  You've said so.  All I'm doing is clarifying it and making sure you appreciate the consequences of it, which is:  I've decided that I can't hear the application.  It needs another judge.  And I can tell you now, I don't know when that can occur. (Emphasis added)

    …

13. Also on 23 January 2009 (at p 18, line 27 of the transcript) the following was said:

    HIS HONOUR:   No.  Mr Ackman, obviously you are right.  I'm now announcing my decision.  I need to make one other comment, to address a submission put to me by Mr Holland, before I complete that exercise, but I have made that decision which is if you wish - to repeat, and I don't want to labour the point unnecessarily - to pursue the first issue, so described, then I will not be hearing the application for disqualification, and, to repeat, I can't tell you when another judge will be available. 

    I mean, I said "a matter of months" out of an abundance of caution.  I just haven't been able to find, at this stage, in the short time that I've had, another judge who is available in the immediate future but that may change.  I don't know precisely what the position of everyone around Australia is, which is really the exercise that has to be undertaken. 

    MR ACKMAN:   Thank you, your Honour. 

    HIS HONOUR:   You are perfectly at liberty to confer with your instructing solicitor and Mr Berman as to whether, in those circumstances, you still wish to pursue the first issue.

14. Then continuing on 23 January 2009 (at p 20, line 29 of the transcript) as follows:

    HIS HONOUR:   All right.  So you wish to pursue, as I've called it, the challenge as to whether the wife formed that belief or not? 

    MR ACKMAN:   Yes, your Honour. 

    HIS HONOUR:   All right.  So that means I'm not going to hear this application for disqualification and I can't tell you when it's going to occur.  So I need to do something with the application. …

15. Ms Pyke also referred me to the following passages from 3 February 2009 (at p 2, line 28 of the transcript):

    Mr Ackman, can I just check with you again, just while we're still in that situation of waiting to make those arrangements, whether your client is still pursuing the question of challenging the - it's the word I've used - first issue in the disqualification application; namely, whether the wife did or did not form the opinion that she has expressed in her affidavit.  Is that still ‑ ‑ ‑

    MR ACKMAN:   Yes, it's still ‑ ‑ ‑

    HIS HONOUR:   - - - subject to your ‑ ‑ ‑

    MR ACKMAN:   They're my instructions, your Honour.

16. Finally, Ms Pyke referred to comments made on 3 February 2009, at page 27 of the transcript.  Ms Pyke quoted from line 20, but I will begin at line 11:

    HIS HONOUR:   Can I actually just raise that.  I mean, we talked about that briefly.  What I'm exploring is not necessarily a judge hearing the entire application for disqualification but hearing that part of it which I don't consider I can hear, for the reasons that I expressed previously. 

    What comes to pass about that is still a little bit up in the air, but I just mention that it may not be that another judge hears the entire application for disqualification, because as far as I'm concerned there's no need for another judge and indeed the judge who is involved in the matter - namely, me - in my view should hear what I can of the application for disqualification.  My view is I can hear everything after the issue of whether the wife did or didn't form that opinion has been determined. 

17. Ms Pyke also made reference to the email sent by my associate on 6 February 2009 informing the parties of my intention to hear the entirety of the disqualification application.  That email stated:

    “Justice Strickland has further considered this matter and has now decided that in the circumstances he will hear the application for disqualification in its entirety.”

18. Ms Pyke submitted that as a result of the above comments and exchanges with counsel, and in particular counsel for the husband, a fair-minded lay observer might form the view that I was “pressing”, as Ms Pyke puts it, senior counsel for the husband with respect to the “first issue” and was giving “judicial indication” that the husband should “not bother” with that element of that case as it is the issue of waiver that has substance.

19. I do not accept that submission.  It is quite apparent that I was simply identifying and clarifying what was being pursued by the parties, and in particular whether Mr Ackman wished to pursue the first step of the application, in order to determine how the application was to progress.  I again refer to the comments of the High Court in the case of Johnson v Johnson (supra) that judges are able to raise relevant issues in a case as part of active case management.  On that basis, I was entitled to indicate, for example, that if the husband pursued that aspect of the application I would not hear the application, and that may lead to delays, and I do not accept that clarifying this issue with Mr Ackman showed any prejudgment.  I also agree with the submission of Mr Ackman that the fact that I identified and indicated that waiver is an issue in this case could not be reasonably seen by the fair-minded lay observer as suggesting that the husband would succeed on that issue. 

20. It is instructive in this context to also refer to the comments of Kirby and Crennan JJ (forming part of the majority) in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577, where their Honours reiterated at [111] that “it is important to bear in mind the characteristics of modern litigation”, as recognised by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson (supra) at 493, before quoting the relevant part of that judgment with respect to case management and comments made by judges (see above at [31]).

21. In that case Callinan J also made relevant comments in relation to the Federal Court docket system and how the judge’s expressions in that case needed to be understood “in the light of the way in which trials in the Federal Court, and indeed in some other jurisdictions on occasions, are now conducted”. 

22. His Honour said this at [175] with respect to the docket system:

    “This system has its disadvantages and dangers.  On the one hand, the trial judge will be well educated in many of the details of the case on each side by the time that the hearing starts.  But on the other hand, it may sometimes be difficult for the trial judge, apparently fully conversant with the facts and issues, not to have formed some provisional view at least of the outcome of the case.”

    And at [176]:   

    “I mention these matters because in sum they may well incline a trial judge towards a degree of outspokenness of a kind to which he or she would not be inclined in a conventional trial on largely oral evidence.  That this is so does not provide any excuse for the manifestation of apparent bias on the part of a trial judge but it may explain why a judge finds himself or herself speaking more candidly and strongly than he or she might otherwise do, or even have been able to do, in the past or in other jurisdictions.  The question nonetheless remains whether the fair-minded lay observer might reasonably have apprehended that the judge might not be bringing an impartial and unprejudiced mind to the resolution of the questions he was required to decide.”

23. His Honour’s comments are equally relevant and applicable to matters heard in the Family Court following the introduction of the docket system, and also given that even prior to that, this case was being judicially managed by me.

24. I also note the comments of Kirby P (as he then was) in  S & M Motor Repairs Pty Ltd  & Ors v Caltex Oil (Australia) Pty Ltd & Anor (1988) 12 NSWLR 358 where his Honour stated at 370 that “where challenges to the apprehended bias of a judge are made, and disputed, the resolution of the dispute should not ignore the practical reality of the world in which the judges are required to operate”. 

25. Ms Pyke also submitted that a fair minded observer may apprehend that I might not bring an impartial mind to the determination of the disqualification application, given that I initially indicated that another judge would need to determine the “first issue”, and I subsequently decided to hear the entirety of the application.  Ms Pyke submitted:

    “…the lay observer might apprehend that your Honour may not bring an impartial and unprejudiced mind to the resolution of the proceedings because your Honour was doing the very thing - bearing in mind it goes to a matter to do with the credit of the wife - that your Honour said it was entirely inappropriate for your Honour to do.” (Transcript of proceedings, 26 February 2009, p 10, line 16)

1. Ms Pyke added that it is the wife’s case that her “confidence” in me bringing an unbiased mind to the resolution of her application has been “seriously undermined” by the “progress of this matter” and the “switching” of positions, and that a fair minded observer would have the same apprehension.

2. I do not accept these submissions.  Apart from the fact that whether the wife’s confidence has been undermined or not is not the test in determining the issue of disqualification, I consider it was open to me to change my initial view regarding whether I could hear the application, and after further consideration, determine that I would hear the entirety of the application. Indeed that was the submission of the wife all along, and it is somewhat ironic that because I changed my mind to accord with the wife’s position that the wife now suggests that that would indicate to a fair-minded lay observer that I might not bring an impartial and unprejudiced mined to the resolution of the application.

3. In addition to considering each of the comments identified by Ms Pyke individually, it is also necessary to consider their cumulative effect and whether collectively the comments would lead to a reasonable apprehension of bias by a fair-minded lay observer.  However, even taking the comments cumulatively does not change my view that the test for disqualification is not met.  In my view a fair minded reasonable observer would not form the apprehension based on my comments during the hearings, taken either individually or cumulatively, that I had prejudged the application in any way or that I might not bring an impartial mind to the determination of the application.  There is no substance to the concerns raised by the wife regarding the comments made during these hearings. 

The application for disqualification

1. I turn now to consider the application of the wife, filed on 20 January 2009, in which she seeks my disqualification from further hearing this matter.  The husband opposes the wife’s application, as does the Independent Children’s Lawyer. 

2. As I have previously indicated, I accept the truth of the facts deposed to by the wife in her affidavit filed 20 January 2009 in support of the application for disqualification.  To repeat, the wife says in that affidavit that she believed that the circumstances in which her employment was terminated and the terms of the letter of reference provided to her show that I did not have a “high opinion” of her.  The wife says that because of her previous association with me she felt “uncomfortable” with me hearing the case and she is “apprehensive that the Honourable Justice Strickland might not bring an impartial or unprejudiced mind to the resolution of the action”. 

3. For the record, I have no recollection of the wife having worked for me in 1981 or the circumstances surrounding the termination of that employment to which the wife refers, but of course that is not the test. 

4. Mr Ackman for the husband submitted that to meet the test for disqualification the wife needs to prove that I remember the wife and the circumstances surrounding her employment and termination, and that she has not done that.  In this regard, it was also submitted by Mr Ackman that the test for disqualification is to be applied at the time the application is made, and that the wife cannot ex post facto “cure” this defect in her case (ie the issue of knowledge) by the fact that I have now been made aware of the relevant events. 

5. Ms Pyke submitted on this issue, correctly in my view, that an applicant seeking disqualification of a judge does not need to establish what the judge knows or what a reasonable observer would think the judge knows.  I accept that the wife does not need to establish as part of her case that I remember the circumstances referred to or had knowledge of the matters raised.

6. Looking then at the objective facts , they are as follows:

   68.1I, along with another legal practitioner, employed the wife from 19 October 1981 until 23 December as a legal secretary.

   68.2There were complaints about the standard of her work and on the latter date the wife’s employment was terminated.

   68.3The wife was told by the other legal practitioner that her employment was terminated because her performance with regard to typing was not satisfactory.

   68.4Without comment, I left a reference in an envelope on the wife’s desk at the conclusion of her employment.

7. The wife says that she believed that because of the circumstances in which her employment was terminated and the terms of the reference that I did not have a high opinion of her.  Subsequently, because of her previous association with me, she felt uncomfortable about me hearing this case.

8. Now, the test for disqualification, as outlined earlier, is whether a fair-minded lay observer might reasonably apprehend that I may not bring an impartial and unprejudiced mind to the resolution of these proceedings.  Importantly the test is not what the wife may have subjectively apprehended, and thus the test is not satisfied simply because the wife formed the belief that I did not have a “high opinion” of her in the context of her employment as a legal secretary, or because of that previous association the wife has concerns about me hearing this case.

9. Senior Counsel for the wife submitted that a reasonable bystander would form the same view as that of the wife – namely that you would not want someone who had dismissed you in the circumstances the wife refers to determining your matter.  However, as I indicated at the hearing, that is not the test either. The test is not whether a fair minded observer would want a former employer who had dismissed them determining their case. The test is whether there might be an apprehension that I may not bring an impartial mind to the resolution of the proceedings. 

10. In my view there is nothing whatsoever in the objective facts set out above which could lead a fair-minded lay observer to reasonably apprehend that I may not bring an impartial and unprejudiced mind to the resolution of these proceedings.

11. The wife’s employment was terminated because her typing was not satisfactory.  There is no suggestion that there were any difficulties with the wife personally or that there were any issues with her honesty or her credit, for example.  Indeed, the reference bears that out.  It indicates that she was polite, courteous, and always well-groomed, that she discharged her duties keenly, that she had a willingness to learn, and that she could develop into a competent and efficient secretary.

12. To pose the question in the language of the wife, what was it about the wife that I did not have a “high opinion” of?  The wife does not say in her affidavit, but clearly it could only relate to her skills as a legal secretary.  What then I ask has that got to do with whether I would be able to bring an impartial and unprejudiced mind to the determination of the issues that the trial judge needs to resolve in this case, 27 years later?  The circumstances of the wife’s employment, the termination of that employment, and the terms of the reference could not lead a fair-minded lay observer to reasonably apprehend that I may not bring an impartial or unprejudiced mind to the determination of this case.  As stated by the High Court in Johnsonv Johnson (supra):

    “…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".

13. I therefore decline to disqualify myself and I propose to dismiss the Application in a Case filed by the wife on 20 January 2009. 

14. Although not bearing on the disqualification application, Mr Ackman submitted, correctly in my view, that the previous solicitors for the wife should have disclosed the issue of the wife’s employment to the husband’s solicitors. If anything, at first glance and absent information regarding the circumstances of the termination of that employment, the fact that the wife had at one stage been employed by the judge managing her case would be of more concern to the husband than the wife.  This is highlighted even more by the circumstances of the termination of that employment and in particular the terms of the reference.  They clearly raise the spectre from the husband’s point of view that I may be biased towards the wife.  However, the husband did not seek to pursue this argument, saying that he in fact has no concerns about this.

Waiver

1. The final issue that was raised for my consideration is whether the wife waived the right to object to me continuing to hear this matter.  However, as I have found that the test for disqualification has not been met, it is not necessary for me to determine the issue of waiver. 

I certify that the preceding 77 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 13 March 2009.

Associate