Strahan & Strahan (Disqualification)

[2009] FamCAFC 204

FAMILY COURT OF AUSTRALIA

STRAHAN & STRAHAN (DISQUALIFICATION) [2009] FamCAFC 204

FAMILY LAW - APPEAL – COURTS AND JUDGES – DISQUALIFICATION – Whether the judge should have disqualified himself because of apprehended bias – Where the wife had been employed by the judge in 1981 when he was a practising solicitor – Where that employment was terminated for unsatisfactory performance – Where it was accepted that the judge had no memory of the wife’s former employment – Where the wife’s evidence as to her former employment was unchallenged – Where the wife intended to introduce evidence during property settlement proceedings that she assisted the husband in developing a successful business – Consideration of the test in Ebner v Official Trustee in Bankruptcy –  Appeal allowed

FAMILY LAW - APPEAL – COURTS AND JUDGES – DISQUALIFICATION AND DISCRETION – Whether a decision to disqualify is a matter of discretion – Whether the wife must show an error of the kind found in House v The King – Where the judge must apply the governing principles to the facts without any latitude of individual choice – Held such decisions are not discretionary

FAMILY LAW - APPEAL – COURTS AND JUDGES – DISQUALIFICATION AND WAIVER – Whether the wife had waived her right to seek the disqualification of the judge – Where considerable time passed between when the wife first expressed concerns and when she made her application – Where the wife’s uncontested evidence was that she was unaware of her rights regarding this issue – Where the wife provided an adequate explanation for the delay – Such delay not fatal to the wife’s appeal

FAMILY LAW - COSTS – Where the appeal has been successful – Where an order for cost certificates would be inappropriate considering the parties’ wealth, the amount they have spent on litigation and the extent to which public resources have been made available to them in providing a forum for their dispute – No order as to costs between the husband and the wife – Where the husband and the wife bear equally the costs of the Independent Children’s Lawyer on an increased scale

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)
High Court Rules 2004

Australian National Industries Ltd v Spedley Securities Ltd (In Liq) (1992) 26 NSWLR 411
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Fox v Percy (2003) 214 CLR 118
House v The King (1936) 55 CLR 499
Johnson v Johnson (2000) 201 CLR 488; (2000) FLC 93-041
McGillivray v Mitchell (1998) FLC 92-818
Re JRL; Ex Parte CJL (1986) 161 CLR 342
Russo v Russo [1953] VLR 57
Smits v Roach (2006) 227 CLR 423
Vakauta v Kelly (1988) 13 NSWLR 502
Vakauta v Kelly (1989) 167 CLR 568

APPELLANT: Ms Strahan

RESPONDENT: Mr Strahan

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

FILE NUMBER: ADF 228 of 2005

APPEAL NUMBER: SA 27 of 2009

DATE DELIVERED: 18 November 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Adelaide

JUDGMENT OF: May, Boland & Thackray JJ

HEARING DATE: 21 July 2009

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 13 March 2009

LOWER COURT MNC: [2009] FamCA 186

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Whitington QC and Mr Holland of Counsel

SOLICITOR FOR THE APPELLANT: Pederick Lawyers

COUNSEL FOR THE RESPONDENT: Mr Ackman QC and Ms MacMillan of Counsel

SOLICITOR FOR THE RESPONDENT: Robinson & Mason

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms West

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

Orders

1. The appeal be allowed.

2. The hearing of all matters in these proceedings be listed before a judge other than the Honourable Justice Strickland.

3. There is no order as to costs of the appeal in the case of the husband and the wife.

4. The husband and the wife meet equally the costs of the Independent Children’s Lawyer, such costs to be calculated pursuant to the Legal Services Commission of South Australia scale plus 25 per cent.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SA 27  of 2009
File Number: ADF 228  of 2005

Ms Strahan

Appellant

And

Mr Strahan

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an appeal by the wife from orders made by Strickland J on 13 March 2009. Strickland J dismissed the wife’s application, filed 20 January 2009, that he disqualify himself from further hearing the matter on the ground of apprehended bias. Such apprehension was said to arise from the fact that the wife had been employed by the judge in 1981 when he was a practising lawyer, until her employment was terminated for unsatisfactory performance.

2. There are two limbs to the wife’s appeal. First, that the manner in which the judge dealt with the disqualification application could give rise to a reasonable apprehension of bias in a fair-minded observer and demonstrated that his Honour was improperly anxious to retain the matter. Secondly, that it is possible his Honour may recall the circumstances of the wife’s termination from employment “and the adverse impression she created” at some point during the course of the hearing, which similarly could give rise to an apprehension of bias.

The relevant law

1. The law concerning disqualification on account 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 344-349:

   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.

   …

   The principle to be applied

   19.Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.

   20.This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.

   21.It is not possible to state in a categorical form the circumstances in which a judge, although personally convinced that he or she is not disqualified, may properly decline to sit. Circumstances vary, and may include such factors as the stage at which an objection is raised, the practical possibility of arranging for another judge to hear the case, and the public or constitutional role of the court before which the proceedings are being conducted. These problems usually arise in a context in which a judge has no particular personal desire to hear a case. If a judge were anxious to sit in a particular case, and took pains to arrange that he or she would do so, questions of actual bias may arise.

   22.The particular principle or principles which determine the grounds upon which a judge will be disqualified from hearing a case follow from a consideration of the fundamental principle that court cases, civil or criminal, must be decided by an independent and impartial tribunal.

   23.Bias, whether actual or apprehended, connotes the absence of impartiality. It may not be an adequate term to cover all cases of the absence of independence.

   24.In Webb v The Queen, a case concerning a juror, Deane J identified four distinct, though overlapping, categories of case involving disqualification by reason of the appearance of bias: interest; conduct; association; and extraneous information. It is not necessary to decide upon the comprehensiveness of such categorisation, and its utility may depend upon the context in which it is employed. However, it provides a convenient frame of reference.

   (footnotes omitted)

2. In the earlier decision of Johnson v Johnson (2000) 201 CLR 488; (2000) FLC 93-041, the plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said at 492-493:

   10.The disposition of this appeal depends upon the application of principles which are well established and which neither party disputed. The contention was that there had been a departure from those principles which the Full Court of the Family Court had wrongly failed to correct, thus calling for the intervention of this Court, if only to emphasise the importance of intermediate courts applying these principles. In these circumstances it is neither necessary nor appropriate to undertake any detailed analysis of the principles or their basis.

   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 (which, in the present case, was said to take the form of prejudgment) 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”.

   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.

   (footnotes omitted) (emphasis added)

3. It will be noted that the plurality in Johnson considered it unnecessary to undertake a detailed analysis of the principles relating to apprehended bias, preferring to rely on the test of “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.” The plurality in Ebner articulated a two step process to be used in applying that test in individual cases. The first step is the identification of the matters said to give rise to the apprehended bias. The second step requires consideration of the “logical connection” between the matters identified and the possibility, real not remote, of a deviation from the course of deciding the case on its merits.

4. In applying this two step process to particular cases it must be kept firmly in mind that judicial officers have a duty to sit and should not accede too readily to suggestions of appearance of bias. This point was firmly made by Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342. Given the importance of the proposition, and the fact that Strickland J cited it in his reasons, we propose to set out what Mason J said at 352:

   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. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

   (footnotes omitted)

Background

1. The proceedings between the parties have a long history. The issues between them concern both property settlement and parenting matters. The trial of the property dispute has not commenced and the trial of the parenting issues has reached only the preliminary stage known as “Day 1”.

2. The parties married in 1994 and separated in 2005. There is one child of the marriage, now aged 13 years.

3. It is necessary to provide a brief outline of the chronology of the proceedings. The wife commenced proceedings in the Family Court in February 2005. In May 2006, Dawe J ordered that the case be managed by Strickland J. His Honour first made orders in this matter in August 2006. Since that time he has made numerous orders and delivered judgments in relation to both property settlement and parenting matters. None of these have been in the nature of final orders.

4. Proceedings between the parties were listed for final hearing before his Honour in September 2007 and then in March 2008. Both listings were vacated on the application and by the consent of the parties.

5. A new notice of address for service was filed by the wife in April 2008 informing the court that she was now represented by Pederick Lawyers. Pederick Lawyers acted for the wife in relation to the disqualification application and continue to act for her in the appeal.

1. The particular facts relevant to the disqualification application are the circumstances of the wife’s employment in 1981. In an affidavit filed on 20 January 2009 in support of her application for the judge to disqualify himself, the wife stated:

   3.…I had worked for the Honourable Justice Strickland and [Mr JF] of [a firm] (“the said firm”) as a … secretary from … October 1981 until … December 1981. I obtained my employment with the said firm as a result of a referral from the Commonwealth Employment Service. I was initially employed to work on a three month contract. There were complaints about the standard of my work. My employment was terminated after about 2 months because (I was informed by [Mr JF]) my performance with regard to typing was not satisfactory. During my employment I was the only secretarial staff member and worked closely with the Honourable Justice Strickland and [Mr JF]. Now produced and shown to me marked with the letters “ES1” and annexed hereto is a true copy of a reference provided to me by the said firm at the conclusion of my employment. That letter has been co-signed by the Honourable Justice Strickland and was placed in an envelope and put on my desk by him without any comment. I believe that the circumstances in which my employment was terminated and the terms of the letters “ES1” show that the Honourable Justice Strickland did not have a high opinion of me.

   (original emphasis)

2. Attached to the affidavit was a copy of this document from December 1981 provided by the firm and co-signed by Strickland J. The reference stated:

   To Whom It May Concern,

   [Ms Strahan] was employed as a … secretary by this firm and another legal practitioner from the … October, 1981 until the … December 1981. She was engaged in the duties of general typing, shorthand and reception work.

   During the time [Ms Strahan] 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 [Ms Strahan] could develop into a competent and efficient secretary.

3. In her affidavit, the wife outlined her concerns regarding Strickland J hearing the trial in the following terms:

   10.In this action the Honourable Justice Strickland will likely be required to assess my behaviour, my reliability and credibility and my earning capacity in relation to applications for children’s issues, property settlement, spousal maintenance and a departure from a Child Support Assessment. The issues I have about the Honourable Justice Strickland hearing the case came to the forefront of my mind again when providing instructions to my solicitor as set out in paragraph 3 hereof and discovering “ES1”. I am apprehensive that the Honourable Justice Strickland might not bring an impartial or unprejudiced mind to the resolution of the action.

4. Attached to the affidavit were copies of correspondence between the wife and her various solicitors in relation to this matter. We set out this correspondence at some length because the question of delay and waiver were raised in the arguments on behalf of the husband.

5. In an email to her then solicitors, Donaldson Walsh Lawyers, dated 21 June 2006, the wife stated:

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

   Justice Strickland has always been [Mr Strahan’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 based on the above mentioned grounds and for many other reasons.

   What has happened to the appointed Judge Dawe. Does the appointed Judge still exist? or has she completely disappeared.

   I do not understand why your office delayed after 21 days emailing me a copy of the court order dated 30th May, 2006. Again I am suspicious. I have been set up by my own lawyers, deliberately keeping me in the dark on court matters which is to my detriment. …

6. The wife received a response on 22 June 2006 from Alan Branch of Donaldson Walsh Lawyers which stated:

   ...

   5. Based on the above events which are totally outside the influence of [sic] control of [Mr Strahan] 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.

   I trust that this reduces your concern. …

7. The wife deposed to raising a number of matters with Justin Dowd of Watts McCray Lawyers, her then solicitors, on 9 November 2006. On 10 November 2006, she received an email of advice from Mr Dowd which stated:

   …

   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 all procedural and interim decisions I 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 … application lodged before another Judge. Whilstever Justice Strickland is the Judge Manager, all applications will be listed before him.

   The only way of avoiding Judge 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. Again, a costs order against you would automatically flow from any such application. …

8. On 29 November 2006 the wife emailed Mr Dowd stating that it was time to inform the Family Court of the circumstances of her former employment. In response to that email, Mr Dowd emailed the wife and noted:

   …I have also your email of 29 November 2006 noting that during 1981 you were an employee working for Justice Strickland’s [sic] legal firm … . We have considered that issue and believe that this 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. …

9. Considerable time passed after the wife expressed concerns about Strickland J in 2006 and the filing of her application on 20 January 2009. One of the challenges mounted by counsel for the husband against her application was that the wife had “waived” her right to complain.

10. In her supporting affidavit filed 20 January 2009 the wife stated:

    3.On the 16^th of January 2009 during the course of providing instructions to my solicitor Mrs. Pederick in relation to the preparation of my Trial Affidavit relating to children’s issues, I advised her for the first time that I had worked for the Honourable Justice Strickland and [Mr JF] of [the firm] … (“the said firm”) as a … secretary from … October 1981 until … December 1981. …

    …

    9.At no time prior to the 16 January 2009 had I been asked by any of my solicitors to provide any more information to them concerning my employment with the said firm, and in particular the circumstances of the termination thereof. Nor did I show any of them [the reference document] because I did not discover that I had it in my possession until searching for information concerning my previous employment history at the request of my present solicitor, at the time described in paragraph 3 hereof.

11. The husband and the Independent Children’s Lawyer both opposed the wife’s application before Strickland J. The lawyers for the husband ultimately did not seek to cross-examine the wife. The judge “accept[ed] the truth of the facts” contained in her affidavit. (Reasons, [4])

The judgment

1. Strickland J began his reasons with a brief history of the proceedings between the parties. Given that one of the issues raised by the wife on appeal is the way in which his Honour dealt with the disqualification application itself, it is useful to extract his summary of the proceedings:

   25.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.

   26.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.

   27.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.

   28.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.

   29.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.

2. Strickland J then said by reference to Johnson and the comments of Mason J in Re JRL; Ex Parte CJL that:

   32.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.

3. His Honour then referred to the three issues identified by senior counsel for the wife. These were:

   34.…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.

4. Strickland J first dealt with what was described as the issue of his comments during the four hearings in January and February 2009. Counsel for the wife directed the judge to three instances in transcripts where his comments could, it was submitted, give rise to an apprehension of bias.

5. We will refer to this issue although it was rejected by the judge and ultimately did not form part of the argument on appeal. Its significance is primarily one of background.

6. The first comment referred to by counsel for the wife was that made at the hearing on 19 January 2009 where the trial judge said “[c]learly there’s nothing in this per se” with respect to the wife’s (then proposed) application. After setting out the entirety of the exchange between himself and counsel for the wife, Strickland J concluded in his judgment:

   37.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],… 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.

   38.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.

7. The next comment referred to by counsel for the wife was one which, it was submitted, showed prejudgment of the issue of waiver. The comment occurred on 20 January 2009, in the midst of an exchange between counsel for the husband and the trial judge about the issue of waiver. His Honour uttered the words “[a]t all”. Again, in his reasons, Strickland J set out the exchange in full:

   41.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. With respect to this matter Strickland J stated:

   42.…Unfortunately, the comment ‘at all’ does not appear to follow on from the previous comments, and as [counsel for the wife] 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 raised by counsel for the wife in relation to the four hearings was the manner in which the learned trial judge initially indicated that it was not appropriate for him to deal with the “first step” of the disqualification application and that there was a need for another judge to determine part or all of the application. As mentioned earlier, he later determined to hear the application in its entirety.

10. The “first step” which required consideration by his Honour was thought to be whether the wife had in fact formed the belief that the trial judge did not have a “high opinion” of her. This was categorised by his Honour as an “issue with respect to the wife’s credit”. Strickland J initially formed the view that he could not determine that part of the application as it involved making a finding about the wife’s credit. (Reasons, [43])

11. Counsel for the wife identified at the hearing of the application before the judge a series of exchanges where the judge previously clarified with counsel for the husband whether the husband was pursuing a challenge to the wife’s credit. This is highlighted by the following exchange on 23 January 2009 between his Honour and counsel for the husband, set out in full in the judgment:

    [HIS HONOUR:]      …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:         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. …

12. On 6 February 2009 Strickland J’s associate sent an email to the parties informing them of his Honour’s intention to hear the entirety of the disqualification application. The 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.

13. We mention for completeness that counsel for the wife before the trial judge submitted that a fair-minded lay observer, upon witnessing the exchanges between the trial judge and counsel during the earlier hearings, could form the view that his Honour was giving an indication that it was unnecessary to pursue the challenge to wife’s belief as it was the issue of waiver which had substance. In relation to that submission, his Honour concluded:

    53.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. 

1. In support of this conclusion, Strickland J referred to the comments of Kirby and Crennan JJ in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at paragraph 111 where their Honours reiterated 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. Of that decision, Strickland J observed:

   55.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”. 

   56.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.”

   57.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.

2. Counsel for the wife also argued in the disqualification application that an apprehension of bias could arise out of the fact that the trial judge had initially indicated that another judge would need to hear the “first step” of the application before his Honour subsequently determined to hear the entire application. She submitted:

   [T]he lay observer, looking at it from the wife’s point of view, in our submission would have the view that your Honour was, as it were, quite prepared to, in the end, hear a matter that your Honour had been maintaining all along it wouldn’t be proper for your Honour to hear.
   …

   In essence…the wife’s confidence in your Honour bringing an unprejudiced or unbiased or impartial mind to the resolution of this matter has been severely undermined by the progress of the matter and your Honour, as it were, switching positions in the way that you did. We say that a fair-minded lay observer would come to, in my submission, the same fears and apprehensions.

3. In relation to that submission, Strickland J concluded:

   61.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 [sic] to the resolution of the application.

   62.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. 

4. Under the heading “The application for disqualification” his Honour then considered the issues raised by the wife’s application. Strickland J accepted the truth of the facts deposed by the wife in her supporting affidavit but noted that he had “no recollection of the wife having worked for me…or the circumstances surrounding the termination of that employment”. (Reasons, [65])

5. The judge accepted that the wife did not need to establish “what the judge knows or what a reasonable observer would think the judge knows.” He further noted that, contrary to counsel for the wife’s submission, the test was not whether a reasonable bystander in the same circumstances as the wife would form the same view, but rather that there might arise in a fair-minded observer the “apprehension that I may not bring an impartial mind to the resolution of the proceedings.” (Reasons, [64], [67] and [71])

6. After setting our what he understood to be the objective facts, Strickland J considered that there was nothing which could “lead a fair minded lay observer to reasonably apprehend that [he] would not bring an impartial and unprejudiced mind to the resolution” of the proceedings. His Honour concluded that:

   70.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 … secretary, or because of that previous association the wife has concerns about me hearing this case.

   71.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. 

   72.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.

   73.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.

7. In a key part of the judgment, his Honour further addressed the wife’s concerns as contained in her affidavit and stated:

   74.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 … 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”.

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

8. Although the judge was of the opinion that it did not bear upon the application before him, Strickland J also briefly considered whether the wife’s solicitors should have disclosed the details of the wife’s former employment to the husband’s legal representatives. His Honour observed at paragraph 76:

   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.

9. In relation to the third issue, namely whether the wife had waived her right to bring the application because of delay, Strickland J found that it was not necessary to determine that issue as the test for disqualification had not been met. (Reasons, [77])

The grounds of appeal

1. In the notice of appeal, there are five grounds of appeal. During oral submissions, counsel for the wife explained that grounds 1 and 2 were not pressed. They will not be considered.

2. In the event that the appeal succeeds, the wife asks that we order Strickland J be disqualified from further hearing of the proceedings between the parties.

3. As acknowledged by counsel for the wife, the third ground of appeal contains the main argument. Grounds 4 and 5 are subsidiary complaints. Ground 3 is as follows:

   The learned Trial Judge erred in determining that he would not disqualify himself in finding that nothing in the objective facts could lead a fair minded lay observer to reasonably apprehend that he may not bring an impartial and unprejudiced mind to the resolution of these proceedings.

4. Grounds 4 and 5 concern his Honour’s findings in relation to the termination of the wife’s employment. Ground 4 is particularly directed to his Honour’s conclusion in paragraph 73 that the termination of the wife’s employment was due to her poor typing skills and not because of any difficulties with the wife personally.

5. Ground 5 concerns the conclusion at paragraph 74 where the learned trial judge determined that the wife’s belief as to his opinion of the wife could only relate to her skills as a secretary.

Submissions

1. Counsel for the wife raised with us a number of arguments which did not appear in the written outline. Although there was no request initially for an opportunity to reply to these other than orally, a request was made after the hearing of the appeal. We allowed further written submissions.

2. As we understood the main arguments, they can be described under a number of headings.

1. Is this an appeal from a discretionary judgment?

1. We first refer to the submissions of counsel for the husband that this is an appeal from a discretionary judgment, and therefore the wife must show an error of the kind identified by the High Court in House v The King (1936) 55 CLR 499. Counsel submitted:

   It is difficult to see how it can be properly argued that [the test outlined in Ebner v Official Trustee in Bankruptcy] does not involve at every level an exercise of his Honour’s discretion. His Honour has to say what is reasonable for a fair minded person and with the greatest respect…it’s ultimately, in our respectful submission, it is a clear case of an exercise of discretion as you might see. It’s not a mathematical equation, two plus two equals four is not an application of discretionary judgment. It is difficult to perceive of a more clear case of a judge having to exercise his discretion in trying to decide the use of the word reasonable which is contained in lots of legislation but there are many cases that indicate it’s difficult.

2. In oral submissions, counsel for the wife argued that this is not an appeal from a discretionary decision. His submission was adopted by counsel for the Independent Children’s Lawyer.

3. The wife’s counsel referred the court to the decision in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 where the majority (Gleeson CJ, Gaudron and Hayne JJ) stated:

   19.“Discretion” is a notion that “signifies a number of different legal concepts”. In general terms, it refers to a decision-making process in which “no one [consideration] and no combination of [considerations] is necessarily determinative of the result”. Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.

   (footnotes omitted)

4. Counsel also referred to the judgment of Sholl J in Russo v Russo [1953] VLR 57, where his Honour said, at 62:

   What is a discretionary determination? I have not found, in the cases cited in Halsbury’s Laws of England (2nd ed.), vol. 31, p. 535, note (r), any definition apt to distinguish such determinations from those non-discretionary decisions, to appeals from or reviews of which different considerations apply. At least the concept involves a considerable latitude of individual choice of a conclusion – a right in the tribunal, adhering to certain general principles, and taking into account relevant factors, to decide nevertheless according to its individual opinion. It involves further that the tribunal, instead of merely ascertaining and declaring existing rights, formulates for the first time, and declares, new rights according to its own opinion – the only pre-existing right having been a right to have the tribunal’s decision exercised on the correct materials.

5. Mr Whitington QC submitted that, applying those principles to this case, there was no discretionary decision involved in determining the disqualification application. Rather, it “involves the application of a rule or…a governing principle” to the facts. He went on to say:

   …it might involve an element of judgment as to which side of the line of principle the facts come to rest but that is not a choice the court is driven judicially to one conclusion or the other by reference to the facts.

6. Directions made by this Court on 30 June 2009 allowed the parties to file further written submissions on this point. In those submissions, counsel for the husband submitted that whether or not the trial judge was exercising his discretion “is not determinative of the outcome of the appeal”. Counsel referred to the decision in Fox v Percy (2003) 214 CLR 118, where Gleeson CJ, Gummow and Kirby JJ explained:

   20.Appeal is not, as such, a common law procedure. It is a creature of statute. In Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd, Mason J distinguished between (i) an appeal stricto sensu, where the issue is whether the judgment below was right on the material before the trial court; (ii) an appeal by rehearing on the evidence before the trial court; (iii) an appeal by way of rehearing on that evidence supplemented by such further evidence as the appellate court admits under statutory power to do so; (iv) an appeal by way of hearing de novo. There are different meanings to be attached to the word “rehearing”. The distinction between an appeal by way of rehearing and a hearing de novo was further considered in Allesch v Maunz. Which of the meanings is that borne by the term “appeal”, or whether there is some other meaning, is, in the absence of an express statement in the particular provision, a matter of statutory construction in each case.

   (footnotes omitted)

7. No doubt it is correct that this point is not determinative of the appeal. However, for the reasons advanced by counsel for the wife we consider the judge’s decision was not in the nature of a discretionary judgment. Accordingly, the principles applying to appeals of that nature do not apply in the instant case.

2. The manner in which the judge dealt with the wife’s application

1. The submissions of counsel were directed towards two matters. These can be summarised as:

   a)   Strickland J erred in the manner in which he determined the application; and

   b)     The dialogue between the trial judge and counsel for the husband indicated that his Honour was “anxious” to retain the docket.

   We will consider each of those issues in turn.

The trial judge’s approach

1. It was first submitted on behalf of the wife that it was not open to his Honour to consider whether the application in part or as a whole ought to be heard by another judge. On 20 January 2009, counsel for the husband proposed to attack the wife’s application in two stages: firstly, to “mount a credit challenge” and dispute whether the wife had, bona fide, formed the belief that Strickland J did not have a high opinion of her; and secondly, to agitate the “waiver issue”. Strickland J indicated that if an attack was made on the wife’s credit, he would not hear that part of the application, described as the “step one issue.” Alternatively, the whole application would need to be determined by another judge.

2. It was submitted on behalf of the wife that this approach was misconceived. An application to disqualify is “a request made personally to a judge to excuse themselves. It is not a judicial application and it cannot be decided by anybody else…”. In support of this submission, reference was made to paragraph 74 of the decision in Ebner v Official Trustee in Bankruptcy where the majority stated:

   We note that Callinan J, in relation to the third matter referred to in his reasons for judgment, has expressed the view that it would be preferable in future for challenges of apprehended bias to be determined, where possible, by a judge other than the one who has been asked to disqualify himself or herself. With respect, we are unable to agree. On that approach, for example, some other judge of the Federal Court would have considered the challenge made to Goldberg J in Ebner. Adopting such a procedure would require examination of the power of that other judge to determine the question and the way in which that other judge’s conclusion would find its expression. In particular, is the question of possible disqualification to be treated as an issue in controversy between the parties to the proceeding and is it to be resolved by some form of order? The issue is not one which was argued in the present appeals, and it is sufficient to say that, in our view, Goldberg J adopted what was both the ordinary, and the correct, practice in deciding the matter himself.

1. Counsel also referred to the majority decision of the Full Federal Court (Gummow and Heerey JJ) in Gas & Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48, where their Honours quoted from the decision of Mahoney JA in Australian National Industries Ltd v Spedley Securities Ltd (In Liq) (1992) 26 NSWLR 411. Mahoney JA stated at 436:

   There are obvious reasons why the issue of, for example, whether a particular judge is in fact biased or there is an appearance of bias should not be the subject of factual contest, by evidence and counter-evidence, before the judge. A fortiori, the issue of whether one judge should for such reasons not hear a case cannot be brought before another judge to decide the former’s bias, pre-judgment, or the like, or the effect of them. The principle adopted and followed has been that (special cases apart) the matter is to be determined by the judge himself and, if he be wrong, his error is to be corrected on appeal.

   In my opinion, such an approach is correct. Ordinarily matters of bias or pre-judgment are not susceptible of proof in the ordinary way, by allegation and counter-allegation; whether a judge is affected in such fashion is ordinarily a matter known essentially by him. And I think, if such a matter were brought to contest in such a way, by evidence against evidence, the position of the judge and his impartiality would be - or ordinarily would be - destroyed.

2. Counsel for the husband began his submissions on this point by indicating that in any event, the material put before his Honour was not sufficient to require the judge’s disqualification. Rather, they were concerned that in the course of dealing with the matter, Strickland J may have been forced to decide an issue about the wife’s credit, and if he did so unfavourably, he would then have to disqualify himself. As it was explained by Mr Ackman QC:

   So the first question that I put to his Honour, was that his Honour should not put himself in the position where he would achieve a result that the wife wanted but not for the reasons that she put forward. His Honour was initially reluctant but eventually appeared to come to that view.

3. Further, it was submitted that the fact that the trial judge considered splitting the application and only deciding a portion of it is not apprehended bias, but rather demonstrated that his Honour was determined to deal with the matter in an appropriate manner.

4. In relation to this issue, counsel for the Independent Children’s Lawyer submitted that it was perfectly open to his Honour to hear the wife’s application and consider whether he was required to make a finding about the wife’s credit. Upon reflection, Strickland J realised “that that wasn’t something he had to do, and therefore he proceeded as appropriately as soon as he could.”

5. Ultimately, all that need be said about this point is that Strickland J dealt with the matter himself and some of the initial difficulties resolved when there was no longer a challenge to the wife’s evidence. We do not see that his Honour made any error in this respect.

“Anxiety” to retain the docket

1. The second submission put by counsel for the wife was that his Honour had given a strong indication that he was “anxious to hold onto the matter” demonstrated by the manner in which he considered disposing of the application. Such indication, it was contended, arose from discussion between counsel for the husband and Strickland J which gave the appearance that “the learned judge had pressed counsel for the husband not to pursue a challenge to the wife’s credit” as it would be “inappropriate for [his Honour] to hear” that part of the application. This, it was submitted, bespoke an anxiety on his Honour’s part to retain the docket. Counsel argued before us:

   An indication that a judge is anxious to maintain or retain a particular matter is evidence of bias and in this case, we would say apprehended bias.

2. While recognising that judges should not disqualify themselves too readily and have a duty to hear matters, counsel for the wife submitted that:

   The cautions enjoined by the High Court are simply meant to remind judges that there is a balancing exercise. There are two interests of the administration of justice here to be balanced. One is that cases proceed speedily and efficiently and that the party who is not complaining has their day in court when they expect it, but the other is the greater principle … that people are entitled to see that justice is done. So they are the two public interests involved and we say the public interest in the speedy and efficient administration of justice should not be allowed to denude… the second principle of any real meaning of content.

3. In support of this submission, counsel referred to the reasons of Kirby J in Johnson v Johnson, where his Honour stated at 500-504:

   36.There are three interrelated reasons that explain the approach to apprehended bias established by this Court. Considering them helps, in a way that incantation of verbal phrases may not, to understand the manner in which a problem such as that presented in the present appeal is to be resolved.

   37.Fundamental rule of justice: The first involves the ultimate foundation for the rule that an adjudicator must be free of actual or apprehended bias. I leave aside any requirements that may be inherent in, or implied from, the Constitution. The establishment of an integrated Judicature by Ch III of the Constitution undoubtedly carries with it various affirmative and negative requirements and implications. However, no party to the present appeal (or in the courts below) relied upon a constitutional argument. Without deciding that none is available, I put this potential source for the foundation of the Australian rule on judicial disqualification to one side.

   38.It is a “fundamental rule” of natural justice and an “abiding value of our legal system” that every adjudicator must be free from bias. This same principle has been accepted in the international law of human rights, which supports the vigilant approach this Court has taken to the possibility that the “parties or the public might entertain a reasonable apprehension” that an adjudicator may not be impartial. …

   …

   41.Appearance of justice: The reason commonly given for adopting the comparatively strict approach that has found favour in this Court in recent years is that it mirrors the importance attached by the law not only to the actuality of justice (that is, whether the adjudicator had, in fact, prejudged issues in the case) but also the appearance of impartiality both to the parties and to the community. From the point of view of public policy, the practical foundation for a relatively strict approach lies in the obligation on an appellate court to defend the purity of the administration of justice and thereby to sustain the community's confidence in the system. In the words of Lord Denning MR, “[j]ustice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: ‘The judge was biased’”.

   42. Lord Hewart CJ was the author of the famous aphorism that “justice should not only be done, but should manifestly and undoubtedly be seen to be done”. That dictum should be kept in mind in approaching any case such as the present. It is a strong reason for resisting attempts to undermine the principle which this Court has followed. Such attempts represent judicial pining for a return to the previous rule, or an endeavour to attribute undue knowledge and sophistication to the fictitious bystander, whose imputed judgment is crucial. These attempts sometimes manifest themselves in the form of suggested distinctions between the rules applied in different courts, or emerge in the form of claims made for the exception of “necessity”, by reference to pressing considerations of convenience and cost. Such endeavours should, in my view, be resisted. To the extent that the criterion becomes divorced from the reasonable impressions, knowledge and values of the fictitious bystander, taken as representative of the community, the maintenance of the appearance of justice is undermined. The result of doing this, over time, would inevitably be to damage public confidence in the integrity of the institutions of public decision-making.

   43.Applying realistic criteria: The third consideration grows out of the first two. However, it also derives from the changes that have occurred in society since the earlier rules were expressed in terms requiring proof of “a high probability” of bias before an adjudicator was disqualified on the basis of prejudgment.

   44.Older authorities contain statements about the asserted special capacity of adjudicators, especially judges, because of their training and experience, to bring a detached mind to the task in hand whatever their earlier stated opinions might suggest. It was on this basis that the old rules requiring affirmative proof of a “real danger” of bias were stated. Part of the reason for the eventual retreat from this approach is undoubtedly the growing inclination of parties to litigation, and also many members of the public, to regard such assertions with scepticism. To some extent, this change of attitude may be a product of higher levels of education and social awareness. In part, it may reflect public attitudes to all institutions, especially where claims are made based on unproved assertions by those affected. In part, it may be a consequence of the growth in the judiciary and other adjudicative bodies and the greater willingness of members of the legal profession to challenge things that once would have been left alone. Despite these changes, there are still many constraints upon raising the possible disqualification of an adjudicator. If the party complaining is legally represented, the submission will require explicit instructions and usually be made (as in the present case) after time for advice and reflection. The advice will weigh up a host of countervailing factors. In part, the increase in the number of litigants in person has undoubtedly produced a siseable proportion of the applications for disqualification for prejudgment and resulted in many of the recent Australian decisions on the subject. These developments confirm this Court's present rule. They strengthen a conclusion that any watering down of the rule would be undesirable.

   (footnotes omitted)

4. Counsel for the husband referred to paragraph 13 of the decision in Johnson v Johnson (extracted above), where the court noted that the reasonableness of any suggested apprehension of bias must be considered “in the context of ordinary judicial practice”. In this case, it was submitted Strickland J’s stated intention to hear the wife’s application could not lead a fair-minded lay observer to apprehend that his Honour would not bring an “impartial and unprejudiced mind to the determination”.

5. Counsel for the Independent Children’s Lawyer submitted that the dialogue between Strickland J and counsel was not indicative of any anxiety on his Honour’s part to retain the conduct of the matter. It was open to his Honour to “enter into discussions with Counsel to identify and clarify the issues for determination” given that the event underlying the application occurred approximately twenty-seven years ago and his Honour was “surprised by the application”. This led to “out-loud thinking” and consideration of the matter between his Honour and counsel during the hearings. His Honour later, correctly it was submitted, considered the matter in chambers and decided to hear the entirety of the matter. This course was not an indication of any anxiety on his Honour’s part.

6. We agree with the submissions of the Independent Children’s Lawyer and can see nothing about the judge’s conduct in this matter which would warrant any criticism, in particular that he demonstrated an over-keenness to hear the matter.

3. Circumstances of the wife’s termination

1. Counsel for the wife submitted that the nature and circumstances of the wife’s termination indicated that the trial judge would have formed a negative view of the wife in 1981. Counsel argued that the terms of the reference “properly read [were] unfavourable.” Counsel further submitted that there might have been some “suspicion about [the wife’s] conduct in some way which it wasn’t appropriate to agitate in a reference, but which justified her summary dismissal after nine weeks.” It was submitted that this negative view could impact on the trial judge’s later decision in relation to children’s issues and, more particularly, property settlement.

2. Evidence which counsel proposed to introduce during the property settlement proceedings before Strickland J was that the wife “assisted the husband quite considerably in the development of a business involving a complex betting system and investments overseas.” Within the context of those property proceedings and the parenting matters, the wife’s “competence and her credit, more generally, no doubt will be an issue at trial”.

3. Appreciating that Strickland J noted in his reasons that he did not remember the wife, it was submitted that his recollection of her skills may be triggered by some event during the trial. Such recall could occur after the trial had progressed substantially, perhaps seven weeks into an eight week trial. In that event, it was submitted the doctrine of necessity would operate to preclude Strickland J’s disqualification for bias. This would render “nugatory the wife’s right to press for disqualification” and the assurance “of the appearance of a fair trial.”

4. It is worthy of note that no suggestion was made by any party to the trial judge that the property and parenting matters be considered separately. It would seem that the wife’s case in relation to disqualification is stronger in relation to financial matters, where her skills and ability are likely to be greatly scrutinised. This was alluded to by the wife in her affidavit, but not pressed in submissions before his Honour.

5. Counsel for the husband noted that this is an unusual case, given that it was the wife, a former employee of the trial judge, who made the disqualification application. Counsel further referred to paragraph 76 of his Honour’s reasons, where the trial judge mentioned that “at first glance” the circumstances would seem to give rise to an apprehension of bias in favour of the wife, and against the husband.

6. The husband’s counsel further submitted that if his Honour was to remember the wife during the course of the trial, then that could be dealt with at that point in time. He anticipated that the bulk of the wife’s evidence would be dealt with early in the trial so that it is unlikely that the doctrine of necessity would arise. Counsel submitted that if the trial judge suddenly recalled his past connection with the wife, then undoubtedly his Honour would invite submissions from counsel as to whether he should be disqualified or not at that point.

7. The husband’s counsel further submitted that there was nothing in the reference that indicated that the trial judge would form a critical opinion of the wife. He argued that the final paragraph of the reference was important as it indicated that in the “right environment” the wife would become an efficient secretary. The reference, it was submitted, was evidence not that the wife could not become a capable and efficient secretary, but rather that she could do so in the right circumstances. Consequently, it was contended, no reasonable lay person looking at it could say that it gives rise to an apprehension of bias against the wife; the words being unequivocal and clear.

8. Counsel for the Independent Children’s Lawyer expanded on that submission, and argued that the reference was “reasonably complimentary” and “identified that, within the context of her youth and lack of experience” the wife lacked some skills which would develop over time. It was submitted that the wife was on notice as a result of the exchange between counsel for the wife and Strickland J where his Honour noted that there was “nothing in this” (referring to the reference) to put all her evidence before the court. Counsel noted that the only evidence before the court in relation to the wife’s former employment was contained in her affidavit filed 20 January 2009; there was no evidence that the judge had ever been critical of the wife or, indeed, had ever spoken to the wife.

9. Counsel further submitted that should the trial judge have some recollection of the wife during the property and parenting proceedings, that recollection would be of a young girl working in an office nearly thirty years ago and would not affect his Honour’s ability to judge her contribution to property matters and parenting now. It was submitted that there was nothing in the evidence which suggested that a future recollection by Strickland J of the wife would prejudice his view of her as a witness or party; the wife’s credit and honesty were not criticised in the reference.

10. In support of this submission, counsel referred to the decision of McHugh JA in Vakauta v Kelly (1988) 13 NSWLR 502, where his Honour stated at 527:

    … in the case of a professional judge whose training, tradition and oath or affirmation require him to discard the irrelevant, the immaterial and the prejudicial, a conclusion that there is a reasonable apprehension that he is biased should not be drawn lightly.

    It should be mentioned that this view was adopted by Toohey J in the High Court decision of Vakauta v Kelly (1989) 167 CLR 568 at 584-585.

4. Waiver

1. Before us counsel for the wife submitted that as the husband’s counsel presented no oral submissions to the judge and his written submissions, which we will shortly set out, addressed the point so “faintly” as not to press it at all, that it did not amount to any submission on the point. He further noted that the wife was not challenged on her evidence. The wife’s counsel asserted that if the husband wished to agitate the issue of waiver he should have filed a Notice of Contention (relying on the High Court Rules 2004 – rule 42.08.5).

2. Subsections 38(1) and (2) of the Family Law Act 1975 (Cth) (“the Act”) provide:

   (1)  Subject to this Act, the practice and procedure of the Court shall be in accordance with the regulations and the standard Rules of Court.

   (2)  In so far as the provisions applicable in accordance with subsection (1) are insufficient, the Rules of the High Court, as in force for the time being, apply, mutatis mutandis, so far as they are capable of application and subject to any directions of the Court or a Judge, to the practice and procedure of the Court.

3. Rule 42.08.5 of the High Court Rules provides as follows:

   Where a respondent does not seek a discharge or variation of a part of the judgment actually pronounced or made, but contends that the judgment ought to be upheld on the ground that the court below has erroneously decided, or has failed to decide, some matter of fact or law, it is not necessary to give a notice of cross-appeal, but that respondent shall file and serve, within the time limited by rule 42.08.1, a notice of that contention in Form 27.

   (emphasis added).

4. Counsel for the husband submitted that the question of waiver should be remitted to a judge other than Strickland J for determination. That proposition was opposed by the wife’s counsel in his submissions in reply. He submitted the proposal was unprincipled, and by reference to paragraph 74 of Ebner, that the matter could not be remitted to another judge. He further submitted the husband had an opportunity to cross examine the wife but had failed to take up that opportunity.

5. In his written submissions before Strickland J, counsel for the husband expressed the waiver issue thus:

   13.This is not a matter that has only recently been brought to the wife’s attention. It is her evidence that because of her previous association with Your Honour she always felt uncomfortable about Your Honour hearing the case. Notwithstanding that knowledge the wife has failed to object and that failure amounts to a waiver of her right to object to Your Honour continuing to hear the matter.

1. Counsel for the wife referred Strickland J to the reasons of Toohey J in Vakauta v Kelly, where his Honour stated at 587:

   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. That is not to say that the litigant in such a position must expressly call upon the judge to withdraw from the case. It may be enough that counsel make clear that objection is taken to what the judge has said, by reason of the way in which the remarks will be viewed. It will then be for the judge to determine what course to adopt, in particular whether to stand down from the case. …

2. Counsel for the wife at the hearing before the judge submitted that the wife had never been fully aware of the circumstances in which ostensible bias may have been inferred. Counsel submitted that the uncontested evidence of the wife was, until the recent discussion with her new solicitor, that she unaware of the circumstances in which she might seek to have the judge disqualified. The wife’s counsel referred to the wife’s uncontested evidence that, although her previous solicitors had been informed by the wife of her employment by the judge, the circumstances of her dismissal, and the receipt of the reference from the judge had only recently become known to her present solicitor. On receipt of her present solicitor’s advice the wife had immediately brought the application. Put shortly the wife’s counsel submitted the wife had not “waived her rights because she never knew she had them”.

3. We accept that the issue of waiver, although fully addressed in the wife’s submissions to the judge, was not directly challenged in counsel for the husband’s oral submissions. But it was articulated in his written submissions. The judge elected not to deal with the issue. In these circumstances there may be substance in the submission that, absent a Notice of Contention, the husband is now precluded from raising the issue.

4. However, rather than deciding the matter on the basis of a “technical” submission involving the interpretation of section 38(2), we propose to deal with the claim of waiver on its merits. The wife’s evidence on this point was not challenged. Even if it were appropriate to remit the matter to a judge other than Strickland J (which we doubt), we are in a position to determine the matter on the basis of the evidence and submissions that were before his Honour. In the interests of a prompt resolution, we intend to do so.

5. Notwithstanding the fundamental importance of tribunals being seen to be independent and impartial, it is not in doubt that the right to object to the continuing involvement of a judge on the grounds of apprehended bias may be waived. As Dawson J said in Vakauta v Kelly at 577:

   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.

6. On becoming aware of circumstances which support an application for disqualification, counsel must promptly bring the matter to the attention of the tribunal so that the judicial officer may determine whether to cease hearing the matter. This requirement is clearly explained by Kirby J in Smits v Roach (2006) 227 CLR 423 at 466 as follows:

   125.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. …

   (footnote omitted)

7. Similar policy considerations can be seen as underpinning the approach taken in cases where there has been delay in making an application to restrain a legal practitioner from acting against a former client. In McGillivray v Mitchell (1998) FLC 92-818 the husband in family law proceedings sought to restrain the wife’s solicitor from briefing counsel who had acted for him in respect of his previous marriage. The husband had been aware of counsel acting for the wife for approximately seven months without objection before making his application. The Full Court dismissed the husband’s appeal against the refusal of the trial judge to grant his application and in doing so said at paragraph 36:

   It is our opinion that if a family law litigant has a genuine concern about a former legal adviser acting against him or her in later family law litigation, the litigant must take the point at least in correspondence with the other side at the earliest possible opportunity. If he or she does not do so, then he or she is possessed of a weapon which can later be used as a delaying tactic at some point in the proceedings convenient to his or her position. Furthermore a failure to take the point initially must also cast doubt on the bona fides of any later complaint…

8. In the present matter it is not in dispute that the wife has been concerned about the involvement of Strickland J for some years. She sought advice about her concerns at an early stage. On advice, she did not pursue the matter at the time. Subsequently she received different advice from her present solicitors, which was based, in part, on additional information in the form of the reference. Having received this advice, the wife promptly applied for his Honour to be disqualified.

9. We do not consider that the delay since the matter came into Strickland J’s list as case manager is fatal to the wife’s application for his Honour to be disqualified. The wife’s unchallenged evidence provides an adequate explanation for the delay and does not lead to any suggestion that the delay was tactical It should also be recognised that the authorities relating to waiver in this context have largely been concerned with cases where a party, legally represented, delays taking objection until the outcome of the proceedings is known. In our view, quite different policy considerations apply in circumstances where the outcome of the substantive proceedings is not known.

10. We appreciate that whilst Strickland J has clearly had a very substantial involvement in the litigation, the trial of the substantive financial proceedings is yet to begin and the proceedings concerning the child have only reached what is known as “Day 1”. Whilst we acknowledge there will be considerable logistical difficulties associated with another judge coming to grips with what is a complex matter, we do not see any significant prejudice to the husband as a consequence of another judge being required to assume the management of the proceedings and to conduct the trial.

11. In our experience it is not uncommon for a complex matter to be managed by one judge but ultimately to be heard by another. Indeed in some circumstances this may be the preferable course, given that during the course of interlocutory proceedings the managing judge is likely to have made rulings adverse to one or other of the parties and may even be thought to have made adverse comments regarding the merits of the substantive claims.

12. Accordingly, although we accept that the wife’s application was filed several years after the commencement of the litigation, we do not consider that there is any substance in the waiver argument or that there is prejudice caused to the husband if the trial judge is a judge other than Strickland J.

Conclusion

1. On its own, the fact that the wife briefly worked for the judge may not have led to him considering that he should disqualify himself. But in this case a consideration of the uncontested evidence of the wife including the reference, we think, should have led him to that conclusion. As the High Court said in Ebner:

   So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined.

2. In essence, whilst we are satisfied that the judge identified the correct governing principles in seeking to determine the wife’s application, we consider he erred in his application of those principles, as explained in Ebner, to the facts. We consider that a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of at least a significant part of the contentious issues.

3. In arriving at this conclusion we have applied the two step process referred to in Ebner. The first step has been satisfied by the identification of the wife’s employment by the judge, the signing of the wife’s reference by the judge and the circumstances of the wife’s dismissal by the judge.

4. In our view the wife has also satisfied the Ebner second step, which requires a logical connection between the matters identified at the first step and the feared deviation from the course of deciding the case on its merits. The fair-minded lay observer might reasonably apprehend that the judge might consider that a person deemed unsuitable by him even to be permitted to complete what was a short term contract of employment in an office position would be unlikely to be of any real assistance in helping develop a very sophisticated and profitable business.

5. We do not consider the fact that the wife was comparatively young at the time these things occurred makes any difference. Had the wife been a young person of such skill and ability that the judge would have been anxious to retain her in his employ, a fair-minded lay observer might reasonably apprehend that the judge might be inclined to consider she could have provided the husband with significant assistance in his business activities.

6. We therefore consider there is substance in the submission of counsel for the wife relating to the logical conclusion to be drawn from what his Honour said about the fact that it was not the husband who had made the disqualification application. His Honour said at paragraph 76:

   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.

7. If, as was properly acknowledged by his Honour, the fact of the wife’s employment and the content of the reference could give rise to an appearance of bias in favour of the wife, the fact the wife was dismissed by his Honour, combined with a less favourable interpretation of the reference, could give rise to a contrary appearance. Although his Honour considered the terms of the reference were favourable, we accept the wife’s submission that, in context, the reference would not be considered “positive” and that it fell into the category of references that are significant for what they do not say as much for what they do.

8. We accept that the judge had no recollection of the wife as an employee. Quite apart from the possibility that during the course of a protracted trial, his Honour might regain some recollection of the wife, the position remains that he will now be acutely conscious of the fact he was involved in her dismissal from employment. A fair-minded observer could reasonably apprehend that even without recollection of the circumstances, the judge might proceed on an assumption that the wife must have been particularly incompetent to have warranted dismissal only part way into a short term contract.

9. It is in these circumstances that we consider his Honour ought to have disqualified himself from further involvement in the proceedings.

10. The appeal should be allowed. The question then arises what order should this Court make in relation to the application of the wife.

11. Section 94(2) of the Act states that the Full Court may “make such decree or decision as, in the opinion of the court, ought to have been made in the first instance”.

12. In our view it is clear that the order to be made is to allow the application of the wife having the effect that the matter is to be listed before a judge other than Strickland J.

Costs

1. The parties made oral submissions at the conclusion of the hearing of the appeal in relation to costs of the appeal.

2. It was submitted on behalf of the wife that in the event that the appeal was successful, the husband should pay the costs of the appeal and of the hearing before Strickland J. It was also submitted that provision of a costs certificate under the Federal Proceedings (Costs) Act 1981 (Cth) may not be appropriate as it would be an unfairness to the wife because of the shortfall between her actual costs and the capped amount available under a certificate.

3. On behalf of the husband it was submitted that if the appeal is successful the provision of costs certificates would be appropriate as this appeal concerned a matter of public interest.

4. Counsel for the Independent Children’s Lawyer sought costs against the unsuccessful party on the basis of an amended scale, being the scale of the Legal Services Commission plus an additional 25 per cent. We understand this request was in accordance with an order made by Strickland J concerning the basis upon which the Independent Children’s Lawyer will be remunerated in this matter.

5. Section 117 provides that each party to proceedings under the Act shall bear their own costs unless there are circumstances that justify an order for costs. Although the wife has been wholly successful, we do not consider it is appropriate that the husband be required to meet her costs given that he was not responsible for the error we have identified in allowing the appeal.

6. Nor do we consider it appropriate for costs certificates to be provided to allow the parties to recover from the public purse some of the costs they have incurred in the appeal. In coming to this decision we have taken into account the wealth of the parties, the amount they have already expended on litigation and the extent to which public resources have been made available to them in providing a forum for their dispute.

7. We therefore consider there should be no order as to costs save in relation to the costs incurred by the Independent Children’s Lawyer. Lest there be any doubt as to who should be responsible for those costs, we propose to order that the husband and the wife meet equally the costs of the Independent Children’s Lawyer, calculated pursuant to the Legal Services Commission scale plus an additional 25 per cent.

I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate:

Date: 18 November 2009