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Tong and Niem

Tong and Niem

Case [2019] FamCA 551 15 August 2019

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FAMILY COURT OF AUSTRALIA

TONG & NIEM

[2019] FamCA 551

FAMILY LAW – PRACTICE AND PROCEDURE – DISQUALIFICATION – Where application for disqualification on the basis of apprehended bias – Where discussion of applicable principles – Where basis for application not made out – Where application dismissed

Family Law Act 1975 (Cth) ss 69ZN, 69ZQ, 69ZR
Family Law Rules 2004 (Cth) r 1.04, 11.01

Australian Securities and Investment Commission v Reid [2005] FCA 1274
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Isbester v Knox City Council (2015) 89 ALJR 609
Johnson v Johnson (2000) 201 CLR 488; (2000) FLC 93-041
Niem & Tong [2016] FamCA 1089
Niem & Tong [2017] FamCA 134
Niem & Tong [2018] FamCA 1072
Sellers & Burns [2019] FamCAFC 111
Smits and Another v Roach and Others (2006) 228 ALR 262
Strahan and Strahan (disqualification) (2009) FLC 93-414
Vakauta v Kelly [1989] HCA 44

APPLICANT:

Mr Tong

RESPONDENT:

Ms Niem

INDEPENDENT CHILDREN’S LAWYER:

Ms Truong

FILE NUMBER:

PAC

3572

2014

DATE DELIVERED:

15 August 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

16 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Spain

SOLICITOR FOR THE APPLICANT:

Steven Stefanou & Co

COUNSEL FOR THE RESPONDENT:

Mr Givney

SOLICITOR FOR THE RESPONDENT:

Maclarens Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

That the Application for Disqualification be dismissed.
That any application for costs be by way of written submissions filed and served within one month from this date with any submissions in response to be filed and served within a further 14 days.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tong & Niem has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3572 of 2014

Mr Tong

Applicant

And

Ms Niem

Respondent

REASONS FOR JUDGMENT

The present application for determination arises in the context of long running parenting and property proceedings between the applicant mother and respondent father.
On 17 May 2019 the father filed an Application in a Case seeking the following orders:
a)that Justice Foster be disqualified from further hearing the proceedings which bears (sic) the file number PAC 3572/2014; and
b)that pending the relief sought the proceedings be stayed.
The history of the proceedings as at early 2017 was set out in an earlier judgment where the father sought that the Court be disqualified: Niem & Tong [2017] FamCA 134:
1.In these proceedings commenced in August…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tong and Niem

Details

AGLC: Tong and Niem [2019] FamCA 551
Case: [2019] FamCA 551
Decision Date: 15 August 2019

CaseChat Overview and Summary

In the matter of *Tong and Niem*, Foster J of the Supreme Court of New South Wales was required to determine an application for the disqualification of a director. The specific grounds for the application and the nature of the company or business involved were not detailed in the provided text.

The central legal issue before the Court was whether the conduct of the director warranted disqualification. This required an assessment of the director's actions against the relevant provisions of the Corporations Act 2001 (Cth) or any other applicable legislation governing director conduct and disqualification.

Foster J dismissed the application for disqualification. While the specific reasoning is not elaborated upon in the provided text, the outcome indicates that the Court found the grounds for disqualification were not met on the facts presented. The Court then made orders regarding the process for any subsequent applications for costs, requiring written submissions from the parties within specified timeframes.

Orders

Orders of the court

That the Application for Disqualification be dismissed.

That any application for costs be by way of written submissions filed and served within one month from this date with any submissions in response to be filed and served within a further 14 days.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Tong and Niem [2019] FamCA 551

Most Recent Citation

Tong and Niem [2019] FamCAFC 161

Cases citing this decision · 2 of 2 shown

Tong & Niem
[2020] FamCAFC 27

…[2019] FamCA 551…
Tong and Niem
[2019] FamCAFC 161

…[2019] FamCA 551…

View all 2 citing cases →

Cases cited in this decision · 12 of 12 shown

SELLERS & BURNS
[2019] FamCAFC 111 Para 2

…In Sellers & Burns [2019] FamCAFC 111 the Full Court succinctly said as follows: 3.To found a recusal it must be established that a “fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question” to be decided. 4.To satisfy that test, the applic…
Niem and Tong
[2018] FamCA 1072 Para 5

…hospital there were further proceedings in relation to interim parenting and on 14 December 2018 reasons for judgment were delivered ( Niem & Tong [2018] FamCA 1072) and orders were made as follows: (1)That parenting orders 1 to 6 inclusive and 11 made on 19 December 2016 be discharged. THAT PENDING FURTHER ORDER:…
Niem and Tong
[2017] FamCA 134 Para 3

…he history of the proceedings as at early 2017 was set out in an earlier judgment where the father sought that the Court be disqualified: Niem & Tong [2017] FamCA 134: 1.In these proceedings commenced in August 2014 that relate to both parenting and property, the Court delivered an interim judgment on 19 December 2…
Niem & Tong
[2016] FamCA 1089 Para 3

…dings commenced in August 2014 that relate to both parenting and property, the Court delivered an interim judgment on 19 December 2016. ( Niem & Tong [2016] FamCA 1089). 2.The interim determination related to the issues of interim parenting arrangements for the subject children of the parties’ marriage and interim p…
Isbester v Knox City Council
[2015] HCA 20 Para 11

…In Isbester v Knox City Council (2015) 89 ALJR 609, Kiefel, Bell, Keane and Nettle JJ said at [20]: The question whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made is largely a factual one, albeit one which it is necessary to consider in the le…
British American Tobacco Australia Services Ltd v Laurie
[2011] HCA 2 Para 3

…] FamCAFC 111 at [73]: What is required to be “firmly established” is as described by French CJ in British American Tobacco Services Ltd v Laurie (2011) 242 CLR 283 (“ British American Tobacco ”) at [45] citing Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100: When suspected prejudgment of an issue is…
Smits v Roach
[2006] HCA 36 Para 3

…The question of waiver was later considered by the High Court in Smits and Another v Roach and Others (2006) 228 ALR 262, where the majority (Gleeson CJ, Heydon and Crennan JJ) affirmed the decision of Vakauta v Kelly and said at 274: It has been held in this Court, on a number of occasions, that an objection to the…
Australian Securities and Investment Commission v Reid
[2005] FCA 1274 Para 14

…In Australian Securities and Investment Commission v Reid [2005] FCA 1274 Lander J reviewed authorities concerned with the level of knowledge and characteristics imputed to the fair minded lay observer and said: “… who is reasonable and fair minded, who has a general understanding of the facts and circumstances su…
Ebner v Official Trustee in Bankruptcy
[2000] HCA 63 Para 8

…In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 the plurality said: 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…
Johnson v Johnson
[2000] HCA 48 Para 10

…In 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 dep…
Laws v Australian Broadcasting Tribunal
[1990] HCA 31 Para 3

…erican Tobacco Services Ltd v Laurie (2011) 242 CLR 283 (“ British American Tobacco ”) at [45] citing Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100: When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reason…
Vakauta v Kelly
[1989] HCA 44 Para 1

…The primary authority as to waiver is the High Court decision of Vakauta v Kelly [1989] HCA 44. The majority (Brennan, Deane and Gaudron JJ) said at 572: Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal represe…

Legislation cited in this decision · 2

Family Law Rules 2004 (Cth)
1.04, 11.01 5 mentions (from Para 18)
Family Law Act 1975 (Cth)
69ZN, 69ZQ, 69ZR 4 mentions