VICKERS & PHILLIPS

[2016] FCCA 313

FEDERAL CIRCUIT COURT OF AUSTRALIA

VICKERS & PHILLIPS [2016] FCCA 313

Catchwords:
FAMILY LAW – Practice and procedure – application for trial judge to recuse herself from continuing to hear the trial.

Ebner v Official Trustee in Bankruptcy [2000] HCA 63

Applicant: MR VICKERS

Respondent: MS PHILLIPS

File Number: MLC 7196 of 2014

Judgment of: Judge Harland

Hearing date: 5 February 2016

Date of Last Submission: 5 February 2016

Delivered at: Melbourne

Delivered on: 5 February 2016

REPRESENTATION

Counsel for the Applicant: Ms Williams

Solicitors for the Applicant: Kenna Teasdale Lawyers

Counsel for the Respondent: Mr Stavris

Solicitors for the Respondent: James Harris Lawyers

ORDERS

1. The oral application that Her Honour Judge Harland recuse herself from these proceedings is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7196 of 2014

MR VICKERS

Applicant

And

MS PHILLIPS

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. The current application before me is an application that I recuse myself on the grounds of apprehended bias.  This oral application was made on the second day of the property hearing. 

3. The grounds that the wife makes in support of her application are the following. Firstly, she complains that yesterday, I pointed my finger at her counsel, and that that has given her cause to be concerned that I am not exercising an impartial, independent view of this case.  She says that she said to her counsel yesterday “we haven’t got a hope.  Can this possibly occur in Australia?”

4. The second complaint raised is that Ms Williams has been making facial gestures to me yesterday and today, and that I have not called attention to that and addressed it. 

5. The third complaint is that there is a perception that I am treating each counsel in this case differently and the example provided was when earlier today Mr Stavris was continuing his cross-examination of the husband and Ms Williams stood, without saying the words “I object”. She made submissions and had been making submissions for at least a sentence or two when I observed that Mr Stavris had remained standing. It is well-known that there are rules of courtesy of the Court, where one party stands at a time. 

6. Those are the issues that have been raised before me for me to determine this application.  Ms Williams resists the application for me to recuse myself.  The authorities with respect to applications for judges to recuse themselves on the grounds of apprehended bias are well-established.  A leading case on this issue is Ebner v Official Trustee in Bankruptcy [2000] HCA 63.

7. The principles set out in Ebner’s case have been adopted in other more recent decisions, and are well-known.  In Ebner’s case, the High Court observed that in the absence of a suggestion of actual bias, it is a question of apprehended bias which refers to the independence or impartiality of a judge. A judge must disqualify himself or herself if a fair-minded lay observer may reasonably apprehend that the judge might not bring an impartial mind to the case being heard.

8. There are two steps that need to be considered.  The first requires the identification of what is said might lead the judge to decide a case other than on its legal and factual merits.  The second step is that there must be an articulation of a logical connection between the matter and the feared deviation from the course of deciding a case on its merits.  I will address the complaints that are raised in turn. 

9. The first complaint is in terms of finger pointing.  I note that I sit on the bench with a raised document holder, and frequently have my hands in front of me and pens in my hands. Yesterday, there was a robust exchange between myself and Mr Stavris, and that is not something that is uncommon, particularly in family law cases, where the issues are personal and important to both parties.  That was in the context of applications that were made and as indicated yesterday, will be addressed in written reasons, and do not need to be canvassed further here.  I do not accept that that is a basis for me to disqualify myself on the basis of apprehended bias.

10. The second ground raised is that Ms Williams has been making facial gestures at me today and yesterday, and that I have not admonished her for those gestures.  I observe at this point that I have not observed any facial gestures or unspoken communication by Ms Williams to myself.  I note that Mr Stavris says his instructing solicitor has seen those gestures, and that his client has also seen those gestures.  It is difficult to see how his client could have seen those gestures, given that she is sitting behind her counsel, however, in any event, it is not something that I have seen, and I spend a significant time during the trial writing notes and looking at witnesses.

11. Again, it is not a matter of the wife’s actual apprehension that I am biased and I accept that is how she feels, however, the test is whether a reasonable, fair-minded observer, who is not expected to be well-versed in the law, would form the view that I am unable to exercise independent judgment in this case, and that I have pre-judged the matter.  With respect to the issue of both counsel being on their feet, whilst it is common that counsel objecting will say “I object”, that is not universally the case.  It is certainly common, however Ms Williams was clearly on her feet and was making an objection in the substance of what she said.  It is not an issue where her words were so quick that there was no reasonable opportunity for Mr Stavris to sit. 

12. I do not find that any of the complaints amount to what would fall in the category of apprehended bias, and I note the comments of the High Court in Ebner, wherein they state that judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with practice which prevails in the Court to which they belong.

13. The High Court said that judges:

    “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”. 

14. I think that statement applies in this case.  Therefore, I dismiss the oral application that I recuse myself from the proceedings.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 18 February 2016