Wallace and Stelzer

[2008] FamCA 935

FAMILY COURT OF AUSTRALIA

WALLACE & STELZER [2008] FamCA 935

FAMILY LAW – COURTS AND JUDGES – Disqualification

Family Law Act 1975 (Cth)

McGovern v Ku-ring-gai Council [2008] NSWCA 209
Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411

R v Masters R v Richards R v Wunderlich (1992) 26 NSWLR 450

APPLICANT: Mr Wallace

RESPONDENT: Ms Stelzer

FILE NUMBER: SYC 5433 of 2007

DATE DELIVERED: 17 October 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Fowler

HEARING DATE: 16 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richardson SC

COUNSEL FOR THE RESPONDENT: Mr Lethbridge SC

Orders

1. I disqualify myself from determining any issue in these proceedings that involves the reception of oral evidence from [Mr Smith]. 

2. The name of the witness referred to in this judgment, and whose potential oral evidence was the subject of the application, be published under a pseudonym for publication or reporting purposes.

3. I adjourn the matter to 4.00 pm on Friday, 17 October 2008 for further review.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5433  of 2007

MR WALLACE

Applicant

And

MS STELZER

Respondent

REASONS FOR JUDGMENT

Introduction

1. In this matter, proceedings arising out of a binding financial agreement are listed before me for hearing at the Court’s Newcastle registry on 29 and

   
   30 October 2008

   .

2. In proceedings before me the parties entered into an agreement pursuant to the provisions of 90G of the Family Law Act 1975 (“the Act”).

3. The wife sought to enforce the agreement.

4. The husband has defended the application for enforcement on the grounds that the agreement does not satisfy the requirements of section 90G of the Act.  However, if he is wrong in that, then he seeks to set the agreement aside, pursuant to section 90K.

5. There is a discrete issue of compliance with section 90G.

6. To deal with this issue, the wife has filed in Court an Application in a Case seeking an order in the following terms:

   “1.An order that the certificates appearing at annexures “A” and “B” to the financial agreement between the parties be rectified so as to read that advice was given as to the following matters:

   (i)       the effect of the agreement on the rights of my client;  and

   (ii)the advantages and disadvantages, at the time that the advice was provided, to my client of making the agreement.”

1. I am informed by Mr Richardson, counsel for the husband, that it is his client’s intention to prepare an application for summary dismissal of the wife’s application.  This is argued on the ground that the law of rectification has no application by reason of the statutory nature of the certificate required to be given, and in the alternative for other reasons the application should be summarily dismissed.

2. The summary dismissal application is one in which the evidence filed on the part of the respondent to the application is not challengeable and I must consider that evidence taken at its highest and on its face.

3. Included in that evidence is an affidavit of a solicitor, Mr Smith.

4. Mr Smith commenced practice as a solicitor in 1985 and ceased practice as a solicitor on 21 February 2006.

5. During that time he practised, inter alia, in the field of family law.

6. Until my appointment to the bench and from 1966 I also practised as a solicitor in family law.

7. I knew Mr Smith’s late father who was also a practising solicitor, and I had matters in contention with him.  I also had matters in contention with

   
   

   Mr Smith in which he acted on the other side, although those matters were settled.  In those matters our relationship was cordial and appropriately professional.

8. I have, however, two other involvements with Mr Smith.

9. Firstly, I acted for his first wife and although my recollection is not clear, I do not believe that proceedings were ever commenced in a court and that the matter was ultimately resolved by agreement of the parties at that time.

10. I acted for the former husband of Mr Smith’s second wife in defended proceedings between him and his former spouse.  Those proceedings were vigorously contested.

11. Mr Smith, who was a former solicitor of my client and associate of his wife, was a witness in those proceedings.

12. Mr Shand of Her Majesty’s Counsel was instructed by me on behalf of the husband.

13. In those proceedings there was a prolonged, vigorous, unrelenting and some might say ruthless, cross-examination by Mr Shand of Mr Smith under instructions from me on behalf of my client, which attacked Mr Smith’s credit.

14. The cross-examination was, to my recollection, indeed robust.  No findings of credit in that matter were ever made however, and the matter was resolved by agreement of the parties.

15. In my subsequent dealings with Mr Smith we always had a cordial relationship and an entirely appropriately professional one.

16. Before the Court is an application brought by the husband and amended pursuant to leave granted this day, seeking an order in the following terms:

    “1.That the Honourable Justice Fowler disqualify himself from determining any issue in these proceedings that involve the reception of oral evidence from [Mr Smith].”

17. In support of that application an affidavit was filed by the husband.  He deposes relevantly:

    “4.I am informed and verily believe that for a number of years
    Mr [Smith] practiced as a solicitor in Sydney city and that throughout that period His Honour had also acted as a solicitor in Sydney city practising in family law.  I am further informed and verily believe that there are matters in the recollection of
    Mr Graeme Richardson SC which add a dimension to such relationship.

    5.I am informed and verily believe that the matters the subject of Mr Richardson SC’s recollections are set out in the letter dated
    7 October 2008 (a copy of which is annexed and marked “A”) forwarded by my solicitors to the solicitors for the respondent/wife.”

18. Those recollections referred to above involve recollections of a case in which

    
    

    Mr Smith was significantly and robustly cross-examined, and the letter expressed the view that it would be inappropriate for me to sit in judgment in any part of the case involving a present attack upon Mr Smith’s credit.

19. It is put that a reasonable observer would be likely to think that I might be likely to be predisposed to take an adverse view of Mr Smith’s credit contrary to the interests of the wife because I had come to this case with the history referred to above.

20. It is further put that such reasonable observer might be concerned that this issue being on the table, were I to take no adverse view of Mr Smith’s evidence, that that might be a product of an attempted overcompensation for the history referred, so as not to be thought to have fallen into the error or prejudgment referred to earlier.  Such a finding would be adverse to the husband’s case.

21. The wife for her part raises no objection to my further hearing the case.

22. Mr Smith has filed an affidavit in these proceedings which will be relied upon by the wife.  I am informed by Mr Richardson that on the final hearing of the matter (if there be one) Mr Smith’s credit will be an issue.

23. On the morning of the hearing I drew to the attention of both counsel that I had also acted for Mr Smith’s former wife, a fact not known to them.  Notwithstanding that, the wife’s position remained unchanged.

24. Mr Lethbridge made a detailed written submission which was helpful and which I had the advantage of reading, and I agreed with much of his submission.

25. Clearly, the simple fact of a professional relationship with Mr Smith was not a ground for disqualification.  Nor could it be said that I had any conflict of interest in the case.  However, I directed him to my concerns which were the likelihood of a disinterested observer having or forming a perception of bias by reason of the matters raised by Mr Richardson and set forth above.

26. The test referred to by Mr Lethbridge appears in the case of McGovern v
    Ku-ring-gai Council [2008] NSWCA 209 at 53, the test of prejudgment, and that test is (at 23):

    “… that an independent observer might reasonably apprehend that the decision-maker might not be open to persuasion.”

27. He also referred to two New South Wales authorities:  Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411, where a trial judge had made previously adverse findings on the same issue of fact on the same witness in related proceedings, and the case of R v Masters & Anor (1992) 26 NSWLR 450, a trial judge had previously made adverse findings and observations in a bail application.

28. I have not, of course, been in the position of making any adverse findings on Mr Smith’s credit.

29. However, I take the view that, having regard to my involvement with

    
    

    Mr Smith as a witness, and the attack which then took place on his credit under my instruction, and my involvement with him in the matter arising out of the failure of his first marriage that a disinterested observer might take the view that I might have a biased disposition in relation to his evidence.  I think it would be difficult for such an observer to disregard the fact that I come to this case with the history referred to.

30. It is true that judges should be careful in disqualifying themselves because of the consequences for the administration of justice if such an application were too readily acceded to.

31. However, justice must be served also by a system in which justice is not only done, but seen to be done, and on the application of the applicable tests of an apprehension of a disinterested observer I find that the case is made out.

32. I note this matter is listed for two days on 29 and 30 October 2008.

33. There is yet to be filed an application for summary dismissal of the wife’s application.  In view of the fact that that application has not yet been filed I have not, at this time, agreed to accept Mr Richardson’s invitation to, notwithstanding my decision referred to above, deal with the preliminary points of law in the case which he says are to be determined on an application for summary dismissal.  In those circumstances were I to do so, I would not be required to consider Mr Smith’s oral evidence, and Mr Richardson in those proceedings could not attack his credit.  The further examination of the issues consequent upon that determination could be left to another judge to decide.

34. I have asked Mr Lethbridge to take instructions as to whether he agreed to that course, and I indicate that if he does, I will allocate one day in my Newcastle sittings for the purpose of determining the preliminary point.

35. I note I am subsequently informed that he does not wish to accept that invitation.  Accordingly, the parties are referred to the List Co-ordinator to obtain dates before another judge and, save for the issue of costs of this application, the matter is removed from my docket.

36. Accordingly, the orders I make are as set forth above.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate: 

Date:  17 October 2008