WOOTTON & HILLIER (No.2)
[2012] FMCAfam 1045
•18 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WOOTTON & HILLIER (No.2) | [2012] FMCAfam 1045 |
| FAMILY LAW – Disqualification application – relevant principles – question from Bench regarding ‘battered wife syndrome’ in circumstances where there are detailed and long-standing allegations concerning a history of emotional, verbal and physical abuse – principal application to set aside a binding financial agreement on grounds of duress, undue influence and unconscionable conduct. |
| Family Law Act 1975, ss.79A, 90G(1)(b), 90K(1)(a), (b), (d) & (e) |
| Antoun v The Queen (2006) ALJR 497; (2006) ALR 51 Re JRL; ex parte CJL (1986) 161 CLR 342 Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 |
| Applicant: | MS WOOTTON |
| Respondent: | MR HILLIER |
| File Number: | CAC 2423 of 2007 |
| Judgment of: | Neville FM |
| Hearing date: | 18 September 2012 |
| Date of Last Submission: | 18 September 2012 |
| Delivered at: | Canberra |
| Delivered on: | 18 September 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Kearney |
| Solicitors for the Applicant: | Armstrong Legal, Canberra |
| Counsel for the Respondent: | Mr P Campton |
| Solicitors for the Respondent: | Somerville Legal, North Sydney |
ORDERS
The oral application for disqualification made on 18 September 2012 be refused.
IT IS NOTED that publication of this judgment under the pseudonym Wootton & Hillier (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 2423 of 2007
| MS WOOTTON |
Applicant
And
| MR HILLIER |
Respondent
REASONS FOR JUDGMENT
Introduction
The immediate application before the Court, made orally on behalf of the Respondent Husband on 18th September 2012, is that I disqualify myself from further involvement in the current proceeding, which concerns the Wife’s application to set aside a binding financial agreement (“the BFA”) that was entered into by the parties and is dated 31st May 2007. The ground of the application is apprehended bias, which is said to be based on three factors that are outlined later in these reasons. Counsel for the Applicant Wife opposed the disqualification application.
Following the delivery, in a somewhat attenuated form, of oral reasons, including an outline of principle in relation to apprehended bias which referred to, among other cases, the High Court’s most recent consideration of the subject in Michael Wilson & Partners Limited v Nicholls, I refused the Husband’s disqualification application.[1] In the course of delivering my reasons, I reserved my position to revise them. What follows are those reasons as revised.
[1] Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427 (“Michael Wilson”). Counsel for the Husband relied generally upon the principles in relation to apprehended bias set out in Johnson v Johnson (2000) 201 CLR 488. To be fair, Counsel referred to them in an abbreviated manner and did not (I do not say it critically) address a number of the matters set out in Johnson to which I refer at a little length in the course of these reasons. I inquired of him whether the High Court’s latest consideration of the subject in Michael Wilson altered his application. He candidly confirmed that he was unaware of the decision but would review its provenance as quickly as possible. See Transcript (18th September 2012) p.172.
Upon delivering the reasons and making orders Counsel for the Husband confirmed his instructions to appeal my decision and consequently sought a stay of the matter until the appeal was determined. Counsel confirmed that the appeal would be lodged immediately and that it would be accompanied by an application for expedition.
A stay/adjournment application was heard the following day (19th September). Given that it had been earlier agreed that the matter would have to go part heard in any event, the further applications were, in large measure, moot. Formally, the stay was refused but the matter was adjourned to dates previously discussed with Counsel. Subject to (a) when the appeal can be heard, and (b) the outcome of it, the matter has been listed for further hearing next March.
Detail of the Disqualification Application
As articulated by learned Counsel for the Husband, there are three bases which he says give rise to an apprehension of bias. As I comprehend his submissions, although he avers that it is the cumulative effect of the three grounds, it is particularly the third of them (designated (c) in the following paragraph) that is his primary focus and cause of concern.
Using my terms, the three grounds or factors relied upon and advanced by learned Counsel for the Husband may be summarised as follows:[2]
a) An email sent from my chambers to the solicitors for both parties, dated 12th September 2012, which referred to an earlier decision of the Court in 2010 in another matter that dealt with duress, undue influence and unconscionable conduct but in the context of an application pursuant to s.79A of the Family Law Act1975. The email said:[3]
His Honour has requested that we draw to your attention the decision of Hogan & Hogan [2010] FMCAfam 1255 in which the Court considered issues of duress, undue influence and unconscionable conduct in the context of a s.79A application. HH does not suggest that the case is directly relevant to the current matter, but wishes simply to draw Counsels’ attention to it in the event that any part of it might, subject to evidence and submissions, be in any way relevant or of assistance.
b) Discussions with Counsel on day 1 of the hearing (detailed later) in the course of submissions and rulings on objections to affidavit evidence. Counsel contends that certain parts of that discussion give rise to an apprehension of bias. The discussion, in general terms, related to questions or clarifications to Counsel from the Bench as to whether or not the same factual matrix may sustain discrete claims of the kind raised in the current proceeding, namely duress, undue influence and or unconscionability. It was noted in the course of this discussion that legal distinctions between the various grounds raised were, of course, significant.[4] Counsel for the Husband confirmed that he did not cavil with any of the rulings on the evidentiary objections.[5]
c) The Wife commenced her oral evidence on the second day of the hearing. In the course of the morning I indicated to Counsel that I wished to have a brief discussion with them in Court, perhaps shortly before the luncheon adjournment, but in the absence of the parties. That discussion took place, with only Counsel and solicitors present, for a few minutes prior to the lunch break. Relevantly I inquired whether it was part of the Wife’s case, in any way, of what is known in other kinds of proceedings as “battered wife syndrome.” Learned Counsel for the Wife confirmed that it was. There followed a brief discussion with both Counsel of some authorities – academic and curial. I confirmed that I had not read any of the cases or literature to which reference was made. Both Counsel referred to an un-named parenting case that had dealt with that syndrome.[6] The disqualification application was made immediately after the lunch adjournment.
[2] The detail of the disqualification application begins at Transcript (18th September 2012) p.170.
[3] A copy of the email became Exhibit 1 in the disqualification application. In the course of exchanges with Counsel for the Husband on the first day of the trial, Mr Campton referred to the email as containing a “fairly helpful authority.” See Transcript (17th September 2012) p.18. What had changed the character of the email from day one to something different on day two of the hearing was not explained or explored.
[4] See the general discussion at Transcript (17th September 2012) pp.18 & 24. Absent further detail from the Husband’s Counsel, I am unsure whether there are any other parts of the discussion on day one of the trial that are intended to be relied upon.
[5] Transcript (18th September 2012) p.171.
[6] See the discussion at Transcript (18th September 2012) pp.168-169. Counsel for the Husband also noted in the course of the application that the concerns were heightened by the discussion having taken place in the absence of the parties. In this regard, I note that at the time the discussion with Counsel took place the Wife was under cross-examination.
The remainder of these reasons proceed with (a) a chronology, (b) outline of legal principle, and (c) discussion and resolution.
Annotated Chronology
The Initiating Application in relation to the binding financial agreement was filed by the Wife on 7th October 2011.[7] On 14th November 2011, being the first return date of the Wife’s application, and following submissions by the parties’ solicitors, the ‘preliminary issue’ concerning the setting aside of the BFA was listed for a two day hearing on a date to be advised. It was understood that the hearing date would be finalised in the light of the availability of counsel. Orders were also made at that time for the husband to file a response and supporting ‘material’ within 28 days.
[7] As is apparent from the file reference to “2007”, thus confirming that the parties have been litigating, on and off, since then, I do not understand that either party relies in the current proceeding upon any of the allegations raised in the course of the various parenting proceedings. Interim parenting orders were made in June 2009 – see Wootten & Hillier [2009] FMCAfam 1513. A Parenting Plan entered into by the parties in May 2007 was set aside by orders made on 29th July 2009. Those orders were varied, by consent, pursuant to orders made on 24th March 2011. While there have been other parenting contests, they need not be detailed here.
The Wife’s affidavit in support of the application (also filed on 7th October 2011), from par.13 and following, outlined a certain history of conduct under the heading “History of emotional, verbal and physical abuse”, which she alleges against the Respondent Husband.
On 3rd April 2012, the Husband filed an Application in a Case. Orders were sought in relation to four matters. In general terms, those matters related to (a) a perceived conflict of interest in relation to the Wife’s then solicitors continuing to act for her which, in the Husband’s view, required that a formal restraint be made against them (and or against the Wife continuing to instruct them); (b) particulars sought in relation to the Wife’s Amended Initiating Application; (c) the filing of a financial statement by the Wife; and (d) certain orders in relation to the inspection of documents produced under subpoena. A final order sought was that the Wife pay the Husband’s costs of the application on an indemnity basis.[8]
[8] Only for chronological purposes, I note that shortly thereafter, on 11th April, the Wife filed an Application in a Case seeking orders to enable the parties’ children to travel overseas with the Wife, and certain consequential orders regarding the children’s passports, as well as an indemnity costs order against the Husband/Father.
On 14th May, the Wife filed a Response seeking that the Application in a Case of April 3rd be dismissed, together with an indemnity costs order.
On 14th August, but for three words, orders were made by consent restraining the Wife from continuing to instruct her former solicitors in relation to the current proceeding concerning the BFA.
On 17th August 2012, an Outline of Contentions (it is dated 10th August 2012) was provided by the Wife by way of particulars of her Amended Initiating Application. Two comments may be made here.[9]
[9] The Outline of Contentions was formally filed, at the Court’s request, only on 14th September.
First, the Outline of Contentions averred that they were advanced in circumstances where [it is alleged that] (emphasis added):
To date the husband has failed to make a proper disclosure in relation to his financial circumstances both at the date of the Agreement and at the present time. The wife reserves the right to amend, including by expanding these contentions upon the husband attending to compliance with his obligations of disclosure; and,
The husband bears the onus of establishing to the satisfaction of the Court that there exists a Financial Agreement binding upon the parties pursuant to the Act and which operates to prevent any claim pursuant to Part VII of the Act, and nothing contained herein is to be taken as a concession on the part of the wife in relation to any such matter.
Secondly, Counsel for the Husband contended that the Outline of Contentions significantly expanded the grounds advanced by the Wife in support of her amended application.
Having noted the reservations in the Outline, I observe summarily and without further comment that the grounds detailed are: (a) no compliance with s.90G of the Act (in this regard, the Outline referred to an affidavit of Mr L, which was in fact filed on behalf of the Husband on 17th June 2009 by one of his former solicitors); (b) in the alternative, if the Court were to find that there was a BFA it should be set aside under s.90K of the Act.[10] The Outline contends that the BFA is void, voidable or unenforceable for misrepresentation, duress, undue influence, and or unconscionable conduct on the part of the Husband. Particulars in relation to each of these matters are provided.
[10] The Outline refers specifically to s.90K(1)(b), (d) & (e).
Among the particulars, at par.7 of the Outline, it is contended that:
The husband had engaged in a history of violent, threatening and intimidatory conduct directed at the wife from approximately 2001 and throughout the parties [sic] relationship to the date of signing of the Agreement; and,
The husband assaulted and threatened the wife on numerous occasions in the months preceding the signing of the Agreement.
Pursuant to trial directions made on 2nd February 2012, all affidavits to be relied upon were to be filed by 27th August. Nothing filed after that date could be relied upon without the leave of the Court.[11]
[11] As is evident from later parts of the chronology, the Husband’s materials (affidavit and Case Outline) were filed out of time. Counsel for the Wife noted the filed out-of-time material by the Husband but said that he did not seek to take that point. See Transcript (17th September 2012) pp.7-8. No application was made on behalf of the Husband, in accordance with the February trial directions, to seek leave of the Court to rely on the late-filed documents.
The Wife’s trial affidavit was filed on 27th August, as were other affidavits in her case. Beginning at par.13 of that affidavit, there is a heading “History of emotional, verbal and physical abuse”, which is followed by a narrative of allegations against the Husband concerning such matters.
The Husband’s trial affidavit was e-filed on 30th August. Its point of reference was the Wife’s original affidavit, filed 7th October 2011. Why it did not address any matter in the Wife’s trial affidavit, filed on 27th August, was never explained or explored.[12]
[12] I should also note that Counsel for the Wife confirmed that the substantive matters to be addressed had been made plain, in any event, in the Wife’s original affidavit, filed in October 2011. See Transcript (17th September 2012) pp.5-8.
On 6th September, pursuant to the February trial directions, the matter was listed for a directions hearing. Counsel from Canberra appeared on behalf of the Wife, as did the solicitor for the Husband. Orders were made on that occasion, by consent, in relation to the inspection of documents produced under subpoena, as well as reserving to the trial the Husband’s costs of the 3rd April application to disqualify the Wife’s [by then, former] solicitors.
I note here, as I did with learned Counsel for the Husband during the hearing, that no objection or other issue was taken at the directions hearing to the Outline of Contentions that had been provided to the Husband’s solicitors on 17th August. The following exchange with Counsel for the Husband records the substance of this point:[13]
[13] Transcript (17th September 2012) p.17. At pp.13 & 15 of the same Transcript the issue of what was and what was not raised at the directions hearing is also noted. Should it need to be, I also note that no objection was taken at the directions hearing by the Husband to any affidavit filed on behalf of the Wife.
HIS HONOUR: Because obviously the primary purpose of a directions hearing was to double check the matter was ready to proceed. And that I can only deal with, obviously, what I’m told about. I can’t see from a quick look at the correspondence that there was anything prior to the directions hearing.
MR CAMPTON: Yes. Your Honour, I will abandon any, sort of – any inquiry on that basis, because I think I’ve – as I said, I think I’ve taken you down an incorrect path. I suppose the short answer to your Honour’s query therefore, as reconstructed, I understand the query to be why wasn’t the issue about the expansion of the grounds and what we say is the necessity for the applicant to seek leave to expand the grounds to rely on it for the purposes of the trial raised on 6 September comes down to a combination of the receipt of the affidavit material in the last days of August, the proximity of the hearing, the necessity to obtain instructions and I suppose, ultimately, the considerations that had to be undertaken by counsel in looking at the material and distilling how it all fitted in together.
Now, there was a very short compass between the receipt of the material, which was all filed in the last few days of August, and ..... I assume at or about that time and the directions hearing, so other than issues as to volume and logistics, I can’t really progress your Honour’s inquiry any further for the purposes of 6 September, when Mr Somerville was here.
HIS HONOUR: I understand, Mr Campton. And ‑ ‑ ‑
MR CAMPTON: Certainly, your Honour, I can say, if I was here and I had of looked through it all, it may well have been very different, but that’s not the case.
HIS HONOUR: No. And I understand the difficulties of on all sides, in different ways, the difficulty of just the volume of work getting to it, attending to it etcetera, but I come back to the fact that the parties have had, in whatever particular guise and whatever particular time, very experienced solicitors.
Should it need to be said, the Court should be able to rely upon what it is advised about the conduct of the hearing, including the scope of any specific matters of contention, especially so near to a trial that had been fixed for such a long time.[14] While it is readily appreciated that busy Counsel often will, or can, only turn their attention to the detail of a brief relatively close to a hearing, such a commonly encountered circumstance does not dispense with or obviate the responsibility of practitioners who appear, for example at a directions hearing, from advising the Court of any matters that are likely to impact on the efficient conduct of a trial. Thus here: at the directions hearing on 6th September (a) all trial affidavits had been filed, (b) the Wife’s Outline of Contentions had been provided to the Husband’s solicitors on 17th August, and (c) experienced practitioners (solicitor and Counsel) appeared at the direction hearing. None of the concerns of the Husband’s Counsel, raised in his Case Outline filed late on 14th September, and articulated further on the morning of the trial, were raised at the directions hearing on 6th September.
[14] Counsel for the Wife observed in the course of early exchanges regarding evidence that there had never been any challenge to the timetable of filing directions made by the Court on 2nd February 2012. See Transcript (17th September 2012) pp.7-8.
So near to a trial, and for its directions hearing, one might reasonably (I hope not naively) assume that solicitors have discussed relevant matters with Counsel beforehand so that the Court is properly informed of its readiness for trial. Given (a) how far in advance the matter had been fixed with hearing dates, and (b) how vigorously every step of the proceeding had been fought (on both sides), the Court’s assumption that it would be fully apprised at the directions hearing of any difficulties with the trial, including the scope of the issues to be determined in the light of the Outline of Contentions provided on behalf of the Wife some weeks earlier, should have been reasonably well founded.[15]
[15] I should also recall the High Court’s very strong comments in AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 in relation to courts being ‘publicly funded resources’ and the importance of the proper use of those resources, such as (a) due attention to interlocutory applications, and (b) appropriate use of time allocated for hearings, which necessarily includes the appropriate attention to documents filed (particularly those filed in accordance with trial directions) and the issues raised in them. See the comments of French CJ, at [5], of the plurality judgment (Gummow, Hayne, Crennan, Kiefel & Bell JJ) at [111] – [113], and of Heydon J, passim.
It is as well here to record that Counsel for the Husband fairly conceded on the first day of the hearing that, because the matter would necessarily stand part-heard, any risk of prejudice to the Husband by being unable (for whatever reason) to meet the range of contentions raised by the Wife would be remedied by the effluxion of time between the hearing in September 2012 and the adjourned dates in March 2013, and implicitly by the attention to such matters by those representing the Husband.[16]
[16] See the discussion at Transcript (17th September 2012) pp.21 & 25 and especially at pp.31-32. At the outset of the hearing, Counsel for the Husband flagged, rather than made formal application for, (a) a [possible] adjournment, (b) a [possible] transfer to the Family Court, and (c) inquired whether there was any difficulty on my part having a senior local practitioner, who is a witness in the Wife’s case, under cross-examination before me. As to the latter, there is no difficulty for reasons outlined in the Transcript. As for the other matters, and Counsel for the Wife’s muted concerns about the approach of his learned counter-part, they too need not be detailed here; they are readily accessible in the Transcript (17th September 2012) pp.2-6.
Finally, the trial directions of 2nd February also required that by 10th September, both parties file a case outline, which was to include, inter alia, (a) the final orders sought, (b) a summary of the issues in dispute, (c) a list of documents to be relied upon, and (d) a list of authorities to be relied upon.[17]
[17] I note that there has never been a formal application – by either party – that the matter proceed by way of pleadings. In this regard, see, inter alia, the comments by Counsel for the Wife at Transcript (17th September 2012) pp.6 & 7.
The Wife’s Case Outline of 20 pages was e-filed on 11th September. The first part of that Case Outline said that the following issues were in dispute in the proceeding:
· whether the Wife received advice as required by s.90G(1)(b);
· subject to the determination of the s.90G issue, that the agreement was obtained by fraud (s.90K(1)(a) – “being the non-disclosure of a material matter”);
· s.90K(1)(b) – issues of misrepresentation, duress, undue influence, unconscionability;
· s.90K(1)(d) – material change in circumstances, said to relate to the care, welfare and development of the children such that the Wife [it is contended] will suffer hardship if the Agreement is not set aside; and
· s.90K(1)(e) – that the Husband engaged in conduct that was, in all the circumstances, unconscionable with respect to the making of the agreement.
The Husband’s Case Outline Document of 4 pages was e-filed on 14th September.[18] In that Outline, Counsel for the Husband contended that the Outline of Contentions provided by the Wife “substantially expanded … [what was] objectively evident in the [Wife’s] Interlocutory Affidavit [filed 7th October 2011].” Counsel foreshadowed that, among other things, at the commencement of the hearing an adjournment would be sought “having regard to the substantial amendment to the Wife’s case.”[19]
[18] For completeness, I note that a 6 page document of objections to matters in affidavits filed on behalf of the Wife, entitled “Respondent’s Objections”, was emailed to Chambers on the same day, 14th September.
[19] I have already noted that Counsel’s concern in relation to the Husband’s readiness for trial would be obviated by the hearing, in any event, going over to March 2013.
I turn to the authorities in relation to apprehended bias, most of which were referred to in the course of the delivery of oral reasons on 18th September.
Apprehended Bias – Legal Principle
A convenient starting point for the consideration of principle is Kirby J’s comments in Antoun v The Queen where his Honour also referred to Mason J’s regularly cited caution in Re JRL; Ex parte CJL against acceding too readily or too quickly to applications for disqualification. At [34], Kirby J said (internal citations omitted):[20]
It is true that, in the oft-repeated and oft-applied words of Mason J in Re JRL; Ex parte CJL, this court has “loudly and clearly” expressed a corrective against any view that a judge should too readily accept recusal because a party has demanded it. In the administration of justice in Australia, the parties do not (at least normally) have an entitlement to choose among the judicial officers who will conduct the trial. This principle has been reasserted and applied in many cases.
[20] Antoun v The Queen (2006) ALJR 497; (2006) ALR 51. Re JRL; Ex parte CJL (1986) 161 CLR 342 at p.352. French CJ’s judgment in British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283 at [1] begins with Mason J’s important admonition in Re JRL. His Honour dissented, as did Gummow J, in the result.
Kirby J also said in Antoun v The Queen, at [32] (internal citations omitted):[21]
In this, the approach of this Court has now travelled beyond the apparent approbation of judicial silence expressed in R v Watson; Ex parte Armstrong. In the United States of America, such silence has been held, on occasion, to constitute a denial of due process. It deprives the party who will ultimately be affected by judicial conclusions of the "opportunity, before judgment, to be heard to correct and to persuade". Just as the judge should, to a proper extent, listen, so the judge should, to a proper extent, express any tentative views.
[21] Antoun v The Queen (2006) 224 ALR 51. See too the earlier comments of the High Court in Vakauta v Kelly (1989) 167 CLR 568 at p.571, where Brennan, Deane & Gaudron JJ said: “[A] trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in his or her judgment would not represent a model to be emulated.”
Similar views to those expressed by Kirby J in Antoun were also expressed in the plurality judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson.[22]
[22] Johnson v Johnson (2000) 201 CLR 488 at [13]. The plurality’s comments in Johnson on the attributes of the relevant bystander were set out in full in French CJ’s dissenting judgment in British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283 at [46], and in the judgment of the majority (Heydon, Kiefel & Bell JJ) at [132].
Also in Johnson v Johnson, Kirby J noted in particular, at [46] (internal citations omitted):
Whatever may have been the tradition in earlier times, opinions favouring silence on the part of an adjudicator during a hearing (which is the surest means of avoiding most allegations of prejudgment) are now seen as carrying risks of an even greater injustice. Unless the adjudicator exposes the trend of his or her thinking, a party may be effectively denied justice because that party does not adduce evidence or present argument that could have settled the adjudicator's undisclosed concerns. A frank dialogue will commonly be conducive to the avoidance of oversight and the repair of misapprehensions. Uninformed members of the public are doubtless sometimes surprised by the robust exchanges which take place in court, especially between a judge and experienced lawyers. But judges and other adjudicators and lawyers know that such dialogue can have great value.
Changes that have come about in the administration of justice, including the increase in the number of trials by single judges, have also required, to some extent, an adjustment to the rules of reticence in judicial observations that may still be appropriate where trials, criminal or civil, are conducted before a jury. One of the reasons for such changes has been the desire to increase the efficient management of the trial process. Yet it is in that context that the expressions of preliminary and tentative views may sometimes appear to an outsider to indicate prejudgment. Although some adjudicators may be hard to shift from tentative opinions, lawyers know that, in most judicial decision-making, the process is a continuous one. Preliminary inclinations do change.
And further, in Johnson v Johnson Kirby J outlined the expected ‘characteristics’ of the “reasonable bystander” (accepting that his Honour referred to a character or persona known as “the fictitious bystander”). At [53], Kirby J said (internal citations omitted):[23]
The attributes of the fictitious bystander to whom courts defer have therefore been variously stated. Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers. The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.
[23] Johnson v Johnson (2000) 201 CLR 488. Kirby J’s comments, at [53] in Johnson to which I have referred concerning “the bystander”, which his Honour addressed further in Smits v Roach (2006) 227 CLR 423 at [95] – [97], were cited in full by the Full Court in Marsden v Winch (2010) 42 Fam LR 1 at [34]. Concerning Kirby J’s reference in Johnson to the “fictitious bystander”, I note that the plurality in Johnson, at [13], refers to “the fictional observer.” Certainly, since the High Court decision in Ebner, the test has referred to “the fair-minded lay observer.” See Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow & Hayne JJ: Callinan J concurring, at [182]), [83] (Gaudron J); Smits v Roach (2006) 227 CLR 423 at [56] (Gummow & Hayne JJ); and British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283 at [37] (French CJ), and [139] (Heydon, Kiefel & Bell JJ). See also the Full Court decision in Nadkarni & Nadkarni [2011] FamCAFC 160.
In Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd, Kirby and Crennan JJ said, at [112] (internal citations omitted):[24]
Sometimes judicial interventions and observations can exceed what is a proper and reasonable expression of tentative views. Whether that has happened is a matter of judgment taking into account all of the circumstances of the case. However, one thing that is clear is that the expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias.
[24] Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577. His Honour, Gummow A-CJ, concurred, at [4].
In the same case, in a detailed examination (at [171] – [180]) of what does and what does not constitute apprehended bias, Callinan J said, at [177], that “the perception of a lay observer will not be as informed as the perception of a lawyer, particularly a litigation lawyer.” And again, at [180], his Honour said: “Taken cumulatively, his Honour’s interventions and reasons for judgment do not give rise to an apprehension of bias. Critical, strong and candid they may have been, but excessively so they were not. To some extent they may be taken to be expressions of exasperation, unfortunately so perhaps, but as a matter of degree, still falling short of apparent bias.” As with the comments of Kirby and Crennan JJ, A-CJ Gummow concurred, at [4], with the remarks of Callinan J.
The High Court’s most recent consideration of apprehended bias is the decision in Michael Wilson & Partners Limited v Nicholls.[25] It is helpful to note the following from that case, both regarding its summary of principle, and for comparative purposes, its complex factual and procedural circumstances.
[25] Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427.
First, as to relevant principle, the High Court said, at [31] – [33] (internal references omitted), the relevant test in relation to apprehended bias is:
[31] … 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.
[32] As the plurality in Johnson v Johnson explained, "[t]he 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."
[33] Because the test is objective it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias. An inquiry about actual bias in the form of prejudgment would require assessment of the state of mind of the judge in question. No doubt that would have to be done, at least for the most part, on the basis of what the judge had said and done. But to allow an inquiry about whether the judge had in fact prejudged some issue to enter into a debate about what a fair-minded lay observer might apprehend is to introduce considerations that are irrelevant to the issue that is to be decided when a party submits that there is or was a reasonable apprehension of bias.
The High Court also commented in Michael Wilson, first at [63] in relation to the test in Ebner, then at [67], saying (internal citations omitted; emphasis in original):
[63] In Ebner v Official Trustee in Bankruptcy, the plurality pointed out that application of the apprehension of bias principle requires two steps. First, it requires the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits. And second, there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits. The plurality in Ebner went on to say that "[t]he 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". So too, in this case, the bare assertion that the judge appeared to be biased through prejudgment would be of no assistance without articulation of the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision making.
[67] … an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been "the crystallisation of that apprehension in a demonstration of actual prejudgment" impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side's arguments or otherwise, demonstrates prejudgment.
The High Court further observed, at [69] – [70] (internal citations omitted):[26]
[69] Here, however, it was said that "the fact that one party appeared before the judge on seven separate days in closed court raised a different and additional concern". That concern was identified as the possibility "in such circumstances that the judge's mind will become familiar with the character of the plaintiff's case to an extent that, consciously or subconsciously, there will be a tendency to place the further evidence within the pre-existing mental structure" (emphasis added). But the existence of a "concern" described as the possibility of placing the evidence led at trial into a "pre-existing mental structure" does not demonstrate that the fair-minded lay observer might reasonably apprehend that the judge might have prejudged an issue to be decided at trial. In order to establish such a reasonable apprehension it is necessary to analyse more closely the connection that is asserted between the conduct and disposition of interlocutory applications and the possibility of prejudgment.
[70] The fact that Einstein J made several ex parte interlocutory orders and on each occasion directed that those applications, the material in support, the reasons for making the orders and the orders themselves not be disclosed to one side of the litigation did not found a reasonable apprehension of prejudgment of the issues that were to be fought at trial. It may well be that the directions not to disclose material should not have been left in force for as long as they were. Perhaps they should not have been made at all. But if their making or the failure to limit their duration was wrong, that did not found a reasonable apprehension of bias.
[26] See also Heydon J’s comments, at [117], to the effect that, even on the facts in Michael Wilson, “prolonged familiarity” was insufficient to establish any relevant apprehended bias.
In addition to what is said below, I simply observe that, (a) accepting that each case turns on its own facts, and (b) on a comparative basis only, if the High Court found no ground to sustain an allegation of apprehended bias in the complex factual and procedural circumstances in Michael Wilson, where there had been many interlocutory rulings in favour of one party and in the absence of the other party, the facts and circumstances in this case suggest that the application for disqualification, based primarily on a single inquiry posed to both Counsel and a very brief discussion that followed, and where allegations of domestic violence and abuse have been highlighted since October 2011, respectfully, is misconceived.
Discussion and Resolution
By way of summary, and in the light of the authority to which I have referred, I note the following.
The inquiry to Counsel about a particular syndrome was nothing more than that – an inquiry. It was a frank inquiry. According to the High Court in Vakauta v Kelly, Johnson, and Antoun, ‘frank dialogue’ is not a ground for disqualification. Nor, according to Johnson, is robust exchange, per se, a ground for disqualification.
Given how much of the hearing had been taken up with earnest dialogue over the parameters of the issues in dispute, the Court’s inquiry should properly be seen as an attempt at further clarification of the metes and bounds of the trial. So viewed, the inquiry was both unexceptional and unexceptionable.
Also in Johnson, the High Court cautioned against the reasonable, fair-minded bystander being complacent on the one hand, or unduly sensitive or suspicious on the other. Respectfully, the concern expressed by learned Counsel for the Husband in relation to one or all of the three matters that he says concern him, and should (in his view) concern the reasonably well-informed, fair-minded lay observer, in my view, is ill-founded. To be so concerned about the matters alleged would require the relevant observer to be ‘unduly sensitive and suspicious.’ Such an observer, according to the High Court’s clear instruction about relevant character traits, has a necessarily jaundiced view of matters, and therefore cannot be said to be ‘fair-minded’ in the requisite sense or to the requisite degree.
As I apprehend his substantive submission, it is said that the concern of the Husband is that by raising a question about whether ‘battered wife syndrome’ is, in any way, part of the Wife’s case (and, to interpolate, I accept that (a) the syndrome had not previously been raised in affidavit material, or (b) in Counsel’s Outline of Contentions but (c) a significant history of emotional, verbal and physical abuse against the Husband had long been alleged), that question alone either unfairly prejudiced the Husband or unfairly favoured the Wife. Using the terminology of the High Court in Michael Wilson, and accepting that learned Counsel for the Husband was unaware of that decision, it might further be said that in making that inquiry, there was a risk that the Court, consciously or subconsciously, might place or have a tendency to place the evidence “within the pre-existing mental structure” of ‘battered wife syndrome.’
If it be argued that there is such a risk, the High Court plainly said in Michael Wilson, at [69], that
… the existence of a "concern" described as the possibility of placing the evidence led at trial into a "pre-existing mental structure" does not demonstrate that the fair-minded lay observer might reasonably apprehend that the judge might have prejudged an issue to be decided at trial. In order to establish such a reasonable apprehension it is necessary to analyse more closely the connection that is asserted between the conduct and disposition of interlocutory applications and the possibility of prejudgment.
Any analysis of the relevant connection between the conduct asserted (posing a question to Counsel) and the possibility or apprehension of pre-judgment could not, in my view, satisfy the fair-minded lay observer, and who is not unduly sensitive or suspicious, that there is any basis for a claim of apprehended bias.
Further, and as previously stated, the fact that so much of the trial had been taken up with seeking to define the precise parameters of the matters in issue, and in circumstances where, since October 2011 in relation to the substantive application issues of domestic violence and abuse had been detailed to support grounds of, among other things, duress, it was more than reasonable for the Court to seek further clarification from the party who relied upon such allegations.
The same comments apply in relation to the Husband’s contention that inquiries made in the course of dealing with objections to affidavit evidence on the first day of the hearing properly found an apprehension of bias.
In relation to both of these grounds – inquiries about (i) battered wife syndrome, and (ii) the factual basis for claims on the grounds of duress, undue influence and unconscionable conduct – are, and remain, subject to evidence and submissions. Nothing was or has been foreclosed. Kirby J in Johnson confirmed that ‘views change.’ Here there has been no expression of any view; only an inquiry made. Nor has there been any challenge to any evidentiary ruling. At such an early stage in the proceeding, there have been no other relevant rulings.
For the disqualification application to succeed on the basis of an inquiry (or two), would lead to a conclusion that (a) no questions could or should be asked during the hearing, and or (b) a Sphinx-like disposition be maintained during the course of the trial (to use the terminology of the High Court in Johnson at [13]). Both such courses would be and remain contrary to the High Court authority cited.
In relation to the ground relating to a pre-trial email from chambers to the parties’ solicitors advising of a decision that dealt with issues similar to those being ventilated in the current proceeding, apart from the text of the email being plain on its face as to import and substance, the following can be observed. First, the earlier, 2010 decision is and has been since its publication, a publicly available judgment. Secondly, the content of the email makes clear that the reference to the decision was solely to assist Counsel in making them aware of it. Thirdly, the email also makes plain that it was not suggested that the 2010 decision is directly relevant to the current matters before the Court, but if anything in it was relevant, it would always be subject to the evidence before the Court in the current matter and subject to submissions by both parties.
In my view, it would be a curious if not troubling case if, on the one hand, a party complained vigorously about the unknown ambit and or the alleged fluidity of the case to be met, but on the other hand, the same party sought to discharge the judicial officer hearing it on the ground that he also asked a question that had the same object – namely, to clarify with as much precision as possible the scope of the issues to be determined and the grounds upon which they were made. Moreover, to state what is hopefully obvious: (a) the oral evidence was scarcely underway when the disqualification application was made; (b) there remains much evidence to be explored and tested; and (c) there has been no foreclosure in relation to either evidence or submissions. And importantly, there has been no comment (nor could there be), let alone any finding, on any issue or matter that goes to the reliability of either party or witness. Such were factors noted by the High Court in Michael Wilson, at [72].
Finally, it is important to recall the following comments from the plurality judgment in Johnson, where it was said, at [13] (internal citation omitted) (emphasis added):[27]
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.
[27] Again I note that the passage from Johnson at [13] now cited, was recently cited by the majority in British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283 at [132].
In my view, neither individually nor collectively, do any of the three grounds advanced on behalf of the Husband sustain the disqualification application. Respectfully, the grounds of the application are not supported by the facts as view by the fair-minded, reasonably informed lay observer. Nor are the grounds of the application supported by the High Court authority to which I have referred.
It is for the above reasons that the disqualification was refused.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 2 October 2012
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