Zha & Wun
[2025] FedCFamC1A 12
•6 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Zha & Wun [2025] FedCFamC1A 12
Appeal from: Zha & Wun (No 8) [2024] FedCFamC1F 648 Appeal number(s): NAA 277 of 2024 File number(s): SYC 4269 of 2020 Judgment of: HOWARD J Date of judgment: 6 February 2025 Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL - COURTS AND JUDGES – where the Kings Counsel briefed on behalf of the Husband at the trial of the matter is the nephew of one of the Judges assigned to the hearing of the appeal – apprehended bias – recusal application granted Legislation: Family Law Act 1975 (Cth) Cases cited: Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 409 ALR 65; [2023] HCA 15
Saklani & Valder (2023) 68 Fam LR 237; [2023] FedCFamC1A 163
Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30
Australasian Institute of Judicial Administration, Guide to Judicial Conduct (3rd edition (Revised), 2023)
Number of paragraphs: 23 Date of hearing: 4 February 2025 Place: Hearing in Brisbane (via video link) Counsel for the Appellant: Mr Moses of Senior Counsel Solicitor for the Appellant: Pickering Pendleton Solicitor for the First Respondent: York Law Family Law Specialists Solicitor for the Second, Third and Fourth Respondents: David H Cohen & Co ORDERS
NAA 277 of 2024
SYC 4269 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS ZHA
Appellant
AND: MR WUN
First Respondent
MR A WUN
Second Respondent
MS YANG (and other named in the Schedule)
Third Respondent
ORDER MADE BY:
HOWARD J
DATE OF ORDER:
6 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The Honourable Justice Howard is hereby recused from the further hearing of this appeal.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Zha & Wun has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOWARD J
In July 2024 a trial took place in front of the primary judge. The applicant wife (now the appellant in this appeal) brought proceedings for a financial adjustment under s 79 of the Family Law Act 1975 (Cth).
The first respondent (at the trial and in this appeal) is the husband. The second, third and fourth respondents (at first instance and in this appeal) are the husband’s brother, his wife and a company registered in Country WW (AB Ltd).
The primary judge delivered judgment on 25 September 2024 and made final orders on that same day adjusting the financial interests of the parties.
On 22 October 2024, the wife filed an appeal against the orders of the primary judge. In late 2024 I was assigned to sit as part of a Full Court along with Justice Aldridge and Justice Gill for the hearing of the appeal pursued by the wife. The appeal was listed to commence on Tuesday 4 March 2025.
Mr Sydney Williams KC appeared for the husband at first instance. One of the court documents circulated to the Full Court indicated that Mr Williams KC had also been briefed to appear for the husband at the hearing of the appeal (note that the draft orders at Annexure D to the Affidavit of Mr Brayden Michael Farnham filed 4 February 2025). Mr Sydney Williams KC is my nephew. It transpires that Mr Williams KC is not in fact briefed for the hearing of the appeal – though he had been provided with a copy of the notice of appeal. I agree with the submission made by Mr Moses SC (on behalf of the wife) at the hearing that took place on 4 February 2025, that it is reasonable to draw an inference that Mr Williams KC may have provided some advice (or provided some preliminary view) to the husband or his lawyers - in respect of the appeal.
On 23 January 2025, Appeal Judicial Registrar Cameron of the Federal Circuit and Family Court of Australia (Division 1) informed the legal representatives of the parties as follows
I refer to the above appeal that is listed for hearing before a Full Court (Aldridge, Gill & Howard JJ) of the Federal Circuit and Family Court of Australia (Division 1) Appellate Jurisdiction at 10.00am (AEDT) on Tuesday, 4 March 2025 at the Sydney Registry, the Full Court, Courtroom 7C as previously advised.
It is noted that in the first instance hearing conducted by the Honourable [...] that is the subject of this appeal, Mr Williams KC appeared as Counsel for the first respondent, Mr Wun. Mr Williams KC appeared with [Mr EQ] of Counsel, instructed by York Law.
It has been drawn to my attention that Mr Williams KC is, in fact, the nephew of the Honourable Justice Howard.
The National Appeal Registry Sydney has been requested to raise this issue with the parties and to seek confirmation as to whether any party proposes to raise any objection to the Honourable Justice Howard sitting as a member of the Full Court at the upcoming appeal hearing.
Would each party kindly advise the National Appeal Registry Sydney by 4.30pm on Wednesday, 29 January 2025 whether any objection is to be raised to the Honourable Justice Howard sitting on this appeal.
Your assistance in clarifying the position of each party will be greatly appreciated.
I therefore look forward to hearing from each party at your very earliest convenience.
That email is Annexure A to the affidavit of Mr Farnham. Mr Farnham is a solicitor in the employee of Pickering Pendelton, the solicitors acting on behalf of the wife.
In responding to the email from Appeal Judicial Registrar Cameron – the lawyers for the respondents wrote to say there was no objection to my sitting as part of a Full Court for the hearing of the appeal. The wife did raise an objection.
In accordance with the procedure outlined by a number of the Judges of the High Court of Australia in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 409 ALR 65 (“QYFM”),[1] and adopted by the Full Court of this court in Saklani & Valder [2023] FedCFamC1A 163; (2023) 68 Fam LR 237 (“Saklani & Valder”),[2] – the matter was listed in the first place before me (sitting alone in the appellate jurisdiction) so that I could hear submissions in relation to the objection taken by the wife. In the event that I dismiss the application for recusal then, in accordance with the procedure referred to in QYFM and Saklani & Valder the application for recusal would then be considered by the Full Court comprising myself along with Justice Aldridge and Justice Gill.
[1] See per Gordon J at [66] and [94-104]; Edelman J at [108] and [131-135]; Steward J at [193]; and Jagot J at [311-314].
[2] Per Aldridge J at [21] and [23]; Jarret J at [224] and [237-238]; and Strum J at [274].
Essentially, the hearing that occurred on 4 February 2025 amounted to an application for recusal made by the wife. It was correctly characterised as such by Mr Moses SC. On 4 February 2025 the lawyers for the first respondent and the lawyers for the other respondents did not make any submissions and informed the Court that they neither consented nor opposed the application for recusal.
It is important to note at the outset what the High Court has said concerning the obligations placed upon Judges. In Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (“Ebner”) at page 348 the majority stated at paragraph 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.”
Mr Moses SC was very clear in his submission that there is no suggestion of actual bias. The question for consideration is whether or not there exists apprehended bias by reason of the familial connection between Judge and Counsel. In such cases the governing principle was outlined by the majority of the High Court in Ebner where, at paragraph 6, their Honours stated (inter alia):
“….. 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.” (emphasis added).[3]
[3] The High Court in Ebner at paragraph 6 when stating the relevant principle in respect of the test for apprehended bias made reference to: R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12; 32 ALR 47; Livesey v NSW Bar Association (1983) 151 CLR 288; Re JRL; Ex parte CJL (1986) 161 CLR 342; Vakauta v Kelly (1989) 167 CLR 568; Webb v The Queen (1994) 181 CLR 41; Johnson v Johnson (2000) 201 CLR 488.
Kiefel CJ and Gageler J[4] succinctly noted at [37] in QYFM that the use of the “double might” serves to emphasis that the criterion is concerned with a “possibility (real and not remote), not probability”.
[4] As His Honour then was.
In Charisteas v Charisteas (2021) 273 CLR 289 (“Charisteas”) the High Court unanimously,[5] stated, in relation to the fair-minded lay observer that:
“…the hypothetical observer is not conceived of as a lawyer but a member of the public served by the courts. It would defy logic and render nugatory the principle to embue the hypothetical observer with professional self-appreciation of this kind.”
[5] Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ at [21].
In Ebner at page 348,[6] the majority cited with approval the decision of Deane J in Webb v The Queen (“Webb”).[7] Deane J in Webb identified four categories of case “covered by the doctrine of disqualification by reason of the appearance of bias”.[8] His Honour went on to state
“The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first (28) and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third (29) and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias.”
[6] Note paragraph 24 of page 348 in Ebner.
[7] (1994) 181 CLR 41 at 74.
[8] In Webb v The Queen per Deane J at page 74.
It was submitted on behalf of the wife that the present case falls into the third category – disqualification by association. This is the correct characterisation.
The Application of the apprehension of bias principle was further explained by the majority of the High Court in Ebner. At page 345, the majority stated (inter alia) that:
“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.”[9]
[9] Note paragraph 8 of page 345 in Ebner.
As to the two limbs of the test stated in Ebner – the first step is readily satisfied in the present case. That is, the familial association between the Judge (myself) and the Kings Counsel who appeared for the husband at the trial before the primary judge. Further, there is an inference open and, this is an inference that I draw from the correspondence annexed to the affidavit of Mr Farnham, that Mr Williams KC, having been shown a copy of the notice of appeal, is likely to have given some advice to the husband in relation to the proposed appeal. At the very least it is reasonable to draw an inference that Mr Williams KC expressed some view in relation to the appeal. Mr Moses SC submitted (and I accept) that the correspondence from York Law that appears at Annexure E to the affidavit of Mr Farnham does not mention whether or not Mr Willaims KC might be contacted in the future to provide advice (or further advice) in relation to the appeal.
As to the second limb of the test in Ebner – below is a brief summary of some of the points raised by Mr Moses SC at the hearing of this application on 4 February 2025:
(a)Part of the function of a Judge hearing an appeal (such as an appeal of the kind in question) requires the Judge to undertake a real review of the case at first instance. The appeal is by way of a rehearing (Fox v Percy (2003) 214 CLR 118);[10]
(b)Conducting a real review of the case at first instance will require a review of the submissions which were made by Mr Williams KC on behalf of the husband as to the husband’s wealth and his assets – and this must be looked at in light of the finding that the husband deliberately misled the Court in relation to his assets. The findings made by the Court were contrary to the submissions advanced on behalf of the husband and this ultimately led the Court to not have the ability to determine the husband’s true financial position;
(c)It is unknown why the retainer (between Mr William KC and his instructing solicitors) ended;
(d)The outcome of proceedings (both at first instance and on appeal) may have an impact, even a significant impact, upon the practice of a barrister and/or a solicitor who may have the carriage of the action;
(e)It is inappropriate and unfair to expect that there would be any form of inquiry in relation to the nature of the relationship between a Judge and his nephew. It may be a close relationship. It may not. But it ought not be the subject of inquiry.
[10] Per Gleeson CJ, Gummow and Kirby JJ at page 126 at [25]. Also note Warren v Coombes (1979) 142 CLR 531.
These are all reasonable submissions made by Mr Moses SC. I accept these submissions. In my conclusion which follows – I have provided further reasoning in relation to the second limb of the test stated in Ebner.
CONCLUSION
This is a large property case. The property pool as found by the Judge at first instance comprised of more than $500 million. The role of a Kings Counsel appearing on behalf of one of the main protagonists (the husband) is significant and substantial. It is, very often, all pervading. The handprints of the Kings Counsel are indelibly marked across the case. The pleadings,[11] the submissions, the cross examination of the wife conducted by Mr Williams KC. Mr Williams KC had the personal conduct of the matter. He ran the case below for the husband. He was given a copy of the notice of appeal and I have already made reference to reasonable inferences that have been drawn. I am satisfied that both limbs of the test in Ebner have been satisfied.
[11] Points of claim were exchanged in this matter.
Finally, I make mention of the Guide to Judicial Conduct (Australasian Institute of Judicial Administration, 3rd edition (Revised), 2023) (“the Guide”).[12] At 3.3.4 the Guide outlines personal relationships and includes “a nephew” as a second-degree relationship noting that where the Judge is in a relationship of the second degree to Counsel having the actual conduct of the case – ordinarily most Judges would and should disqualify themselves. There are exceptions including where the parties to a case consent to the Judge sitting. The parties were given an opportunity to object to my remaining as a member of the Full Court on the hearing of this appeal. The wife has objected and maintains her objection. It was not unreasonable for her to do so. I have come to the conclusion that a fair-minded lay observer might reasonably apprehend that the subject Judge might not bring an impartial mind to the resolution of the question the Judge is required to decide.[13] This is especially so given that the hypothetical observer is conceived of as a member of the public. A member of the public might reasonably apprehend that one of the appeal Judges might not bring an impartial mind to the resolution of the appeal – given that the Judge’s nephew was integrally involved as the Kings Counsel for the husband at first instance.
[12] Australasian Institute of Judicial Administration, Guide to Judicial Conduct (3rd edition (Revised), 2023).
[13] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [6].
The application for recusal is granted.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Howard. Associate:
Dated: 6 February 2025
SCHEDULE OF PARTIES
NAA 277 of 2024 Respondents
Fourth Respondent:
AB LTD
0
14
1