· 9 Apr 2022 · 754 posts

Applicant Opposes His Disqualification from Further Hearing

Scott & Munayallan [2022] FedCFamC1A 44 (1 April 2022)

The applicant sought leave to appeal an order dismissing an adjournment application. The applicant sought leave to appeal an order dismissing an application for the primary judge’s disqualification. The Court, in making its orders assessed the conduct relied upon to establish apprehended bias.

Facts:

By a Notice of Appeal filed on 8 September 2021, subject to the grant of leave to do so, the applicant appeals from orders made by a judge of the Family Court of Australia (as the Court was then known) on 13 August 2021 which provide that the husband’s application for my disqualification from further hearing; for an adjournment of the final hearing; and the costs of each party of this hearing be reserved to the final hearing.

The grounds of appeal are the following: apprehend bias, against applicant; procedural fairness was not granted to the applicant; misscarriage of justice against the applicant; the learned Judge erred, by not recusing herself, as her honour already had challenged interlocutory orders on the 09-10 July 2021, 28 February 2021 and not adjourning the proceedings until the Supreme Court proceedings are completed.

This incurred a double court costs for all parties, double proceedings; the learned Judge erred, overstep in granting the orders by advising what directions and path the mother should conduct her case; and the Judge provided unlimited Subpoenas for the mother to be issued and provided the father no Subpoenas to the father to issue.

In August 2021, the applicant applied for the primary judge to disqualify herself from further involvement in the proceedings due to the apprehension of her Honour’s bias against him.

The applicant referred, both before the primary judge and in the appeal proceedings, to various authorities which apply the legal principles governing apprehended judicial bias.

The applicant was not allowed to rely upon additional written submissions he circulated just 30 minutes before the appeal hearing commenced, but those submissions repeated existing complaints or referred to events after August 2021 and were therefore of no help.

The applicant submitted to the primary judge that her Honour had “overstepped [herself]” when making those orders, but there was no appeal from the orders made in July 2020, as the applicant’s application for leave to appeal out of time was refused.

The other decision in February 2021 involved the determination of two applications brought by the applicant: the first to review a registrar’s taxation of costs; the second to vary or set aside some earlier costs orders made in June 2019 on the basis of an alleged fraud perpetrated by a third party.

Issue:

Whether or not the Court should grant the leave to appeal.

Applicable law:

Family Law Act 1975 (Cth) Pt VII, s 69ZR - provides that if, at any time after the commencement of child-related proceedings and before making final orders, the court considers that it may assist in the determination of the dispute between the parties, the court may do any or all of the following:

(a) make a finding of fact in relation to the proceedings;

(b) determine a matter arising out of the proceedings;

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 26 - provides that an appeal must not be brought from a judgment referred to in subsection (1) if the judgment is:
(b) a decision to do, or not to do, any of the following:
(ii) adjourn ... a hearing

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28 - relied upon in holding that since Order 1 is an order dismissing the applicant’s application for the primary judge’s disqualification for apprehended bias, the grant of leave is necessary to prosecute the appeal.

Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 - held that there will usually be an unacceptable appearance of pre-judgment requiring disqualification if the judge has previously dealt with an issue of fact or credibility which is again before the judge for further consideration.

Bienstein v Bienstein (2003) 195 ALR 225; [2003] HCA 7 - provides that a judge should not disqualify him or herself for reasonable apprehension of bias unless substantial grounds exist.

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 - provides that the application of the doctrine of apprehended judicial bias entails two steps. First, the applicant must identify the conduct which it is said might lead the judge to decide the case other than on its legal and factual merits. Secondly, the applicant must articulate the logical connection between the conduct and the feared deviation from impartiality.

Livesey v NSW Bar Association (1983) 151 CLR 288; [1983] HCA 17 - where the High Court of Australia has made plain it would be both an abdication of judicial function and an encouragement of procedural abuse for a judge to impulsively or too readily disqualify him or herself whenever requested by one party to do so.

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34 - provides that while the discretion to grant leave is unfettered, it ordinarily requires the applicant to show the decision at first instance is attended by sufficient doubt to warrant appellate scrutiny and, additionally, substantial injustice would result if leave were refused, supposing the decision at first instance to be wrong.

Munayallan & Scott [2020] FamCA 1141 - where the decision in July 2020 entailed the primary judge making an order for the recovery of the parties’ children from the applicant.

Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 - provides that unmeritorious litigation is no less unmeritorious because it is pursued by a person who is impecunious.

Scott & Munayallan (2021) 62 Fam LR 504; [2021] FamCA 79 - where an application was brought to vary or set aside some earlier costs orders made in June 2019 on the basis of an alleged fraud perpetrated by a third party.

Scott & Munayallan [2021] FamCAFC 133 - where the applicant was previously refused leave to belatedly appeal from the July 2020 orders.

Analysis:

The applicant laboured under the disadvantage of being self-represented in the appeal proceedings and his Summary of Argument does not elaborate or particularise the grounds of appeal in any meaningful way, but rather narrates his story of woe from the commencement of the litigation between the parties in 2014.

Although the applicant’s submissions lacked any precision, the flavour of his contention was that the primary judge’s apprehended bias arose from her Honour’s conduct. Neither the grounds nor the written submissions made in support of them make clear whether the alleged apprehension of bias arises from precisely the same conduct to which he referred in the original hearing before her Honour in August 2021 or whether it encompasses something more. The assertion of bias was merely repetition of the arguments he unsuccessfully made before the primary judge in August 2021.

The applicant contends the primary judge’s bias may be apprehended from her Honour’s acceptance in July 2020 of the respondent’s submissions about the need for the recovery order and, in addition, how the primary judge’s temporary suspension of the children’s time with the applicant implied her Honour was thereby orchestrating the respondent’s later entitlement to a greater share of the parties’ property. Though the applicant may genuinely believe that to be so, no such apprehension of bias can be objectively inferred from her Honour’s former decision.

Conclusion:

The leave to appeal is refused. The Notice of Appeal filed on 8 September 2021 is dismissed. The applicant shall pay the respondent’s party/party costs of and incidental to the application for leave to appeal, fixed in the sum of $8,946.44.

#ApprehendedBias

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