Iain Hall's SANDPIT

Home » Posts tagged 'High Court of Australia'

Tag Archives: High Court of Australia

High Court holds contact with Counsel amounts to apprehension of bias

The facts

The appellant (“the husband”) and the first respondent (“the wife”) had married in 1979 and separated in 2005. In 2006, the husband commenced proceedings under section 79 of the Family Law Act 1975 (Cth) (“the Act”) for orders settling the property of the parties to the marriage. The ensuing litigation, described by the trial judge as “long‑running” and “staggeringly expensive”, also involved the corporate trustee of the Family Trust, a director of the corporate trustee, the executors of the estate of the husband’s father, and the husband’s mother, known as “the Additional Parties”.

In 2011, Crisford J of the Family Court of Western Australia made property settlement orders that were later set aside by the Full Court on the basis that the husband’s mother had been denied procedural fairness.

From 3 August to 17 August 2016, a trial before Walters J occurred. The trial was then adjourned to 13 September 2016 for the parties to make oral submissions and “to be heard in relation to the making of interim or interlocutory orders pending the delivery of [final] judgment” as “[a]ll parties accepted that it would be likely to take up to 12 months for the judgment to be delivered”. Written submissions were filed by the adult children of the husband and wife, as well as the Additional Parties, on 24 August, by the husband on 31 August and by the wife on 7 September.

On 9 September 2016, the Additional Parties applied for the trial judge to recuse himself on the ground of apprehended bias, based on statements and rulings made by the judge during the trial. That application was supported by the husband but opposed by the wife and adult children. The Application was heard and dismissed by the trial judge on 13 September. An appeal by the corporate trustee and the husband’s mother against the dismissal of the Application, supported by the husband, was dismissed by the Full Court of the Family Court of Australia.

On 12 February 2018, the trial judge delivered judgment and, among other things, purported to make orders under s 79 of the Act (“the 2018 Property Orders”). Those orders did not set aside or vary the 2011 Property Orders but were inconsistent with them. Three days later, the trial judge retired. On 12 March 2018, the husband appealed to the Full Court of the Family Court of Australia against the 2018 Property Orders.

On 8 May 2018, the husband’s solicitor wrote to the barrister who had appeared for the wife before the trial judge about “gossip” that while the trial judge was seised of the Charisteas matter, the barrister and the judge had engaged outside of court in a manner inconsistent with her obligations and those of the judge. The letter requested the barrister provide written assurance that “during the time the former Judge was seised of the [Charisteas] matter, [she] had no contact with him outside of court”; and if she could not provide that assurance, she was asked to “outline the circumstances of [her] dealings with him”.

Two weeks later, the barrister responded stating that she had met with the judge for a drink or coffee on approximately four occasions between 22 March 2016 and 12 February 2018; had spoken with the judge by telephone on five occasions between January 2017 and August 2017; had exchanged “numerous” text messages with the judge between 20 June 2016 and 15 September 2017 (except for a brief hiatus during the evidence stage of the trial); and had exchanged “occasional” text messages with the judge from 15 September 2017 until 12 February 2018. The barrister concluded by stating that the “communications” with the trial judge did not concern “the substance of the … case”. The husband filed an amended notice of appeal adding grounds alleging apprehension of bias.

Relevant Law

In Ebner v The Official Trustee in Bankruptcy [2000] HCA 63, a majority of the High Court of Australia said 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.”

In Johnson v Johnson (2000) 201 CLR 488, five High Court judges observed that while the fair‑minded lay observer “is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice”.

In the same case, Kirby J observed that:

“It is a “fundamental rule” of natural justice and an “abiding value of our legal system” that every adjudicator must be free from bias. This same principle has been accepted in the international law of human rights, which supports the vigilant approach this Court has taken to the possibility that the “parties or the public might entertain a reasonable apprehension” that an adjudicator may not be impartial.”

In R v Magistrates’ Court at Lilydale; Ex parte Ciccone in 1972, Gibbs CJ and Mason J said that:

“The sound instinct of the legal profession – judges and practitioners alike – has always been that, save in the most exceptional cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party. Once the case is under way, or about to get under way, the judicial officer keeps aloof from the parties (and from their legal advisers and witnesses) and neither he nor they should so act as to expose the judicial officer to a suspicion of having had communications with one party behind the back of or without the previous knowledge and consent of the other party. For if something is done which affords a reasonable basis for such suspicion, confidence in the impartiality of the judicial officer is undermined.”

Read more:

No Gay Marriage unless the Federal Parliament says so

This result is precisely what I expected when I wrote may earlier post on the overreach of the Canberra Town council>

The High Court determined that the federal parliament has the power under the Australian constitution to legislate on same-sex marriage, and that whether or not same-sex marriages are legalised is a matter for the federal parliament.

“The Court held that the object of the ACT Act is to provide for marriage equality for same sex couples and not for some form of legally recognised relationship which is relevantly different from the relationship of marriage which federal law provides for and recognises,” the summary judgment said.

“Accordingly, the ACT Act cannot operate concurrently with the federal Act.”

It said because the ACT does not validly provide for the formation of same sex marriages, the whole of the ACT’s Marriage Equality (Same Sex) Act 2013 has no effect.

Supporters of gay marriage were dismayed at the ruling.

“This is devastating for those couples who married this week and for their families,” Australian Marriage Equality national director Rodney Croome said shortly after the decision was handed down in Canberra.

However, he said the ruling was just “a temporary defeat”.

Australian Marriage Equality spokesman Ivan Hinton was one person who took advantage of the ACT laws, marrying his partner Chris Teoh in Canberra last weekend.

“I don’t want to be unmarried this afternoon,” he told reporters outside the High Court.

The Australian Christian Lobby said the ruling upheld the uniformity of marriage laws across the country.

“Marriage between a man and a woman is good for society and beneficial for governments to uphold in legislation,” managing director Lyle Shelton said in a statement.

“It’s about providing a future for the next generation where they can be raised by their biological parents, wherever possible.” Mr Shelton was concerned for same-sex couples who thought they were married under the ACT legislation.

“Understandably they will be disappointed at the decision handed down today and it is unfortunate they were put in this position,” he said.

Human Rights Law Centre spokeswoman Anna Brown said the ruling was a blow to the same-sex couples who had tied the knot in the ACT.

“The outcome has laid responsibility for advancing marriage equality squarely at the feet of the federal parliament,” she said.

ACT Chief Minister Katy Gallagher said her government had no regrets about pursuing marriage equality.

Source

There are no short cuts to bringing about such a substantive change to our society and anyone who thinks that its a good thing to try to make such changes through the back door opened by an  overblown town council are clearly deluded. The high court has spoken and made it clear that the definition of marriage is entirely within the remit of our FEDERAL parliament and the activists that pursued this bit of street theatre should be hanging their heads in shame that they have given Gay marriage advocates  such empty and  false hope,

Well I’m Cheering a good decision Comrades

Wedding_Dash_Glu_Mobile-new-0

%d bloggers like this: