Sunday, 21 August 2011

Family Court disqualifies Magistrate due to perception of bias

The Full Court of the Family Court, in a case called Nadkarni and Nadkarni, has recently ordered that a matter not be before Federal Magistrate Harman, due to perceptions of bias, and set out guidelines for judges as to disqualification.

The wife successfully appealed the refusal by the Federal Magistrate to disqualify himself. His Honour stated, in refusing the application:

I do make clear that there was most certainly a personal and intimate relationship between [the wife’s] lawyer and myself, as well as the business relationship. That terminated in 2006. That is a matter, it would seem, of great interest to the legal profession of Parramatta ... 

It seems surprising that  Federal Magistrate Harman did not excuse himself in light of the history:

  • There had been a great deal of acrimony between  Federal Magistrate Harman and the wife’s solicitor following the wife’s solicitor leaving the legal practice in which they had both worked;
  • Federal Magistrate Harman had  complained about the wife’s solicitor to the Legal Services Commission and the NSW Law Society
  • In 2009, about a year prior to his appointment, Federal Magistrate Harman forwarded an "extraordinary" email denigrating the wife's solicitor to 17 legal practitioners  and alleging an extra-marital affair between them;
  • In 2010  Federal Magistrate Harman made certain remarks in another matter about the wife’s solicitor upon the litigant advising the court that she intended to instruct the wife’s solicitor;
  • In a separate matter in 2010 Federal Magistrate Harman had indicated that he would refer any practitioner who renewed an application for disqualification for disciplinary investigation;
  • In  November 2010 his Honour “rushed” to deliver an ex-tempore judgment in circumstances where the matter was not listed for hearing and did not permit the parties to participate in the hearing.
The Full Court stated:

This is one of the extreme cases where, as a result of the circumstances of the association between the Federal Magistrate and the wife’s solicitor, the Federal Magistrate might not bring an impartial and unprejudiced mind to the resolution of the question he is required to decide.

We would add that once it is accepted that a subsisting marriage, or other ongoing intimate relationship or association between a judicial officer and a lawyer is a disqualifying factor, it must also be accepted that once a marriage or similar relationship or association has broken down, that disqualifying factor must remain, at least for a reasonable period. This must be so because of the acrimony that so often follows such a breakdown, as a lay observer would well understand.

What is a reasonable period for disqualification following the cessation of an intimate relationship will be determined on a case by case basis and having regard to the perceptions of the hypothetical lay observer. In this case the uncomplimentary email sent by the Federal Magistrate only 15 months earlier clearly fell within the time-frame in which a relationship, albeit one of hostility, not closeness, existed.

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