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[2003] HCA 7
respondent. Purported appeal struck out as incompetent.
Helen Bienstein wanted the High Court to take over her long-running Family Court fight with her ex-husband over financial support for their disabled adult daughter. She argued the case raised constitutional questions and asked Hayne J to remove himself because of his past work as a Melbourne barrister. Hayne J said no to both requests. Mrs Bienstein tried to appeal directly to the full High Court without asking for permission first. The Court ruled that Hayne J's decisions were only preliminary steps, not final rulings on the maintenance dispute itself, so she needed leave to appeal. Because the remaining Family Court issues were about maintenance under the Family Law Act and not the Constitution, and because a judge's past professional life in the same city does not automatically create bias, the appeal had no merit anyway. The Court struck out the appeal as incompetent but made clear it would have failed even if properly brought.
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The litigation between Helen and Simon Bienstein had been running in the Family Court since the early 1990s. It concerned an application by Mrs Bienstein (or on behalf of her daughter) for the husband to pay maintenance for their adult disabled daughter after an earlier registered child maintenance agreement expired in 1996. Proceeding ML7725 of 1991 became the vehicle for numerous applications. In November 1998 Carter J dismissed the maintenance application, made costs orders against Mrs Bienstein and, importantly, issued an order under s 118 of the Family Law Act 1975 (Cth) restraining her from instituting further proceedings under that Act without leave of the Court.
Mrs Bienstein appealed to the Full Family Court (SA86 of 1998). In June 2000 that Court allowed the appeal in part. It held that once Carter J had found the daughter had an illness preventing self-support and that the husband had capacity to pay, it was not open to dismiss the application on the basis of Mrs Bienstein's "oppressive motives". The maintenance issue was remitted for rehearing, but the s 118 order was upheld.
While those appeals were pending, Guest J heard enforcement and other applications in October 1999. The hearing became heated. Guest J described Mrs Bienstein as "hysterical" and "yelling", directed Federal Police to take her into custody, and held her for approximately three hours. On resumption he indicated he was considering charging her with contempt in the face of the Court, accepted an apology, refused her application that he disqualify himself, and made orders adverse to her including costs orders.
Mrs Bienstein appealed those orders (SA87 of 1999). Before that appeal was heard she filed an application in the High Court under s 40(1) of the Judiciary Act 1903 (Cth) to remove both the first-instance proceeding ML7725 and the appeal SA87 into the High Court on the ground that they arose under the Constitution or involved its interpretation. She also filed an application that Hayne J disqualify himself on the basis of apprehended bias and conflict of interest because he had practised at the Victorian Bar and her complaints involved misconduct allegations against Melbourne legal practitioners, judges and registrars.
When the matter came on before Hayne J on 1 December 2000, Mrs Bienstein repeated the disqualification application. His Honour delivered an ex tempore judgment refusing to disqualify himself, noting his prior practice was a matter of public record but he had no prior knowledge of the litigation and felt no embarrassment in dealing with the allegations. Mrs Bienstein then stated on the record that the reasons had "set [her] mind completely at ease" and she had "no reservations" about his Honour judging the removal application on its merits.
Hayne J went on to dismiss the removal application. His Honour found that no cause involving constitutional interpretation remained pending in ML7725 because all applications had been determined at first instance and on appeal without any constitutional point being taken. The appeal SA87 was listed for hearing the following week and it was preferable that the Full Family Court deal with it. Hayne J characterised much of the removal application as an attempt to have the High Court act as a Family Court at first instance and conduct a general review of the Family Court's handling of the matters.
The Full Family Court later delivered judgment in SA87 of 1999 on 5 June 2001 (after Hayne J's decision). It found Guest J had not followed the procedural requirements of O 35 r 13 of the Family Law Rules nor the principles in Coward v Stapleton (1953) 90 CLR 573 when dealing with the contempt matter. It also held that a fair-minded lay observer might reasonably apprehend that Guest J might not bring an impartial mind to the proceedings after having Mrs Bienstein removed from court that morning. Costs orders were set aside and the costs issues remitted to a judge other than Guest J.
Mrs Bienstein then sought to appeal to the Full High Court from Hayne J's orders as of right. The Full Court (McHugh, Kirby and Callinan JJ) heard the matter on the papers after vacating an oral hearing at Mrs Bienstein's request. The Court concluded the orders were interlocutory, so leave was required under s 34(2) of the Judiciary Act. The purported appeal was therefore struck out as incompetent. In any event, the Court indicated that leave would have been refused because the bias complaint was without substance and the conditions for removal under s 40(1) were not satisfied.
The Court's reasoning begins with the statutory text. Section 34(1) gives the High Court jurisdiction to hear appeals from judgments of a single Justice, but s 34(2) expressly prohibits an appeal without leave from an interlocutory judgment. The test applied was that stated in Licul v Corney (1976) 180 CLR 213 and Hall v Nominal Defendant (1966) 117 CLR 423: does the order, as made, finally determine the rights of the parties in the principal cause pending between them? The Court held that neither the refusal to disqualify nor the refusal to remove finally determined the maintenance rights between the parties, the husband, or the child. A further removal application could theoretically be made (though registry staff had flagged abuse-of-process concerns under High Court Rules O 58 r 4(3)). Therefore the orders were interlocutory and the appeal incompetent.
On the bias question the Court applied the principle restated in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, Johnson v Johnson (2000) 201 CLR 488 and Livesey v New South Wales Bar Association (1983) 151 CLR 288: disqualification is required if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the issues. The Court emphasised that prior practice at the Victorian Bar, without more, does not create such an apprehension. It cited Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78 for the proposition that even a prior professional relationship with a client does not ordinarily disqualify a judge unless the advice given is in issue. Hayne J's express statement that he had no prior knowledge of the litigation was accepted. The Court noted that Mrs Bienstein had, on the transcript, accepted the sufficiency of Hayne J's reasons before later changing position once the removal application was dismissed. Observations made by Hayne J during argument were characterised as tentative views of the kind approved in Re Keely; Ex parte Ansett Transport Industries (1990) 64 ALJR 495 and Vakauta v Kelly (1989) 167 CLR 568; they did not demonstrate predetermination.
The removal application failed at the threshold because s 40(1) of the Judiciary Act permits removal only where "there is pending in a federal court a cause... that arises under the Constitution or involves its interpretation". By the time the Full Court heard the appeal, SA87 of 1999 had been finally determined. In ML7725 the only live issue was the remitted adult-child maintenance application, which turned on ordinary Family Law Act questions of need and capacity. The s 118 restraint order had been upheld on appeal without any constitutional argument. The contempt episode had been dealt with in SA87 of 1999 on procedural grounds without reference to any implied constitutional "right not to be tortured" said to arise under Chapter III. The Court therefore found no pending constitutional cause. It reinforced this by reference to the policy against using s 40(1) to interrupt lower-court processes, to bypass special leave requirements, or to turn the High Court into a general judicial ombudsman. Hayne J's own reasons were quoted with approval on this point.
Prior to Bienstein the law on final versus interlocutory orders was settled by Hall v Nominal Defendant and Licul v Corney: the question is whether the order finally disposes of the rights of the parties in the principal proceeding. Refusals to set aside default judgments or to extend time had been held interlocutory because fresh applications could be made. Bienstein applied that test directly to removal and disqualification orders, confirming that they do not determine the underlying maintenance rights.
On bias, the test had been authoritatively stated in Livesey, Vakauta v Kelly, Re JRL; Ex parte CJL (1986) 161 CLR 342 and Ebner. Re Polites had already made clear that prior professional practice does not ordinarily disqualify. Bienstein applied these authorities to a factual scenario involving generalised complaints about a city legal "fraternity", confirming that something more specific than shared professional history is required. The Court's quotation of Mason J in Re JRL (at 352) underlined the policy that judges should not too readily disqualify themselves.
The law on s 40(1) removal had been applied in cases such as Re Stubberfield's Application (1996) 70 ALJR 646, which held that once a matter has been determined there is nothing left to remove. Bienstein confirmed that constitutional issues must be live in a pending cause; a party's unilateral assertion that a statute is being "criminally misused" or that an implied constitutional right is engaged is not sufficient if those points have not been raised in the lower court proceedings. The judgment also emphasised the discretionary and exceptional nature of removal, citing the need for "important" constitutional issues "ripe for decision" and the undesirability of bypassing the Full Family Court or special leave processes.
After Bienstein the same principles continue to govern. The decision did not change the legal tests but illustrated their application to self-represented litigants making broad allegations of systemic misconduct in the Family Court. It reinforced that s 40(1) is not a general supervisory mechanism and that bias claims based on geography or past Bar practice will rarely succeed.
Paragraph 14: "The usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties[5]. The test requires the appellate court to look at the consequences of the order itself and to ask whether it finally determines the rights of the parties in a principal cause pending between them."
Plain English: We decide if an order can be appealed without permission by asking whether it finally settles the real dispute between the parties. Refusing to move the case or to stand aside does not settle who pays maintenance, so it is only an interim step.
Paragraph 22: "A judge is disqualified from determining a case if the judge is biased or a party or a member of the public might reasonably apprehend that the judge is biased[10]. Bias exists if the judge might not bring an impartial and unprejudiced mind to the resolution of the issues[11]."
Plain English: A judge must step down if a fair member of the public would think the judge cannot be impartial. But simply having worked as a lawyer in the same city years earlier is not enough.
Paragraph 26: "In the normal case (of which this is an illustration), it is only when advice given by the legal adviser is an issue in the proceedings that a reasonable apprehension of bias can arise."
Plain English: Past professional dealings with people in the same legal community do not create bias unless the judge previously gave advice that is now being challenged in the case itself.
Paragraph 33 (quoting Mason J in Re JRL): "Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour."
Plain English: Judges should not duck out of cases too easily just because someone asks. Doing so teaches litigants that they can shop for a more favourable judge by making bias claims.
Paragraph 47: "Orders for removal interfere with the processes of the courts hearing the proceedings sought to be removed. Only where the issues are important and require this Court's urgent decision should the Court make an order for removal... the s 40(1) power to remove is not intended to convert this Court into a court exercising a general supervisory jurisdiction over lower courts."
Plain English: Moving a case to the High Court disrupts the normal court system. It should only happen for serious constitutional questions that need immediate High Court attention. The High Court is not a general complaints department for unhappy Family Court litigants.
Bienstein is triggered when a litigant seeks to remove Family Court (or other federal court) proceedings to the High Court under s 40(1) of the Judiciary Act claiming constitutional issues, but the underlying dispute is ordinary statutory interpretation (e.g. maintenance entitlement under the Family Law Act) and no constitutional point has been formally raised and left undecided in the pending cause. It applies where the removal application is coupled with a disqualification application based on a judge's prior professional practice in the same jurisdiction or generalised allegations of misconduct within a city legal community. The case is relevant whenever a party appeals from a single Justice's refusal of removal or disqualification and argues the orders are final rather than interlocutory. It is especially pertinent to self-represented litigants who have been subject to s 118 orders and who allege systemic bias or "criminal misuse" of legislation without tying those allegations to a live constitutional question in a pending proceeding. The precedent also applies to contempt or procedural fairness complaints that have already been resolved by a Full Court of the Family Court; once determined, there is nothing left to remove.
The judgment itself applies and follows a long line of High Court authority on each point. It applies the final/interlocutory test from Licul v Corney and Hall v Nominal Defendant without modification. On bias it follows Ebner, Johnson v Johnson, Vakauta v Kelly and Re Polites, quoting them directly and confirming their application to the facts. The treatment of s 40(1) follows Re Stubberfield's Application. Because the Court was constituted as a Full Court, its statements on the limited role of removal and the duty of judges to sit carry significant weight and have been treated as authoritative restatements of existing principle rather than new doctrine. The decision has been cited in subsequent cases concerning the high threshold for apprehended bias based on prior professional associations and the need for a genuinely pending constitutional matter before s 40(1) removal can occur. It stands as an illustration that broad assertions of constitutional invalidity or implied rights (such as a Chapter III protection against "torture") will not suffice if those points have not been pleaded and left unresolved in the lower court record.
The judgment leaves open what would constitute a "live" constitutional issue sufficient for removal where a s 118 restraint order is said to infringe implied constitutional freedoms or where a litigant alleges that procedural rules in the Family Law Rules are constitutionally invalid. It does not decide whether repeated unsuccessful removal applications would necessarily be an abuse of process under O 58 r 4(3) or whether registry staff advice on that point could ever convert an otherwise interlocutory order into a final one. The Court expressly refrains from expressing a concluded view on the merits of any future special leave application Mrs Bienstein might bring after the remitted maintenance hearing. It also leaves unresolved the precise boundaries of when professional friendships or "fraternity" associations in a city legal community might cross the line into disqualifying territory, although it makes clear that generalised assertions will not suffice. Finally, the decision does not address the interaction between s 40(1) removal and the statutory appeal rights under the Family Law Act where constitutional points emerge only at a late stage in a remitted hearing.
Most practitioners assume that any allegation of constitutional invalidity automatically opens the door to High Court removal; Bienstein shows the Court demands the point be not only asserted but actually pending and "ripe for decision" in the precise cause sought to be removed. Another trap is believing that a judge's entire professional history in a jurisdiction creates automatic disqualification; the Court treats such claims as bordering on absurd unless tied to specific advice or relationships that are themselves in issue. Self-represented litigants frequently treat Hayne J's on-the-record acceptance by Mrs Bienstein ("you have set my mind completely at ease") as a forensic fact that later bias complaints must overcome. Finally, many overlook that even if constitutional issues exist, the High Court retains a discretion to refuse removal so that it can have the benefit of lower-court reasons and so that ordinary appellate processes (including special leave under s 35 of the Judiciary Act) are not circumvented. These nuances explain why s 40(1) applications succeed so rarely and why the Full Court was prepared to strike the appeal out on competency grounds alone.
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Practice and procedure - High Court - Removal of proceedings - Proceedings for adult child maintenance in Family Court - Whether a cause pending in a federal court - Whether matter arises under the Constitution or involves its interpretation.
Practice and procedure - High Court - Appeal from decision of a single Justice - Whether leave to appeal is required - Whether order to refuse removal of proceedings is final or interlocutory.
Courts and judges - Bias - Application for disqualification of a Justice - Whether reasonable apprehension of bias - Justice had practised professionally in city where proceedings originated - No imputed bias.
(i) proceedings in the original jurisdiction in ML7725 of 1991;
"[T]here is … no demonstrated basis for any observer to conclude, either that there is some conflict of interest or that, by reason of some conflict of interest, I would not bring to the determination of the present application an unprejudiced mind".
"I thank your Honour for that considered judgment and you have set my mind completely at ease. I have no reservations about your being able to judge this on its merits."
"[i]n part, perhaps large part, an application seeking to have this Court, first, act as would the Family Court at first instance but, second, to embark upon a general review of the way in which the Family Court has dealt with the several applications to which Mrs Bienstein or her daughter have been parties".
His Honour said that he was not persuaded that it was appropriate to make orders removing either of the causes into this Court and dismissed the application for removal.
"(1) The High Court shall, except as provided by this Act\CBR-OES-FS\VOL1\GROUPS\LIBRARY\ScalePlus\Judgments 2000 - present\2003\index.html, have jurisdiction to hear and determine appeals\CBR-OES-FS\VOL1\GROUPS\LIBRARY\ScalePlus\Judgments 2000 - present\2003\s2.html - appeal from all judgments whatsoever of any Justice or Justices, exercising the original jurisdiction of the High Court whether in Court or Chambers.
(2) An appeal shall not be brought without the leave of the High Court from an interlocutory judgment of a Justice or Justices exercising the original jurisdiction of the High Court whether in Court or Chambers."
"Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour."
Refusal of application to remove pending proceedings
ML7725 of 1991 - Cause does not arise under the Constitution or involve its interpretation
"It may be readily accepted that this Court has, as one of its fundamental roles that, as final Court of Appeal for this country and in its original jurisdiction, particularly under section 75(v), of ensuring application of the rule of law, particularly in the judicial system of Australia. That is not to be done, however, as if the Court were a general judicial ombudsman. In particular, the powers under section 40(1) of the Judiciary Act are not to be exercised save for the evident purpose for which they are conferred of permitting removal into this Court of causes, or parts of causes, which raise constitutional issues ripe for decision."
"If the … application [sought to be filed] appears to a Registrar on its face to be an abuse of the process of the Court or a frivolous or vexatious proceeding or application, the Registrar must seek the direction of a Justice who may direct the Registrar to issue or file it or to refuse to issue or file it …"
If Mrs Bienstein sought to file another application for removal of proceedings that appear to no longer be pending, it would be open to the Registrar to form the opinion that the application was an abuse of process and seek the direction of a Justice. ↑
Bienstein
Bienstein
(1953) 90 CLR 573
(1976) 180 CLR 213
(1966) 117 CLR 423
(1981) 147 CLR 246
(1910) 10 CLR 243
(1983) 151 CLR 288
(1989) 167 CLR 568
(2000) 201 CLR 488
(2000) 205 CLR 337
(1990) 170 CLR 70
(1997) 139 FLR 36
(1991) 173 CLR 78
(1990) 64 ALJR 495
(1986) 161 CLR 342
(1996) 70 ALJR 646
Purported appeal struck out as incompetent.