R v Simpson; Ex parte Morrison

It is not my practice in relation to settlement negotiations - Mr. Morrison is not the first and no doubt, unfortunately, will not be the last member of the legal profession to have a personal matter in this Court. Most of them have been settled. My view has always been that with a member of the legal profession, there are difficulties in relation to settlement matters with the legal profession involved personally. Wives often feel that the odds are stacked against them, if I can use a colloquial word. Husbands often feel that they have been put under undue pressure because of their being a member of the legal profession. It always seems to me that members of the legal profession are better off for many reasons to have it settled and that within reason it is not inappropriate for members of the legal profession to pay whatever is the proper award and perhaps 10 per cent more is the advice I usually give after the matter has been settled.

As will be seen, these remarks had an unfortunate consequence but no reasonable person who heard them could have formed any conclusion other than that the judge was directing his remarks purely to the question of settlement. What he was saying, in effect, whether it was right or wrong to say it, was that members of the legal profession who are personally involved in cases of this kind should be prepared to pay more by way of settlement than other persons should, because of the undesirability of their being involved in the proceedings. It is quite impossible to construe the remarks of the judge as suggesting that if he were to make an order after a contested hearing he would award more against a member of the legal profession than would be warranted in any other case.

After the judge had made his remarks the parties continued their negotiations and finally reached a settlement. Counsel for the parties then went to see the judge and told him that the matter had been settled and of the terms upon which agreement had been reached. It was agreed that counsel for the wife would prepare a deed for approval pursuant to s. 87 of the Family Law Act 1975 Cth containing the terms of that settlement. However, on the following day, 2 April, the wife's solicitor told the solicitor for the husband that the wife, having further considered the comments of the judge, has decided not to proceed with the agreement. She said that the judge's remarks were the major reason for her now deciding not to proceed. Accordingly, he said, the settlement was off.

Of course, if it had not been for the provisions of s. 87 of the Act, it was not competent for the wife to call off the settlement once reached for that or any other reason but the necessity to obtain the approval of the court under s. 87 does introduce a complication which it is not necessary for me to consider. On the same day, counsel again saw the judge, told him of the situation and counsel for the husband requested him not to proceed with the hearing on the grounds that he could not fairly proceed to decide the matter having regard to the comment he had made on the previous day and his knowledge of the agreement which had been reached. The learned judge, however, said that he would proceed and is in fact proceeding with the hearing.

It is quite clear that when there is a suggestion of bias, the court should not proceed either if there is actual bias or if there is a reasonable suspicion of bias. That is not to say, however, that the court must desist from hearing proceedings when somebody wrongly and irrationally suspects bias. It is quite impossible, in the present case, to say that the learned judge was biased and, in my opinion, it cannot be said that his remarks gave rise to a reasonable suspicion of bias. As I have said, he was talking solely about settlement and not about what he would do if he had to decide the matter after a contested hearing.

Similarly, the fact that he had been informed of the terms of the settlement does not mean that it would be a denial of natural justice to either party that he should proceed. In the circumstances, of course, it was perfectly proper to tell him that the matter had been settled. The learned judge would have been well aware that in reaching a settlement either or both parties may have made concessions, and may perhaps have gone some distance in doing so, and that the settlement does not necessarily indicate the order that the judge should make. If the settlement were to affect the judge at all, I should have thought, assuming that the facts in the affidavit before me are correct, that they would incline to make him regard the case of the wife with a little disfavour since, if it is right to say that the judge's remarks were her major reason for deciding not to proceed with an agreement which she had concluded, her conduct was reprehensible. However, of course, I have not been in a position to hear what the wife's counsel has to say in regard to that matter and express these views, which are no more than very tentative, merely to indicate that the husband, the present applicant, has no reason to apprehend any unfairness if the hearing proceeds.

For these reasons, although Mr. Higgins has said all that could be said in support of this application, it must be dismissed and I dismiss it.