Up the Street … Bend over … FCFC judge birched (again) by the Federal Court … More interruptions …Taking over the case … Findings that were not made in submissions … Go back start again … Costly and inefficient process … Judicial mentoring goes astray … Max Shanahan reports

Last week, the Federal Court convened for its now-regular session of Street-scolding, adding to the 80+ judgments that the judge has had overturned since his appointment in 2015. 

In the matter of Bhnan v Micheletto & Carrafa (Trustees), Justice Angus Stewart found that Sandy engaged in “extensive … unfair [and] aggressive” cross-examination of Ms Bhnan (the respondent), expressed a “seemingly concluded view” of the dispute before delivering judgment, and made out his own case to the respondent that was not raised in submissions or argument. 

Remarkably, Street managed to check off the full grocery-list of undesirable judicial conduct elucidated by the Privy Council in Michel v The Queen:

“He must not cross-examine witnesses … He must not appear hostile to witnesses, least of all the defendant. He must not belittle or denigrate the defence case. He must not be sarcastic or snide. He must not comment on the evidence while it is being given. And above all he must not make obvious to all his own profound disbelief in the defence being advanced.”

Best-known for his misinterpretations of migration law, on this occasion Street J took on a bankruptcy matter – concerning property belonging to the bankrupt Mr Eshi. 

His trustees in bankruptcy contended that the relevant property – a house in Edensor Park – was sold to Ms Bhnan after the bankruptcy, in an attempt to prevent it falling into the hands of creditors. 

The trustees further contended that Bhnan had failed to pay the entire $1.5 million purchase price – $1.2 was paid by way of bank loan. 

At issue was the final $300k, which Bhnan argued had been paid by various means including $70k cash, a $40k bank transfer and the transfer of a $80k Mercedes-Benz. 

Per Stewart: 

“… notwithstanding that there appeared to be contemporaneous records of at least some of the payments … [Street] rejected the entirety of Ms Bhnan’s case.” 

Despite it not being raised whatsoever as an issue by the trustees, Street found that receipts for the payments were “patently false” and that Bhnan had misled and committed a fraud upon the incoming mortgagee. HH continued:

“The notion that the incoming mortgagee was defrauded by Ms Bhnan was a case developed, pursued in cross-examination and upheld by His Honour … in circumstances where no such fraud was pleaded, put or submitted on behalf of the trustees, and where the incoming mortgagee was not a party to the proceeding [and] gave no evidence …”

Street’s cross-examination of Bhnan – a questionable move in the first place – was “extensive and aggressive”:

“[Street] put many direct propositions to her. Some of these questions were unfair and it was apparent that they caused Ms Bhnan confusion and caused her to make concessions that she may not otherwise have made.”

Such was the hostility of the cross-examination, that Bhan was unable to understand elements of the questioning and was forced to explain the limitations of her English given she “came to Australia as a refugee.”

As a result of his unilateral finding of fraud, Street made orders declaring the transfer void, and evicting the unfortunate Ms Bhnan. 

The injury didn’t stop there – Bhnan remained indebted to the mortgagee for the $1.2m borrowed, and received no credit for full or partial payment of the $300k shortfall, even where she had receipts. 

The eviction of a refugee with limited English based on unsupported judicial speculation and aggressive cross-examination is not one of the finest moments in the rule of law and the reputation of the judiciary. 

According to the Australian Financial Review, Street has taken part in a “formal and ongoing mentoring program” for judges, including “counselling from retired judges on particular areas of practice”. 

A court spokesperson sad: 

“… all judges are actively encouraged to reflect upon decisions that have been been successfully appealed, and are encouraged to discuss these with their mentors.”

Given the less-than-desirable rate of overturning, Street’s mentor must be rather busy.

After going through a number of further instances of unsettling judicial behaviour, (transcripts attached to the judgment “do not exhaust the extent of [Street’s] interventions), Steward J had no trouble finding the that excessive interventions, aggressive cross-examination, apparently concluded views, and development of his own cases, gave rise to a reasonable apprehension of bias. 

Notably, the trustees made no attempt to contend otherwise. 

The appeal was allowed and a retrial ordered. Because the “need for a new trial arises not from any fault of the parties but from the conduct of the primary judge”. 

Stewart recommended the Attorney-General pay the costs of both parties. 

Can there be a limit to judicial embarrassment and expense? 

Bhnan v Micheletto & Carrafa (Trustees)