Donkin, C.J. v AGC Advances Ltd

[1994] FCA 1033

COLIN JOHN DONKIN v. AGC ADVANCES LIMITED
No. QG107 of 1989
FED No. 1033/94
Number of pages - 5
Disqualification - Application To Strike Out

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
KIEFEL J

CATCHWORDS

Disqualification - apprehension of bias

Application To Strike Out - matter already determined in a final way - fresh allegation of fraud

Federal Court Rules - O 35 r 7(2)(b)

Re JRL; Ex parte CJL (1980) 161 CLR 342 Refd
S and M Motor Repairs Pty Ltd v Caltex Oil Aust Pty Ltd (1988) 12 NSWLR 358 Appr
Re Finance Sector Union of Australia Ex Parte Elation Pty Ltd(1992) 66 ALJR 583 Refd

HEARING

BRISBANE, 9 December 1994
#DATE 9:12:1994

Counsel for the applicant: Mr A.Vasta QC

Solicitors for the applicant: Barker and Associates

Counsel for the respondents: Mr P.A. Keane QC

and Mr J. Sheahan

Solicitors for the respondents: Feez Ruthning

ORDER

THE COURT ORDERS THAT:

1. The application for Kiefel J to disqualify herself from hearing the applicant's motion be dismissed.

2. The applicant, Colin John Donkin, pay the respondent's costs thrown away by the hearing on the issue of disqualification.

THE COURT DIRECTS THAT:

3. Unless the applicant file and serve affidavits in support of his motion by 4.00 pm on Friday 13 January 1995, together with a

letter from the applicant's solicitors certifying that those

solicitors and/or counsel have explained to the applicant the

nature of the allegation made under O.35, r.7(2)(b), that they have advised the applicant as to the prospects of that being made out and that they have instructions notwithstanding to proceed with that allegation, the motion stand dismissed.

THE COURT ORDERS THAT:

4. In relation to costs thrown away on that part of the hearing which dealt with the question of estoppel, the applicant pay the respondent's costs of and incidental to that issue to be taxed.

5. The costs with respect to the issue of fraud be reserved to any future hearing date.

THE COURT GRANTS:

6. The respondents liberty to apply in the event that the motion is not proceeded with.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

JUDGE1

KIEFEL J I am asked to disqualify myself from hearing further submissions on the applicant's motion since there is said to be an apprehension of bias which arises by reason of a number of matters. Firstly, it is said that one might infer from the text of my reasons delivered on 2 November 1994, an element of pre-judgment of an issue yet to be determined. Secondly, it is said that there is an apprehension that I might not bring an impartial mind to bear and which is said to arise from my having acted as senior counsel for Westpac Banking Corporation, a company having a connection with the respondent, in a case concerning foreign exchange dealings some years ago and also because a group called the Foreign Exchange Borrowers Association monitors listings of matters coming before the Court for directions and those persons apparently have some concern that a number of cases have recently been listed before me.

1. In relation to the issues dealt with in my previous reasons there are cogent practical reasons I consider why, where possible, the same judge ought to continue to hear a series of questions or issues raised in the same matter. They would be obvious. And I accept the submission for the respondent that the fact that a judge has decided an issue in a particular way is not indicative of pre-judgment of the relevant kind: see Re JRL; Ex parte CJL (1986) 161 CLR 342, 352. Here there is no question of a determination as to credit or a determination on a question of fact which might present some difficulty to me in bringing an impartial mind to bear on any issue which is said to remain. That remaining issue here is closely connected with, if not identical with, an issue already determined by me. But insofar as it is said to have some additional basis, or there is left in my reasons a matter not concluded, I do not see that anything I have determined thus far would prevent me from concluding the matter. The other matter which is sought to be raised, and to which I will later refer, is a new allegation as to fraud by a witness in the proceedings before Beaumont J a matter upon which I have not as yet heard argument and upon which I have not had the opportunity to comment. I therefore do not consider that I ought to decline to conclude that matter, if it is to proceed.

2. In relation to the matters raised by the Foreign Borrowers Association, when the matter last came before me I required that if the allegations being raised were to be pursued that the facts upon which they were based ought to be deposed to. A Mr Fisher, who is the chairman of the Foreign Currency Borrowers Association, has now sworn an affidavit in which he explains that the Association monitors the law lists in the Courts throughout Australia. At paragraph 6 of his affidavit he says:
   

"Quite recently it has come to the attention of the

Association that foreign currency cases involving Westpac,

which have been dormant, are now being activated and

brought on before Her Honour Kiefel J. The Association is

aware that Her Honour Kiefel J was senior counsel in a

case brought by Harold Ferneyhough against Westpac, which

case was decided in favour of Mr Ferneyhough."

and goes on to say that in the interests of justice it may not be seen that I would be capable of an impartial decision. Insofar as there is said to be a need for disqualification where a judge hearing the matter has formerly acted as counsel for one party, or a corporation associated with that party, it clearly has no basis, for the reasons given by the New South Wales Court of Appeal in S and M Motor Repairs Pty Ltd v Caltex Oil Australia Pty Ltd, (1988) 12 NSWLR 358 at 364-5.

1. A matter of concern to me in this application, on the kindest view of the position taken by the applicant, his legal representatives and the Association, is that there appears to be a preparedness to make any allegation, with or without any basis in reason or in fact. Mr Fisher clearly swore to there being a multiplicity of foreign currency cases which have suddenly been listed before me. That is, as was conceded in an exchange of correspondence between the solicitors, simply untrue. One such matter has come before me for directions. Mr Vasta QC, for the applicant, attempted to explain this slip by reference to some overall perception that Mr Fisher and Association members might have when they observe litigation generally involving Westpac being listed before me. But that is not how it was put, and I would have thought members of the Association would know which cases are of particular interest to them.

2. It was then submitted to me, on behalf of the applicant, that any such hypothetical perception was one which might amount in law to a reasonable apprehension that I might not be able to bring an impartial mind to bear (see Re Finance Sector Union of Australia Ex parte: Elation Pty Ltd (1992) 66 ALJR 583).

3. For the record, I ought to state that I have been the Judge involved in almost all directions hearings since the week following my appointment, that is directions hearings of matters formerly dealt with by all of the Judges in Brisbane, because of their Honours' other commitments. The Registry was directed by the Judges to list all matters for directions, save for a few, before me.

4. It seemed to me that the matters raised as to recent listings might imply some action of the Court in conjunction with Westpac or AGC although Mr Vasta QC assured me that was not suggested and that it was submitted only that members of the Association were concerned to note this occurring. Whatever that conveys to those persons concerning Westpac, which company in any event would not likely have notice of the decision as to future listing taken by the Court, I fail to see what it might then be said to convey about the Court or its Judges. What is then said to be the connection between any applications brought by Westpac and the question as to whether I am able to bring an impartial mind to bear upon any such matter coming before me is not apparent to me. As I have said in my exchanges with counsel, to suggest that these "perceptions" amount to an apprehension of bias would be to require the Courts to re-list a matter where any point of view, no matter how irrationally based, is raised. The matter is then resolved because the apprehension could not be said to be based in reason. On the other hand, an inference open, where the bases put forward are so clearly untenable, is that the applicant and the Association itself seeks some measure of control over which Judge might determine foreign currency cases.

5. There was, as I have said, an apparent willingness on the part of the legal representatives to raise any matter of alleged concern on the part of Mr Fisher or other members of the Association, and nothing to suggest that the client had been advised or counselled as to this course. This appeared to me to stem to some extent from a view held by counsel, wrongly held I consider, that it ought not take much to have a Judge disqualify himself or herself. I do not consider any of the recent authorities bears that out. In light of these matters, I foreshadowed the possibility of an order for costs against Mr Donkin's legal representatives. It was not however plain to me whether Mr Donkin himself sought to hide behind the Borrowers Association and whether he was content for this course to have been taken. He is not a person unfamiliar by now with Court proceedings. Since I was left in some doubt about the part he played in it and whether or not he had any advice since counsel's instructing solicitor was not present at the hearing I determined not to make such an order. I will order however, in dismissing the application, that Mr Donkin pay the respondent's costs thrown away by the hearing on the issue of disqualification, and I leave it to him to take up with his legal representatives the question as to whether those costs ought to have been incurred.

6. There remains the question of the motion by the applicant, being the motion filed on 29 June 1994. The respondent seeks an order striking it out on the basis that the applicant is estopped from raising matters which have been the subject of final determination by me in my Reasons earlier referred to. That seems to me to be plainly correct. The motion seeks to raise a question under O.35 r.7(2)(e) as to whether Beaumont J's Order reflected the intention of the Court. I have, I consider, determined that matter and in a final way.

7. It is then said that the Court ought permit the motion to remain on foot, in which case an adjournment would be required, on the basis of an allegation never previously particularised by the applicant and in particular when further and better particulars were filed by the applicant on 1 September 1994 following an Order requiring them. There is not in those particulars even a hint of the allegation which is now made. It appears only at the conclusion of the outline of submissions filed by the applicant on 1 December and is to the effect that the letter of the accountant, Mr Jones, tendered in evidence before Beaumont J may have misled the Court, in which event the Judgment ought be set aside under O.35 r.7(2)(b).

8. That is a very serious allegation. It is one of fraud and I am told, although they are not identified, that there may be others involved. I entertain grave doubt about such an allegation made so late and in what might otherwise be the last throes of a series of applications. I entertain that doubt even more so because it was not made clear to me, and after several invitations were extended to counsel for the applicant, how such a finding could be made. But it is said by counsel that there exists other evidence which would be sufficient for there to be an arguable case of fraud. I take it then that it is the applicant's submission that if an adjournment were granted that he would then be in a position to place before the Court evidence which would by itself, and putting aside whatever else might later be said to weigh against it, permit such a finding. On that basis, I consider that even where grave doubts are held as to whether the allegations are made bona fide that the Court ought be cautious and ensure that there is an opportunity to investigate them and bring the matter before the Court. I am, on the other hand, concerned that there be some finality to these matters.

9. In these circumstances I propose to direct that unless the applicant file and serve affidavits in support of his motion by 4pm on Friday 13 January 1995, together with a letter from the applicant's solicitors certifying that those solicitors and/or counsel have explained to the applicant the nature of the allegation made under O.35 r.7(2)(b), that they have advised the applicant as to the prospects of that being made out, and that they have instructions notwithstanding to proceed with that allegation, the motion stand dismissed.

10. It will be implicit in what I have said, although I will not make a direction as to it, that I would expect that if the matter is then proceeded with that the legal representatives for the applicant will be in a position to say to the Court distinctly that there is a proper case to be made in relation to that matter.

11. In relation to the costs thrown away on that part of the hearing which dealt with the question of estoppel I order that the applicant pay the respondent's costs of and incidental to that issue to be taxed.

12. The balance of the hearing was concerned with the outstanding issue of fraud, although that did not take up much of the time. The costs with respect to that issue will be reserved to any future hearing date and I grant the respondent liberty to apply in the event that the motion is not proceeded with.