Mathews, Russell Gordon haig v Deputy Commissioner of Taxation

[1997] FCA 367

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION  No. QG 168 of 1996

B E T W E E N:
  RUSSELL GORDON HAIG MATHEWS  Appellant

AND:
  J M McCARTHY, DEPUTY COMMISSIONER OF TAXATION   Respondent

COURT:         NORTHROP, HILL AND WHITLAM JJ
PLACE:         BRISBANE
DATE: 24 APRIL 1997

REASONS FOR JUDGMENT

NORTHROP J:
           The Court has decided to refuse leave to the appellant to adduce fresh evidence in this matter. I will give very brief reasons as to why I would refuse leave. Most of it was indicated in the course of argument. Here, the appellant has appealed against an order made by Drummond J on 29 August 1996. That was an order made pursuant to motions brought by the respondent, the Deputy Commissioner of Taxation, to have the application by Mr Mathews dismissed, in matter QG59 of 1996. Drummond J heard that motion, gave reasons and ordered that the application be dismissed and that the appellant pay the respondent's costs of the application.

That order was made on 29 August 1996. There was a notice of appeal given by Mr Mathews dated 16 September 1996. There are a large number of grounds set out in that notice of appeal including a ground that there was a reasonable apprehension of bias on the part of Drummond J which disqualified him from hearing the application and therefore the orders made were really a nullity. There were a large number of other grounds contained in the notice of appeal which, to some extent, went to the substance of the matter, but Mr Mathews has told the Court, very clearly, that he does not wish to pursue any of those other grounds.

It is to be noted that there was no suggestion raised by Mr Mathews at the hearing before Drummond J of any complaint of bias. No suggestion made to His Honour that he should disqualify himself. Mr Mathews is now alleging bias and it should be indicated that on the material before the Court for the purposes of this appeal, there is no evidence or any other material at all to suggest grounds for a finding that there was ostensible or apprehended bias on the part of Drummond J.

It appears from the course of argument that, in reality, there are two grounds relied upon to support the allegation. First, it was said that Drummond J was a member of a Full Court which dismissed an appeal from a judgment of Spender J in relation to judicial review of a decision against Mr Mathews affecting the Human Rights Commission. It is put that in the proceedings before Spender J, there was an affidavit sworn by a Mr Armstrong, a very lengthy affidavit, which might have contained or does contain admissions which were adverse to the Human Rights Commission, and possibly favourable to Mr Mathews and that he did not fully appreciate them at the time of the
hearing before Spender J. The judgment of Spender J was adverse to Mr Mathews, and Mr Mathews appealed from the judgment of Spender J. The appeal came on before a Full Court of which Drummond J was a member, but the appeal was dismissed for want of prosecution, essentially on the basis that Mr Mathews had not complied with the orders of the Court and therefore the appeal could not proceed, and the appeal was dismissed.

It is alleged that is one ground to support a finding to establish apprehended or ostensible bias against Drummond J. The other ground alleged is in the matter just heard by this Court in QG 17 of 1997, where Drummond J transferred a matter before the Court to the Magistrates' Court. Reference is made to the reasons given why an application for leave to appeal against that order was refused. It is said by Mr Mathews that these give rise to the concept of apprehended bias. But in my opinion there is no evidence to support any of those matters.

Application for leave to adduce fresh evidence was made, and during the course of the argument, reference was made to section 27 of the Federal Court of Australia Act 1976, and also to O 52 r 36 of the Federal Court Rules. A great degree of latitude was given to Mr Mathews in relation to his argument as to why he should have leave to call further evidence. Having regard to the fact that there was nothing before the Court, constituted by Drummond J, alleging bias and that in reality the basis of his complaint is what happened before the Full Court of which Drummond J was a member and having regard to the fact that the Court did not look into the merits of the appeal whatsoever, but dismissed it on a procedural matter, I see no reason at all, and in the absence of any explanation as to why this long delay has occurred between the time of the appeal being
lodged by notice of appeal and the hearing dated fixed, why leave should be granted to call further evidence, in substance being this affidavit of Mr Armstrong.

That affidavit can have no bearing whatsoever, even assuming it contains material of the kind suggested by Mr Mathews, it can have no bearing whatsoever on the question of apprehended bias on the part of Drummond J. In all the circumstances, I would refuse leave to call fresh evidence.

HILL J:
           I, too, would refuse leave to call fresh evidence. In so doing, I take into account not only that the question of ostensible bias was not raised before Drummond J at first instance, but also the fact that until today, no suggestion has ever been made that an attempt would be made to adduce before the Full Court evidence from which ostensible bias may be inferred. These matters might both be perhaps excused in the case of an unrepresented litigant if the material sought to be adduced as fresh evidence were in any way logically probative of the issue to be determined by the Full Court.

The affidavit sought to be adduced is said to contain admissions of misconduct on behalf of the Human Rights Commission, against whom Mr Mathews had commenced proceedings by way of judicial review. The significance of the affidavit, according to Mr Mathews, is that the judges of the Full Court sitting on appeal from Spender J, and that included Drummond J, because the document was on public record, must have known that there was a "minefield", as Mr Mathews puts it, and did not want to get involved to "upstage" Spender J.

So it is said we should infer merely from the existence of an affidavit containing admissions of wrong-doing, as it is said, that Drummond J deliberately avoided considering the merits, and did so in circumstances from which we would infer that a reasonable person would apprehend that his Honour was biased. With respect to Mr Mathews, who has said all that could be said, that evidence, even if read in the proceedings, would not in any way be logically probative of the issue involved.

So for that reason and cumulatively the other matters mentioned by his Honour the presiding Judge, I would refuse the application.

WHITLAM J:
           I agree with Northrop J and with Hill J. No basis has been established whatever for the adducing of the further evidence. In no sense is it fresh evidence, being material that was well known to the appellant at the time of the original proceedings.

NORTHROP J:
           Accordingly leave to call fresh evidence is refused.

NORTHROP J:
           The appellant made no other submissions to support the appeal. In those circumstances the Court dismisses the appeal with costs.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment respectively of their Honours Justice R M Northrop, Justice Hill and Justice Whitlam.

Associate to Justice R M Northrop:

Date: 13 May 1997