Mathews, Russell Gordon Haig v Isaac, Hassan Andrew

[1997] FCA 369

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION  No. QG 213 of 1997
B E T W E E N:
  RUSSELL GORDON HAIG MATHEWS  Appellant

AND:  HASSAN ANDREW ISAAC  First Respondent
AND:  DAVID EVANS  Second Respondent
AND:  COMMONWEALTH OF AUSTRALIA            Third Respondent

AND:  SENIOR CONSTABLE JUSTIN BERGIN
  SERVICE NO 6763  Fourth Respondent

AND:  CONSTABLE PAUL A JOYCE

SERVICE NO 9208  Fifth Respondent
AND:  STATE OF QUEENSLAND  Sixth Respondent
AND:  ROBERT KENNETH FRANKS              Seventh Respondent
AND:  BELINDA IRENE EMERY  Eighth Respondent

AND:  COMMONWEALTH DIRECTOR

OF PUBLIC PROSECUTIONS                   Ninth Respondent

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

REASONS FOR JUDGMENT
NORTHROP J:
           This is an application for leave to call fresh evidence in support of the appeal. The
appeal is from an order made by Drummond J on 20 December 1996 the effect of which was to bring to an end proceedings brought by Mr Mathews against a large number of respondents. By notice of appeal, dated 23 December 1996, Mr Mathews has appealed against the order of the trial judge and, although a large number of grounds of appeal are set out in that notice, only two are being pursued, the others being abandoned.

Those two, in reality, come down to a ground that there was ostensible or apprehended bias by Drummond J and because of that he should not have heard the matter. This is very similar to the facts and position in the previous case, matter QG 168 of 1996. I need not repeat everything that was said there. But, in this case, when the matter came on before Drummond J, Mr Mathews did raise the question of bias and requested that Drummond J disqualify himself on that ground, the only reason being that Drummond J had participated in a Full Court dismissal on 16 November 1993 of Mr Mathews' appeal from the decision of Spender J in Mathews v Human Rights and Equal Opportunity Commission.

No other ground of apprehended or ostensible bias was alleged and no other ground is relied upon now. In particular, attention is drawn to the fact that there is no reliance on the ground of bias arising from the orders of Drummond J in the case of QG 17 of 1997, a matter dealt with earlier today.

The application for leave to rely upon further evidence relates to material that was before Spender J as the trial judge in relation to proceedings brought by Mr Mathews against the Human Rights and Equal Opportunity Commission pursuant to the
Administrative Decisions (Judicial Review) Act 1977. Mr Mathews seeks to rely on material contained in an affidavit sworn by a Mr Armstrong which, apparently, disclosed certain material adverse to the Human Rights and Equal Opportunity Commission when that Commission was making an inquiry into conduct by Mr Mathews.

Mr Mathews says that, at the hearing before Spender J, he never appreciated the full extent of the affidavit material. The judgment of Spender J was entered and his Honour gave reasons for the orders he made. Mr Mathews appealed from the judgment and orders made by Spender J. The Full Court heard that appeal in the sense that they dismissed it for want of prosecution. The Full Court did not go into the merits of the appeal whatsoever. The failure by Mr Mathews to comply with orders of the Court was the basis upon which the appeal was dismissed.

There has been ample opportunity for Mr Mathews to comply with the requirements of the Act and Rules about fresh evidence. No reason has been put to the Court as to why that opportunity was not taken and why procedures provided for in the Federal Court of Australia Act and the Federal Court rules, were not followed. For reasons given in the previous case, both by myself and Hill J, I would refuse leave to appeal, particularly in this case on the basis that, really, what is being sought is to challenge the order of the Full Court in Mathews v Human Rights and Equal Opportunity Commission on the basis that the Full Court was wrong in some way in dismissing the appeal and that there has been no opportunity to investigate the full facts that were before Spender J when he heard the application for review.

In my opinion, even if the affidavit or part of the affidavit of Mr Armstrong was such that there may be some grounds for suggesting a bias, this is not the course to follow in this case. Those matters are completely irrelevant to any decision we must decide. Accordingly, I would refuse leave to file fresh evidence in this matter.

HILL J:
           I, too, am of the view that the request that Mr Mathews now be given leave to adduce evidence be denied. For my part, I would have been prepared to permit the evidence to be adduced, notwithstanding that the application for leave so to do could have been made at an earlier time if I had been of the view that the evidence as described by Mr Mathews could in any way have been logically probative of the charge of ostensible bias which he seeks to make.

Mr Mathews has added to what he said previously only the fact that the evidence makes clear that certain documents were made available to the Commissioner, who apparently was the decision maker in Mr Mathews case, though not to him. I am prepared to accept for present purposes that that might very well have led to the conclusion that there was a failure to afford to Mr Mathews natural justice, and that had the appeal to a Full Court, of which Drummond J was a member, proceeded to hear the merits of the appeal Mr Mathews might well have succeeded. But none of that is in any way suggestive of the proposition that a reasonable person would have apprehended that Drummond J, from the mere fact that his Honour dismissed the appeal because of a failure of Mr Mathews to comply with orders, must have entertained some bias against him.

The conclusion that even if Drummond J knew of the affidavit - and it is not known whether his Honour did, he would seek to avoid a consideration of the merits of the case and thus shirk his duty, is one not lightly to be reached.

For these reasons I would refuse leave for this affidavit to be adduced in evidence. Application was also made that the judgment of Spender J be adduced in evidence. That judgment is a matter of public record and it is really not necessary that it be directly the subject of an application for leave.

WHITLAM J:
           I agree for the reasons given by Northrop J that no case has been made out for the Court to exercise its discretion to receive further evidence. In particular I would not accede to an application made on the date fixed for hearing of an appeal to receive in evidence a document comprising one thousand pages without notice at all to the respondents to the appeal, such application being made on the day fixed for the hearing of the appeal.

NORTHROP J:
           In those circumstances the Court refuses leave to adduce further evidence.

NORTHROP J:
           The appellant made no other submissions to support his appeal. In those circumstances the Court orders that the appeal be dismissed 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