Mathews v Deputy Commissioner of Taxation

[1997] FCA 1620

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION

QG 168 of 1996

BETWEEN:               RUSSELL GORDON HAIG MATHEWS

Appellant

AND:  J M McCARTHY, DEPUTY COMMISSIONER
  OF TAXATION

Respondent

QG 213 of 1996

BETWEEN:               RUSSELL GORDON HAIG MATHEWS

Applicant

AND:  HASSAN ANDREW ISAAC

First Respondent

AND:  DAVID EVANS

Second Respondent

AND:  COMMONWEALTH OF AUSTRALIA

Third Respondent

AND:  SENIOR CONSTABLE JUSTICE BERGIN

Fourth Respondent

AND:  CONSTABLE PAUL A JOYCE

Fifth Respondent

AND:  STATE OF QUEENSLAND

Sixth Respondent

AND:  ROBERT KENNETH FRANKS

Seventh Respondent

AND:  BELINDA IRENE MEERY

Eighth Respondent

AND:  COMMONWEALTH DIRECTOR OF
  PUBLIC PROSECUTIONS

Ninth Respondent

AND:  ANASTASIA FARDOULYS
  DENTAL PTY LTD

Tenth Respondent

JUDGE MAKING ORDER:          Cooper J
WHERE MADE:  Brisbane
DATE OF ORDER:  8 April 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The notice of motion is dismissed.

1. The costs of each respondent to the notice of motion will be the respondent’s costs in the appeal.

THE COURT DIRECTS THAT:

1. A copy of these reasons and a copy of the applicant’s affidavit filed 13 March 1997 be provided by the District Registrar to the Full Court of this Court which will hear and determine the appeal on Thursday 24 April 1997.

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

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QG 168 of 1996

BETWEEN:
  RUSSELL GORDON HAIG MATHEWS

Appellant

AND:  J M McCARTHY, DEPUTY COMMISSIONER
  OF TAXATION

Respondent

QG 213 of 1996

BETWEEN:
  RUSSELL GORDON HAIG MATHEWS

Applicant

AND:  HASSAN ANDREW ISAAC

First Respondent

AND:  DAVID EVANS

Second Respondent

AND:  COMMONWEALTH OF AUSTRALIA

Third Respondent

AND:  SENIOR CONSTABLE JUSTICE BERGIN

Fourth Respondent

AND:  CONSTABLE PAUL A JOYCE

Fifth Respondent

AND:  STATE OF QUEENSLAND

Sixth Respondent

AND:  ROBERT KENNETH FRANKS

Seventh Respondent

AND:  BELINDA IRENE MEERY

Eighth Respondent

AND:  COMMONWEALTH DIRECTOR OF
  PUBLIC PROSECUTIONS

Ninth Respondent

AND:  ANASTASIA FARDOULYS
  DENTAL PTY LTD

Tenth Respondent

CORAM:  Cooper J
PLACE:  Brisbane
DATE:  8 April 1997

REASONS FOR JUDGMENT

The applicant in each of QG 168 of 1996 and QG 213 of 1996 has an appeal to the Full Court of this Court.  On 14 February 1997 he filed a notice of motion in each proceeding seeking orders that the Court provide to him the transcript of proceedings at first instance and the photocopying and binding service for the appeal books in each appeal.

On 27 February 1997 on the return of the notices of motion I advised the applicant that the court needed credible evidence of the cost of the documents and services sought and evidence that such cost was beyond the resources of the applicant.  He was advised that an affidavit of his financial circumstances was necessary upon which to properly base any exercise of discretion in his favour.  This followed because the court was being asked to apply public funds to pay for what are ordinarily the litigant’s own costs of preparing and prosecuting an appeal.  Accordingly, a direction was made that the applicant file an affidavit detailing his financial position as outlined in a document provided by the court for his assistance which document included reference to a financial settlement of proceedings instituted by the applicant against Telecom in this court where the proceedings were terminated upon performance of the settlement by Telecom.  The applicant was directed to file his affidavit by 4.00 pm 13 March 1997.

On 13 March 1997 the applicant filed an affidavit which did not comply with the direction.  In it the applicant sought that I disqualify myself from further hearing the motions on the ground that a reasonably informed bystander would form a reasonable apprehension that I was biased against him by directing he file such an affidavit.  The applicant has also requested that I disqualify myself on the ground that I sat as a member of a Full Court which dismissed his appeal in QG 43 of 1991.  Those requests were renewed on the hearing of the notices of motion today. 
  I decline the application to disqualify myself.  The complaints in my view are without substance.  There can be no reasonable basis for refusing to provide financial information when the applicant seeks to be relieved of the cost of litigation by the expenditure of public monies on his behalf.  Further, that the appeal in QG 43 of 1991 was dismissed for want of prosecution and without any consideration of the merits of the appeal by the Full Court could not reasonably in my view give rise to the apprehension of bias which the applicant alleges.

I am not satisfied on the material before me that the applicant lacks the funds necessary to do what he seeks the court to do on his behalf.  In fact, appeal books have been prepared on an ad hoc basis to allow the appeals to be heard and determined.  In those circumstances I do not propose to make the orders sought.

The application in each proceeding is dismissed.  The costs of the respondents to the notices of motion will be those parties costs in the appeal.

In order that the Full Court which will hear the appeals on Thursday 24 April 1997 is appraised of the position of the applicant taken on these notices of motion and the circumstances in which he failed to comply with the direction given on 27 February 1997 to file an affidavit of his financial circumstances, I direct the District Registrar to provide to that Full Court a copy of these reasons and a copy of the applicant’s affidavit filed 13 March 1997.

I certify that this and the preceding two (2) pages are a true copy of the reasons for judgment herein of his Honour Justice Cooper.    Date:   8 April 1997

Associate

Applicant in Person:  R G H Mathews

Solicitor for Respondent in

QG 168 of 1996:  Australian Government Solicitor

Solicitor for the First, Second

and Third Respondents in

QG 213 of 1996:  Australian Government Solicitor

Solicitor for Fourth, Fifth

and Sixth Respondents in

QG 213 of 1996:  Crown Solicitor Queensland

Counsel for the Ninth

Respondent in QG 213 of 1996:      S Allen

Date of Hearing:  8 April 1997

Place of Hearing:  Brisbane

Date of Judgment:  8 April 1997