Mathews v State of Queensland (No.3)
[2014] FCCA 1977
•11 August 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MATHEWS v STATE OF QUEENSLAND (No.3) | [2014] FCCA 1977 |
| Catchwords: PRACTICE AND PROCEDURE – Application to set aside earlier orders pursuant to r.16.05(2)(a) of the Federal Circuit Court Rules2001 – application dismissed. |
| Legislation: Federal Circuit Court Rules2001, rr.13.03(1)(c), 16.05(2)(a) |
| Cases cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Johnson v Johnson (2000) 201 CLR 488 |
| Applicant: | RUSSELL GORDON HAIG MATHEWS |
| Respondent: | STATE OF QUEENSLAND |
| File Number: | BRG 363 of 2014 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 11 August 2014 |
| Date of Last Submission: | 11 August 2014 |
| Delivered at: | Brisbane |
| Delivered on: | 11 August 2014 |
REPRESENTATION
| There being no appearance by the Applicant |
| Counsel for the Respondent: | Mr Hamlyn-Harris |
| Solicitors for the Respondent: | Crown Law |
ORDERS
The application in a case filed on 31 July 2014 be dismissed.
The application in a case filed 9 July 2014 be dismissed.
| FEDERAL CIRCUIT COURT AT BRISBANE |
BRG 363 of 2014
| RUSSELL GORDON HAIG MATHEWS |
Applicant
And
| STATE OF QUEENSLAND |
Respondent
REASONS FOR JUDGMENT
ex tempore
These proceedings were concluded by orders that I made on 23 June, 2014. On that day, I ordered that all outstanding applications be dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules2001. I made some orders for costs in favour of the respondent to the proceedings against the applicant and in favour of a third party against the applicant.
By an application in a case filed on 9 July, 2014 the applicant now seeks an order pursuant to r.16.05(2)(a) of the Federal Circuit Court Rules that the orders that I made on 23 June, 2014 be set aside. In addition to that application, there is another application in a case filed on 31 July, 2014 in which the applicant seeks an order that I disqualify myself for apprehended bias. It must be that I should disqualify myself from hearing and determining the application to have the orders made on 23 June, 2014 set aside pursuant to rule 16.05(2)(a).
The applicant has not appeared to prosecute either application.
I will deal with the second application first. The basis of the application seems to appear from the affidavit filed by the applicant at the same time as the application. His complaint appears to be that I have not taken into account his disabilities, and I have required him to appear in court in person notwithstanding the extensive evidence he says is before me about the nature and extent of his disabilities.
In his affidavit, which takes the form, in parts at least, of submissions, he points to two affidavits in particular – an affidavit sworn by him and dated 20 June, 2014 and an affidavit sworn by him and dated 11 June, 2014. In the first affidavit the applicant says this:
I have multiple disabilities. These include:
I. Brain stem damage; and brain damage for which my computer and the internet is a major disability Aid;
II. Obstructive Sleep Apnoea;
III. Writing disability caused by my hyper extended right thumb, so I need to use a keyboard/computer
IV. Craniosynostosis which gave me severe headaches as a kid which now, because of appearance aspects of looking a bit of a freak, causes violent physical and otherwise including bullying, attacks upon me, and is the reason for my attempt to camouflage and obscure it with a hat and beard which may also, ironically increase the likelihood of those attacks upon me;
V. Irritable bowel syndrome
VI. Diverticulosis;
VII. Bilateral long biceps tenosynovitis which is aggravated by lifting and carrying and so is a lifting and carrying disability.
VIII. Cataracts in both eyes with the far more serious cataract in my right eye meaning I could not see out of it; until I had an intra ocular lens implanted but now I have double vision due to facial and cranium fractures from attempted murder
IX. Glaucoma in both of my eyes with advanced glaucoma in my right eye with some vision loss.
X. BPH; benign prostatic hyperplasia (BHP) and benign prostatic hypertrophy;
XI. hernia;
XII. The permanent disruption to my frontal sinuses, and the frontal bones and part of the frontal process of the maxillae which have been driven backwards into the frontal sinus and into the anterior cranial fossa and that the Cribriform plate and anterior ethmoidal air cells which have been extensively disrupted, as per the discharge Summary below.
XIII. This now causes me the problems with breathing through my nose while sleeping such that I breathe through my mouth leading to dry mouth decay of my teeth and loss such that I now have the biting of only a few front teeth. I have partial dentures, but cannot use them;
XIV. Double vision, if I can use my two eyes, resulting from that facial trauma;
There are other minor ones too, such as:
(A) a dropped right shoulder from a broken collar bone
(B) pain, depending upon the weather, from a broken sacrum above the coxis sacrum junction;
(C) pain in my left knee if I run or cause much load upon it. At one time it locked my left leg such that I could not bend it.
I have excluded from that quotation the references to various exhibits set out in the affidavit. But it is to those exhibits that I now turn. To that affidavit, there are a number of exhibits, commencing with medical reports in respect of the applicant’s condition, starting on 5 April, 1968. There was then another report of 21 August, 1969 and a number of other reports in later years.
The first one, a report of John M. Sutherland, concludes with this paragraph:
There is certainly no indication for further investigation in this case and I feel that one must be very dogmatic when treating Russel that he is a normal lad in every respect and that the effects of the head injury will undoubtedly disappear completely leaving him just as good as he was prior to the insult. Whether this is entirely accurate scientifically does not matter because, although he undoubtedly has sustained diffuse neuroal damage as a result of this degree of concussion, he remains intellectually probably above average, and I see no reason why he should not continue with his studies next year. I think this year it would be worthwhile continuing study although perhaps not to the level of sitting professional examinations.
The next report from Dr Sutherland in 1969 says this in its last paragraph:
I think it very probable that Russell will improve with the passage of time, but this may be measured in a period of up to 10 years and during this period of re-adjustment, he may well find that he has jeopardised his future. On the whole, I am not extremely optimistic regarding Russell’s future and unfortunately, there is little or nothing neurological to be done to assist him. I think only he, with the help of Dr. Richards and your good self, can carry out the salvage operation.
It is unclear from those two reports just, in fact, what the difficulty was with Mr Mathews, although it seems to have followed a fall from a horse in 1967 or 1968 which resulted in some concussion.
There are then a number of psychological reports from psychologists and the like, all of which refer to the development of a psychological injury as a sequela to the fall from the horse. There is a letter from Toowong Psychological Centre Pty Ltd of 30 July, 1999 to some solicitors. The context of the letter suggests that it is, in fact, a pre-sentence report of sorts because it talks about likely benefits to Mr Mathews of certain types of punishment that might be imposed upon him. I have had regard to, but will not repeat in these reasons the summary and conclusion to be found on pages 4 and 5 of that report.
There are then some other psychological reports, one from 2003, one from September, 2004 and another in October, 2005. I have taken them into account. There is a report from Dr Brown, a thoracic and sleep physician from 2006, confirming obstructive sleep apnoea.
In his affidavit filed on 20 June, 2014, there is a letter from Dr Robert Moyle, a psychiatrist, dated 6 August, 2010. The report, addressed to The Magistrate, Magistrates Court Brisbane, says this:
I have treated Mr Matthew’s over a period of many years since early this millennium at the University of Queensland Health Services. Russell has recently started to see me at my rooms in Silverton Place Wickham Terrace. I have previously supplied reports based on my knowledge of Russell over those years, my awareness of neuropsychological testing by Dr Brian Hazell, and his previous life history of interventions by Mental Health Services. In the past I have supplied reports that Russell has used in various settings attesting to the difficulties he has organising his thoughts verbally especially if placed on the spot. He tends to become derailed, over-inclusive and talking past the point. Russell’s written skills are better. They are so good he has acquired four degrees including one in law.
I confirm the information supplied in the reports Russell has submitted to your court in the past and won't reiterate these as they are before you currently. It is preferable if Russell is able to have access to a keyboard and a computer that will allow him to communicate in writing such that he has sufficient time to consider and reasonably report his points to the court in a clearer manner than what would occur by other means. I am aware that Russell is currently facing charges for using a ‘carriage service to harass’ and is due to appear in court on the 10th August 2010.
When this matter came before me on each of the occasions that it was listed for directions, Mr Mathews failed to appear. On the penultimate appearance, I ordered that he appear personally. He had sent a large amount of material to my Chambers via my Associate, some of which was brought to my attention during the course of those directions hearings. It was apparent that Mr Mathews was suggesting that he might not be able to adequately represent himself if he was required to appear in person. To make a determination about that issue required him to appear so that some assessment could be made about whether he could appear and present his case. It is – at least in my view – not enough for the Court to come to the conclusion through the reading of some reports that:
He tends to become derailed, over-inclusive and talking past the point.
Without intending to be disrespectful, that may include any number of self-represented litigants who appear in this Court. When I dismissed his applications, I did so and delivered reasons. In doing so, I referred to decisions of other courts that, from time to time had to grapple with the same issues with which I was grappling, and I drew on the authority of some of those decisions in adopting the course that I did.
I accept the submissions for the respondent that the tests that might be applied when one has to consider disqualifying oneself from hearing cases are not engaged in this case. Johnson v Johnson (2000) 201 CLR 488 and Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 set out the tests as far as they are elucidated by the High Court. A judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. In my view, on the material before me those tests are not engaged. Nothing is established by the evidence that would suggest that the test is satisfied. The application for me to disqualify myself will be dismissed.
The second application to be determined is whether the orders that I made on 23 June ought to be set aside because they were made in the absence of the applicant. The respondent says that the Court is now functus officio and cannot entertain that application. I reject that submission. The exception to the functus officio rule, if I can call it that, is the existence of a statutory power to reconsider the decision. The most common example of that, of course, is an appeal. That is in a slightly different category, of course, but generally speaking, orders are seen to be final.
There is a statutory provision in this case, however, which authorises the court to embark upon an examination of whether it ought to set aside the previous order that it has made: r.16.05(2)(a) of the Federal Circuit Court Rules2001. That rule expressly applies to an order after the order has been entered.
As Counsel for the respondent has pointed out, that rule has been considered previously, and, generally, to have the Court exercise its discretion favourably to set aside a previous order made in the absence of a party, it is necessary to demonstrate an explanation for the moving party’s failure to appear and to demonstrate that if the order is set aside, it might be the case that different orders would be made in its stead.
As to the first matter, there is no explanation for the failure to appear, other than the applicant’s unwillingness to do so. In his affidavit filed in support of his application, he simply reiterates the matters to which he had earlier referred in his affidavits, that is, his suggestion that he has a significant acquired brain injury which results in derailed thinking, and he would prefer to present his arguments in writing. Whether or not that is so, whether or not his acquired brain injury means that he presents, to use his words, “as a dithering idiot” remains to be seen. It may be that, had Mr Mathews appeared, the Court would be convinced of that, and maybe the Court would be of the view that dealing with the matters on the papers, as he suggests should happen, would be an appropriate course.
But none of that has been able to occur because of his refusal to appear. There is no explanation for his failure to appear, save for that to which I have just referred. I am not satisfied that if the orders are set aside, it is likely that there would be any different outcome in the proceedings, such that setting the orders aside would be of no particular purpose. For those reasons, that application too is dismissed.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Jarrett
Associate:
Date: 5 September 2014
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