Suckling v Repatriation Commission (No.2) - [2004] FMCA 247

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SUCKLING v REPATRIATION COMMISSION (No.2)

[2004] FMCA 247

ADMINISTRATIVE LAW – PRACTICE AND PROCEDURE – Ostensible bias – whether presiding Justice should disqualify himself.

Ingram v Repatriation Commission [2001] FMCA 125
Hill v Repatriation Commission [2001] FMCA 83
Repatriation Commission v Linton [2001] FMCA 124
Gerzina v Repatriation Commission [2003] FMCA 490
Dunkley v Repatriation Commission [2002] FMCA 66
Burge v Repatriation Commission [2001] FMCA 74
Re Polites & Anor; ex parte the Hoyts Corporation Pty Ltd & Ors 100 ALR 634
Bienstein v Bienstein (2003) 195 ALR 225

Applicant:

THELMA GLADYS SUCKLING

Respondent:

REPATRIATION COMMISSION

File No:

MZ 1168 of 2003

Delivered on:

25 February 2004

Delivered at:

Melbourne

Hearing Date:

25 February 2004

Judgment of:

McInnis FM

REPRESENTATION

Solicitor for the Applicant:

Mr D De Marchi

Solicitors for the Applicant:

De Marchi & Associates

Counsel for the Respondent:

Ms A McMahon

Solicitors for the Respondent:

Australian Government Solicitor

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 1168 of 2003

THELMA GLADYS SUCKLING

Applicant

and

REPATRIATION COMMISSION

Respondent

REASONS FOR RULING

(Revised from transcript)

In this application counsel for the applicant has made application that the court should disqualify itself on the grounds of what is claimed to be ostensible bias. The grounds relied upon would appear to be based on two propositions. The first ground is that it is claimed that in other hearings where the Repatriation Commission was a party, this court has decided matters in a matter which was favourable to the Repatriation Commission.
The court is certainly aware that there a number of matters that it has decided which are appeals from the Administrative Appeals Tribunal where the Repatriation Commission has been a party. I refer in particular to the matter of Ingram v Repatriation Commission [2001] FMCA 125, Hill v Repatriation Commission [2001] FMCA 83, Repatriation Commission v Linton [2001] FMCA 124, Gerzina v Repatriation Commission [2003] FMCA 490 and Dunkley v Repatriation Commission [2002] FMCA 66. A further matter of Burge v Repatriation Commission [2001] FMCA 74, albeit a subject of what was proposed to be consent orders, is also part of the group of cases that this court has heard and determined.
The matter of Burge was the subject of an appeal which was heard and an extempore decision delivered in brief terms by the Federal Court of Australia in the matter of Repatriation Commission v Burge (2002) FCA 623. In that instance there is no doubt that this court had made an error in the orders it made, albeit orders by consent. However, apart from that technical error, the Appeal Court did not otherwise interfere with what the court had decided in that case, nor did it make any comments that were adverse in relation to the main thrust of this Court’s decision, namely that the role of an appellate court allowing appeals and remitting matters to the tribunal is no mere formality.
Before the court this day it is said…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Suckling v Repatriation Commission (No.2)

Details

AGLC: Suckling v Repatriation Commission (No.2) [2004] FMCA 247
Case: [2004] FMCA 247
Decision Date: 25 February 2004

CaseChat Overview and Summary

In the Federal Magistrates Court of Australia, Thelma Gladys Suckling has brought an application against the Repatriation Commission. Suckling is seeking to have the presiding magistrate, McInnis FM, disqualified from the case on the grounds of ostensible bias. The case number is MZ 1168 of 2003, and the hearing took place on 25 February 2004 in Melbourne.

The legal issues before the court were whether the magistrate should recuse himself due to the alleged ostensible bias. Suckling's application was based on two propositions. The first was that the magistrate had previously decided cases in a manner favourable to the Repatriation Commission in other hearings. The second was that the magistrate had, during his legal practice, acted for the Commonwealth of Australia in compensation matters and may have had dealings with counsel representing the respondent. McInnis FM, however, rejected these grounds for disqualification, citing relevant authorities, including the High Court decision in Re Polites, which sets out the criteria for ostensible bias.

In his ruling, McInnis FM emphasised that a court must act in accordance with its oath of office and that the mere fact of prior professional dealings does not constitute a reasonable apprehension of bias. The magistrate noted that even though he had acted for the Commonwealth in compensation cases, he did not have occasion to act with counsel for the respondent in such matters. McInnis FM concluded that there was no basis for disqualification and that proper notice and authorities should be provided for such applications in the future. The court intended to proceed impartially in accordance with its oath.

As a result of this ruling, the application for disqualification was rejected. The court found no grounds for the magistrate to recuse himself and intended to continue with the hearing in accordance with its duty and oath of office.

Orders