Suckling v Repatriation Commission (No.2)
[2004] FMCA 247
•25 February 2004
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 |
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 that the combined effect of those decisions is that there is now what might be described as ostensible bias on the grounds that this small number of cases would indicate an outcome which would be perhaps unfavourable to the applicant.
The second proposition relied upon is that during the course of my practice I was instructed by the Australian Government Solicitor in what might be loosely described as ‘compensation matters’. It was further suggested that during the course of my practice, I may have from time to time had dealings with counsel now representing the respondent. For those reasons, it is submitted that I should therefore disqualify myself from the further hearing and, to quote the submission of the applicant's representative, “it would be better” for another federal magistrate to hear and determine this application currently before the court. No notice has been given to the court of this application prior to the commencement of the hearing this day. No authorities have been referred to in support of the submission. No other grounds have been relied upon.
I did not call upon the respondent to reply in the circumstances where I believe it is the duty of the court to deal with matters of this kind, and it may invite respondents to make comment or may not but ultimately it is a matter for the court. The leading authority in a matter of this kind of ostensible bias is the High Court decision of Re Polites & Anor; ex parte the Hoyts Corporation Pty Ltd & Ors 100 ALR 634. This has been referred to in the following relevant passages of the High Court decision in Bienstein v Bienstein (2003) 195 ALR 225 at paragraphs 30 and 33:
“A judge is disqualified from determining a case if the judge is biased or a party or a member of the public might reasonably apprehend that the judge is biased. Bias exists if the judge might not bring an impartial and unprejudiced mind to the resolution of the issues.
…
Relevantly to the present matter, a reasonable apprehension of bias may exist where the presiding judge has a substantial personal relationship with a party to, or a person involved in, proceedings or a substantial personal relationship with a member of the family of that party or person. But absent such relationship or others like them, it is absurd to suggest that a reasonable apprehension of bias can exist merely because a person involved in the proceedings comes from a city where the judge once practised professionally or because the judge may have had professional dealings with that person in the course of professional practice. In Re Polites; Ex parte Hoyts Corp Pty Ltd, this court held that even a prior relationship between a legal adviser and client does not generally disqualify the legal adviser, on becoming a member of a court or tribunal, from sitting in proceedings in which the client is a party. In the normal case (of which this is an illustration), it is only when advice given by the legal adviser is an issue in the proceedings that a reasonable apprehension of bias can arise. Similarly, ordinary interactions, (social or otherwise) between a practising lawyer who becomes a judge and other members of the legal community in that city does not itself give rise to an apprehension of bias if one of those members is involved in proceedings before the judge.”
In brief terms, it is clear to me that a court has a duty to act in accordance with the oath of office. I reject, in applying the authorities to which I have referred, the suggestion that in this case the court should disqualify itself on the grounds of ostensible bias. The mere fact that during the course of one's practice one might act for and on behalf of parties, in this case the Commonwealth of Australia, in what might loosely be described as ‘compensation cases’ would not and should not preclude the court from dealing with cases in accordance with the oath of office.
Whilst there may be a perception in the minds of applicants having regard to the background of members of courts for various reasons, that perception alone is not as a matter of law sufficient basis upon which it could be said that a court should disqualify itself from acting in a matter or continuing to hear a matter, and it is clear from the High Court authority in Re Polites that indeed, in my view, it would be quite erroneous for this court to disqualify itself from the hearing in this matter.
I add that even though in my view it is probably irrelevant, that in my own practice I did not have occasion to act with counsel currently instructed by the Australian Government Solicitor appearing for the respondent and in fact acted on very few occasions in matters concerning the Repatriation Commission.
In all those circumstances, I reject the submission that the court should disqualify itself on the grounds of ostensible bias.
I should add for the sake of completeness that if courts are to be confronted with applications of this kind, it is preferable that notice be given. It is also preferable that proper grounds and authorities be relied upon in support of an application of this kind. It is important that the court be permitted to conduct itself impartially and in accordance with its oath of office. I intend to do that in this case. I see no reason why I should disqualify myself.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for ruling of McInnis FM
Associate:
Date: 25 March 2004
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