Toben v Jones

[2002] FCAFC 158

FEDERAL COURT OF AUSTRALIA

Toben v Jones [2002] FCAFC 158

FREDERICK TOBEN v JEREMY JONES
N327 of 2001

MADGWICK, DOWSETT & STONE JJ
21 MAY 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N327 of 2001

ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA

BETWEEN:	FREDERICK TOBEN APPLICANT
AND:	JEREMY JONES RESPONDENT
JUDGE:	MADGWICK, DOWSETT & STONE JJ
DATE OF ORDER:	21 MAY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The applicant pay the respondent’s costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N327 of 2001

ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA

BETWEEN:	FREDERICK TOBEN  APPLICANT
AND:	JEREMY JONES RESPONDENT

JUDGE:	MADGWICK, DOWSETT & STONE JJ
DATE:	21 MAY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

MADGWICK J:

1. This is an application for leave to appeal from interlocutory orders, by way of directions, given by the learned primary judge on 4 April 2002.  The application for leave to appeal was not made until 6 May 2002, considerably outside the seven day limit prescribed by the Federal Court Rules.  The principal matter of complaint by the applicant for leave to appeal, Dr Toben, who appears in person, is that her Honour set down for hearing two notices of motion in the face of his request to her Honour that the proceedings should be indefinitely adjourned by reason of his inability to date to obtain legal advice.  The notice of motion before the Court today also seeks an order from the Court that her Honour be excused from the case and it was said that this arises from alleged bias on her Honour's part. 

2. The notices of motion, the hearing of which were fixed by her Honour, included an application by Mr Jones, the applicant in the principal proceedings, for summary judgment, apparently principally founded on the contention that such material as had been filed by Dr Toben could not possibly amount to an adequate defence to the application.  Dr Toben filed the other notice of motion listed for hearing before her Honour.  By that notice of motion, dated 28 March 2002 he had sought “an order that summary dismissal be given” in his favour of the principal proceedings or in the alternative that the trial (it is not clear whether the principal proceedings or of Mr Jones’ application for summary judgment) should be held in Adelaide.  Further, Dr Toben sought that her Honour should make a declaration which in effect would clear him of any legal wrongdoing.

3. Quite apart from the question of inadequate explanation for the delay in seeking leave to appeal, I am of the opinion that the application for leave to appeal must fail for the reason that the matters which apparently Dr Toben wishes to raise on appeal, are insufficiently attended by doubt as to the correctness of the orders and approach of her Honour.  Dr Toben told her Honour that he had been seeking legal advice since 1996 and had been unable to obtain it.  He volunteered that at least one legal aid agency had refused because it assessed his case as not having any reasonable prospect of success.  He has repeated similar assertions today and claims that his last hope is an application to the Federal Attorney-General but, even in relation to that, he has been informed that it is unlikely that funds will be available to assist him, even on a limited basis.  The material before her Honour compelled the view that any adjournment would be quite unlikely to result in Dr Toben obtaining legal advice or representation of a useful kind and her Honour had to consider the legitimate interests of the applicant, Mr Jones, in having his case and his application for summary judgment heard. 

4. In my opinion, her Honour was quite right and at the very least, it is impossible to say that her Honour's judgment was attended by any error.

5. In relation to the supposed matter of bias, in my view, no error has been shown on her Honour’s part.  There are two reasons for saying this.  Firstly, it does not appear to me to be at all clear that any distinct and comprehensible application to her Honour to disqualify herself for alleged actual or ostensible bias was ever made.  Indeed, as of 3 October 2001 Dr Toben was leaving such matters to her Honour to decide whether any “intellectual bias” she might have would be sufficient to cause her to recuse herself.  Secondly, I have read the material before the Court insofar as it relates to matters said and done by her Honour and I see no evidence whatsoever of any actual or ostensible bias.  I include in that material, the observation from Dr Toben that, in his opinion, her Honour spoke to him on one occasion, when inquiring about his qualifications, in a sarcastic tone.

6. In my opinion the application for leave should be refused with costs. 

7. The application for leave to appeal should be refused.  The applicant for leave to appeal should pay the respondent’s costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             3 June 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N327 of 2001

BETWEEN:	FREDERICK TOBEN APPLICANT
AND:	JEREMY JONES RESPONDENT

JUDGE:	MADGWICK, DOWSETT & STONE JJ
DATE:	21 MAY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

DOWSETT J:

1. I agree and wish only to add some comments of my own concerning the question of alleged bias.  The allegations made by the applicant against Branson J were completely without demonstrated substance and based entirely upon his own unreasonable misinterpretations of quite innocent statements by her Honour.  The measured tones in which he made his attack did nothing to conceal its complete lack of substance.  It was, in my view, outrageous in its condescension.  Such an attack upon the intellectual capacity and integrity of a judge of a superior court is, in my experience, virtually unprecedented.

I certify that the preceding paragraph number eight is a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:             3 June 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N327 of 2001

ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA

BETWEEN:	FREDERICK TOBEN APPLICANT
AND:	JEREMY JONES RESPONDENT

JUDGE:	MADGWICK, DOWSETT & STONE JJ
DATE:	21 MAY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

STONE J:

1. I agree with the reasons of Madgwick J and the additional comments made by Dowsett J and with the orders proposed.

I certify that the preceding paragraph number nine is a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:             3 June 2002

The applicant appeared in person.
Counsel for the Respondent:	Mr S Rothman SC
Solicitor for the Respondent:	Geoffrey Edwards & Co
Date of Hearing:	21 May 2002
Date of Judgment:	21 May 2002