Wilson v Commonwealth of Australia

[1999] FCA 1754

FEDERAL COURT OF AUSTRALIA

Wilson v Commonwealth of Australia [1999] FCA 1754

ERNEST ARTHUR WILLIAMS AND PATRICIA LORRAINE WISLON v COMMONWEALTH OF AUSTRALIA

N 261 OF 1999

EINFELD J
31 AUGUST 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 261 OF 1999

BETWEEN:

ERNEST ARTHUR WILSON AND PATRICIA LORRAINE WILLIAMS
Applicant

AND:

COMMONWEALTH OF AUSTRALIA
First Respondent

OFFICIAL TRUSTEE IN BANKRUPTCY
Second Respondent

JUDGE:	THE HON JUSTICE MARCUS EINFELD AO
DATE:	31 AUGUST 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I will just make these short observations.  On the eve of this appeal, application has been made on behalf of the appellants that I disqualify myself from sitting on the appeal tomorrow, because I participated as a member of a Full Court in proceedings involving the same applicants and some of the same factual substratum, in July 1994.  I have taken the opportunity, since being notified of the objection, to read the judgment appealed from tomorrow, together with the earlier Full Court judgment and have generally become familiar with the submissions which the parties wish to make in this present appeal.

2. The Court is wary of accepting immediately applications that a judge disqualify himself or herself, unless good grounds are made out.  It has long been established that only where a reasonable member of the public might apprehend that a particular judge could not bring a wholly unbiased, integral mind to the decision before the court, should that judge be disqualified from sitting.  In this particular case, a relevant matter before the Full Court in 1994 was the authorship and dating of certain photographs which had been lost and the circumstances under which they had been lost.

3. The decision appealed from tomorrow is not specifically about lost photographs, but at or about other photographs taken at or around the same time and in connection with the same purpose.  The Full Court heard evidence from the first appellant in the present case during the 1994 appeal and according to the judgment, of which I have, I must say, no independent recollection at all, it came to a conclusion adverse to the first appellant tomorrow, concerning his evidence about those photographs, particularly his evidence to the Full Court itself.

4. There is reason to believe from the judgment of the Full Court in which I joined that the Court’s doubts about the loss of the photographs and the evidence given by the first appellant in the present proceedings at that time may have extended beyond the precise limits of the matter to which his evidence went. For example, in the report of the judgment in 122 ALR 585 at 598 the Court said:

   We don’t have a sufficient degree of confidence in Mr Wilson’s evidence to say that it is at all likely that there would have been a different outcome if the photographs in question had been produced at the trial.

   Up to that point I do not think there would be any reason for disqualification from the present appeal, but the decision of the Full Court went on:

   Mr Wilson’s evidence is quite unsatisfactory.  There is no consistency in the evidence looked at as a whole.  There are inconsistencies in the evidence led before Sweeney J and further inconsistencies when the evidence taken before us is taken into account.

5. As it seems to me, that is capable of being interpreted as a finding that Mr Wilson’s credibility in the particular proceedings, both at first instance and on appeal, was questionable at best.  I am informed, and it appears from the judgment of Branson J from which the current appeal emerges, that Mr Wilson’s credibility is again raised, albeit in relation to different photographs and different matters arising out of the same set of facts.

6. In the circumstances, although I have absolutely no recollection of the 1994 matter at all, it does seem to me that a reasonably objective bystander armed with the judgment appealed from in the current appeal and the judgment given by the Full Court in 1994 might entertain an apprehension that I could not bring a wholly dispassionate and unbiased mind to the determination of the current appeal.  For that reason I propose to accede to the application by disqualifying myself.  The appeal will go on tomorrow as planned before a slightly different bench.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marcus Einfeld AO.

Associate:

Dated:             31 August 1999

Counsel for the Applicant:	Mr M. R. Gracie
Solicitor for the Applicant:	Whitfields
Counsel for the Respondent:	Mr M. G. O’Brien
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	31 August 1999
Date of Judgment:	31 August 1999