Excel Finance Corporation Ltd v England, R.A.F. [1995] FCA 330

CATCHWORDS

PRACTICE AND PROCEDURE - disqualification of judge for reasonable apprehension of prejudgment or bias - principles - reference to warnings in Re J.R.L.; Ex parte C.J.L (per Mason J.) and other cases against too ready withdrawal by a judge upon the application of one side only. Livesey v The New South Wales Bar Association (1983) 151 CLR 288 Vakauta v Kelly (1989) 167 CLR 568 Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342 Re Finance Sector Union of Australia; ex parte Illaton Pty Ltd (1992) 107 ALR 581 In the matter of EXCEL FINANCE CORPORATION LTD (Receiver and Manager Appointed) The application of RICHARD ANTHONY FOUNTAYNE ENGLAND SG 3040 of 1992 SG 3024 of 1993 Burchett J. Adelaide 11 May 1995

IN THE FEDERAL COURT OF AUSTRALIA) ) SOUTH AUSTRALIAN DISTRICT REGISTRY ) SG 3040 of 1992 ) SG 3024 of 1993 GENERAL DIVISION ) In the matter of EXCEL FINANCE CORPORATION LTD (Receiver and Manager Appointed) The application of RICHARD ANTHONY FOUNTAYNE ENGLAND CORAM: Burchett J. PLACE: Adelaide DATE : 11 May 1995

REASONS FOR JUDGMENT

BURCHETT J.:

I have been allocated, under the procedures of the Court, two matters for hearing - Application number SG 3040 of 1992, which concerns one Worthley, and Application number SG 3024 of 1993, which concerns one Crase. Messrs Worthley and Crase have now brought a motion that I should disqualify myself. The grounds are two. One ground of disqualification asserted is that in a matter Whelan v Australian Securities Commission (1994) 13 ACSR 427, raising questions similar to those raised by the present matters, I made (at 437-438), some comments on a submission that a receiver authorised under s. 597 of the Corporations Law to examine an auditor of a company was "not likely to investigate a possible liability of the trustee who appointed him". My comments included the following: "In any case, on the facts of the present matter, I am satisfied that the result of success of the applicant would not be pursuit of the trustee by an examination, but no examination. For it is not suggested that the Australian Securities Commission would fund an examination if the receiver were denied authority to undertake one. There is thus a strong element of hypocrisy in the applicant's claim that he has no objection to an examination - only to an examination conducted by the receiver."