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.