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

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

The earlier comments relied upon were made in different contexts and on the evidence then before the Court. The reference to "hypocrisy" in Whelan was expressly tied to the facts of that matter, and the statement that an improper purpose point was "entirely without substance" in Worthley reflected the absence of evidence then available. Those comments did not provide a proper basis for a reasonable apprehension that Burchett J would not bring an impartial and unprejudiced mind to the present matters.

Jurisdiction
Australia
Judgment Date
11 May 1995
Procedural Posture
Motion for Judicial Disqualification for Reasonable Apprehension of Prejudgment or Bias / Reasons for Judgment on Motion Before Hearing of Allocated Matters
Outcome
Motion dismissed.
Legal Topics
['judicial Disqualification' 'reasonable Apprehension of Bias' 'prejudgment' 'duty to Sit']
['practice and Procedure'] ['judicial Disqualification' 'reasonable Apprehension of Bias' 'prejudgment' 'duty to Sit']

Case Brief

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Procedural Posture

Motion for Judicial Disqualification for Reasonable Apprehension of Prejudgment or Bias / Reasons for Judgment on Motion Before Hearing of Allocated Matters

Legal Issues

  1. 1 ['Whether comments made by Burchett J in Whelan v Australian Securities Commission (1994) 13 ACSR 427 created a reasonable apprehension that he might prejudge a similar argument in the present matters.' 'Whether comments made by Burchett J in Worthley v Australian Securities Commission (1994) 13 ACSR 532 created an appearance of bias in relation to Mr Worthley.' 'Whether, applying the principles concerning reasonable apprehension of bias and the judicial duty to sit, Burchett J should disqualify himself.']

Ratio Decidendi

The earlier comments relied upon were made in different contexts and on the evidence then before the Court. The reference to "hypocrisy" in Whelan was expressly tied to the facts of that matter, and the statement that an improper purpose point was "entirely without substance" in Worthley reflected the absence of evidence then available. Those comments did not provide a proper basis for a reasonable apprehension that Burchett J would not bring an impartial and unprejudiced mind to the present matters.

Court Disposition

Motion dismissed.

Orders

  • ['The motion is dismissed.']