Atkin v Willee [2011] FCA 568

Atkin v Willee [2011] FCA 568

The unnecessary private, unrecorded telephone conference between the President, counsel assisting and Dr Blakley, followed by alterations to Dr Blakley's report that made it more prejudicial to Dr Atkin, would cause a fair-minded informed observer reasonably to apprehend that the President might not bring an impartial mind to findings about Dr Atkin. Full knowledge of the telephone conference strengthened rather than weakened that conclusion. The subsequent disclosure and statements by the President did not cure the apprehension. The appropriate remedy was a writ of prohibition limited to preventing the President from making or expressing any finding concerning Dr Atkin's conduct in...

Jurisdiction
Australia
Judgment Date
30 May 2011
Procedural Posture
Application for Relief Under S 39 B(1) of the Judiciary Act 1903 (cth), Including Prohibition, Concerning Apprehended Bias in a Military Commission of Inquiry / Judgment After Hearing
Outcome
Application allowed in part; writ of prohibition issued; second respondent ordered to pay the applicant's costs.
Legal Topics
['commission of Inquiry' 'apprehended Bias' 'procedural Fairness' 'natural Justice' 'private Communication With Expert Witness' 'writ of Prohibition']
['administrative Law' 'defence and War'] ['commission of Inquiry' 'apprehended Bias' 'procedural Fairness' 'natural Justice' 'private Communication With Expert Witness' 'writ of Prohibition']

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Procedural Posture

Application for Relief Under S 39 B(1) of the Judiciary Act 1903 (cth), Including Prohibition, Concerning Apprehended Bias in a Military Commission of Inquiry / Judgment After Hearing

Legal Issues

  1. 1 ["Whether a private, unrecorded telephone conference between the President of a Commission of Inquiry, counsel assisting and an expert witness, followed by changes to the expert's report prejudicial to Dr Atkin, gave rise to a reasonable apprehension of bias." 'Whether later disclosure of the telephone conference and statements by the President removed any apprehension of bias.' 'Whether any remedy should restrain the Commission of Inquiry altogether or only restrain findings concerning Dr Atkin.']

Ratio Decidendi

The unnecessary private, unrecorded telephone conference between the President, counsel assisting and Dr Blakley, followed by alterations to Dr Blakley's report that made it more prejudicial to Dr Atkin, would cause a fair-minded informed observer reasonably to apprehend that the President might not bring an impartial mind to findings about Dr Atkin. Full knowledge of the telephone conference strengthened rather than weakened that conclusion. The subsequent disclosure and statements by the President did not cure the apprehension. The appropriate remedy was a writ of prohibition limited to preventing the President from making or expressing any finding concerning Dr Atkin's conduct in...

Court Disposition

Application allowed in part; writ of prohibition issued; second respondent ordered to pay the applicant's costs.

Orders

  • ["A writ of prohibition issue, directed to the first respondent, Paul Andrew Willee RFD QC, President of a Commission of Inquiry appointed under Pt 8 of the Defence (Inquiry) Regulations 1985 (Cth) into the death of Private David Jon Smith, prohibiting the first respondent from making or expressing in any report of...