Case: Priestley v Godwin [2008] FCA 1179
Outcome: considered
As set out in Priestley v Godwin [2008] FCA 1179 , Mr Priestley made a number of applications for me to disqualify myself from determining the constitutional challenge. I refused to disqualify myself on three of the grounds advanced by Mr Priestley. I reserved my decision in respect of a fourth ground based on the contention that, by s 79 of the Judiciary Act 1903 (Cth) ('the Judiciary Act '), the Human Rights Act 2004 (ACT) ('the Human Rights Act ') applies to these proceedings, being heard in the Australian Capital Territory ('the ACT') ('the fourth ground'). 4 Section 79 of the Judiciary Act relevantly provides: State or Territory laws to govern where applicable (1) The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable . (emphasis added) ... (3) This subsection covers a law of a State or Territory that would be applicable to the suit if it did not involve federal jurisdiction, including, for example, a law doing any of the following: (a) limiting the period for bringing the suit to recover the amount; (b) requiring prior notice to be given to the person against whom the suit is brought; (c) barring the suit on the grounds that the person bringing the suit has charged someone else for the amount. 19 I have already dealt with various applications by Mr Priestley that I disqualify myself on the grounds of reasonable apprehension of bias and an asserted lack of independence and impartiality because, he says, neither I nor any judge of the Federal Court can hear and determine the constitutional challenge. In doing so, I applied the common law test as described in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 ( Priestley at [24]). In Forge v Australian Securities and Investments Commission [2006] HCA 44 ; (2006) 228 CLR 45 at [66] , Gummow, Hayne and Crennan JJ described the requirements as discussed by the High Court in Ebner in terms that included the requirement that a court or tribunal must be "independent" and "impartial". Those are the same terms as used in s 21(1) of the Human Rights Act . Section 21(1) does not relevantly change or add to the test as laid out in Ebner and Forge . It is the same test that I applied in Priestley . 21 Mr Priestley has not advanced any arguments as to my competence or independence, or the appearance of independence, or of impartiality, that were not advanced in his previous applications. His submission remains based on his contention that neither I nor any judge of the Federal Court can hear and determine the constitutional challenge. That has been dealt with in Priestley . The result is the same under the common law and, if it applied, under s 21(1) of the Human Rights Act . In his submission that the requirements in Article 14.1 of the ICCPR must be considered separately by reason of s 21(1) of the Human Rights Act , Mr Priestley has not added to the substance of the grounds for disqualification or recusal that he made previously. 22 It follows that the application that I disqualify myself from determining these proceedings on the fourth ground should be dismissed. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 25 September 2008 The Applicant was self represented Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 16 July 2008 Date of last submissions: 23 July 2008 Date of Judgment: 25 September 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1453.html