Binetter v Commissioner of Taxation

REASONS FOR JUDGMENT 1 On 16 December 2010, Jagot J made orders for the winding up of two deregistered companies, ACN 078 272 867, in liquidation, formerly Advance Finances Pty Limited, and ACN 087 623 541, in liquidation, formerly Civic Finance Pty Ltd. The present applicant, Mr Gary Binetter, had been a director of each of these companies before their deregistration and, on reinstatement of the company, again became a director: Corporations Act 2001 (Cth) s 601AH(5). By interlocutory application filed on 17 October 2011, the applicant seeks to stay the winding up of each company until after the determination by the High Court proceedings No S210 of 2011 and No S167 of 2011. 2 This is one of a number of applications in which Mr Binetter acting in different capacities has sought to challenge the winding up of the companies. The history of these applications is set out in my reasons for judgment in Binetter v Commission of Taxation [2011] FCA 1195. I shall refer to those reasons as my earlier reasons. In that matter, Mr Binetter sought approval for him, acting as a director of the companies, to apply to Jagot J to set aside her winding up orders. In the absence of the liquidator's approval Mr Binetter required the Court's approval for this action. 3 I dismissed that application for reasons there given. However, those reasons lead to the first issue before the Court this morning, namely Mr Binetter's application that I disqualify myself from hearing the stay application. It was submitted that the views expressed in those earlier reasons about the likely success of the application to set aside the winding up orders would raise a reasonable apprehension that I might not bring an entirely open mind to the consideration of whether there is an arguable case in favour of the application for a stay. 4 I am conscious of the views expressed on the issue of disqualification by Mason J, as the Chief Justice then was, in Re JRL: Ex parte CJL (1986) 161 CLR 342. Justice Mason commented on the increasing tendency of litigants to bring applications for judges to disqualify themselves and said, at 352: It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case other than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be "firmly established". … Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour. 5 The views I expressed in my earlier reasons were not adverse to the character or credit of anyone involved in that case. The fact that I took a particular position on the law does not, per se, raise a reasonable apprehension of bias. If it did no judge would be able to stay orders that he or she had made, presumably in the belief that there were sound reasons for making those orders. I therefore refused the application that I disqualify myself.