Dunstan v Orr

REASONS FOR JUDGMENT 1 On 29 April 2008 the applicant, Mr Colin Dunstan, filed a notice of motion seeking an order that the Court assign a judge other than myself to hear his application for a referral under O 80 of the Federal Court Rules. I listed his motion for hearing on 12 May 2008. At that hearing Mr Dunstan made it clear that he was also requesting me to recuse myself from any further involvement in relation to the management of the appeal that he has filed in this Court on the grounds of bias. At the conclusion of the hearing I dismissed his application that I recuse myself and said I would provide written reasons at a later date. These are my reasons. 2 On 14 February 2008 Mr Dunstan filed a notice of appeal from orders made by Besanko J on 25 January 2008; [2008] FCA 31. At the Full Court callover for the ACT District Registry on 21 April 2008 Mr Dunstan, who appeared for himself, opposed the appeal being listed in the next Full Court period in August 2008 saying that he would be unavailable because he would be overseas for most of or possibly all of August. He said that it was to seek medical treatment for a confidential condition but did not give any further information other than to say that the trip had been planned since January and that it could not be taken earlier as he had a parole hearing on 13 May which might result in his parole being revoked and him being again taken into custody. 3 Mr Dunstan declined to give any further information. In particular he would not explain why it was necessary for him to be away in August rather than at a later date. He did not give details of any arrangements that had already been put in place for medical treatment, his proposed departure and return dates or bookings made. I explained to Mr Dunstan that it was necessary in the interests of all parties for appeals to be handled expeditiously and ordered him, by 29 April 2008, to file an affidavit setting out the reasons why he would be unavailable during the August Full Court period. I also explained that I required details of where he was intending to go, the arrangements that had been made for him overseas, any arrangements that could not now be changed and why it was essential that he not be in Australia in August. I indicated that if necessary he could mark the affidavit confidential and that, at this stage, I did not require him to serve it on the respondents. 4 Mr Dunstan also said that he would like to obtain legal counsel to present the appeal and referred to an "application" he had made for referral to a legal practitioner on the Pro Bono Panel for legal assistance. I declined to deal with that issue at the directions hearing on 21 April and stood over the question of listing Mr Dunstan's appeal pending his filing of the affidavit referred to above. 5 In the affidavit that accompanied his notice of motion dated 29 April 2008, Mr Dunstan did not give any of the details that I had requested concerning his proposed absence overseas. The only mention of that proposal was a rather vague statement that his wife had been planning the travel and that he had not followed developments. He referred to the work involved in him pursuing other Federal Court applications and also the difficulty he would have in briefing counsel to represent him at the appeal should his parole be revoked at a parole hearing to be held on 13 May 2008. He also found evidence of bias in a comment I made on 21 April to the effect that being in prison would not prevent him from briefing counsel. He also complained about my failure to consider the issue of pro bono legal assistance at the callover on 21 April. 6 It would appear both from Mr Dunstan's application for assistance in obtaining pro bono legal assistance and from his affidavit of 29 April 2008 that due to financial hardship he is unable to afford legal representation. It also appears that Mr Dunstan misunderstands the import of O 80 of the Federal Court Rules. Order 80 r 4(1) provides that the Court or a judge may, "if it is in the interests of the administration of justice, refer a litigant to the Registrar for referral to a legal practitioner on the Pro Bono Panel for legal assistance in relation to a proceeding before the Court." The purpose of O 80, as explained in r 1(2), is "to facilitate, where it is in the interests of the administration of justice, the provision of legal assistance to litigants who are otherwise unable to obtain assistance". The rule allows for the Court to make an administrative order referring the litigant to a legal practitioner on the pro bono panel for legal assistance. A referral made under O 80 does not indicate that the Court has formed any view about the merits of the litigation. Order 80 r 1(5) states that the Court is not required to make a referral or consider a litigant's case for referral; the matter is entirely within the discretion of the Court. It follows that Mr Dunstan's claims of bias in my refusing to consider his request for a referral under O 80 at the callover on 21 April have no foundation. Having considered his request, I decided that a referral in this case would not meet the criteria in O 80 and rejected his application. 7 In relation to the listing of his appeal for hearing in the August Full Court sittings, Mr Dunstan referred to difficulties he had experienced in the past in instructing counsel while in custody. As I pointed out, if that situation should arise appropriate orders can be made to deal with any obstacles that might be put in Mr Dunstan's way. This is not a basis for deferring the hearing of an appeal that is otherwise ready, or which with reasonable diligence could be ready for hearing in the next appeal period. I am satisfied that the matter does not raise any issue of bias. 8 In my view there was no substance in any of Mr Dunstan's allegations and for that reason I dismissed his application. I subsequently made orders in chambers that Mr Dunstan's appeal be listed for hearing in the August Full Court sittings. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.