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[1999] SASC 169
Supreme Court of SA
1999-05-06
Doyle CJ, Martin JJ, Nyland JJ
Original judgment source is linked above.
The application of this test depends of course upon the facts of the case. Where what is in issue is a finding already made as to the truthfulness of a litigant or of an important witness, especially where that finding is made by a judge who has seen the witness, it may be too much to expect that such a fundamental finding can be reconsidered in an impartial manner. Thus, in Smith the High Court remitted the matter to a differently constituted Full Court, saying [1992] HCA 36; (176 CLR 256 at 269):
"As the members of the Court of Appeal have twice made a voidable finding on the issue of truthfulness of the appellant, and as the matter must be heard afresh by the Court of Appeal, it would be inappropriate to ask the judges who had constituted that Court to-assess de novo the appellant's truthfulness. The matter must therefore be remitted for rehearing by a Court differently constituted."
It is not uncommon to remit a matter for rehearing before a different judge when a court of appeal has set aside a significant finding by that judge on a matter of credit.
In the present case there is nothing about the actual findings made, or the terms of the reasons, to suggest that members of the earlier Full Court cannot deal with the application to reopen in a fair and even-handed manner. In saying this I consider the matter from the point of view of the reasonable observer. The complaint is that they have erred in fact and in law, but that is all that it is.
I have already rejected the submission that the nature of the application of itself requires that it be heard by a differently constituted Full Court. I have also rejected the submission that, in the particular circumstances, there could be no confidence in the ability of the Court to decide correctly the facts and the law. I recognise that a further issue now arises. The issue is whether there is any reason to think that the fair-minded observer would consider that the judges of the earlier Full Court cannot fairly consider the submissions to be made. But, as I have already said, I can find no such reason. There is nothing about the manner in which the reasons are expressed to so suggest. There is nothing about the matters decided to so suggest. The Court has expressed some views about the reliability of witnesses, but has not made firm findings of credit based upon demeanour. By and large its reasons comprise a review of the manner in which the Magistrate and then the single judge dealt with the evidence. The plaintiff's case has been rejected, but the plaintiff's credit has not been subject to an adverse finding, let alone a finding based on her credit as distinct from the objective reliability of any evidence that she has given.
One must acknowledge that it is a natural instinct to resist a suggestion that one has erred, and to defend a conclusion reached. But it is going too far to suggest that the existence of that natural instinct means that a reasonable observer would conclude that a judge could not deal in a fair and even-handed manner with a submission that the judge has erred. And, as I have already said, there is nothing in the circumstances of this particular case that leads to that conclusion.
In my opinion there is no proper objection to the earlier Full Court considering the application that the decision by it should be reopened. That being so, and bearing in mind the desirability of such an application being considered by the earlier Full Court, it is my opinion that the Full Court as presently constituted should decline to exercise the power that I accept that it has.
Accordingly, I accept that the Full Court has power to reopen its previous decision. I accept that the plaintiff has an arguable case that the Full Court has erred in a manner that gives it power to reopen its decision. I make no comment beyond that on the strength of the case, for obvious reasons. In my opinion such an application should ordinarily be made to the Full Court as originally constituted. Such an application should be entertained by the Full Court differently constituted only if there is good reason to do so. In my opinion public confidence in the administration of justice would not be undermined by the prospect of the earlier Full Court entertaining an application that it reopen and review its decision. In my opinion the submission that a fair-minded observer would entertain a reasonable apprehension of prejudgment on the part of the earlier Full Court is not made out.
I would refuse the application made by the plaintiff, leaving it open to the plaintiff to make a further application to the earlier Full Court if she so wishes.
BLEBY J. I agree with the order proposed by the Chief Justice and for the reasons that he has given.
MARTIN J. For the reasons expressed by the Chief Justice, I agree with the order he proposes.
MCADAM
ROBERTSON No. SCGRG-97-1458 Judgment No. S169 [1999] SASC 169
(1992) 176 CLR 256
(1998) 72 ALJR 1344
(1999) 73 ALJR 306
(1993) 176 CLR 300
(1974) 8 SASR 458
(1983) 151 CLR 288
(1986) 161 CLR 343