O'Donoghue v Australian Information Commissioner

REASONS FOR JUDGMENT 1 These are the reasons delivered ex tempore by me on 4 September 2012, edited but not such as to alter the substance of those reasons. 2 This is a directions hearing in relation to Mr O'Donoghue's application dated 7 August 2012. At the outset of the hearing Mr O'Donoghue made an oral application that I should recuse myself from hearing this matter, either on the grounds of apprehend bias or actual bias. He said that it did not matter which one it was. 3 In support of that submission, he made reference to a statement that I made in court on 13 June 2011 in a proceeding concerning Mr O'Donoghue as the applicant in certain extradition proceedings where Mr O'Donoghue sought judicial review pursuant to s 22 of the Extradition Act 1988 (Cth) (WAD 88 of 2011). I have not seen the transcript, but I am prepared to accept that what Mr O'Donoghue has said is correct, namely, that I made the statement that "he had been uphill and down dale", a reference, I think, to the number of cases that he had brought in this, and other, courts. Mr O'Donoghue submitted that the statement "add(ed) nothing or offers nothing to the administration of justice or to procedural fairness that I might reasonably expect before any court". He described the statement as "glib … particularly when it is directed at me as if I were simply taking this matter uphill and down dale for the sake of taking it uphill and down dale and not pursuing my fundamental right to seek a review …". 4 I reject these submissions. They overstate the objective meaning of the words used and their effect. They were no more than a statement of fact. 5 I do not regard it as evincing actual bias and I do not think that any fair-minded person observing that statement would entertain a reasonable apprehension that I might not bring an unprejudiced mind to the resolution of the present matter: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]. 6 The matter in which those remarks were made proceeded to judgment: O'Donoghue v Honourable Brendan O'Connor (No 2) [2011] FCA 985. Mr O'Donoghue instituted an appeal from this judgment. Since delivering my oral reasons I have noted that the Full Court unanimously dismissed Mr O'Donoghue's appeal from my judgment: O'Donoghue v Honourable Brendan O'Connor [2012] FCAFC 47. Mr O'Donoghue made no complaint either of bias or apprehended bias on my part in the course of that appeal. 7 Mr O'Donoghue then referred to his previous complaint in that same matter that he had not been brought from the holding cells so as to be present during the hearing of the review application on 13 June 2011. That he was in the holding cells had not been brought to the Court's attention. On that occasion Mr O'Donoghue was represented by senior counsel who determined to argue the appeal, in the absence of Mr O'Donoghue. Nonetheless, Mr O'Donoghue considered that he had a legitimate complaint that I had heard his appeal in his absence as a result of which he asserted that he had suffered prejudice. 8 I mentioned this complaint in the course of my reasons dealing with the judicial review application at [3]-[5] and said for reasons which are self-evident, that the complaint was not a matter with which I could deal and, by implication, that it would have to be dealt with elsewhere, meaning by the Full Court on the appeal taken by Mr O'Donoghue from the dismissal of his review application then before me. Mr O'Donoghue characterised this approach, during his oral submissions on the recusal application, as amounting to me excusing myself from hearing his complaint giving rise to a possible apprehension of bias on my part on that occasion. This is to mischaracterise what I did and said. That is I think, clearly, a long, long way from demonstrating either actual bias or such as to give cause for an apprehension of bias. Again, since delivering my oral reasons I have noted that the Full Court in O'Donoghue v Honourable Brendan O'Connor [2012] FCAFC 47 at [60]-[61] considered this complaint but rejected the assertion of prejudice and found that Mr O'Donoghue had received a full and fair hearing in relation to all the grounds of his application. 9 I would, for all these reasons, refuse the application to recuse myself. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.