Tribunal Members Sitting On Similar Cases

TABLE OF CONTENTS

Introduction

In some PIC 4020 fraud cases, the one tribunal member sometimes hears a number of cases on the same series of fraud cases. The High Court established that in such circumstances a tribunal member should not do so.

In Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 (20 May 1983) a Court of Appeal had overlapping judges in two cases where in the first case the court found one of the witnesses who might be called in the second case had lied.

18… It is, however, apparent that, in a case such as the present where it is not suggested that there is any overriding consideration of necessity, special circumstances or consent of the parties, a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact. The consideration that the relevant question of fact may be conceded or that the relevant person may not be called as a witness if the particular judge sits would not, of course, avoid the appearance of bias. To the contrary, it would underline the need for the judge to refrain from sitting.