Asden Developments Pty Ltd (in liq) v Dinoris - [2015] FCA 729

FEDERAL COURT OF AUSTRALIA
Asden Developments Pty Ltd (in liq) v Dinoris [2015] FCA 729

Citation: Asden Developments Pty Ltd (in liq) v Dinoris [2015] FCA 729

Parties: ASDEN DEVELOPMENTS PTY LTD (IN LIQUIDATION) ACN 115 851 833 v PETER DINORIS and NICK COMBIS

File number: QUD 578 of 2014

Judge: REEVES J

Date of judgment: 14 July 2015

Catchwords: PRACTICE AND PROCEDURE – where application for primary judge to disqualify himself on the grounds of apprehended bias – where comments made during the course of a pre-trial case management hearing – where concerns about the efficient conduct of the trial – where concerns about the non-compliance of expert evidence with r 23 of the Federal Court Rules 2011 (Cth) – whether a reasonable independent observer might have concluded prejudgment – where disqualification refused on the basis that a reasonable independent observer would not apprehend bias

Legislation: Evidence Act 1995 (Cth)
Federal Court Rules 2011 (Cth)

Cases cited: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Picos v Servcorp Limited [2015] FCA 344

Date of hearing: 14 July 2015

Place: Brisbane

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 18

Counsel for the Applicant: Mr M Martin QC

Solicitor for the Applicant: Mills Oakley Lawyers

Counsel for the Respondents: Mr I Erskine

Solicitor for the Respondents: HBM Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 578 of 2014

BETWEEN:
ASDEN DEVELOPMENTS PTY LTD (IN LIQUIDATION) ACN 115 851 833
Applicant

AND:
PETER DINORIS
First Respondent

NICK COMBIS
Second Respondent

JUDGE:

REEVES J

DATE OF ORDER:

14 JULY 2015

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The applicant’s application made on 14 July 2015 is dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 578 of 2014

BETWEEN:
ASDEN DEVELOPMENTS PTY LTD (IN LIQUIDATION) ACN 115 851 833
Applicant

AND:
PETER DINORIS
First Respondent

NICK COMBIS
Second Respondent

JUDGE:

REEVES J

DATE:

14 JULY 2015

PLACE:

BRISBANE

EX TEMPORE REASONS FOR JUDGMENT

Mr Martin QC for the applicant, Asden Developments Pty Ltd (In Liquidation) (Asden), has applied to have me recuse myself based on certain comments I made on Friday, 10 July 2015, at a pre-trial case management hearing. The basic principles applicable to such an application are clearly established in a number of recent High Court decisions. Perry J has provided a convenient summary of those principles in the recent decision of Picos v Servcorp Limited [2015] FCA 344 at [15]. In that summary, her Honour stated, by reference to the High Court decision of Michael Wilson & Partners Ltd v Nicholls (2011) 244…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Asden Developments Pty Ltd (in liq) v Dinoris and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] FCA 729
Decision Date: 14 July 2015

CaseChat Overview and Summary

Asden Developments Pty Ltd (in liquidation) sought the disqualification of Justice Bromberg on the grounds of apprehended bias in relation to proceedings against Dinoris. The dispute involved complex contractual and equitable issues arising from a development project. The case was before the Federal Court of Australia, where the primary judge had made comments during a pre-trial case management hearing regarding concerns about the efficient conduct of the trial and non-compliance of expert evidence with relevant Federal Court rules. The applicant argued these comments indicated prejudgment, warranting the judge’s disqualification.

The central legal issue was whether the comments made by the judge during the case management hearing would lead a reasonable independent observer to apprehend bias. The applicant contended that the judge's comments showed a predisposition to view the applicant’s case negatively, which could affect the fairness of the trial. Conversely, the respondent argued that the comments were procedural and related to the efficient conduct of the trial, without any implication of bias against the applicant. The court had to balance the principles of judicial impartiality against the necessity of effective case management.

Justice Bromberg dismissed the application for disqualification, concluding that a reasonable independent observer would not apprehend bias from the comments made. The judge emphasised that the remarks were procedural and aimed at ensuring an efficient trial process. The comments did not indicate any personal animus or prejudgment that would lead to a reasonable apprehension of bias. The court found that the comments were consistent with the role of a judge to manage the trial effectively and did not constitute grounds for disqualification.

The Federal Court confirmed the dismissal of the application for disqualification, and no further orders were made. The decision underscored the importance of maintaining judicial impartiality while also recognising the judge's role in managing proceedings to ensure they are conducted fairly and efficiently.

Orders

Orders of the court

1. The applicant’s application made on 14 July 2015 is dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:	Asden Developments Pty Ltd (in liq) v Dinoris [2015] FCA 729
Parties:	ASDEN DEVELOPMENTS PTY LTD (IN LIQUIDATION) ACN 115 851 833 v PETER DINORIS and NICK COMBIS
File number:	QUD 578 of 2014
Judge:	REEVES J
Date of judgment:	14 July 2015
Catchwords:	PRACTICE AND PROCEDURE – where application for primary judge to disqualify himself on the grounds of apprehended bias – where comments made during the course of a pre-trial case management hearing – where concerns about the efficient conduct of the trial – where concerns about the non-compliance of expert evidence with r 23 of the Federal Court Rules 2011 (Cth) – whether a reasonable independent observer might have concluded prejudgment – where disqualification refused on the basis that a reasonable independent observer would not apprehend bias
Legislation:	Evidence Act 1995 (Cth) Federal Court Rules 2011 (Cth)
Cases cited:	Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Picos v Servcorp Limited [2015] FCA 344
Date of hearing:	14 July 2015
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	18
Counsel for the Applicant:	Mr M Martin QC
Solicitor for the Applicant:	Mills Oakley Lawyers
Counsel for the Respondents:	Mr I Erskine
Solicitor for the Respondents:	HBM Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 578 of 2014

JUDGE:	REEVES J
DATE OF ORDER:	14 JULY 2015
WHERE MADE:	BRISBANE

JUDGE:	REEVES J
DATE:	14 JULY 2015
PLACE:	BRISBANE