Basten JA at 1; Young JA at 69; Sackville AJA at 70
Decision:
(1) Appeal dismissed.
(2) Applicants to pay the respondents' costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
EVIDENCE - appeal - application to adduce evidence to supplement transcript - discussion of Vakauta v Kelly (1988) 13 NSWLR 502 - whether court should receive evidence pursuant to Supreme Court Act 1970 (NSW), s 75A(7) - whether court should exercise discretion to reject admissible evidence tendered for the first time on appeal
PROCEDURE - civil - refusal to disqualify for apprehended bias - whether appellate court or court exercising supervisory jurisdiction should consider judgment of the court below on recusal application - whether exchanges between counsel and judge demonstrate that a fair-minded lay observer might hold the opinion that the judge might not determine issues fairly
Tony Barakat, Russell Walter Keddie and Scott John Roulstone - Applicants Maria Goritsas - First Respondent Basil Goritsas - Second Respondent Stephen Paul Firth - Third Respondent
Representation:
Barristers:
C C Branson QC/M Castle - Applicants R R Stitt QC/G J O'Mahoney - Respondents Solicitors:
Verekers Lawyers - Applicants Firths - The Compensation Lawyers…
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.
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Details
AGLC
Barakat v Goritsas (No 2) [2012] NSWCA 36
Case
[2012] NSWCA 36
Decision Date
CaseChat Overview and Summary
In *Barakat v Goritsas (No 2)*, the applicants sought to appeal a decision of the primary judge. The core of the dispute involved an application to adduce fresh evidence on appeal, and a related issue concerning an apprehended bias on the part of the primary judge. The appeal was heard by Basten and Young JJA, and Sackville AJA.
The legal issues before the appellate court were twofold. Firstly, whether the court should receive evidence pursuant to section 75A(7) of the *Supreme Court Act 1970* (NSW) to supplement the transcript, and whether the court should exercise its discretion to reject admissible evidence tendered for the first time on appeal. Secondly, the court considered whether an appellate court, or a court exercising supervisory jurisdiction, should review a judgment of the court below on a recusal application, and whether exchanges between counsel and the judge demonstrated that a fair-minded lay observer might apprehend bias.
The court discussed the principles governing the admission of fresh evidence on appeal, referencing *Vakauta v Kelly* (1988) 13 NSWLR 502. The judges considered the criteria for exercising their discretion to admit such evidence, weighing the potential prejudice against the probative value. Regarding the apprehended bias, the court examined the conduct and exchanges during the proceedings to determine if they would lead a fair-minded lay observer to conclude that the judge might not bring an impartial mind to the issues.
The appeal was dismissed, and the applicants were ordered to pay the respondents' costs.
Orders
Orders of the court
(1) Appeal dismissed.
(2) Applicants to pay the respondents' costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]