Bates, Michael John t/as Riot Wetsuits v Omareef Pty Ltd t/as Quiksilver Wetsuits

[1997] FCA 833

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 230 of 1994

BETWEEN:	MICHAEL JOHN BATES T/AS RIOT WETSUITS Applicant
AND:	OMAREEF PTY LIMITED (ACN 004 010 806) T/AS QUIKSILVER WETSUITS Respondent
QUIKSILVER GARMENTS PTY LTD (ACN 005 575 548) Second Respondent
JOHN ERIC HOWITT Third Respondent
BRUCE ERNEST RAYMOND Fourth Respondent
THOMAS VICTOR CARROLL Fifth Respondent
RODNEY ALLAN BROOKS Sixth Respondent
ALISTAIR (ALSO KNOWN AS ZOC) ZORICA Seventh Respondent
BRUCE ANDREW EDWARDS Eighth Respondent
JUDGE:	EMMETT J
DATE:	19 AUGUST 1997
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT (No. 2)

HIS HONOUR: When the matter was called on this morning, counsel for the applicants indicated that, having read some parts of the transcript, he was concerned at the way in which the trial had been conducted to date.  On further questioning, counsel indicated that he was, in fact, making an application that I disqualify myself on the ground of apprehended bias.  I had, I must say, great difficulty in understanding just what the application was.

It was put on the one hand that I had intervened in examination-in-chief of witnesses called by the applicant in order to adduce evidence in an admissible form.  That seems to me to be an extraordinary proposition.  It is clear that a judge may ask questions of a witness.  I endeavoured, and I think I succeeded in doing so, to put questions in an admissible form in a way in which counsel for the applicant could have put the questions had there been counsel for the applicant, or if Mr Bates had had the experience to put questions to elicit evidence-in-chief.  The proposition was, as I understand it, that because I had assisted the applicant in putting questions to his witnesses in-chief that may indicate some bias in favour of the applicant, advantage of which might be taken by the respondent at some later stage.

While there was objection made by Mr Foster to the course which I adopted, I, in effect, overruled the objection.  Although I did desist from asking questions in-chief, I did subsequently ask a number of questions of the nature to which I have just referred.  However, I do not regard that as being any indication of bias on my part in favour of Mr Bates and certainly no indication was made by Mr Foster that his objection was on the basis of bias.  Insofar as that is a ground, I reject it.

Secondly, it was said that I failed to disallow questions that were put to Mr Bates by counsel for the respondents in circumstances where, if there had been objection by counsel appearing for Mr Bates, the questions ought to have been rejected.  Two instances were referred to.  One was in a context where the question related to the conduct of Mr Bates in relation to taxation matters.  I warned Mr Bates that he would be entitled to decline to answer questions if the answers tended to incriminate him.  He nevertheless was disposed to give answers to questions in circumstances where he may have been entitled to take that privilege.  By that observation I do not intend to indicate that he did, in fact, make any admission of any wrongful conduct although, on one view, that may be the way in which some of the answers could be read. 

The contention was that the attention of Mr Bates should have been drawn to section 128 of the Evidence Act 1995 (Cth) such that a certificate might have been given under that section, thereby giving Mr Bates some protection in the event that proceedings were taken against him later on. Again, while that may conceivably be a ground of appeal, if findings were ultimately made by me based on the answers that were given in circumstances where had objection been taken the answers might not have been given, I do not regard that as even arguably an instance of apprehended bias.

The second example concerned a question said to have been put by Mr Foster on behalf of the respondent to a witness called by Mr Bates relating to a matter which was said not to have been put to Mr Bates himself.  I did not go into the question of whether or not that is a fair representation.  If that is a criticism, it is a matter which would be raised in the course of address.  The point appears to have been that Mr Foster would not be entitled to put such a question to another witness on the Browne v.  Dunn (1894) 6 R 67 principle.

However, Browne v.  Dunn, it seems to me, would only lead to the conclusion that if a matter was not fairly put to Mr Bates, Mr Foster could not ask me to make a finding against the interests of Mr Bates in relation to that matter.  It does not prevent the question being put to another witness and certainly the failure on my part to reject the question without objection does not, in my view, indicate any bias on my part.  The observations I have just made do not go into the question of whether or not, in any event, Mr Foster can make such a submission when the evidence is complete.  That is a matter which can be debated in the course of address.

In the circumstances I reject the application.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett

Associate:

Dated:            19 August 1997

Counsel for the Applicant:	L.G. Foster SC P. R. Whitford
Solicitor for the Applicant:	Corrs Chambers Westgarth
Counsel for the Respondent:	M. B. Duncan R.Freeman M.Thangaraj
Solicitor for the Respondent:	Burt & Allen
Date of Hearing:	19 August 1997
Date of Judgment:	19 August 1997