Legal Research
Cases
Battenberg v Union Club

Battenberg v Union Club

Case [2007] NSWSC 265 27 March 2007

Civil Litigation & Procedure

No judgment structure available for this case.

Type to search within this case.

CITATION: Andrew Charles Robert Battenberg v Union Club [2007] NSWSC 265

HEARING DATE(S): 12.03.07, 13.03.07, 15.03.07

JUDGMENT DATE :
27 March 2007

JUDGMENT OF: Nicholas J

DECISION: para 42

CATCHWORDS: COURTS AND JUDGES - apprehended bias - disqualification of judge - whether grounds for apprehension of bias established - failure to object promptly to judge's participation in the proceedings - waiver of right to object -
- COSTS - order for security for costs - dismissal for failure to comply - UCPR Pt 42, r 42.21(3)

LEGISLATION CITED: UCPR Pt 42, r 42.21(3)

CASES CITED: Chalik v Wales [2006] NSWSC 129
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Fairey v Fairey (No 2) [2000] NSWCA 173
Idaport Pty Ltd v National Australia Bank Ltd [2002] NSWCA 271
Porter v Gordian Runoff Ltd (No. 3) [2005] NSWCA 377
Queensland v JL Holdings Pty Ltd (1996-1997) 189 CLR 146
Smits v Roach (2006) 80 ALJR 1309
Vakauta v Kelly (1989) 167 CLR 568

PARTIES: Andrew Charles Robert Battenberg - plaintiff
Union Club - defendant

FILE NUMBER(S): SC 20454/05

COUNSEL: S Russo (solicitor) 12.03.07, 15.03.07 - plaintiff
G Pesce 13.03.07 – plaintiff
C A Evatt 13.03.07 - plaintiff
A T S Dawson - defendant

SOLICITORS: Russo & Partners - plaintiff
Minter Ellison - defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

Nicholas J

27 March 2007

20454/05 Andrew Charles Robert Battenberg v Union Club

JUDGMENT

1 His Honour: On 15 March 2007 I heard and dismissed the plaintiff’s application that I should disqualify myself from further participating in these proceedings. I then heard the defendant’s notice of motion filed 22 December 2006 for orders that the proceedings be dismissed, and for costs, and reserved my decision. I have decided that the orders sought by the defendant should be made. These are my reasons in both applications.

The application for disqualification

2 On 15 March 2007 Mr Sal Russo, the plaintiff’s solicitor, made an application that I should disqualify myself from further participation, and make no further order, in these proceedings and direct that any further applications be transferred to another judge for determination. The ground relied upon was apprehended bias. The apprehension of bias was said to arise from the fact that, as counsel, I had advised the defendant on an issue concerning the plaintiff’s membership of the first defendant following his bankruptcy on 19 May 1997 and the annulment thereof on 23 March 2000. Additional bases for apprehension were said to be the manner in which I conducted the proceedings on 19 July 2006 being the defendant’s application to strike out various claims pleaded in the amended statement of claim, and the proceedings on 17 November 2006 being the defendant’s application for security for costs.

3 The relevant history is as follows.

4 On 13 August 2001 I and another counsel provided to the defendant the advice referred to.

5 On 18 May 2004, in the course of proceedings in the Equity Division…

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.

Continue reading Battenberg v Union Club

Details

AGLC: Battenberg v Union Club [2007] NSWSC 265
Case: [2007] NSWSC 265
Decision Date: 27 March 2007

CaseChat Overview and Summary

In the case of Battenberg v Union Club, the court was faced with a dispute concerning the disqualification of a judge due to apprehended bias. The matter was heard in the Supreme Court of New South Wales. The plaintiff, Battenberg, sought to disqualify the judge on the basis of an apprehension of bias arising from the judge's prior involvement in a related matter. The defendant, Union Club, argued that the plaintiff had failed to object to the judge's participation in a timely manner and had thus waived their right to object.

The central legal issue before the court was whether the plaintiff had established grounds for the apprehension of bias, and if the failure to object promptly amounted to a waiver of the right to object. The court needed to determine whether the plaintiff's concerns were valid and whether the timing of the objection was a critical factor in deciding the matter. Additionally, the court had to consider the implications of an order for security for costs under the Uniform Civil Procedure Rules 1999 (NSW) and the consequences of the plaintiff's failure to comply with such an order.

The court found that the plaintiff had not established grounds for the apprehension of bias. The judge's prior involvement in a related matter did not create a reasonable apprehension of bias in the mind of a fair-minded observer. Furthermore, the court held that the plaintiff's failure to object promptly to the judge's participation constituted a waiver of the right to object. Consequently, the plaintiff's application to disqualify the judge was dismissed. The court also dismissed the plaintiff's application for an order for security for costs due to their failure to comply with the rules. The orders of the court reflected these findings, with no appeal permitted.

Orders