Bettar Holdings Pty Ltd v Amelia 1822 Pty Ltd as trustee for the Waterloo Trust

[2017] NSWSC 382

Supreme Court

New South Wales

Medium Neutral Citation:	Bettar Holdings Pty Ltd v Amelia 1822 Pty Ltd as trustee for the Waterloo Trust [2017] NSWSC 382
Hearing dates:	7 April 2017
Decision date:	07 April 2017
Jurisdiction:	Equity - Technology and Construction List
Before:	Stevenson J
Decision:	Order of referral set aside
Catchwords:	REFEREE – apprehended bias – where referee had in earlier unrelated proceedings cross-examined as to credit a witness to be called on the reference whose credit would again be in issue – whether fair minded observer might think referee might not bring an impartial mind to resolution of issues between the parties
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; HCA 63 David v Vamiso Pty Limited [2004] NSWSC 326
Category:	Procedural and other rulings
Parties:	Bettar Holdings Pty Ltd (Plaintiff/Applicant) Amelia 1822 Pty Ltd as trustee for the Waterloo Trust (Defendant/Respondent)
Representation:	Counsel: A F Fernon (Plaintiff/Applicant) T J Breakspear (Defendant/Respondent)   Solicitors: Squire Patton Boggs (Plaintiff/Applicant) Maddocks Lawyers (Defendant/Respondent)
File Number(s):	SC 2015/253060

EX TEMPORE Judgment

1. On 10 February 2017, the Court ordered the whole of these proceedings be referred to Mr Duncan Miller SC for inquiry and report. The reference is scheduled to be heard for 10 days, commencing on 1 May 2017.

2. A critical witness for the plaintiff will be Mr Nicholas Bettar. Mr Bettar's credit will be in issue on the reference.

3. By notice of motion filed in Court earlier today, the plaintiff seeks an order pursuant to r 20.22 of the Uniform Civil Procedure Rules 2005 (NSW) setting aside the reference to Mr Miller on the basis of Mr Miller's “apprehended unconscious bias”. That apprehended bias is said to arise by reason of Mr Miller’s cross-examination of Mr Bettar in unrelated proceedings in this Court in February 2012.

4. It is common ground the ordinary rules about apprehended bias apply to referees as much as to judges. The test is whether a fair minded observer might reasonably apprehend that, in this case, the referee might not bring an impartial mind to the resolution of the questions he is required to decide; see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; HCA 63 at [6] – [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ); David v Vamiso Pty Limited [2004] NSWSC 326 at [18] (Bergin J (as her Honour then was)).

5. Before bringing this application, the parties quite properly first approached Mr Miller. That occurred on 27 March 2017. Mr Miller made a report to the Court on 30 March 2017. In that report, Mr Miller stated, correctly in my opinion, that the question of whether he should remain as referee was a matter for the Court, and not for him. He nonetheless expressed the strong view that his involvement in the earlier proceedings did not warrant him being removed as referee.

6. I am afraid I do not agree.

7. On 22 February 2017, Mr Miller disclosed to the parties that he had appeared as junior to Mr Inatey SC in proceedings “during 2011 and 2012”, in which proceedings, Mr Bettar had given evidence and was cross-examined by (Mr Miller then recalled) Mr Inatey.

8. It turns out that, although Mr Miller did not recall this until shown an edited copy of part of the transcript, he had himself carried out the cross-examination.

9. It was extensive. The part of the transcript shown to Mr Miller, now before me, extends for almost 50 pages. It commences with the heading, "Cross-examination by Mr Miller continuing". Evidently there was more.

10. Mr Miller says, and of course the parties (and I) accept, that he now has no more than a vague recollection of the cross-examination and that, as a matter of fact, he has no current impression (one way or the other) about Mr Bettar's credibility.

11. The transcript shown to Mr Miller was edited to remove the answers given by Mr Bettar. It is also, as I have mentioned, apparently not the whole of the transcript. It may be that the answers given by Mr Bettar to Mr Miller's questions were redacted from the copy of the transcript shown to Mr Miller to avoid refreshing Mr Miller's recollection in a manner that might itself determine the question of whether he should continue to be referee.

12. Nonetheless, it is clear to me from a reading of the questions Mr Miller put to Mr Bettar, that Mr Miller challenged Mr Bettar's evidence and his credit. I do not, with respect, agree with Mr Miller's suggestion (made in his report to the Court) that, for all the reader of the transcript knows, Mr Bettar "might have reasonably agreed with every proposition put to him". It is plain he did not.

13. The danger I see is that once the reference proceeds and, in particular, once cross-examination of Mr Bettar commences, Mr Miller's recollection of matters arising from his cross-examination of Mr Bettar may be refreshed; perhaps in a manner which subliminally but actually influences his assessment of Mr Bettar's credit on the reference.

14. More to the point, my conclusion is that a fair minded lay observer of the proceedings may think that this might happen and, therefore, that Mr Miller might not bring an impartial mind to bear on the questions he must decide.

15. In those circumstances, my conclusion is that I should set aside the reference of these proceedings to Mr Miller.

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Decision last updated: 10 April 2017