Bezer v Bassan

Case [2017] NSWCA 333

Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Bezer v Bassan [2017] NSWCA 333
Hearing dates:1 December 2017
Date of orders: 01 December 2017
Decision date: 19 December 2017
Before: Gleeson JA, Payne JA, Sackville AJA
Decision:

1.   Grant leave to appeal.
2.   Appeal dismissed.
3.   Applicant to pay the costs of the appeal.
4.   Note that the stay order by McCallum J on 25 August 2017 has expired.

Catchwords:

ADMINISTRATIVE LAW – bias – apprehended bias – applicant sought order that primary judge disqualify herself on the basis of apprehended bias – applicant submitted witness was bullied by primary judge and that witness feared he had committed perjury as a result – whether primary judge erred in declining to disqualify herself – no ground for concluding that a fair-minded lay observer might reasonably apprehend that primary judge might not bring an impartial mind to the resolution of the issues in the case – primary judge’s interventions designed to clarify whether witness was a factual or expert witness – no complaint made by counsel at the time conduct occurred

  APPEAL – whether applicant required leave to appeal – whether primary judge’s refusal to disqualify herself constituted a judgment or order – whether failure to seek leave to appeal against disqualification decision precluded the issue being pressed on appeal against final judgment
Legislation Cited: District Court Act 1973 (NSW), s 127
Supreme Court Act 1970 (NSW), s 69
Cases Cited: Barakat v Goritsas [2012] NSWCA 8
Bezer v Bassan (District Court, 28 August 2017, unrep)
Bezer v Bassan [2017] NSWCA 214
British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Federated Engine-Drivers’ and Firemen’s Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398
Gas & Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Lee v Cha [2008] NSWCA 13
Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Re Nash (No 2) [2017] HCA 52
Stone v Moore (2015) 122 SASR 54; [2015] SASC 46
Category:Principal judgment
Parties: Christopher Bezer (Applicant)
Troy Bassan (Respondent)
Representation:

Counsel:
Mr D Campbell SC / Mr D Del Monte (Applicant)
Mr W Fitzsimmons / Mr M Nesbeth (Respondent)

  Solicitors:
WD Hunt & Associates (Applicant)
Hall & Wilcox Lawyers (Respondent)
File Number(s):2017/281232
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Civil
Date of Decision:
28 August 2017
Before:
Gibb DCJ
File Number(s):
2015/7036

Judgment

  1. THE COURT: The applicant is the plaintiff in part heard proceedings in the District Court. In those proceedings he seeks damages against the respondent (the defendant in the District Court proceedings) for serious injuries sustained by him in a…

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AGLC
Bezer v Bassan [2017] NSWCA 333
Case
[2017] NSWCA 333
Decision Date

CaseChat Overview and Summary

The applicant, Bezer, sought an order from the primary judge to disqualify herself from presiding over proceedings on the grounds of apprehended bias. Bezer contended that a witness had been bullied by the primary judge, leading the witness to fear they had committed perjury. The appeal concerned whether the primary judge erred in refusing to disqualify herself and whether leave to appeal was required against that refusal.

The central legal issues before the Court of Appeal were whether a fair-minded lay observer, reasonably apprehending the facts, might conclude that the primary judge would not bring an impartial mind to the resolution of the case. Additionally, the court had to determine if the applicant's failure to seek leave to appeal the initial disqualification decision precluded him from raising that issue on appeal against the final judgment.

The Court of Appeal found no grounds to conclude that a fair-minded lay observer would reasonably apprehend bias. It reasoned that the primary judge's interventions were aimed at clarifying the witness's status as either a factual or expert witness, and no complaint was made by counsel at the time these interventions occurred. The court also noted that the applicant had not sought leave to appeal the decision to refuse disqualification, which was a necessary step.

Leave to appeal was granted, but the appeal was ultimately dismissed. The applicant was ordered to pay the costs of the appeal, and it was noted that a previously granted stay order had expired.

Orders

Orders of the court

1. Grant leave to appeal.

2. Appeal dismissed.

3. Applicant to pay the costs of the appeal.

4. Note that the stay order by McCallum J on 25 August 2017 has expired.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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