Bezer v Bassan - [2017] NSWCA 214

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Bezer v Bassan [2017] NSWCA 214
Hearing dates: 25 August 2017
Date of orders: 25 August 2017
Decision date: 28 August 2017
Before: McCallum AJA
Decision:
Proceedings in the District Court in the matter of Bezer v Bassan stayed pending the determination of the application for leave to appeal or the delivery of the trial judge’s reserved judgment on an application to disqualify herself; costs of the application to be costs in the appeal

Catchwords: APPEAL – application for leave to appeal against the decision of a judge of the District Court to proceed to hear evidence in a part-heard matter after reserving her decision on an application that she disqualify herself on the grounds of apprehended bias
Cases Cited: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Category: Procedural and other rulings
Parties: Christopher Bezer (applicant)
Troy Bassan (respondent)
Representation:
Counsel:
D-L Del Monte (applicant)
M Nesbeth (respondent)
Solicitors:
Hunt & Associates (applicant)
Hall & Wilcox Lawyers (respondent)

File Number(s): 2017/259056
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court NSW

Jurisdiction:

Common Law

Date of Decision:

24 August 2017

Before:

Gibb DCJ

Judgment

HER HONOUR: Christopher Bezer seeks leave to appeal against the decision of a judge of the District Court to continue to hear evidence in proceedings in that Court from today despite reserving her decision on an application for her to disqualify herself on the grounds of apprehended bias. The determination to continue to hear evidence was made on 24 August 2017. The applicant brought an urgent application to stay that course on 25 August 2017. The application came before me acting as an additional judge of appeal pursuant to a determination of the Chief Justice dated 25 August 2017. I determined that the proceedings in the court below should be stayed pending determination of the appeal (or publication of the reserved decision, in which event the appeal will be moot). These are my reasons for reaching that conclusion.
The proceedings in the District Court are for damages for personal injury. The hearing of the proceedings commenced on 10 July 2017 and continued for a period of two weeks, at which point the proceedings had to be adjourned part- heard, having exceeded the original estimate for hearing.
During that two-week period a Dr Harrison was called to give evidence in the plaintiff’s case. He gave his evidence on 19 July 2017. On 21 July 2017, Dr Harrison lodged a complaint with the Judicial Commission asserting that the judge had bullied him. The doctor expressed concern that the bullying was such that he “might have ended up perjuring [himself]” as he “just wanted to get out of the witness box”.
The judge received notice of the complaint on 26 July 2017 and immediately relisted the matter for 28 July 2017 to inform the parties of the doctor’s complaint.
On 10 August 2017, the plaintiff filed…

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 Bezer v Bassan

Details

AGLC: Bezer v Bassan [2017] NSWCA 214
Case: [2017] NSWCA 214
Decision Date: 28 August 2017

CaseChat Overview and Summary

The applicant, Bezer, sought leave to appeal against a decision of a District Court judge who had continued to hear evidence in a part-heard matter after reserving her decision on an application for her disqualification on the grounds of apprehended bias.

The central legal issue before the Court of Appeal was whether the trial judge erred in law by proceeding with the hearing of evidence after the application for disqualification had been made and the judge had reserved her decision on that application.

McCallum AJA considered the principles governing apprehended bias and the proper procedure when such an application is made. The Court determined that the applicant had an arguable case that the judge’s conduct in continuing the hearing while the bias application was pending might give rise to a perception of apprehended bias, thereby potentially undermining the fairness of the proceedings. The Court noted that the judge’s decision to proceed with hearing evidence, rather than awaiting the determination of the disqualification application, was a critical point of contention.

The Court of Appeal ordered that the proceedings in the District Court be stayed pending the determination of the application for leave to appeal or the delivery of the trial judge’s reserved judgment on the application to disqualify herself. The costs of this application were to be costs in the appeal.

Orders

Orders of the court

Proceedings in the District Court in the matter of Bezer v Bassan stayed pending the determination of the application for leave to appeal or the delivery of the trial judge’s reserved judgment on an application to disqualify herself; costs of the application to be costs in the appeal

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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Medium Neutral Citation:	Bezer v Bassan [2017] NSWCA 214
Hearing dates:	25 August 2017
Date of orders:	25 August 2017
Decision date:	28 August 2017
Before:	McCallum AJA
Decision:	Proceedings in the District Court in the matter of Bezer v Bassan stayed pending the determination of the application for leave to appeal or the delivery of the trial judge’s reserved judgment on an application to disqualify herself; costs of the application to be costs in the appeal
Catchwords:	APPEAL – application for leave to appeal against the decision of a judge of the District Court to proceed to hear evidence in a part-heard matter after reserving her decision on an application that she disqualify herself on the grounds of apprehended bias
Cases Cited:	Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Category:	Procedural and other rulings
Parties:	Christopher Bezer (applicant) Troy Bassan (respondent)
Representation:	Counsel: D-L Del Monte (applicant) M Nesbeth (respondent) Solicitors: Hunt & Associates (applicant) Hall & Wilcox Lawyers (respondent)
File Number(s):	2017/259056
Publication restriction:	None
Decision under appeal	Court or tribunal: District Court NSW Jurisdiction: Common Law Date of Decision: 24 August 2017 Before: Gibb DCJ