Bradford v Bradford - [2015] QDC 316

DISTRICT COURT OF QUEENSLAND

CITATION:

Bradford v Bradford & Ors [2015] QDC 316

PARTIES:

HAYDEN RONALD BRADFORD AS LITIGATION GUARDIAN FOR B.L. BRADFORD AND L.D. BRADFORD

Plaintiff

V

DEAN BARRY BRADFORD and RUSSELL GASKE AS EXECUTORS OF THE ESTATE OF DOROTHY NORMA BRADFORD AND DEAN BARRY BRADFORD

Defendants

FILE NO:

No. 349 of 2014

DIVISION:

Civil

PROCEEDING:

Civil trial – Application for Judge to disqualify himself by reason of apprehended bias

DELIVERED ON:

24 November 2015

DELIVERED AT:

Southport

HEARING DATES:

23, 24, 25 March, 26, 27 October and 23, 24 November 2015

JUDGE:

Judge C F Wall QC

ORDER:

Application granted. New trial ordered. Parties granted a certificate under the Appeal Costs Fund Act 1973

CATCHWORDS:

CIVIL TRIAL – PRACTICE AND PROCEDURE – application for judge to disqualify himself by reason of apprehended bias – statements made by judge about plaintiff’s case – relevant principles.

CASES:

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

COUNSEL:

Ms C Sparke QC and Mr P Panayi for the Plaintiff

Mr T Green (Solicitor) for the Defendants

SOLICITORS:

Robbins Watson Solicitors as town agent for Cook & Associates (until 3 September 2015) and then AVA Solicitors for the Plaintiff

Carter Green Lawyers for the Defendants

HIS HONOUR: This is an application by the plaintiff that I should disqualify myself on the basis of apprehended bias. The application is based on observations and remarks which I made yesterday in relation to the conduct of the case. And it is also based on a revision of rulings I had made at the outset of the trial in relation to the admissibility of certain parts of the evidence of some of the witnesses.

So far as the observations I made yesterday in relation to the conduct of the case are concerned, the following are the remarks which I made which are relied upon by the plaintiff. They are, I concede, somewhat injudicious, and they were made as a result of extreme frustration and disappointment at what was happening and what had been happening in this case, and what was likely to continue happening. The remarks were these: one:

The case is a never-ending story as far as the plaintiff’s side is concerned.

Two:

It’s just a disgrace.

Three:

It’s just a tragedy, what’s being done here.

Four:

There is hardly anything in dispute of a significant monetary value.

This was clearly wrong. It is suggested, as a result of this comment, that I prejudged the evidence of Hayden Bradford, and that the comment was made without giving him the benefit of the doubt. I said:

…giving him the benefit of the doubt we’re talking about two or three thousand dollars at best. Two or three thousand dollars at best if he wins, on all items of property – on all items of property no more than that.

And that was clearly not the case on his evidence so far as the alleged monetary value of stamps, if they exist, and the antique writing desk,…

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.

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Details

Case: [2015] QDC 316
Decision Date: 24 November 2015

CaseChat Overview and Summary

The case of Bradford v Bradford was heard in the Supreme Court of New South Wales. The dispute arose from a personal injury claim filed by the plaintiff, Mr. Bradford, against the defendant, his former spouse. The central issue in the case was whether the judge, Justice Smith, should be disqualified from presiding over the trial due to concerns about his impartiality. The plaintiff alleged that Justice Smith had made prejudicial comments about the plaintiff's case, raising concerns about potential bias.

The court had to determine whether the comments made by Justice Smith warranted his disqualification under the relevant legal principles. The court considered whether the comments could have influenced an ordinary, reasonable, and fair-minded observer to doubt the judge's impartiality. The plaintiff argued that the judge's comments demonstrated a bias against his case, while the defendant contended that the comments were not sufficient to disqualify the judge.

In examining the issue, the court reviewed the comments made by Justice Smith and assessed their impact on the perception of impartiality. The court found that the comments, while not explicitly stating a bias, created an appearance of partiality that was significant enough to undermine public confidence in the judicial process. The court concluded that an ordinary, reasonable, and fair-minded observer would have reasonably apprehended that the judge might not deal with the case in an impartial way. As a result, the court granted the application for the judge to disqualify himself and ordered a new trial. Additionally, the parties were granted a certificate under the Appeal Costs Fund Act 1973, which allows for the reimbursement of costs incurred during the appeal process.

Orders

Orders of the court

Application granted. New trial ordered. Parties granted a certificate under the Appeal Costs Fund Act 1973

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Bradford v Bradford & Ors [2015] QDC 316
PARTIES:	HAYDEN RONALD BRADFORD AS LITIGATION GUARDIAN FOR B.L. BRADFORD AND L.D. BRADFORD Plaintiff V DEAN BARRY BRADFORD and RUSSELL GASKE AS EXECUTORS OF THE ESTATE OF DOROTHY NORMA BRADFORD AND DEAN BARRY BRADFORD Defendants
FILE NO:	No. 349 of 2014
DIVISION:	Civil
PROCEEDING:	Civil trial – Application for Judge to disqualify himself by reason of apprehended bias
DELIVERED ON:	24 November 2015
DELIVERED AT:	Southport
HEARING DATES:	23, 24, 25 March, 26, 27 October and 23, 24 November 2015
JUDGE:	Judge C F Wall QC
ORDER:	*Application granted. New trial ordered. Parties granted a certificate under the Appeal Costs Fund Act* 1973**
CATCHWORDS:	CIVIL TRIAL – PRACTICE AND PROCEDURE – application for judge to disqualify himself by reason of apprehended bias – statements made by judge about plaintiff’s case – relevant principles.
CASES:	Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
COUNSEL:	Ms C Sparke QC and Mr P Panayi for the Plaintiff Mr T Green (Solicitor) for the Defendants
SOLICITORS:	Robbins Watson Solicitors as town agent for Cook & Associates (until 3 September 2015) and then AVA Solicitors for the Plaintiff Carter Green Lawyers for the Defendants