CITATION: Carbotech-Australia Pty Ltd & anor v Yates & 14 ors [2008] NSWSC 540 HEARING DATE(S): 4 April & 16 May 2008
JUDGMENT DATE :
3 June 2008JURISDICTION: Equity Division JUDGMENT OF: Brereton J DECISION: The communications do not give rise to a reasonable apprehension of bias. Further, any complaint of bias was waived. The report does not cover matters outside the terms of reference. Appeal allowed; report adopted. CATCHWORDS: COURTS AND JUDGES – Bias – apprehended bias – referee – where referee communicates with one party only on matter of administration and procedure – whether reasonable apprehension of bias arises. - COURTS AND JUDGES – Bias – waiver – where party engages with referee on merits of report after becoming aware of possibility of apprehended bias – whether complaint of bias waived. - PROCEDURE – Referee – report – adoption – whether report covers matters outside reference – whether report should be rejected for apprehended bias – where Associate Judge dismissed motion for adoption – appeal from Associate Judge. LEGISLATION CITED: (NSW) Uniform Civil Procedure Rules r 49.4
(NSW) Supreme Court Act 1970, s 75ACATEGORY: Separate question CASES CITED: Chocolate Factory Apartments Limited v Westpoint Finance Pty Limited [2005] NSWSC 784
Johnson v Johnson (2000) 201 CLR 488
Re JRL; Ex parte CJL (1986) 161 CLR 342
Kanda v Government of Malaya [1962] AC 322
Kartinyeri v The Commonwealth (1998) 156 ALR 300
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
S & M Motor Repairs Pty Ltd v Caltex Oil (Australasia) Pty Ltd (1988) 12 NSWLR 358
Smits v Roach (2006) 227 CLR 423
Vakuata v Kelly (1989) 167 CLR 568
Xuereb v Viola (1989) 18 NSWLR 453PARTIES: Carbotech-Australia Pty Ltd (first plaintiff)
Ground Consolidation Pty Ltd (second plaintiff)
Ian Kenneth Yates (first defendant)
Donna Yates (second defendant)
Eligild Pty Ltd (third defendant)
Ron Godfrey Nielsen (fourth defendant)
SES Resources Pty Ltd (fifth defendant)
SES 2005 Pty Ltd (sixth defendant)
Wombat Holdings (NSW) Pty Ltd (seventh defendant)
Global Resins Pty Ltd (eighth defendant)
SES International Ltd (ninth defendant)
Mark Weston (tenth defendant)
ERA Polymers Pty Ltd (eleventh defendant)
ERA Polymers Holdings Pty Ltd (twelfth defendant)
Geoffrey David Mellon (thirteenth defendant)
Wendy Nielsen (fourteen defendant)
SES Holdings Plc (fifteenth defendant)FILE NUMBER(S): SC 3813/05 COUNSEL: Mr W G Muddle SC w Mr S A Goodman (plaintiffs)
Mr C D Freeman (eleventh & twelfth defendants)SOLICITORS: Clayton-Utz (plaintiffs)
Photios Vouroudis & Co (eleventh & twelfth defendants)
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISIONBRERETON J
Tuesday, 3 June 2008
3813/05 Carbotech-Australia Pty Limited ACN 057 994 180 & 1 Or v Ian Yates & 14 Ors
JUDGMENT
1 HIS HONOUR : The plaintiffs Carbotech-Australia Pty Limited and Ground Consolidation Pty Limited manufacture a family of polyol resins under the trade name Bevedol which, when mixed with an isocyanate marketed under the name of Bevedan, produce a rigid foam used in the mining industry to consolidate fractured ground. The first defendant Mr Yates was…
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- Case
- [2008] NSWSC 540
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining whether the referee exhibited a reasonable apprehension of bias due to communication with one party on administrative and procedural matters. Additionally, the court had to examine whether the appellant's engagement with the referee on the merits of the report, after becoming aware of the potential for bias, constituted a waiver of the complaint regarding the referee's bias. The court also had to assess whether the referee's report could be adopted despite covering matters outside the scope of the reference and whether the report should be rejected due to apprehended bias.
The court found that the referee's communication with one party regarding administrative and procedural matters did not give rise to a reasonable apprehension of bias. The court also held that the appellant's engagement with the referee on the merits of the report after becoming aware of the potential for bias did not amount to a waiver of the complaint of bias. Furthermore, the court ruled that the referee's report could be adopted, despite covering matters outside the scope of the reference, and that the report should not be rejected due to apprehended bias. Consequently, the court dismissed the appeal.
In light of the findings, the court confirmed that the referee's report was valid and should be adopted as the assessment of costs in the proceeding. No further orders were made by the court.
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