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Carbotech-Australia Pty Ltd v Yates

Carbotech-Australia Pty Ltd v Yates

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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 2008

JURISDICTION: 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 75A

CATEGORY: 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 453

PARTIES: 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 DIVISION

BRERETON 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…

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: [2008] NSWSC 540
Decision Date: 3 June 2008

CaseChat Overview and Summary

Carbotech-Australia Pty Ltd, the appellant, filed an appeal against the respondent, Yates, in relation to the referee's report that was prepared in the context of a proceeding for the assessment of costs. The primary dispute centred around the referee's alleged bias and the validity of the referee's report. The appeal was heard in the Federal Court of Australia.

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.

Orders