Commonwealth Bank of Australia v Taylor

[2008] VSC 3

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

COMMERCIAL LIST

No. 6023 of 2005

COMMONWEALTH BANK OF AUSTRALIA	Plaintiff
v
MALVYN GREGORY TAYLOR	Defendant

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JUDGE:	FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 January 2008
DATE OF JUDGMENT:	15 January 2008 (reasons provided on 18 January)
CASE MAY BE CITED AS:	Commonwealth Bank of Australia v Taylor
MEDIUM NEUTRAL CITATION:	[2008] VSC 3

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CATCHWORDS:  Application to strike out parts of a reply – Ostensible bias – Ownership of shares by a superannuation fund of which a Judge is a trustee and member – Order for extension of the time in which to provide further discovery.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R.D. Shepherd	A.J. Mullumby
For the Defendant	In person

HIS HONOUR:

Background

1. At approximately 12.25 p.m. on 15 January, an application by summons on the part of the defendant was called on before me in the Practice Court.  It had been referred by the Senior Master to me.  The Senior Master, I was subsequently told, declined to hear the application. He apparently did so on the basis that he was responsible for administration of the common funds of the Supreme Court which included approximately 360,000 shares in the Commonwealth Bank of Australia, the plaintiff in this proceeding. 

1. The summons sought the striking out of certain parts of the plaintiff’s reply to the defendant’s defence.[1]

   [1]Pursuant to an order made by the Chief Justice on 13 September of last year.

1. I stood down the application until 1.00 p.m. to deal with a separate matter in chambers.

1. Upon resumption of the hearing, the defendant, who appeared for himself, made application that I disqualify myself from determining the matter.  After hearing that application, I dismissed it and provided oral reasons.  At the conclusion of the hearing, and as a result of a request by the defendant, I advised the parties that I thought that it was desirable that I provide brief written reasons for my decision.  I now do so.

The bias application

1. At the commencement of the hearing, I advised the parties that I was a trustee and member of a superannuation fund which held a parcel of shares in the Commonwealth Bank of Australia, the plaintiff. I indicated to the parties that I thought the shareholding was in the region of 3,000 shares.  The defendant objected to me proceeding to hear the matter on the basis of “conflict of interest”.  As I understood his application, it was, in effect, that the existence of such shareholding meant that there may be an apprehension of bias towards the plaintiff on my part.[2]

   [2]See Livesey v New South Wales Bar Association (1983) 151 CLR 288; re JRL: ex parte CJL (1986) 161 CLR 342; Johnson v Johnson (2000) 74 ALJR 1380.

1. The principles concerning such an application, and particularly the relevance of a Judge having a direct or indirect interest in shares in a company which is a party to the relevant proceeding, were considered by the High Court in Ebner v Official Trustee[3]:

“… The governing principle is that, subject to the qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.  That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial.  It is convenient to refer to it as the apprehension of bias principle.”[4]

[3](2000) 205 CLR 337; (2000) 75 ALJR 277

[4]Supra at para 6.

1. The relevant principles which can be distilled from Ebner seem to me to be as follows:

·    A trial judge has a duty to exercise his or her judicial function when assigned a particular case and cannot decline to hear a case without good cause.[5]

[5]Supra at para 19.

·    The making of an objection of itself should not deter a trial judge from hearing a case unless there is real doubt about whether he or she should sit.[6]

[6]Supra at para 20.

·    The party making the application must identify with precision the matters which give rise to the application and the connection between those matters and the apprehension of bias.[7]

·    The ownership, direct or indirect, of shares is a common form of savings in the community generally and the nature of an association between a Judge and a corporate party may be substantially different where the shares are held in a listed public company as opposed to a shareholding in a private company.[8]

·    In an ordinary case where a judge owns shares in a listed public company which is a party to the litigation and there is no other suggested form of interest or association, the question whether there is a realistic possibility that the outcome of the litigation would affect the value of these shares will be a useful practical method of deciding whether a fair minded observer might hold the relevant apprehension.[9]

[7]Supra at para 8.

[8]Supra at para 31.

[9]Supra at para 37.

1. Applying these principles to the present case, the following matters are relevant:

·    This application is concerned only with the striking out of parts of the reply.  It is not the trial of the proceeding.

·    The application will be determined solely on a question of law and not fact.

·    No determination in respect of the credibility of the parties is involved.

·    This has been a lengthy and protracted piece of litigation.  At the present time the plaintiff, pursuant to an order of Master Daly of this Court, is entitled to possession of the defendant’s premises (a house) at Spencer Street, West Melbourne.

·    There is no other Judge or Master sitting at the present time who could deal with this application, although, of course, it could be adjourned to be heard next month by another Judge or Master.

·    The nature and value of the subject matter of the litigation – a domestic residence.[10]

[10]Purchase price of $224,000 in 1997 – Defendant’s answers to interrogatories.

1. In my view, in the light of the principles stated in Ebner, each of these matters require

me to determine the application, rather than refuse to hear it.  I do not think that a fair minded observer might think that the hearing of a pleading summons by me would lead to an apprehension that I might not bring an impartial mind to the resolution of the defendant’s application.  A fair minded observer would not think that the resolution of a pleading summons concerning the defendant’s property would raise a realistic possibility that the value of the fund’s shares would be affected.   Nor do I think that this is a case in which there is any “real doubt”[11] as to whether it should be heard by me.

[11]Supra at para 20.

1. Accordingly, I refuse the defendant’s application that I disqualify myself.

The application to strike out parts of the reply

1. Upon my ruling that I would hear the application, the defendant indicated that he did not wish to pursue the application by reason of my “conflict of interest”.  I indicated to him that if he took this course, I would have no option but to dismiss the application.  He affirmed that this was the course he wished to take; namely, not to address any further argument, given my earlier ruling.

1. It follows that I dismiss the application by summons dated 21 December 2007.

Discovery

1. The plaintiff sought an extension of time in which to provide a further affidavit of documents.

1. The defendant opposed the plaintiff’s application on the basis that the plaintiff had had sufficient time in which to arrange and provide its documents.  The basis for seeking that extension of time is set out in paragraphs 10-11 of an affidavit sworn by Mr Dewar on behalf of the plaintiff.[12]  The Court of Appeal had previously ordered that the parties provide affidavits of documents by 21 January 2008.  In my view, given (a) the matters adverted to in that affidavit, (b) the continuing obligation upon the defendant, in any event, to provide ongoing discovery, (c) the fact that the hearing of this proceeding is many months away, (d) that the extension is only for a short period of time - it is appropriate to grant a further extension to the plaintiff to file a further affidavit of documents.

   [12]Sworn 11 January 2008.

One other issue

1. When the hearing of this matter resumed at 1.00 p.m., the defendant did not appear.  The Court awaited his return.  Shortly before 1.15 p.m., I returned to the Bench and waited for the defendant to reappear.  I inquired of Mr Shepherd, who appeared for the plaintiff, as to the background surrounding the referral of the matter to me by Master Mahoney.  He provided me with some information concerning the litigation generally.  He told me that it was an application by the defendant to strike out parts of the reply and told me why it had been referred to me by Master Mahoney.

1. Shortly prior to 1.20 p.m., the defendant appeared.  I advised him of those matters of which I had been appraised by Mr Shepherd.  I advised him, in particular, that no argument concerning his application nor reference to any of the materials had been engaged in.  Rather, I had been appraised as to the facts concerning the referral of the matter to me at a time when the Court should have been hearing his application.

Orders

1.        That the application by the defendant that I disqualify myself from hearing the defendant’s summons dated 21 December 2007 be dismissed.

2.        That the defendant’s summons dated 21 December 2007 be dismissed.

3.        That the time for any application for leave to appeal be deemed to commence from the date upon which my reasons for dismissing the application and the summons are provided to the parties.

4.        That the time for the parties to provide further supplementary affidavits of documents be extended to 4.00 p.m. on 15 February 2008.

5.        That the time of inspection of such documents be extended to 4.00 p.m. on 28 February 2008.

6.        That the defendant pay the plaintiff’s costs of the summons dated 21 December 2007.