Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd - [2004] FCA 483

FEDERAL COURT OF AUSTRALIA
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd
[2004] FCA 483
PRACTICE and PROCEDURE – whether trial judge should disqualify himself from further hearing of proceedings on ground of apprehended bias – that course opposed by applicant – final hearing of proceedings already in progress for two full hearing days – application dismissed
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd and Anor [2004] FCA 169
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd and Anor [2004] FCA 293
Livesey v New South Wales Bar Association (1983) 151 CLR 288 referred to
Vakauta v Kelly (1989) 167 CLR 568 applied
Australian National Industries Ltd v Spedley Securities Ltd (1992) 26 NSWLR 411 referred to
Sankey v Whitlam (1977) 1 NSWLR 333 referred to
Johnson v Johnson (2000) 201 CLR 488 referred to
Reid v Hubbard (No 2) [2004] FCA 180 applied
Versace v Monte [2003] FCA 126 applied
Bienstein v Bienstein (2003) 195 ALR 225 applied
CONCRETE PTY LTD v PARRAMATTA DESIGN AND DEVELOPMENTS PTY LTD, GHASSAN FARES, PARRAMATTA DESIGN AND DEVELOPMENTS PTY LTD AND CONCRETE PTY LTD
N 1509 OF 2003
CONTI J
8 APRIL 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1509 OF 2003

BETWEEN:

CONCRETE PTY LTD
APPLICANT

AND:

PARRAMATTA DESIGN & DEVELOPMENTS PTY LTD
FIRST RESPONDENT

GHASSAN FARES
SECOND RESPONDENT

PARRAMATTA DESIGN & DEVELOPMENTS PTY LTD
CROSS CLAIMANT

CONCRETE PTY LTD
CROSS RESPONDENT

JUDGE:

CONTI J

DATE OF ORDER:

8 APRIL 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Application of the respondents that the presiding judge disqualify himself from the further hearing of the proceedings be dismissed.
2.The issue of costs of the application for disqualification be reserved.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1509 OF 2003

BETWEEN:

CONCRETE PTY LTD
APPLICANT

AND:

PARRAMATTA DESIGN & DEVELOPMENTS PTY LTD
FIRST RESPONDENT

GHASSAN FARES
SECOND RESPONDENT

PARRAMATTA DESIGN & DEVELOPMENTS PTY LTD
CROSS CLAIMANT

CONCRETE PTY LTD
CROSS RESPONDENT

JUDGE:

CONTI J

DATE:

8 APRIL 2004

PLACE:

SYDNEY

REASONS FOR JUDGMENT
Introduction

The hearing of the subject proceedings for final relief commenced on 1 April 2004 and continued throughout 2 April 2004, after which the proceedings were adjourned part heard for further hearing on 8 April 2004. The issue arising in the proceedings relates to the existence or otherwise of copyright in certain plans and drawings relating to a residential unit development proposed to be erected by the applicant/cross-respondent (‘applicant’) on vacant land at Nelson Bay in the State of New South Wales. The land had been earlier purchased by the applicant from trustees for sale appointed in the context of disputes between the principals of a third party corporation Toyama Pty Limited on the one hand, and the principals of Landmark Building Developments Pty Limited on the other hand, the latter being the second respondent, Mr…

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: [2004] FCA 483
Decision Date: 8 APRIL 2004

CaseChat Overview and Summary

The case of Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd involved a dispute between the parties over a claim of judicial bias. The presiding judge was asked to disqualify himself from hearing the case based on alleged bias. The legal issues that arose in this case were whether there was sufficient evidence to justify the disqualification of the judge and whether the judge should continue to preside over the case if only one party sought his removal.

The court found that there was no viable basis for disqualifying the judge from the case. The submissions made by the applicant's counsel were deemed to be correct and the submissions of the respondents' counsel did not provide a basis for the judge's disqualification. The court noted that it is important to ensure that justice is seen to be done, but it is equally important that judges fulfill their duty to sit and not encourage parties to seek the disqualification of judges to have their case heard by someone who may be more likely to decide in their favour. The court referred to several authorities to support its decision.

The court concluded that it was the duty of the judge to continue presiding over the case as long as the applicant opposed any suggestion of disqualification with apparent justification. The issue of costs for the application for disqualification was reserved for later determination. The court dismissed the application of the respondents for the judge to disqualify himself from the further hearing of the proceedings.

In summary, the court found that there was no reasonable apprehension of bias by the judge that would warrant his disqualification from the case. The court emphasized the importance of ensuring that justice is seen to be done, while also fulfilling the duty of judges to sit and not be too readily disqualified from cases. The court dismissed the application for disqualification and reserved the issue of costs for later determination.

Orders

Orders of the court

1. Application of the respondents that the presiding judge disqualify himself from the further hearing of the proceedings be dismissed.

2. The issue of costs of the application for disqualification be reserved.

Note:

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

CONTI J

It was further submitted on behalf of the applicant that observations made in relation to the solicitor Mr Costa were ‘completely out of place’, as well as irrelevant, and unsupported by any evidence; in that context, he commented, in my opinion correctly, that ‘[w]hy it should be thought that in any way that was sought to be hidden or covered up in this case is equally obscure’ and further, that ‘each of the propositions which we are called upon to answer is inaccurate and inappropriate in regard to Mr Costa and generally in regard to this application’. There is apparent substance in that further submission, unless and until something decisive of or bearing upon the issues I am required to resolve concerning any role or conduct concerning Mr Costa has been placed in evidence before me, and any consequential amendments to the pleadings duly implemented. My conclusions In my opinion, the briefly and succinctly framed submissions of senior counsel for the applicant are correct. To the extent that I have been able to comprehend the import or significance of the submissions of counsel for the respondents, I have been unable to distil any viable basis for my disqualifying myself from further presiding in these proceedings. Obviously if both parties sought my removal, I would readily stand down forthwith from any further hearing of the proceedings, but so long as the applicant opposes any such course with apparent justification, it is clearly my duty as a judicial officer to continue to preside at the present hearing of the proceedings. As I read the authorities on the subject, what has stood in the way of many judges not disqualifying themselves in contentious circumstances has been their concern that an opposing party may thereby suffer some measure of prejudice or disadvantage unfairly in the context of the litigation for the time being prevailing. Further authorities arising for consideration Some further references to authorities, in chronological sequence of reporting, is in my opinion apposite, being authorities that tend to address circumstances beyond which the principles already cited may fall for consideration. The first dictum to which I would additionally refer is to be found in re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342 at 352, where Mason J (as he then was) said:‘It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be ‘firmly established’: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at pp 553-554; Watson (1976) 136 CLR, at p 262; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12, at p 14; 32 ALR 47, at pp 50-51). Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.’

Ratio Decidendi

Legal Principle Established

Established by: CONTI J

In my opinion, the briefly and succinctly framed submissions of senior counsel for the applicant are correct. To the extent that I have been able to comprehend the import or significance of the submissions of counsel for the respondents, I have been unable to distil any viable basis for my disqualifying myself from further presiding in these proceedings. Obviously if both parties sought my removal, I would readily stand down forthwith from any further hearing of the proceedings, but so long as the applicant opposes any such course with apparent justification, it is clearly my duty as a judicial officer to continue to preside at the present hearing of the proceedings. As I read the authorities on the subject, what has stood in the way of many judges not disqualifying themselves in contentious circumstances has been their concern that an opposing party may thereby suffer some measure of prejudice or disadvantage unfairly in the context of the litigation for the time being prevailing. Further authorities arising for consideration Some further references to authorities, in chronological sequence of reporting, is in my opinion apposite, being authorities that tend to address circumstances beyond which the principles already cited may fall for consideration. The first dictum to which I would additionally refer is to be found in re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342 at 352, where Mason J (as he then was) said:‘It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be ‘firmly established’: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at pp 553-554; Watson (1976) 136 CLR, at p 262; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12, at p 14; 32 ALR 47, at pp 50-51). Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.’

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1509 OF 2003

BETWEEN:	CONCRETE PTY LTD APPLICANT
AND:	PARRAMATTA DESIGN & DEVELOPMENTS PTY LTD FIRST RESPONDENT GHASSAN FARES SECOND RESPONDENT PARRAMATTA DESIGN & DEVELOPMENTS PTY LTD CROSS CLAIMANT CONCRETE PTY LTD CROSS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	8 APRIL 2004
WHERE MADE:	SYDNEY

JUDGE:	CONTI J
DATE:	8 APRIL 2004
PLACE:	SYDNEY