Crackin' Snack Pty. Ltd. v Gameking Australia Pty Ltd

[2024] NSWDC 50

District Court

New South Wales

Medium Neutral Citation:

CRACKIN' SNACK PTY. LTD. v GAMEKING AUSTRALIA PTY LTD [2024] NSWDC 50

Hearing dates:

13 February 2024

Date of orders:

13 February 2024

Decision date:

13 February 2024

Jurisdiction:

Civil

Before:

Dicker SC DCJ

Decision:

(1) The Notice of Motion filed 7 February 2024 is dismissed.

(2) The plaintiffs are to pay the defendants’ costs of the Notice of Motion as agreed or assessed,

(3) The hearing date before Gibb DCJ of the Notices of Motion filed 3 November 2023 and 24 January 2024 of 26 February 2024 is confirmed.

Catchwords:

PRACTICE AND PROCEDURE – stay – whether notices of motion including one to vary a costs order should be stayed due to allegation of bias against the trial judge – desirability of costs order being determined by the trial judge rather than Court of Appeal

Legislation Cited:

Uniform Civil Procedure Rules2005 (NSW)

Category:

Procedural rulings

Parties:

Crackin' Snack Pty. Ltd. (First Plaintiff)
Simon Hall (Second Plaintiff)
Gameking Australia Pty Ltd (First Defendant)
Darren John Brown (Second Defendant)
Linda Sharon Brown (Third Defendant)

Representation:

Counsel:
Mr E Young (First, Second and Third Defendants)

Solicitors:
Mr S J Hall (Director) (with leave) (First Plaintiff)
In Person (Second Plaintiff)
MC Lawyers (First, Second and Third Defendants)

File Number(s):

2022/00089782

Publication restriction:

No

JUDGMENT

1. Before the Court is a Notice of Motion filed on 7 February 2024 by the plaintiffs seeking in substance a stay of two Notices of Motion filed by the defendants on 3 November 2023 and 24 January 2024 until an appeal by the plaintiffs to the Court of Appeal, which has been filed, is finalised.  The Notice of Appeal to the Court of Appeal is not before me, but I am informed by Mr Hall, who is the second plaintiff and counsel for the defendants, Mr Young, that the issue of bias has been raised by the plaintiffs in their appeal to the Court of Appeal being alleged bias of the trial judge, her Honour Gibb DCJ.

2. Although it is not entirely clear whether the bias is actual bias alleged by the plaintiffs or apprehended bias, I do not think that the difference is crucial in relation to my determination of the matter today.

3. The only evidence read is the affidavit of Simon John Hall dated 6 February 2024.  Mr Hall is the sole director and secretary of the first plaintiff and is the second plaintiff.

4. In essence, the background to this matter is that her Honour Gibb DCJ handed down detailed reasons for decision in relation to her determination at the final hearing on 20 October 2023.  Order 4 made by her Honour on that day is as follows:  “I make no order in respect of costs with the intention that costs lie as they fall.”  Her Honour then, in order 5, made the following order:  “Each party has 14 days to apply for a variation of my costs order in accordance with Uniform Civil Procedure Rules 36.16(3A).”

5. Consistently with order 5, the defendants filed the Notice of Motion on 3 November 2023 seeking a variation of the costs order made by her Honour.  A further Notice of Motion was filed on 24 January 2024 seeking that certain categories in a Notice to Produce for inspection issued on behalf of the plaintiffs be set aside.

6. The two Notices of Motion dated 3 November 2023 and 24 January 2024 are listed to be heard by Gibb DCJ on 26 February 2024.

7. The matter came before me on 21 November 2023 in relation to the Notice of Motion filed on 3 November 2023, and I referred the matter to Waugh DCJ who formed the view that the application should be heard by the trial judge, Gibb DCJ.

8. Mr Hall submits that the two motions should be stayed, effectively avoiding the need for her Honour to determine the two Notices of Motion.  He submits in summary as follows: 

1. The plaintiffs raise the issue of bias in their Notice of Appeal;

2. At any hearing of the Notices of Motion, it would be incumbent upon the plaintiffs to raise the issue of bias to avoid her Honour continuing to hear the matter;

3. Her Honour would therefore need to deal with and determine the question of bias;

4. Her Honour would then hear the first motion dealing with the variation of costs;

5. depending on the result, and if it was unfavourable, as perceived by the plaintiffs, the plaintiffs would need to add those matters potentially to their Notice of Appeal.

9. Mr Hall submits that the clear awkwardness of her Honour having to deal with the bias application on this costs issue could be avoided by staying the two motions, and therefore, they could either be determined by the Court of Appeal itself, as is suggested in an email as an alternate by the acting associate to her Honour, Mr Mok, or, depending on the Court of Appeal's findings, the Court of appeal could send the matter back to either her Honour or to another judge to determine the costs application.

10. Mr Hall submits that considerable time and effort would be saved because the hearings would not proceed before her Honour, and they may not necessarily need to be determined, depending on the results, or the Court of Appeal could do it itself, or it could be delayed and sent back.

11. In substance, Mr Hall says that he is undertaking the legal work for the plaintiffs, including on the appeal, and this is yet another difficulty that the plaintiffs would need to deal with, thereby diverting him and the plaintiffs’ resources from the appeal, with him having to raise the issue of bias which is an awkward and difficult matter to raise and have her Honour determine.

12. Mr Hall submits that looking at the various factors that, on balance, they are in favour of the discretion being exercise by me to stay the Motion, and the defendants are not really disadvantaged because at some stage, they can have their opportunity to argue the question of the appropriate costs order in their first motion.

13. Mr Young, who appears on behalf of the defendants, submits in general summary as follows: 

1. That the normal, orthodox approach is that the trial judge should determine all issues as to costs;

2. In this case, it raises complex factual and legal matters, as reflected in her Honour's judgment, and her Honour is clearly the best person to deal with the matter while it is fresher in her mind;

3. That would then result in a more simple case being forwarded to the Court of Appeal to be determined;

4. In any case, the Court of Appeal is less likely to decide to determine the costs matter itself and would likely, depending on the result, send it back to this Court to determine, possibly by her Honour;

5. To make the orders sought by Mr Hall would delay the matter, have it determined when the factual issues are less fresh in the mind, and is a more unorthodox approach.

14. Although I do not have the Notice of Appeal before me, I proceed on the basis that the bias allegation is at least arguable.  Mr Young submitted that it was spurious, but I simply do not have material before me to form a view on that.

15. Secondly, judges, from time to time, do have bias applications before them, usually for apprehended bias, made in relation to their conduct of the hearings, and appellate authorities say that, in general terms, they have to be dealt with in a proper and robust fashion, and trial judges should not shirk from determinations because of the awkwardness of the situation.  Some cases clearly would result in a judge recusing themselves.  For example, if they were friends with or related to a party or had shares in a party other than a major public listed company.  However, generally speaking, judges have to face up to those issues.

16. Thirdly, I accept the submission of Mr Young that in general terms, it is more desirable for a trial judge to deal with the matter of costs to avoid the complexity and the possibility of an appeal court having to deal with it.

17. I think there is some force in Mr Hall's submission that this case is a little more unusual because of the bias issue.

18. Having heard the submissions from the parties, and balancing up the various factors, and having taken into account the correspondence between the parties annexed to Mr Hall's affidavit, in my view, this is a close application.  However, in the end, I am not persuaded that it is appropriate to stay the matter.  In my view, the desirability of having a trial judge determine all matters, particularly where the trial judge has specifically left open an opportunity to apply, is a significant consideration.  In my view, it avoids the issue to put it off either to the Court of Appeal or to potentially another judge.

19. I accept that the plaintiffs will likely have to raise the issue of bias with her Honour, but these are matters which may need to be raised.  I accept that there is some initial attraction in putting the matter off, but in my view, these matters need to be faced up to and determined, and on balance, it is more favourable, even though there is the awkward question of bias, for her Honour to determine it.

20. In those circumstances, the order I propose is that:

21. In relation to the Notice of Motion filed on 7 February 2024: 

22. (1) the Notice of Motion filed 7 February 2024 is dismissed.

23. [His Honour then dealt with the question of costs and made final orders.]

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Decision last updated: 01 March 2024