Damjanovic v Sharpe Hume & Co - [2001] NSWCA 407

CITATION: Damjanovic v Sharpe Hume & Co; Damjanovic v Yorke Agencies; Damjanovic v Rosier; Damjanovic v Spehar [2001] NSWCA 407

FILE NUMBER(S): CA 40719/00; 40720/00; 40721/00; 40722/00; 40723/00

HEARING DATE(S): 9 October 2001, 5 November 2001

JUDGMENT DATE:
23 November 2001

PARTIES :

Mojmir Damjanovic v Sharpe Hume & Co
Mojmir Damjanovic v Yorke Agencies
Mojmir Damjanovic v Peter William Rosier & Ors
Mojmir Damjanovic v Zelka Spehar
Mojmir Damjanovic v Ivan Spehar

JUDGMENT OF: Mason P at 1; Sheller JA at 1; Rolfe AJA at 1

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : DC2409/00; DC2410/00; DC5930/99; DC4293/00

LOWER COURT
JUDICIAL OFFICER : Gibb DCJ

COUNSEL: Appellant - In Person with Ms Vukic Assisting
Respondent - M J Cohen for 1st, 2nd and 3rd Respondents
Zelka and Ivan Spehar in Person

SOLICITORS: Appellant - In Person
1st-3rd Respondents - Sharpe Partners Legal

CATCHWORDS: APPREHENDED BIAS BY REASON OF PRE-JUDGMENT AND OTHER CONDUCT - OBLIGATIONS OF THE COURT IN CONDUCTING TRIALS - CHARACTERISATION OF EVIDENCE OF LIES - COSTS

LEGISLATION CITED: District Court Act 1973

CASES CITED:
Ex parte Schofield; re Austin (1953) 53 SR (NSW) 163
Reg v Watson ex parte Armstrong (1976) 136 CLR 248
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Vakauta v Kelly (1989) 167 CLR 568
Australian National Industries Limited v Spedley Securities Limited (in liquidation) & Ors (1992) 26 NSWLR 411
Abraham v National Australia Bank Limited (C/A 1/5/97 unrep)
Webb v The Queen (1994) 181 CLR 41
Johnson v Johnson (2000) 201 CLR 488
Toner v Attorney General for New South Wales (C/A 19/11/91 unrep)
Hunter v Webb (FC 19/7/86 unrep)
Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256
Merrylands Bowling, Sporting & Recreation Club v P & H Property Services (2001) NSWCA 358

DECISION: (1) Set aside orders of Gibb DCJ answering separate questions, dismissing the plaintiff 's statement of claim, and ordering the plaintiff to pay the defendant's/defendants' costs and disbursements on an indemnity basis; (2) Without prejudice to any fresh application for summary dismissal, order that there be a new trial before a judge other than Gibb DCJ; (3) Respondent(s) to pay appellant's costs of the first trial and of the appeal and to have a certificate under the Suitors Fund Act

40722/00 40723/00 40719/00 40720/00 40721/00
3930/99 2408/00 2409/00 2410/00 4293/00 4448/00

MASON P
SHELLER JA
ROLFE AJA

23 November 2001

Mojmir Damjanovic v Zelka Spehar & Ors

APPREHENDED BIAS BY REASON OF PRE-JUDGMENT AND OTHER CONDUCT
ex parte Schofield; re Austin

(1953) 53 SR (NSW) 163

Reg v Watson ex parte Armstrong

(1976) 136 CLR 248

Livesey v New South Wales Bar Association

(1983) 151 CLR 288

Vakauta v Kelly

(1989) 167 CLR 568

Australian National Industries Limited v Spedley Securities Limited
(in liquidation) & Ors

(1992) 26 NSWLR 411

Abram v National Australia Bank Limited

(Court of Appeal -

1/5/1997 – unreported)

Webb v The Queen

(1994) 181 CLR 41

Johnson v Johnson

(2000) 201…

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: [2001] NSWCA 407
Decision Date: 23 November 2001

CaseChat Overview and Summary

The plaintiff, Damjanovic, appealed to the Court of Appeal of New South Wales against orders made by Gibb DCJ in the District Court. The dispute concerned the plaintiff's statement of claim, which had been dismissed by the primary judge, who also ordered the plaintiff to pay the defendant's costs on an indemnity basis.

The central legal issues before the Court of Appeal were whether the primary judge had demonstrated apprehended bias by reason of pre-judgment and other conduct during the trial, and how evidence of lies should be characterised in the context of such a trial. The court was required to consider the obligations of a judge in conducting trials and the implications of the primary judge's conduct on the fairness of the proceedings.

The Court of Appeal found that the primary judge's conduct had indeed given rise to a reasonable apprehension of bias. The court reasoned that the judge's interventions and pronouncements during the trial indicated a pre-judgment of the case, which undermined the appearance of impartiality. This conduct, particularly in relation to the characterisation of evidence of lies, led the court to conclude that the trial had not been conducted fairly. Consequently, the court set aside the orders of the primary judge and ordered a new trial before a different judge. The respondents were ordered to pay the appellant's costs of the first trial and the appeal, with a certificate under the Suitors Fund Act.

Orders

Orders of the court

(1) Set aside orders of Gibb DCJ answering separate questions, dismissing the plaintiff 's statement of claim, and ordering the plaintiff to pay the defendant's/defendants' costs and disbursements on an indemnity basis; (2) Without prejudice to any fresh application for summary dismissal, order that there be a new trial before a judge other than Gibb DCJ; (3) Respondent(s) to pay appellant's costs of the first trial and of the appeal and to have a certificate under the Suitors Fund Act

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Damjanovic v Sharpe Hume & Co; Damjanovic v Yorke Agencies; Damjanovic v Rosier; Damjanovic v Spehar [2001] NSWCA 407
FILE NUMBER(S):	CA 40719/00; 40720/00; 40721/00; 40722/00; 40723/00
HEARING DATE(S):	9 October 2001, 5 November 2001
JUDGMENT DATE:	23 November 2001
PARTIES :	Mojmir Damjanovic v Sharpe Hume & Co Mojmir Damjanovic v Yorke Agencies Mojmir Damjanovic v Peter William Rosier & Ors Mojmir Damjanovic v Zelka Spehar Mojmir Damjanovic v Ivan Spehar
JUDGMENT OF:	Mason P at 1; Sheller JA at 1; Rolfe AJA at 1

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC2409/00; DC2410/00; DC5930/99; DC4293/00
LOWER COURT JUDICIAL OFFICER :	Gibb DCJ

COUNSEL:	Appellant - In Person with Ms Vukic Assisting Respondent - M J Cohen for 1st, 2nd and 3rd Respondents Zelka and Ivan Spehar in Person
SOLICITORS:	Appellant - In Person 1st-3rd Respondents - Sharpe Partners Legal
CATCHWORDS:	APPREHENDED BIAS BY REASON OF PRE-JUDGMENT AND OTHER CONDUCT - OBLIGATIONS OF THE COURT IN CONDUCTING TRIALS - CHARACTERISATION OF EVIDENCE OF LIES - COSTS
LEGISLATION CITED:	District Court Act 1973
CASES CITED:	Ex parte Schofield; re Austin (1953) 53 SR (NSW) 163 Reg v Watson ex parte Armstrong (1976) 136 CLR 248 Livesey v New South Wales Bar Association (1983) 151 CLR 288 Vakauta v Kelly (1989) 167 CLR 568 Australian National Industries Limited v Spedley Securities Limited (in liquidation) & Ors (1992) 26 NSWLR 411 Abraham v National Australia Bank Limited (C/A 1/5/97 unrep) Webb v The Queen (1994) 181 CLR 41 Johnson v Johnson (2000) 201 CLR 488 Toner v Attorney General for New South Wales (C/A 19/11/91 unrep) Hunter v Webb (FC 19/7/86 unrep) Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 Merrylands Bowling, Sporting & Recreation Club v P & H Property Services (2001) NSWCA 358
DECISION:	(1) Set aside orders of Gibb DCJ answering separate questions, dismissing the plaintiff 's statement of claim, and ordering the plaintiff to pay the defendant's/defendants' costs and disbursements on an indemnity basis; (2) Without prejudice to any fresh application for summary dismissal, order that there be a new trial before a judge other than Gibb DCJ; (3) Respondent(s) to pay appellant's costs of the first trial and of the appeal and to have a certificate under the Suitors Fund Act