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 2001PARTIES :
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 SpeharJUDGMENT 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 PersonSOLICITORS: Appellant - In Person
1st-3rd Respondents - Sharpe Partners LegalCATCHWORDS: 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 358DECISION: (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
3930/99 2408/00 2409/00 2410/00 4293/00 4448/0040722/00 40723/00 40719/00 40720/00 40721/00
MASON P
SHELLER JA
ROLFE AJA
23 November 2001
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
Livesey v New South Wales Bar Association
Vakauta v Kelly
Australian National Industries Limited v Spedley Securities Limited
(in liquidation) & Ors
Abram v National Australia Bank Limited
(Court of Appeal -
1/5/1997 – unreported)
Webb v The Queen
Johnson v Johnson
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- Case
- [2001] NSWCA 407
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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