Do v Kolsumdet Pty Ltd

Case [2023] FCA 592


FEDERAL COURT OF AUSTRALIA

Do v Kolsumdet Pty Ltd [2023] FCA 592

File number: NSD 1355 of 2021
Judgment of: BROMWICH J
Date of judgment: 2 June 2023
Date of publication of reasons: 6 June 2023
Catchwords: PRACTICE AND PROCEDURE – application for recusal – application made in relation to hearing of defamation proceedings where applicants seeking for proceedings to be reallocated to another judge of the Federal Court of Australia – principles on recusal – held: application dismissed with applicants to pay respondents’ costs
Cases cited:

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337

Johnson v Johnson [2000] HCA 48; 201 CLR 488

Division: General Division
Registry: New South Wales
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 19
Date of hearing: 2 June 2023
Counsel for the First, Second and Third Applicants: Mr R Rasmussen
Solicitor for the First, Second and Third Applicants: O’Brien Criminal and Civil Solicitors
Counsel for the First, Third, Fourth, Fifth and Sixth Respondents: Mr C Parkin
Solicitor for the First, Third, Fourth, Fifth and Sixth Respondents: State Law Group
Counsel for the Second Respondent: Ms J E McKenzie
Solicitor for the Second Respondent: Hammond Nguyen Turnbull

ORDERS

NSD 1355 of 2021
BETWEEN:

JENNIFER DO

First Applicant

BELINDA NGUYEN

Second Applicant

JULIE NGUYEN

Third Applicant

AND:

KOLSUMDET PTY LTD ACN 150 631 333 TRADING AS SILVER PEARL (DAI LAM SON) SEAFOOD RESTAURANT

First Respondent

BAILEY WANG

Second Respondent

LIAN CHAISUMDET (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

BROMWICH J

DATE OF ORDER:

2 JUNE 2023

THE COURT ORDERS THAT:

1.Paragraph 1 of the interlocutory application filed by the applicants and dated 19 May 2023 be dismissed.

2.The applicants pay the respondents’ costs of and incidental to that application.

3.Order 1 of the orders made by Justice Bromwich on 6 April 2023 (Orders) be varied for the applicants to file a reply to the second respondent’s defence to the further amended statement of claim by 4.00 pm on 7 June 2023, limited to answering any defences of honest opinion.

4.Any submission on the stance of a party in relation to transfer of this proceeding to Division 2 of the Federal Circuit and Family Court of Australia, pursuant to s 32AB of the Federal Court of Australia Act 1976 (Cth) and r 27.01(1) of the Federal Court Rules 2011 (Cth), limited to 3 pages, be emailed to the associate to Justice Bromwich by 4.00 pm on 13 June 2023, or such further time as may be allowed.

5.Order 3 of the Orders be varied for each party to file and serve the outlines of evidence of witnesses on which they bear the onus by 4.00 pm on 31 July 2023.

6.Order 4 of the Orders be varied for each party to file and serve the outlines of evidence of witnesses in reply by 4.00 pm on 1 September 2023.

7.Any interlocutory application seeking orders for discovery or interrogatories be filed and served by…

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AGLC
Do v Kolsumdet Pty Ltd [2023] FCA 592
Case
[2023] FCA 592
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the applicants, Do, sought to have the proceedings against Kolsumdet Pty Ltd reallocated to another judge on the basis of alleged bias. The applicants were pursuing a defamation claim against the respondents, who were the publishers of a blog post that the applicants claimed was defamatory. The applicants' application for recusal was dismissed, and they were ordered to pay the respondents' costs.

The applicants argued that the judge, Justice Bromwich, was biased due to comments he had made in a previous case that was linked to this matter. They sought for the proceedings to be transferred to another judge of the Federal Court of Australia. The respondents countered that the application was an abuse of process and that the judge was not biased. The legal issues before the court were whether the application for recusal was valid and, if so, whether the judge should recuse himself.

The court found that the application for recusal was an abuse of process and that the judge had not acted in a way that demonstrated a real possibility of bias. The court held that the comments made by Justice Bromwich in the previous case were not related to the current proceedings and did not amount to bias. The court further held that the applicants had not established any grounds for the judge to recuse himself. The application for recusal was dismissed, and the applicants were ordered to pay the respondents' costs. The court also varied some of the orders made by Justice Bromwich in relation to the filing and serving of outlines of evidence and interlocutory applications.

Orders

Orders of the court

1. Paragraph 1 of the interlocutory application filed by the applicants and dated 19 May 2023 be dismissed.

2. The applicants pay the respondents’ costs of and incidental to that application.

3. Order 1 of the orders made by Justice Bromwich on 6 April 2023 (Orders) be varied for the applicants to file a reply to the second respondent’s defence to the further amended statement of claim by 4.00 pm on 7 June 2023, limited to answering any defences of honest opinion.

4. Any submission on the stance of a party in relation to transfer of this proceeding to Division 2 of the Federal Circuit and Family Court of Australia, pursuant to s 32AB of the Federal Court of Australia Act 1976 (Cth) and r 27.01(1) of the Federal Court Rules 2011 (Cth), limited to 3 pages, be emailed to the associate to Justice Bromwich by 4.00 pm on 13 June 2023, or such further time as may be allowed.

5. Order 3 of the Orders be varied for each party to file and serve the outlines of evidence of witnesses on which they bear the onus by 4.00 pm on 31 July 2023.

6. Order 4 of the Orders be varied for each party to file and serve the outlines of evidence of witnesses in reply by 4.00 pm on 1 September 2023.

7. Any interlocutory application seeking orders for discovery or interrogatories be filed and served by no later than 4.00 pm on 15 September 2023.

8. Any application for discovery or interrogatories to be heard between 18 and 28 September 2023, on a date to be fixed in consultation with the parties.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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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