FEDERAL COURT OF AUSTRALIA
Dunlop v Fishburn (No. 2) [2012] FCA 314
Citation: Dunlop v Fishburn (No. 2) [2012] FCA 314 Appeal from: Fishburn v Dunlop [2009] FMCA 1331 Parties: JAMES HENRY DUNLOP v MICHAEL GEORGE FISHBURN, JOHN JAMES WATSON, CHRISTOPHER MARTIN O'BRIEN, SAMUEL BOYD COUPER AND MORGAN JAMES CHUBB AS TRUSTEE OF THE BANKRUPT ESTATE OF JAMES HENRY DUNLOP File number(s): NSD 1686 of 2011 Judges: KATZMANN J Date of judgment: 27 March 2012 Catchwords: PRACTICE AND PROCEDURE – Application for disqualification – association or interest – judge and two of the parties attended the same university over thirty years earlier – no reasonable apprehension of bias – waiver – whether hearing should be postponed Legislation: Federal Court of Australia Act 1976 (Cth)
Federal Court Rules 2011 (Cth) r 4.03Cases cited: Aussie Airlines Pty Limited v Australian Airlines Pty Ltd (1996) 65 FCR 215
Australian Competition and Consumer Commission v Samton Holdings Pty Ltd [2000] FCA 1201
Cirillo v Consolidated Press Property Pty Ltd (formerly known as Citicorp Australia Ltd) (2007) 245 ALR 374
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Edwards v Santos Ltd (No 3) [2011] FCA 886
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Michael Wilson & Partners Ltd v Nicholls (2011) 282 ALR 685
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507
R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte (No. 2) [2000] 1 AC 119
Re JRL; Ex parte CJL (1986) 161 CLR 342
Vakauta v Kelly (1989) 167 CLR 568
Webb v The Queen (1994) 181 CLR 41Place: Sydney Division: Error! Reference source not found. Category: Catchwords Number of paragraphs: 30 Solicitor for the Applicant: The applicant did not appear Solicitor for the Respondents: Mr S Campbell of Fishburn Watson O'Brien Solicitor for the Fifth Respondent: The fifth respondent appeared in person
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1686 of 2011
BETWEEN: JAMES HENRY DUNLOP
ApplicantAND: MICHAEL GEORGE FISHBURN
First RespondentJOHN JAMES WATSON
Second RespondentCHRISTOPHER MARTIN O'BRIEN
Third RespondentSAMUEL BOYD COUPER
Fourth RespondentMORGAN JAMES CHUBB AS TRUSTEE OF THE BANKRUPT ESTATE OF JAMES HENRY DUNLOP
Fifth Respondent
JUDGE:
KATZMANN J
DATE:
27 MARCH 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
(revised from transcript)
The applicant, Mr Dunlop, has applied for an extension of time to seek leave to appeal from a sequestration order made by a federal magistrate on 10 November 2009. The first three respondents are partners in a law firm that previously acted for Mr Dunlop in litigation in the NSW Land and Environment Court and to whom Mr Dunlop remains indebted. They were the petitioning creditors. The remaining respondent, Mr Chubb, is the trustee of Mr Dunlop’s bankrupt estate.
The application is listed for hearing today. Mr Dunlop objected to me hearing it and wrote a letter to the Court requesting me to recuse myself. I asked the Registry to advise him that I…
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Details
- AGLC
- Dunlop v Fishburn (No. 2) [2012] FCA 314
- Case
- [2012] FCA 314
- Decision Date
CaseChat Overview and Summary
In Dunlop v Fishburn (No. 2), the application involves the objection raised by Mr Dunlop to the judge's hearing of the matter, on the basis that the judge had attended the same university as one of the parties over thirty years prior. The case was before the Federal Court of Australia. The central issue before the court was whether the judge's prior association with one of the parties could give rise to a reasonable apprehension of bias, warranting the judge's disqualification from hearing the case. Additionally, the court had to determine if the hearing should be postponed due to the applicant's unavailability of a key witness.
The court considered the nature and extent of the judge's prior association with the party, Mr Fishburn, noting that the relationship was over three decades old and had only involved incidental encounters. The judge assessed the possibility of bias and concluded that there was no reasonable apprehension of bias given the distant and minimal nature of their connection. Furthermore, the court acknowledged the waiver of any potential bias concern by the other parties, including the applicant, who did not object to the judge's participation. Consequently, the court dismissed the application for disqualification and determined that there were no grounds for postponing the hearing.
In light of the findings, the court maintained that the hearing would proceed as scheduled, with no requirement for the judge to recuse themselves from the case. The court's decision underscored the importance of impartiality and the minimal threshold required to establish a reasonable apprehension of bias in judicial proceedings. The court's ruling reflected a balanced approach, considering both the principles of judicial independence and the practicalities of case management.
The final orders of the court were that the application for the judge's disqualification was dismissed, and the hearing would proceed as planned without any postponement.
The court considered the nature and extent of the judge's prior association with the party, Mr Fishburn, noting that the relationship was over three decades old and had only involved incidental encounters. The judge assessed the possibility of bias and concluded that there was no reasonable apprehension of bias given the distant and minimal nature of their connection. Furthermore, the court acknowledged the waiver of any potential bias concern by the other parties, including the applicant, who did not object to the judge's participation. Consequently, the court dismissed the application for disqualification and determined that there were no grounds for postponing the hearing.
In light of the findings, the court maintained that the hearing would proceed as scheduled, with no requirement for the judge to recuse themselves from the case. The court's decision underscored the importance of impartiality and the minimal threshold required to establish a reasonable apprehension of bias in judicial proceedings. The court's ruling reflected a balanced approach, considering both the principles of judicial independence and the practicalities of case management.
The final orders of the court were that the application for the judge's disqualification was dismissed, and the hearing would proceed as planned without any postponement.
Orders
Orders of the court
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Background
Background to the litigation
The application is listed for hearing today. Mr Dunlop objected to me hearing it and wrote a letter to the Court requesting me to recuse myself. I asked the Registry to advise him that I would not be acceding to his request. My reasons follow.Background The application for extension of time was filed on 30 September 2011, nearly two years after the sequestration order was made. Soon after it was filed, Mr Dunlop also sought a stay of a writ of possession over certain land he owned, a writ which had been issued some four months earlier. That matter was listed before me for first directions on 14 October 2011. I indicated at the time that I was not disposed to grant the stay but offered to hear the application for extension of time together with the stay application on 19 October 2011. This seemed the sensible course. If the application for extension of time failed, the stay application would fall with it. If it succeeded, the stay application could then be considered. On 19 October 2011 I raised with the parties the fact that I had realised the previous day that I knew the first respondent, Mr Fishburn. I informed the parties that:1.I was at university with Mr Fishburn;2.I would not have seen him more than a handful of times over 30 plus years since and then only by chance encounter in a courtroom;3.I did not think that would cause any problem at all, noting that Mr Fishburn had not sworn an affidavit in the proceeding. I said I did not know Stephen Campbell, also a solicitor in the firm, who was representing the petitioning creditors in the proceeding and who had sworn an affidavit in the Federal Magistrates Court (which I was later told neither he nor the trustee intended to read in this Court). It turned out that Mr Campbell was a year behind me and Mr Fishburn at university and remembered me but said that our paths had not crossed since and we had probably not exchanged words at university. I did not recognise him. Mr Campbell reminded me that Mr Watson, another of the petitioning creditors, was also in my year at university. I should point out that I left university 33 years ago. I invited Ms Tangsilsat, a solicitor who was then acting for Mr Dunlop, to seek instructions. She informed me that she did not object to me hearing the case. Neither did the other parties. At this point Ms Tangsilsat sought an adjournment of the application for extension of time, saying she had a witness, upon whose evidence she wished to rely (although he had not sworn an affidavit) who was unavailable. I granted the adjournment. I then proceeded to hear the stay application, and stood the application for extension of time over to a date to be fixed. Two days later I dismissed the stay application: Dunlop v Fishburn [2011] FCA 1194. At the same time I made orders for the filing and service of any further evidence in support of the application for an extension of time, anticipating that any hearing would take place in early December. (The delay was brought about by Ms Tangsilsat’s impending trip to Thailand.) In the meantime I was notified that a hearing could not take place then and more time would be required because Mr Dunlop was unwell.
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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