Dye v Commonwealth Securities Ltd (No 4)

Case [2010] FCA 910

FEDERAL COURT OF AUSTRALIA

Dye v Commonwealth Securities Limited (No 4) [2010] FCA 910

Citation: Dye v Commonwealth Securities Limited (No 4) [2010] FCA 910
Parties: VIVIENNE LOUISE DYE v COMMONWEALTH SECURITIES LIMITED
File number: NSD 1165 of 2008
Judges: KATZMANN J
Date of judgment: 23 August 2010
Catchwords: COURTS AND JUDGES – bias – apprehended bias – prejudgment - whether a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment – whether prejudgment of issues or credit in an interlocutory judgment – whether reasonable apprehension of bias even if no clear findings of fact or on credit made in an interlocutory judgment - recusal
Cases cited:

Antoun v R [2006] HCA 2, 224 ALR 51 distinguished

Australian National Industries Ltd v Spedley Securities Ltd (In Liq) (1992) 26 NSWLR 411 cited

Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2009] FCAFC 8, 174 FCR 175 applied

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55, 229 CLR 577 applied

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

Johnson v Johnson [2000] HCA 48, 201 CLR 488 cited

JRL, Re; ex parte CJL (1986) 161 CLR 342 cited

Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 cited

Lee v Cha [2008] NSWCA 13 cited

Livesey v NSW Bar Association (1983) 151 CLR 288 applied

R v Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546 cited

R v Watson; ex parte Armstrong (1976) 136 CLR 248 cited

Southern Equities Corporation Ltd (in liq) v Bond [2000] SASC 450, 78 SASR 339 cited
Date of hearing: 5 August 2010
Date of last submissions: 9 August 2010
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 101
Counsel for the Applicant: Mr P E King
Solicitor for the Applicant: Turner Freeman
Counsel for the Respondent: Ms K Eastman
Solicitor for the Applicant: Freehills

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1165 of 2008
BETWEEN:

VIVIENNE LOUISE DYE
Applicant
AND:

COMMONWEALTH SECURITIES LIMITED
Respondent

JUDGE:

KATZMANN J

DATE OF ORDER:

23 AUGUST 2010

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The proceeding be referred to the NSW District Registry for reassignment to another judge of the Court.

2.Costs be reserved.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1165 of 2008
BETWEEN:

VIVIENNE LOUISE DYE
Applicant
AND:

COMMONWEALTH SECURITIES LIMITED
Respondent

JUDGE:

KATZMANN J

DATE:

23 AUGUST 2010

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. On 9 July 2010 I delivered judgment on a motion filed by the applicant for leave to amend her statement of claim:  Dye v Commonwealth Securities Limited [2010] FCA 720.  The statement of claim pleads several…

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AGLC
Dye v Commonwealth Securities Ltd (No 4) [2010] FCA 910
Case
[2010] FCA 910
Decision Date

CaseChat Overview and Summary

In Dye v Commonwealth Securities Ltd (No 4), the applicant sought to disqualify the judge from continuing to hear the matter on the basis of apprehended bias. The case was before the Federal Court of Australia. The applicant argued that the judge's prior comments and findings in a previous interlocutory judgment created a reasonable apprehension of prejudgment and bias. The applicant submitted that the judge referred to documents that were not in evidence and made findings of fact on issues that would be contested at the trial.

The court considered whether the judge's comments and findings in the interlocutory judgment could lead a fair-minded observer to apprehend bias, even if there were no clear findings of fact or on credit. The court noted that the issue of bias in interlocutory judgments is a difficult one, and if there is any real possibility of a reasonable apprehension of prejudgment or bias, the judge should recuse themselves. The court found that the submissions regarding the use of the female pronoun and references to documents outside of evidence were without merit. The court also found that the references to findings of fact were not made on issues that would be contested at the trial.

The court concluded that there was no reasonable apprehension of bias and that the judge should not recuse themselves. The judge, however, decided to recuse themselves as a matter of prudence, given the difficulty of the issue and the importance of maintaining public confidence in the administration of justice. The court ordered that the matter be referred to the NSW District Registry for reassignment to another judge and that the question of costs be reserved.

Orders

Orders of the court

1. The proceeding be referred to the NSW District Registry for reassignment to another judge of the Court.

2. Costs be reserved.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

I will deal first with the unmeritorious points.Referring extensively to evidence favourable to the respondent In his written submissions counsel for the applicant, Mr King, put an argument (which was not developed orally) in these terms:Further at [199] the Court referred extensively to evidence favourable to the Respondent with an interpretation that favoured its case but failed to have regard to the critical document, discovered late by the Respondent, and after the Applicant’s case had closed. Further the continuous perjorative [sic] contextual use of the word “she” throughout the Reasons with reference to the applicant is a further example of the relevant appearance. The argument is difficult to understand. For a start, how could the applicant’s case have closed when it had not even opened? If the reference related to the case on the amendment application, the argument does not get any clearer. Perhaps the submission was directed at another paragraph, although Mr King did not suggest so in oral submissions, as it is manifestly a completely inaccurate characterisation of paragraph 199. I will deal with the two points separately. Paragraph [199] reads:To understand the claim and the resistance to it, it is necessary to refer to some of the documents upon which the claim is based. I note, however, that few of them found their way into evidence. Most were provided in a folder entitled “Applicant’s submissions” filed on 23 February 2010. Nevertheless, although not strictly before me, counsel for the respondent makes reference to some of them in her submissions, not taking the point that they were not in evidence. Accordingly, for the purpose of dealing fully with the applicant’s proposal, I have had regard to them. I then proceeded to describe the substance of the documents. All I am able to deduce is that the submission is misconceived. Counsel did not identify the “critical document” which I am said to have failed to have considered and the significance of which I apparently failed to appreciate. If anything, the approach I took of having regard to documents to which the applicant referred in her submissions but failed to put into evidence, appears favourable to her, not the respondent. Use of the female pronoun The proposition that the use of the female pronoun can carry any pejorative connotation is frankly preposterous. Making “other findings of fact on issues in the matter at trial” The applicant also submitted that I made findings of fact (other than credit) on questions that will be at issue in the trial of this proceeding. In his written submissions Mr King put that these findings include “the interpretation of contentious documents created by the Respondent on issues for trial [made in isolation without the advantage of hearing the whole of the evidence]”. I do not know what to make of this submission in the absence of any specific examples from my reasons and Mr King failed to elaborate on this submission orally. She then goes on to rely on short extracts from five more paragraphs of my reasons, although, again, with no further explanation of how they support her submission. I will deal with each in turn.

Decision

Reasons for decision

As the High Court said in Livesey at 294-5:In a case such as the present where there is no allegation of actual bias, the question whether a judge who is confident of his own ability to determine the case before him fairly and impartially on the evidence should refrain from sitting because of a suggestion that the views which he has expressed in his judgment in some previous case may result in an appearance of pre-judgment can be a difficult one involving matters “of degree and particular circumstances may strike different minds in different ways” (per Aickin J in Shaw). If a judge at first instance considers that there is any real possibility that his participation in a case might lead to a reasonable apprehension of pre-judgment or bias, he should, of course, refrain from sitting. (Footnote omitted.) Conclusion I therefore recuse myself from the further hearing of the proceeding. I order that the proceeding be referred to the NSW District Registry for reassignment to another judge of the Court. The question of costs should be reserved.

Ratio Decidendi

Legal Principle Established

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