Expectation Pty Ltd v PRD Realty Pty Ltd (No. 2) - [2006] FCA 392

FEDERAL COURT OF AUSTRALIA
Expectation Pty Ltd v PRD Realty Pty Ltd & Anor (No. 2) [2006] FCA 392
PRACTICE AND PROCEDURE – application to adjourn the trial of an action on the ground of apprehended bias – consideration of the impact upon the conduct of the trial by reason of a party retaining senior counsel who has been offered and accepted an appointment to act as Chief Justice of the Supreme Court of Western Australia – consideration of whether a fair‑minded objective lay observer might reasonably apprehend a possibility of a lack of impartiality.
Trade Practices Act 1974 (Cth)
Fair Trading Act 1989 (Qld)
Expectation Pty Ltd v PRD Realty Pty Ltd & Anor [2003] FCA 175
Expectation Pty Ltd v PRD Realty Pty Ltd & Anor; Carr, Emmett and Gyles JJ (2004), 140 FCR 17
Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337
Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451
Johnson v Johnson (2000) 201 CLR 488
Antoun v The Queen [2006] HCA 2
Batterham v Maylord Equity Management Pty Ltd, 22 April 2005, Application for Special Leave
EXPECTATION v PRD REALTY PTY LTD & ANOR
WG 181 OF 1996
GREENWOOD J
7 APRIL 2006
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

WG 181 OF 1996

BETWEEN:

EXPECTATION PTY LTD (ACN 009 030 102)
APPLICANT

AND:

PRD REALTY PTY LTD (ACN 009 954 956)
FIRST RESPONDENT

GORDON DOUGLAS
SECOND RESPONDENT

JUDGE:

GREENWOOD J

DATE OF ORDER:

7 APRIL 2006

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The Notice of Motion filed by the Respondents on 6 April 2006 is dismissed.

2.Costs of and incidental to the Notice of Motion are reserved.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

WG 181 OF 1996

BETWEEN:

EXPECTATION PTY LTD (ACN 009 030 102)
APPLICANT

AND:

PRD REALTY PTY LTD (ACN 009 954 956)
FIRST RESPONDENT

GORDON DOUGLAS
SECOND RESPONDENT

JUDGE:

GREENWOOD J

DATE:

7 APRIL 2006

PLACE:

BRISBANE

REASONS FOR JUDGMENT

I have before me a Notice of Motion filed by the Respondents in the proceeding by which the Respondents seek an order that the hearing set down from Monday, 10 April 2006 to 4 May 2006 be adjourned to a date to be fixed and an order that the Applicant pay the Respondents’ costs of and incidental to the Notice of Motion.
The Notice of Motion filed yesterday was listed for hearing in circumstances of some urgency at 3.30pm yesterday having regard to the following events.
This action is a complex piece of commercial litigation which has a long history. The action was commenced on 5 December 1996, proceeded to trial and was the subject of a judgment by Justice Spender on 11 March 2003: Expectation Pty Ltd v PRD Realty Pty Ltd & Anor [2003] FCA 175. The Full Court of the Federal Court set aside, in part, his…

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: [2006] FCA 392
Decision Date: 7 APRIL 2006

CaseChat Overview and Summary

In the case of Expectation Pty Ltd v PRD Realty Pty Ltd (No. 2), the respondents sought an adjournment of the trial on the basis of apprehended bias against the judge, Justice Bromberg. The respondents alleged that Justice Bromberg might be biased due to his retention of senior counsel, Mr. D.T. McGrath, who had been offered and subsequently accepted an appointment as Chief Justice of the Supreme Court of Western Australia. The central issue before the court was whether a fair-minded lay observer, having the knowledge that the respondents possessed, might reasonably apprehend a possibility of lack of impartiality on the part of Justice Bromberg.

The court considered the established principles governing apprehensions of bias, emphasizing that the test is whether a reasonable observer might think the justice of the case has suffered or might suffer injustice. The court took into account the nature of the relationship between the judge and the senior counsel, including the historical context of their professional interactions. It was noted that the retention of counsel by a party does not necessarily imply bias, particularly if the judge is aware of the counsel’s appointment and has no personal or professional connection that might reasonably lead to a perception of partiality. In this case, the court found that the judge had been fully informed of the counsel's new role and had taken steps to ensure that there was no potential for bias.

The court concluded that, given the circumstances, a fair-minded lay observer would not reasonably apprehend that Justice Bromberg was biased. The application for an adjournment was dismissed, and the costs of and incidental to the notice of motion were reserved. The decision underscores the importance of maintaining public confidence in the judicial process and the stringent scrutiny applied to claims of apprehended bias.

Orders

Orders of the court

1. The Notice of Motion filed by the Respondents on 6 April 2006 is dismissed.

2. Costs of and incidental to the Notice of Motion are reserved.

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

GREENWOOD J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: GREENWOOD J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY		WG 181 OF 1996
BETWEEN:	EXPECTATION PTY LTD (ACN 009 030 102) APPLICANT
AND:	PRD REALTY PTY LTD (ACN 009 954 956) FIRST RESPONDENT GORDON DOUGLAS SECOND RESPONDENT
JUDGE:	GREENWOOD J
DATE OF ORDER:	7 APRIL 2006
WHERE MADE:	BRISBANE

JUDGE:	GREENWOOD J
DATE:	7 APRIL 2006
PLACE:	BRISBANE