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Fuller v Fletcher Building Limited

Fuller v Fletcher Building Limited

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Case Copied 15 November 2024 70 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT
GROUP PROCEEDINGS LIST

S ECI 2022 03433

GERALD FULLER	Plaintiff
v
FLETCHER BUILDING LIMITED (ARBN 096 046 936)	Defendant

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JUDGE:	Delany J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 and 10 October 2024
DATE OF RULING:	15 November 2024
CASE MAY BE CITED AS:	Fuller v Fletcher Building Limited
MEDIUM NEUTRAL CITATION:	[2024] VSC 712

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COURTS AND JUDGES – Application to disqualify for apparent bias – Usual practice not followed – Subpoena to produce documents in aid of application – Substantive application relies on disqualification by association, conduct and extraneous information - Judge to put forward matters on which the recusal application is to be determined and to determine the application based on that disclosure – Disclosure by the judge not evidence – Evidence not permitted on such an application – Discussion of difficulties if evidence and subpoenas were to be permitted – Attributes of the fair-minded lay observer – Observer has knowledge of the material objective facts – Observer not a lawyer – Observer will inform himself or herself to the extent necessary to make a fair judgement – Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, Webb v The Queen [1994] HCA 30, QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15, British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283, Attorney-General of New South Wales v Bar-Mordecai [2009] NSWSC 117, Australian National Industries v Spedley Securities (1992) 26 NSWLR 411, Barton v Walker [1979] 2 NSWLR 740, Zanatta v Cleary [1976] 1 NSWLR 230, applied – Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (No 9) [1990] NSWSCA 154 – Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577, referred to, Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438, Austin BMI Pty Ltd v Deputy Premier [2023] QSC 095, Lawrie v Lawler [2015] NTSC 40, Environment Protection Authority v Maules Creek Coal Pty Ltd [2023] NSWLEC 94, R v Badenoch [2004] VSCA 95, discussed – Isbester v Knox City Council (2015) 255 CLR 135, Livesey v New South Wales Bar Association (1983) 151 CLR 288, Limbo v Little [1989] NTCA 5, DOQ17 v Australian Financial Security Authority (No 2) [2018] FCA 1270, Rajski v Scitec Corp Pty Ltd [1986] NSWCA 1, Dovade Pty Ltd v Westpac Banking Corporation [1998] NSWCA 70, cited – Australian Law Reform Commission, ‘Without Fear or Favour: Judicial Impartiality and the Law on Bias’ (2021), Polsen v Harrison [2021] NSWCA 23, Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, CUR24 v Director of Public Prosecutions 83 NSWLR 385, Charisteas & Charisteas & Ors [2020] FCAFC 162, referred to.

PRACTICE AND PROCEDURE – Subpoenas for production – Procedure only available to secure production of a document…

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: [2024] VSC 712
Decision Date: 15 November 2024

CaseChat Overview and Summary

Fuller brought an application to disqualify Justice W of the Supreme Court from presiding over a proceeding based on apparent bias. The application relied on disqualification by association, conduct, and extraneous information. The respondent, Fletcher Building Limited, opposed the application and sought a subpoena to compel the production of documents in aid of the application. Justice W set aside the subpoena, finding that the application for disqualification did not permit the adduction of evidence. Fuller appealed the decision to set aside the subpoena.

The court considered whether Justice W was correct in setting aside the subpoena. The court noted that the usual practice was not followed, as the application for disqualification did not permit the adduction of evidence. The court found that the evidence was not admissible on a recusal application, and the extensive affidavit evidence did not demonstrate that the documents sought would materially assist. The court further found that the documents sought were not potentially relevant. The court referred to relevant authorities and discussed the difficulties if evidence and subpoenas were to be permitted on such an application.

The court held that the fair-minded lay observer would be informed of the material objective facts, and the observer would inform themselves to the extent necessary to make a fair judgement. The court also found that the usual practice was not to allow evidence or subpoenas on a recusal application. The court referred to relevant authorities and discussed the attributes of the fair-minded lay observer. The court found that the application for disqualification by association, conduct, and extraneous information did not permit the adduction of evidence.

The court set aside the subpoena and held that the application for disqualification was to be determined based on the disclosure by the judge. The court found that the disclosure by the judge was not evidence and that evidence was not permitted on such an application. The court further found that the documents sought were not potentially relevant and that the usual practice was not to allow evidence or subpoenas on a recusal application. The court dismissed the appeal and set aside the subpoena.

Orders