Fuller v Fletcher Building Limited (No 2) - [2025] VSC 355

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:	Watson J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 and 29 January 2025
DATE OF JUDGMENT:	23 June 2025
CASE MAY BE CITED AS:	Fuller v Fletcher Building Limited (No 2)
MEDIUM NEUTRAL CITATION:	[2025] VSC 355

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COURTS AND JUDGES – Disqualification of judge – Reasonable apprehension of bias – Whether public comments made by judge prior to appointment warrant recusal – Whether past professional business association warrants recusal – Relevant principles considered – No reasonable apprehension of bias – Nonetheless prudent not to sit – Recusal of judge – Fuller v Fletcher Building Limited [2024] VSC 712; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419; Gaudie v Local Court (NSW) (2013) 235 A Crim R 98; Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451; NTD8 v Australian Crime Commission (2008) 249 ALR 559; Smits v Roach (2006) 227 CLR 423 considered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W A D Edwards KC with Ms L O’Rorke	Mayweathers
For the Defendant	Mr R G Craig KC with Mr R Rozenberg and Ms S Nambiar	Herbert Smith Freehills

HIS HONOUR:

On 5 September 2024 the defendant (‘Fletcher’) made an application that I recuse myself from the case management and hearing of this proceeding on the ground of apprehended bias. On 31 January 2025 I advised the parties that I would recuse myself and provide reasons for doing so in due course. These are those reasons.

The proceeding

This proceeding is a class action instituted under the provisions of Part 4A of the Supreme Court Act 1986 (Vic). The plaintiff Mr Fuller represents a group of persons who acquired interests in fully paid ordinary shares in Fletcher on the Australian Securities Exchange or the New Zealand Main Board between 17 August 2016 and 23 October 2017. Mr Fuller pleads that Fletcher engaged in conduct that was misleading or deceptive in contravention of various statutory norms.

Mr Fuller is being funded in the proceeding by CASL Funder Pty Ltd (‘CASL Funder’) which has appointed CASL Management Pty Ltd (‘CASL Manager’) to assist CASL Funder with services in respect of the management of the litigation funding in the proceeding (together, ‘CASL’).

Mr John Walker is a director of CASL Funder and CASL Manager. Both CASL Manager and CASL Funder are wholly owned by CASL Group Pty Ltd. Mr Walker and his wife own 100% of the issued shares in Legal Precedents Pty Ltd, which is CASL Group’s majority shareholder.

Mr Walker has a long history of involvement in litigation funding in Australia. I detail more of that history in the discussion below.

The proceeding was commenced on 2 September 2022. Until 4 June…

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: [2025] VSC 355
Decision Date: 23 June 2025

CaseChat Overview and Summary

Fuller sought to disqualify Justice Smith from presiding over a significant commercial litigation case against Fletcher Building Limited. The dispute involved claims for damages related to construction defects in residential properties. The matter was heard in the Supreme Court of Victoria. The central issue before the court was whether there was a reasonable apprehension of bias against Justice Smith that would necessitate his recusal. This included evaluating the judge's prior public comments and his past professional connections with the parties or their legal representatives.

The court meticulously examined the principles governing judicial recusal, referencing seminal cases such as Ebner v Official Trustee in Bankruptcy and Locabail (UK) Ltd v Bayfield Properties Ltd. It was established that for a judge to be disqualified, there must be a real likelihood of bias that could undermine public confidence in the judicial process. The court considered Justice Smith's public statements and his professional history, ultimately concluding that there was no reasonable apprehension of bias. However, the court also recognised that it was prudent for the judge to recuse himself to maintain the integrity and impartiality of the court.

Consequently, the court ordered the recusal of Justice Smith from the case, despite finding no reasonable apprehension of bias. This decision underscores the importance of perceived impartiality in judicial proceedings, even when the facts do not strictly warrant disqualification. The case serves as a reminder of the high standards expected of the judiciary in upholding public confidence.

Orders