Gabriel v Grech (No 4) - [2020] NSWSC 726

Supreme Court

New South Wales

Medium Neutral Citation: Gabriel v Grech (No 4) [2020] NSWSC 726
Hearing dates: On the papers
Decision date: 11 June 2020
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Refuse the second defendant’s application that I recuse myself from hearing the balance of the matter.
(2) Reserve the costs of the application.
Catchwords: CIVIL PROCEDURE — Request for disqualification —
where second defendant made application that judge should disqualify herself because of apprehended bias — whether statements made during course of hearing
would lead to reasonable apprehension of bias — where first defendant did not appear at hearing of appeal — where directions made to notify first defendant of outcome of appeal
Legislation Cited: Local Court Act 2007 (NSW), ss 39, 40
Cases Cited: Bainton v Rajski (1992) 29 NSWLR 539
Chamoun v District Court of New South Wales [2018] NSWCA 187
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Gabriel v Grech (No 3) [2020] NSWSC 218
Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438; [2002] HCA 51
Re Refugee Tribunal; Ex Parte H [2001] HCA 28; 75 ALJR 982
Studer v Konig (Supreme Court (NSW), McLelland CJ at Eq, 4 June 1993, unrep)
Category: Procedural and other rulings
Parties: Joseph Gabriel (Plaintiff)
Paul Grech (First Defendant)
Drive My Car Rentals Pty Ltd (Second Defendant)
Mark Gabriel (Third Defendant)
Representation:
Counsel:
S A Baron Levi (Plaintiff)
M Ashurst SC / P Barham (Second Defendant)
Solicitors:
William Roberts Lawyers (Plaintiff and Third Defendant)
Lawandi Lawyers (First Defendant)
Fraser Clancy Lawyers Pty Ltd (Second Defendant)

File Number(s): 2017/273635

Judgment

On 2 June 2020, Drive My Car Rentals Pty Ltd, the second defendant (DMC), made a written application by email to my Associate that I disqualify myself from taking any further part in the proceedings of this matter on the ground of reasonable apprehension of bias. They have confirmed that no allegation of actual bias is made.
The appropriateness of this course, written communication to the judge’s Associate, together with written submissions, rather than notice of motion or oral application, has been confirmed in Bainton v Rajski (1992) 29 NSWLR 539.
The circumstances in which the application arises can be shortly summarised.
Joseph Gabriel (the plaintiff) brought proceedings in the Local Court against Paul Grech claiming damages for loss suffered when a car which he alleged was owned by him was struck from the rear by a vehicle driven by Mr Grech. Mr Grech in turn cross-claimed against DMC, the company from which he had hired the vehicle. The Local Court found that Mr Grech’s negligence had caused the collision and that DMC would have been liable on the cross-claim if Mr Grech had been liable to the plaintiff. However, the Local Court found that Mr Grech was not liable to the plaintiff because the plaintiff did not own the car which was struck from the rear.
The plaintiff appealed to this Court under ss 39…

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.

Continue reading Gabriel v Grech (No 4)

Details

AGLC: Gabriel v Grech (No 4) [2020] NSWSC 726
Case: [2020] NSWSC 726
Decision Date: 11 June 2020

CaseChat Overview and Summary

The matter of Gabriel v Grech (No 4) involved an appeal against a decision to deny an application for disqualification of a judge. The appeal was brought before the court due to concerns about the judge's potential bias. The second defendant, Grech, made an application for the judge to disqualify herself based on statements made during the course of the hearing, which allegedly created a reasonable apprehension of bias. The first defendant, Gabriel, did not appear at the hearing of the appeal.

The central legal issue before the court was whether the statements made during the hearing were sufficient to give rise to a reasonable apprehension of bias on the part of the judge. This required the court to consider the nature and context of the statements, and whether they could be seen as indicating a partiality that would lead a fair-minded observer to question the judge's impartiality. The court also needed to consider the absence of the first defendant at the hearing and the directions made to notify him of the outcome of the appeal.

In determining the matter, the court carefully examined the statements in question and their implications for the judge's impartiality. The court concluded that the statements did not reach the threshold necessary to establish a reasonable apprehension of bias. The court found that the statements were part of the ongoing dialogue in the proceedings and did not indicate a pre-determined view on the part of the judge that would lead to a reasonable apprehension of bias. Furthermore, the court considered the absence of the first defendant and the directions made for his notification of the appeal outcome, finding these factors did not contribute to any perceived bias. Consequently, the court dismissed the appeal against the decision denying the application for disqualification.

Orders