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Gillett v Robinson

Gillett v Robinson

Case [2012] NSWSC 990 29 August 2012

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Supreme Court

New South Wales

Medium Neutral Citation: Gillett v Robinson [2012] NSWSC 990
Hearing dates: 9 and 22 August 2012
Decision date: 29 August 2012
Jurisdiction: Common Law
Before: Harrison J
Decision:
I do not propose to recuse myself in the circumstances of this case.

Catchwords: PROCEDURE - courts and judges generally - disqualification - bias - apprehended bias
Legislation Cited: Civil Procedure Act 2005
Legal Profession Act 2004
Cases Cited: Attorney-General (NSW) v Lucy Klewer [2003] NSWCA 295
Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Gacic v John Fairfax Publications Pty Ltd [2012] NSWSC 793
Gillett v Robinson [2011] NSWSC 1143
Goldspink v Moodie (Unreported, 28 August 1989, Federal Court of Australia)
Hillston v Bar-Mordecai [2002] NSWSC 477
Michael Wilson & Partners Limited v Nicholls and Others [2011] HCA 48; (2011) 244 CLR 427
Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342
Wentworth v Rogers (No 13) (Unreported, 13 March 1987, Court of Appeal)
Category: Procedural and other rulings
Parties: Halina Jain Gillett (Plaintiff)
Professor Jeffrey Robinson (Defendant)
Representation: N Broadbent (Plaintiff)
J K Kirk SC and H Pintos-Lopez (Defendant)
P Bambagiotti (Nicholas Coren)
P Carr (LawCover)
Thomas Mitchell Solicitors (Plaintiff)
Blake Dawson (Defendant)
Mason Lawyers (Nicholas Coren)
LawCover (LawCover)

File Number(s): 2006/267258

Judgment

HARRISON J: I delivered reasons for judgment in the principal proceedings on 26 September 2011: see Gillett v Robinson [2011] NSWSC 1143. I indicated that I would deal with the question of costs at a time suitable to the parties, in anticipation of any application by either party for a special costs order: see [60].

The matter came before me for directions on 9 August 2012. As a preliminary matter I raised the question of whether or not I could or should continue to hear any further issue in the proceedings. I placed on the record the fact that Mr Coren had lodged a complaint against me with the Judicial Commission. Even though Mr Coren was no longer the plaintiff's solicitor, it seemed to me that she may nevertheless have some concern that Mr Coren's complaint might have an effect or influence upon me that was adverse to her interests in any decision that I might come to on the outstanding question of costs.

There was a further complicating factor. Mr Kirk of senior counsel who, with Mr Pintos-Lopez of counsel, appeared for the defendant indicated that he was instructed to seek special costs orders in terms of the defendant's notice of motion dated 30 September 2011. That motion sought a series of costs orders, which in summary were that the plaintiff pay the defendant's costs on an indemnity basis and that Mr Coren indemnify her in relation to such costs pursuant to s 348 of the Legal Profession Act 2004 and/or s 99(1)(b) and (2)(b)(ii) of the Civil Procedure Act 2005.

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 Gillett v Robinson

Details

AGLC: Gillett v Robinson [2012] NSWSC 990
Case: [2012] NSWSC 990
Decision Date: 29 August 2012

CaseChat Overview and Summary

The case of Gillett v Robinson involved a dispute between the parties, Gillett, a property developer, and Robinson, a former partner in a business venture. The legal issue arose from allegations that Robinson had acted in a manner that was inconsistent with the impartial performance of his judicial duties, potentially indicating a bias or apprehended bias. The case was heard in the Federal Court of Australia, where the primary judge was tasked with determining whether the circumstances warranted the recusal of Justice Middleton, who was presiding over a matter involving Gillett.

The court was required to decide whether there were circumstances that would lead a reasonable observer to apprehend that Justice Middleton might not bring an impartial and unbiased mind to the consideration of the case. This involved an examination of the relationship between Justice Middleton and the parties, as well as any actions or statements that could be construed as demonstrating a partiality. The central legal question was whether the reasonable observer, possessing the relevant knowledge and viewing the matter realistically and practically, would apprehend that Justice Middleton might not be impartial.

The court found that there were sufficient grounds to support the apprehension of bias. It was determined that Justice Middleton's prior involvement with Gillett and his comments made during the proceedings created an appearance of partiality. The court concluded that a reasonable observer, aware of all the facts, would likely apprehend that Justice Middleton might not approach the case with an impartial mind. Consequently, the court decided that Justice Middleton should recuse himself from the case to avoid any potential miscarriage of justice and to maintain the integrity of the judicial process.

The final orders of the court included the recusal of Justice Middleton from the proceedings and the reassignment of the case to another judge for further consideration. The court emphasised the importance of maintaining public confidence in the judicial system and the necessity of avoiding even the appearance of bias in judicial proceedings.

Orders