Gould, J.P.T v Barron, A.M.N

[1994] FCA 454

JUDGMENT NO. d 4 459 9 ~ -

COURT OF AUSTRALIA	)
1

l i w , m DISTRICT No NG 3112 of 1994

BETWEEN:

Applicant

&Q:  NY

BARRON

First Respondent

IS 1-&L) PT1

LIMITED

Second Respondent

-	Third Respondent
Fourth Respondent

mMu3AmE

Fifth Respondent

-	Sixth Respondent
Seventh Respondent

CQEAN:  HILL J

E&&m: SYDNEY

MTEQ:	2 JUNE 1994
( "Simdarn " ) which company went into receivership during the

On 16 August 1991 Mr Gould commenced proceedings in this Court against Mr Barron, Richard Ellis Pty Limited ("Ellis"), Christopher Campbell ("Mr Campbell") and Mr Desmond Livingstone Nicholl ("the Receiveru) seeking damages arising out of a factual matrix which arose when Mr Gould sought to purchase, and was ultimately unsuccessful in purchasing, a property at 6-12 Iiydebrae Street, Strathfield ("the Property"). The Property was owned by Simdarn Pty Limited

couree of the negotiation8 in which Mr Gould wae involved. Simdarn is a company in which a Mr Bryant ie apparently involved.

After an extended period of time, including numerous directions hearings, the matter was listed for hearing before me on 19 and 20 April 1993 at which stage the evidence wae concluded. I then directed that written eubmiseione be provided by the parties and listed the matter for a later date for argument on those written submiseione. When the matter ultimately came before me on 19 May 1993 I was advised by Mr Kelly, the solicitor for Mr Gould, that hie client eought the leave of the Court to discontinue the proceedinge.

In the meantime, ae I indicated at the time to Mr Kelly, I had, but eubject of course to submieeione to be made, prepared a draft of the judgment which in due couree I expected to have to deliver. The need so to do of couree

disappeared becauee the matter wae diecontinued. After eome	argument I ordered that Mr Gould pay the respondents' coete.
Subsequently on 3 December 1993 proceedinge were commenced by Mr Gould in the Supreme Court of New South Walee againet the same parties, together with Simdarn, Mr Bryant and a Romy Baker. On the application of the reepondente to the Supreme Court proceedinge, or at leaet eome of them, the Supreme Court proceedinge were traneferred to thie Court

. . .

pursuant to s.S(l)(b)(iii) of the Jurlsdlctlon of Courts

-

lCrose

1987 and are now numbered NG 3112 of 1994.

On 17 May 1994 and 27 May 1994 respectively motions were filed in the Court by the first and second reepondents and the sixth and seventh respondents to the new proceedings for various orders. Among the orders sought were:

"Further, or alternatively, an order pursuant to Order 11 Rule 16 of the Federal Court Rules, that the Statement of Claim . . . be struck out on the grounds that it discloses no reasonable cause of action, or has a tendency to cause prejudice, embarrassment or delay in the proceeding, or is otherwise an abuse of process of the Court. "

The claim that an abuse of process of the Court was involved is repeated in another paragraph of the motion. That motion came before me at 10.15 this morning. Counsel for the first and second reepondents opened hie case on the motion

with the allegation that there was an abuse of process so that the present case ehould be either struck out or stayed. Prior	to that opening the solicitor for Mr Gould had raised with me
the question whether I should disqualify myeelf from hearing the main proceeding on the basis that he said that it might appear that I had formed a view as to the outcome of the case because I had advised the parties that I had prepared a judgment in the matter as originally commenced.
As I then said that was not a matter presently before me. I indicated, however, that I had no particular desire to hear the case and would consider whether to do so at the appropriate time. I inquired whether there was any application that I should disqualify myself in respect of hearing the motions before me and was advised by Mr Kelly that there was no difficulty with my doing so. Argument continued for the reet of the morning both on the question of whether the matter should be stayed or struck out on the one hand and on the question whether some security should be given or eome order made about the coete of the initial proceedings on the other.
At the close of argument thie morning I suggested to Mr Kelly that it would be in his interest to consider over lunch the question whether hie client should give evidence. This was particularly so having regard to a submission that had been put to me that the proximity of the commencement of
the proceedings on 3 December 1993 and the service of a bill of costs by the first and second respondents on 16 November 1993 raieed an inference that the present proceedings were
commenced to put Mr Gould into a better bargaining position with the respondents concerning costs. This, it was said, would constitute an abuse of the process of the Court.
Mr Gould had not given any evidence as to why the proceedings had been commenced in the Supreme Court after the
proceedings in this Court had been discontinued following a full hearing on the evidence and it was conceded by Mr Kelly after considerable questioning of him that there was no new fact known today that had not been pleaded or otherwise adduced in evidence during the course of the proceedings in this Court. I mention that the present proceedings add some new parties and contain also a claim in negligence that had not been in the original proceeding.
When the matter resumed at 2.15 this afternoon Mr Kelly made an application that I disqualify myself from proceeding to hear the motion, so far as it dealt with the issue of whether the present proceeding should be stayed or struck out on the grounds of abuse of process. He submitted with the greateet of respect that it might well be concluded that I had formed a view on the original case and that therefore I should not proceed to deal with the motion. Although Mr Kelly did not embrace the formulation that he
take his submission to amount to that within the meaning of submitted that there was a reasonable apprehension of bias, I . . (1983)
cases such as Ijvesey v New Bar Assoclatlon
151 CLR 288. I should say that he did not submit that I should not proceed with the hearing because of any view I may have formed on the credit of Mr Gould who was present in Court for the purpose of giving evidence following the suggestion that I had made to Mr Kelly.
It seems to me at the moment that the only issue that arises for decision in respect of the motion is whether there is an abuse of process of the Court, that is to say, relevantly, whether the proceedings in the Supreme Court had been commenced for some collateral purpose. No question preeently arises as to whether or not Mr Gould has a reasonable prospect of succese or otherwise in the proceedings; that is just not an issue which I understand I have to decide to determine the motion. Indeed, I am prepared to aeeume for the purposes of the motion that the original proceedings were properly brought and were proceedings with at least eome chance of success.
I should say that in the course of arguments in the original proceedings as to costs I made a comment that I did not accept a submission that was put that the original proceedings were hopeless. That comment was made in the context of submissions by Mr Cotman for the receivers
concerning an allegation in the original statement of claim
that the receivers were agents for Mr Barron. I then said, to
the effect, that whether or not I would find that allegation to have been made out on the facts, I would not say it was a futile exercise to make that allegation.
Having considered the matter carefully I do not think that I should disqualify myself. First, the application to be made is somewhat late in the day and follows what amounts to a waiver on the part of Mr Gould's solicitor. Second, there is no suggestion of actual bias nor could there be. Third, having regard to the issues presently before me on the motion, I do not think that it could in any eenee be said that there was any reasonable apprehension of bias one way or the other from the fact that I had been involved in the previous proceedings and had heard all the evidence in those proceedings and at least formed some views about that evidence, but subject of course to the written submissions that I read but which had not been elaborated on in oral argument. For these reaeons I would decline to disqualify myeelf and will proceed with the motion.
I certify that thie and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of his Honour
Mr Justice Hill.
Aeeociate:
Date : 9 J l / v 4

Solicitors for Applicant:	T D Kelly & CO
Counsel and Solicitors	J Gleeson inetructed by
for First and Second	Greaves Wannan & Williams
Respondents:
Solicitors for Fourth	Abadee, Dresdner & Freeman
Reepondent:
Counsel and Solicitors	N A Cotman instructed by
for Sixth and Seventh	Tress Cocks & Maddox
Respondents:
Dates of Hearing:	2 June 1994
Date Judgment Delivered:	2 June 1994