Griffiths & Beerens Pty Ltd v Proline - [2010] VSC 23

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 9222 of 2007

GRIFFITHS & BEERENS PTY LTD (ACN 005 613 525 & ORS ACCORDING TO THE ATTACHED SCHEDULE)	Plaintiffs
v
PROLINE PTY LIMITED	Defendant

---

JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 February 2010
DATE OF RULING:	10 February 2010
CASE MAY BE CITED AS:	Griffiths & Beerens Pty Ltd & ors v Proline
MEDIUM NEUTRAL CITATION:	[2010] VSC 23	Amended 12 February 2010

---

PRACTICE AND PROCEDURE – Application for order referring debt recovery trial to Associate Justice – Previous findings of fact and as to credit by Associate Justice in winding up application -Whether reasonable apprehension of bias – Refusal to exercise discretion under r 77.05 of Supreme Court (General Civil Procedure) Rule 2005.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr J Kohn	Foster Nicholson Legal
For the Defendant	Mr A Schlicht	Vincent Volpe

HER HONOUR:

The application

This is the plaintiffs’ application for an order, to be made in the exercise of the Court’s discretion under r 77.05 of the Supreme Court (General Civil Procedure) Rules 2005, referring the proceeding to an Associate Justice for hearing and determination.

Background

On 2 October 2007, the defendant (‘Proline’) made application for the winding up of the first plaintiff (‘Griffith & Beerens’) in the Court.

On 2 November 2007, the plaintiffs commenced this debt recovery proceeding by writ. They claim monies allegedly owed for goods sold and delivered to Proline.

In its 12 December 2007 defence and counter-claim, Proline denies that debt and alleges that the plaintiffs owe it monies by way of commission on goods sold.

On 20 December 2007, the Master (as his Honour then was) struck out the winding up application on the basis that Griffith & Beerens would deposit the amount the subject of Proline’s statutory demand in a trust account jointly held by the parties’ solicitors. The Master concluded that Proline had failed to rebut the presumption of solvency. Griffiths & Beerens sought costs, arguing that the winding up application had been an abuse of process. There was a three day hearing on the abuse of process issue between 5 and 7 August 2008.

On 23 December 2008, the Associate Justice handed down his reasons for deciding that he would make no order as to costs even though there had been an abuse of process.

Submissions

Griffiths & Beerens argues that the debt proceeding should be referred to the same Associate Justice because his Honour is acquainted with the many documents canvassed in the winding up proceeding and has heard relevant evidence over a three day period. It argues that it would be costly and inefficient for the matter to be ventilated in the Court before another judicial officer and refers to the risk of inconsistent findings.

Proline resists the application, arguing that it would have a justifiable sense that there had been a pre-judgment in relation to significant matters if the Associate Justice…

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 Griffiths & Beerens Pty Ltd v Proline

Details

AGLC: Griffiths and Beerens Pty Ltd v Proline [2010] VSC 23
Case: [2010] VSC 23
Decision Date: 10 February 2010

CaseChat Overview and Summary

Griffiths & Beerens Pty Ltd initiated legal proceedings against Proline, seeking recovery of a debt. The matter was heard by an Associate Justice of the Supreme Court, who found in favour of the plaintiff and awarded damages. Proline subsequently applied to have the trial referred to a different judge, alleging a reasonable apprehension of bias due to the Associate Justice's prior findings in a winding up application. The court considered whether the prior findings warranted a referral under rule 77.05 of the Supreme Court (General Civil Procedure) Rules 2005.

The legal issues for the court to determine included whether the Associate Justice's prior findings in the winding up application created a reasonable apprehension of bias, and whether the court should exercise its discretion to refer the matter to a different judge. The court examined the nature of the findings, the context in which they were made, and whether they could influence the Associate Justice's impartiality in the current trial. Additionally, the court assessed whether the prior findings were so significant as to necessitate a referral under rule 77.05.

In its decision, the court held that the prior findings of the Associate Justice did not give rise to a reasonable apprehension of bias. The court found that the findings were made in a different context and did not pertain directly to the merits of the current trial. Furthermore, the court determined that the findings were not so significant as to warrant a referral under rule 77.05, given the absence of a substantial risk of unfairness. Consequently, the application to refer the matter to a different judge was dismissed. The court exercised its discretion and found no basis to refer the matter to another judge, upholding the Associate Justice's authority to proceed with the trial.

The court's final orders were that the application by Proline to refer the debt recovery trial to a different judge was dismissed, and the Associate Justice was authorised to continue with the trial of the matter. Proline was ordered to pay the costs of the application.

Orders