John Fairfax Publications Pty Ltd v Kriss - [2007] NSWCA 79

New South Wales

Court of Appeal

CITATION: John Fairfax Publications Pty Ltd v Maurice Kriss [2007] NSWCA 79

HEARING DATE(S): 26 March 2007

JUDGMENT DATE:
4 April 2007

JUDGMENT OF: Hodgson JA at 1; Ipp JA at 1; Handley AJA at 1

DECISION: (1) Appeal allowed with costs.; (2) Judgment of the Common Law Division set aside.; (3) Order that there be a new trial of the action before another judge of the Division.; (4) The costs of the first trial are to abide the order of the judge presiding at the second trial.; (5) The respondent is to have a certificate under the Suitors’ Fund Act 1951.

CATCHWORDS: COURTS & JUDGES – disqualification of judge – apparent bias - waiver

CASES CITED: Antoun v The Queen (2006) 80 ALJR 497
Beinstein v Beinstein (2003) 195 ALR 225
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488
Vakauta v Kelly (1989) 167 CLR 568

PARTIES: John Fairfax Publications Pty Ltd (Appellant)
Maurice Kriss (Respondent)

FILE NUMBER(S): CA 40530 of 2006

COUNSEL: T Blackburn SC/R Glasson (Appellant)
C A Evatt/C J Dibb (Respondent)

SOLICITORS: Freehills (Appellant)
H M Symonds & Britten (Respondent)

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 20535 of 2002

LOWER COURT JUDICIAL OFFICER: Adams J

LOWER COURT DATE OF DECISION: 28 July 2006

LOWER COURT MEDIUM NEUTRAL CITATION: [2006] NSWSC 758

CA 40530 of 2006

HODGSON JA
IPP JA
HANDLEY AJA
4 APRIL 2007

JOHN FAIRFAX PUBLICATIONS PTY LTD v MAURICE KRISS

CATCHWORDS

COURTS & JUDGES – disqualification of judge – apparent bias - waiver

FACTS

The respondent who had been struck off the roll of barristers made an application for readmission which was granted by a Judge. The appellant published an article which contrasted the plaintiff’s readmission with the situation of barristers who had been or were about to be struck off for failure to comply with their income tax obligations. A jury at a s 7A trial found that the article conveyed an imputation that defamed the respondent. The balance of the trial came on for hearing before a Supreme Court Judge. At the start of the second day of the trial counsel for the appellant asked the Judge to disqualify himself. The application was based on comments made by the Judge during the opening address of counsel for the respondent, and further remarks made when dealing with an objection to evidence during the respondent’s evidence in chief. The Judge overruled the objection and the trial continued. The Judge delivered a reserved judgment in which he found for the plaintiff in defamation and injurious falsehood and awarded damages of $101,008. On appeal HELD: (1) The established test for the disqualification of a judicial officer for apparent or ostensible bias is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to…

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: [2007] NSWCA 79
Decision Date: 4 April 2007

CaseChat Overview and Summary

John Fairfax Publications Pty Ltd appealed to the Court of Appeal of New South Wales against a judgment of the Common Law Division. The dispute concerned allegations of apparent bias on the part of the judge who presided over the initial trial.

The primary legal issue before the Court of Appeal was whether the judge at first instance had demonstrated apparent bias, thereby necessitating their disqualification. This involved an examination of the conduct and statements made by the judge during the proceedings to determine if a reasonable and informed observer would apprehend that the judge might not bring an impartial mind to the issues before them.

The Court of Appeal found that the judge's conduct had indeed created a reasonable apprehension of bias. Applying the well-established principles of apparent bias, the court considered the totality of the circumstances, including specific remarks made by the judge. The court concluded that the appearance of impartiality had been compromised, and therefore, the judgment could not stand. Consequently, the appeal was allowed, the judgment of the Common Law Division was set aside, and a new trial was ordered before a different judge. The costs of the first trial were to be determined by the judge presiding at the new trial, and the respondent was granted a certificate under the Suitors' Fund Act 1951.

Orders

Orders of the court

(1) Appeal allowed with costs.; (2) Judgment of the Common Law Division set aside.; (3) Order that there be a new trial of the action before another judge of the Division.; (4) The costs of the first trial are to abide the order of the judge presiding at the second trial.; (5) The respondent is to have a certificate under the Suitors' Fund Act 1951.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	John Fairfax Publications Pty Ltd v Maurice Kriss [2007] NSWCA 79
HEARING DATE(S):	26 March 2007
JUDGMENT DATE:	4 April 2007
JUDGMENT OF:	Hodgson JA at 1; Ipp JA at 1; Handley AJA at 1
DECISION:	(1) Appeal allowed with costs.; (2) Judgment of the Common Law Division set aside.; (3) Order that there be a new trial of the action before another judge of the Division.; (4) The costs of the first trial are to abide the order of the judge presiding at the second trial.; (5) The respondent is to have a certificate under the Suitors’ Fund Act 1951.
CATCHWORDS:	COURTS & JUDGES – disqualification of judge – apparent bias - waiver
CASES CITED:	Antoun v The Queen (2006) 80 ALJR 497 Beinstein v Beinstein (2003) 195 ALR 225 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Johnson v Johnson (2000) 201 CLR 488 Vakauta v Kelly (1989) 167 CLR 568
PARTIES:	John Fairfax Publications Pty Ltd (Appellant) Maurice Kriss (Respondent)
FILE NUMBER(S):	CA 40530 of 2006
COUNSEL:	T Blackburn SC/R Glasson (Appellant) C A Evatt/C J Dibb (Respondent)
SOLICITORS:	Freehills (Appellant) H M Symonds & Britten (Respondent)
LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	SC 20535 of 2002
LOWER COURT JUDICIAL OFFICER:	Adams J
LOWER COURT DATE OF DECISION:	28 July 2006
LOWER COURT MEDIUM NEUTRAL CITATION:	[2006] NSWSC 758