Jones v Thomson

[2015] FCCA 3032

FEDERAL CIRCUIT COURT OF AUSTRALIA

JONES v THOMSON & ANOR [2015] FCCA 3032

Catchwords:
PRACTICE AND PROCEDURE – Application for recusal – whether judge’s relationship with the legal representative of the trustee might lead fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question – doubtful case of apprehension of bias – recusal order made.

Legislation:

Bankruptcy Act 1966 (Cth), s.139ZQ

Applicant: RICHARD JONES

First Respondent:

Second Respondent:

JASON PORTER
PAUL GERARD WESTON

FRASER THOMSON

File Number:

SYG 2492 of 2014

Judgment of: Judge Manousaridis

Hearing date:	11 November 2015
Delivered at:	Sydney

Delivered on: 11 November 2015

REPRESENTATION

The applicant appeared in person by telephone

Solicitors for the First Respondents: Mr J Bamford of Bamford Lawyers

ORDERS

1. Judge Manousaridis recuses himself from further involvement in these proceedings.

2. The matter be referred to the Registry for reallocation to a different Judge of this Court.

3. The cost of today’s hearing are reserved. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2492 of 2014

RICHARD JONES

Applicant

And

JASON PORTER
PAUL GERARD WESTON

First Respondent

FRASER THOMSON

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This matter came before me on a direction’s hearing today.  The proceedings consist of an application brought by the applicant, Mr Jones, seeking an order to set aside a notice issued pursuant to section 139ZQ of the Bankruptcy Act 1966 (Cth) by the trustee of the Estate of Mr Richard Jones. Before it came to me the matter had been managed by the Registrar and by different Judges of the Court.

2. Before the direction’s hearing, I began to read the papers and, in particular the grounds on which Mr Jones seeks to set aside the 139ZQ notice. I particularly noticed ground 3, which claimed that the trustee had a conflict of interest in that he should not be using Bamford Lawyers.  That drew my attention because I know that Bamford Lawyers is a law firm, the principal of which is Mr John Bamford, whom I personally know. 

3. When the matter was mentioned before me, I informed the parties, in particular Mr Jones, that I personally knew Mr Bamford and in particular that I have had lunch with him. I then asked whether it was likely in the proceeding Mr Bamford’s conduct would be brought into question. I said I raised that issue because it might well be that if Mr Bamford’s conduct were brought into question, I might need to recuse myself.  Having disclosed these facts I invited Mr Jones to tell me whether he wished to make an application that I recuse myself.  Mr Jones asked for some time to consider his position, and I gave him approximately 15 minutes. When the matter recommenced Mr Jones applied for an order that I recuse myself.

4. Mr Jones freely acknowledged that the ground stated in his application about the alleged conflict of interest did not impugn Mr Bamford’s conduct.  The ground was more directed to the conduct of the trustee.  However, Mr Jones did say that there was a matter he would be raising in connection with the manner in which Mr Bamford has conducted the proceedings.  I saw no need for me to inquire further as to what it was that Mr Jones was going to allege in relation to Mr Bamford.  I am satisfied, however, that Mr Jones does intend to call into question Mr Bamford’s conduct.

5. Given my being satisfied of that fact, in my view, it might lead a fair minded bystander to take the view that I might not be able to bring to bear an impartial mind in determining whatever the allegation Mr Jones proposes to make about the conduct of Mr Bamford.  For that reason, I am clearly of the view that I should recuse myself from this matter and I propose, therefore, to make orders accordingly.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 11 November 2015