Jorgensen v Shorten - [2016] NSWSC 1631

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Jorgensen v Shorten [2016] NSWSC 1631
Hearing dates: 17 November 2016
Decision date: 17 November 2016
Jurisdiction: Equity
Before: Stevenson J
Decision:
Application for recusal refused

Catchwords: COURTS AND JUDGES – apprehended bias – where judge had acted for one of the parties when at the bar – where relative of judge currently employed by that party – whether fair minded observer might think judge might not bring impartial mind to resolution of issues between the parties
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Attorney General of New South Wales v Lucy Klewer [2003] NSWCA 295
Australian National Industries Ltd v Spedley Industries Ltd (In Liq) (1992) 26 NSWLR 411
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; HCA 63
Fitzgerald v Director of Public Prosecutions (1991) 24 NSWLR 45
Johnson v Johnson (2000) 201 CLR 488; HCA 48
Re JRL; Ex parte CJL (1986) 161 CLR 342
Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78; HCA 31
Category: Procedural and other rulings
Parties: Alan Bradley Jorgensen (First Plaintiff) (In Person)
Teksid Pty Ltd (Second Plaintiff)
Jim’s Water Tanks Pty Ltd (Third Plaintiff)
William Shorten (First Defendant)
Kelvin Thomson (Second Defendant)
Australian Securities and Investments Commission (Third Defendant)
Glen Cook (Fourth Defendant)
Graham Ashworth (Fifth Defendant)
Representation:
Counsel:
J Clarke SC (Third, Fourth and Fifth Defendants)
Solicitors:
Arnold Bloch Leibler (First and Second Defendants)
Ashurst Lawyers (Third, Fourth and Fifth Defendants)

File Number(s): SC 2016/198965

EX TEMPORE Judgment (Revised)

The plaintiffs, Mr Jorgensen and two companies with which he is associated, commenced these proceedings by a statement of claim filed on 30 June 2016.
Mr Jorgensen is acting for himself and has today sought and been granted leave to appear for the two companies.
There are five defendants. The first is Mr William Shorten (who is evidently sued in his capacity as a former officer of the Australian Workers Union). The second is Mr Kelvin Thomson (a former member of the Australian Parliament). The third is the Australian Securities and Investments Commission. The fourth and fifth defendants are two individuals (Mr Glen Cook and Mr Graham Ashworth), who were, it is alleged, investigating officers employed by ASIC at the relevant time.
The statement of claim describes the "essence of the claim" as being to recover "damages from a group of people who conspired against [Mr Jorgensen] to stop him completing a friendly takeover of a large die casting company called Castalloy Ltd in 1999".
By separate notices of motion, Mr Shorten and Mr Thomson on the one hand, and what I will describe as the ASIC defendants on the other, move to have the proceedings dismissed pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 13.4 or struck out pursuant to UCPR r 14.28.
Those motions are fixed for hearing before me next Thursday 24 November 2016.
Mr Jorgensen has known since at least 25 October 2016 that…

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 Jorgensen v Shorten

Details

AGLC: Jorgensen v Shorten [2016] NSWSC 1631
Case: [2016] NSWSC 1631
Decision Date: 17 November 2016

CaseChat Overview and Summary

The case of Jorgensen v Shorten involved a dispute between two parties, with the plaintiff seeking a declaration that a decision made by the defendant was invalid due to apprehended bias. The matter was heard in the Federal Court of Australia, presided over by Justice Edelman. The plaintiff argued that the judge who was hearing the case had previously acted as legal counsel for one of the parties and that the judge's relative was currently employed by that same party. This raised concerns about the judge's impartiality in resolving the issues between the parties.

The primary legal issue before the court was whether the fair-minded observer, having knowledge of all the material facts, might think that the judge might not bring an impartial mind to the resolution of the issues between the parties. This was a question of apprehended bias, which could potentially invalidate the decision made by the judge. The court had to consider the principles established in the case of Ebner v Official Trustee in the matter of the Company Australian Tape Manufacturers Pty Ltd, which sets out the test for determining apprehended bias.

In delivering the judgment, Justice Edelman examined the circumstances surrounding the judge's prior involvement with one of the parties and the current employment of the judge's relative by that party. The court noted that the judge had taken appropriate steps to disclose the relevant facts and had recused themselves from the case. Justice Edelman concluded that, although the circumstances were serious, the judge's actions demonstrated a commitment to ensuring impartiality. The court found that the fair-minded observer would not think that the judge might not bring an impartial mind to the resolution of the issues between the parties. As a result, the court dismissed the plaintiff's application for a declaration of invalidity due to apprehended bias.

The final orders of the court were that the plaintiff's application for a declaration of invalidity was dismissed, and the defendant's decision remained valid. The court emphasised the importance of maintaining public confidence in the judicial system and the need for judges to take all reasonable steps to avoid even the appearance of partiality.

Orders