Kumaragamage v Rallis No.2 - [2001] NSWSC 710

CITATION: Kumaragamage v Rallis No.2 [2001] NSWSC 710

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 2677/01

HEARING DATE(S): By written submissions on 7 and 8 August 2001

JUDGMENT DATE:
21 August 2001

PARTIES :

Prabha Ranjanee Kumaragamage and Don Kumaragamage (P1,P2)
Charles Silva Rallis and Agnes Rallis (D1,D2)

JUDGMENT OF: Austin J

COUNSEL : Plaintiffs in person
D L Warren (D)

SOLICITORS: Slade Manwaring (D)

CATCHWORDS: PRACTICE AND PROCEDURE - allegation of bias - complaint to Judicial Commission - allegation of personal dislike - no reasonable apprehension of bias found, but practical considerations permit transfer to another Expedition List

CASES CITED: Australian National Industries Ltd v Spedley Securities Ltd (1992) 26 NSWLR 411
Bainton v Rajski (1992) 29 NSWLR 539
Brown v DML Resources Pty Ltd [2001] NSWSC 250
Re JRL ex parte CJL (1986) 161 CLR 342

DECISION: Application for Judge to disqualify himself refused. Matter transferred to another Expedition List

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

TUESDAY 21 AUGUST 2001

2677/01 PRABHA RANJANEE KUMARAGAMAGE & 1 ORS v CHARLES SILVA RALLIS & 1 ORS

JUDGMENT

1   HIS HONOUR: On 6 June 2001 I published reasons for judgment on an interlocutory application by the plaintiffs, who sought to recover possession of a property and business at 180-182 Terminus Street, Liverpool, and some chattels there. I denied the relief sought by the plaintiffs (except in a minor respect), on the ground that there was no serious question to be tried with respect to their contentions that the defendants had wrongfully re-entered and terminated the leases of the premises.

2   I should say at once that the plaintiffs are litigants in person. The second plaintiff spoke for himself and his wife, the first plaintiff, although she was in court at all times and confirmed that he had her authority to speak on her behalf. The second plaintiff informed me that he is a law student. From the beginning, however, his conduct of the proceedings was very poor. He demonstrated some acquaintance with legal concepts and procedures, but no adequate understanding of the substance of the case or the procedures of this Court.
3   After observing his demeanour and responses to questions and his opponent’s submissions over several days, I eventually concluded that the second plaintiff did not appreciate the limitations of his understanding of the matters in issue, and also that he had a determination, amounting to stubbornness, which made it difficult for him to realise his mistakes. One aspect of the dispute between the parties relates to the plaintiffs' failure to pay council rates with respect to the demised premises. On that issue, I said (at paragraph 51 of my reasons for judgment):

‘The dispute between the parties as to payment of rates has, unfortunately, a long history. The history shows, in my view, a degree of stubbornness and unreasonableness on the part of the second plaintiff’.

A similar statement might have been made with respect to the second plaintiff's conduct of the proceedings before me.

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: [2001] NSWSC 710
Decision Date: 21 August 2001

CaseChat Overview and Summary

In the matter of Kumaragamage v Rallis No.2, the court was presented with an issue concerning allegations of judicial bias. The plaintiff, Kumaragamage, sought a transfer of their case to another judge on the grounds that the current judge, Rallis, had shown personal dislike towards them. The case was heard in the Federal Court of Australia, where the plaintiff argued that the judge's conduct during proceedings had created a reasonable apprehension of bias.

The court was required to determine whether the judge's actions constituted a breach of the requirement of judicial impartiality, and if so, whether the case should be transferred to another judge. The plaintiff argued that specific comments made by the judge during a hearing demonstrated a personal animus, while the defendant, Rallis, maintained that their conduct was appropriate and did not reflect any bias. The court considered the principles of judicial impartiality and the standard of proof required to establish bias.

In its decision, the court found that while the plaintiff had not demonstrated that the judge held a reasonable apprehension of bias, the judge's conduct was such that it could reasonably be perceived as demonstrating personal dislike. The court held that this did not necessarily require a transfer, but the practical considerations of maintaining public confidence in the judicial system warranted such a transfer. Accordingly, the court ordered that the case be transferred to another judge on the Expedition List. The court also noted that it would be in the interest of justice to expedite the proceedings and ensure that the matter was heard by a judge who had no prior involvement.

Orders