(1) Appeal upheld. Orders of Santow J set aside and new trial ordered. (2) The first respondent to pay half the costs of the appeal. (3) Certificates are granted to the appellant and the first respondent under the Suitors' Fund Act 1951, if they are otherwise entitled. (4) Upon the first respondent giving to the Court the usual undertaking as to damages, it is ordered that, up to and including the time of the final determination by this Court of these proceedings as against the appellant, the appellant either himself or by his servants or agents shall not assign, dispose of, charge or encumber his interest in the property at and known as 21 Cammeray Road, Castle Cove, being the land comprised in Folio Identifier 507/200619 (the "Property") so as in no way to reduce the monetary value of his interest in the Property below $300,000.
CATCHWORDS:
PRACTICE AND PROCEDURE - Alteration of reasons for judgment - APPREHENDED BIAS - Apprehended bias by reason of pre-judgment - Johnson v Johnson (2000) 201 CLR 488 test - Findings at an interlocutory stage expressed in terms of finality - Undesirability of judges supporting interlocutory evidentiary rulings by commenting on evidence. D
Christopher Anthony Kwan (Appellant) Wei Ling Kang (First Respondent) Kate Woowin (Second Respondent) Eileen Woowin (Third Respondent)
FILE NUMBER(S):
CA
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
AGLC
Kwan v Kang [2003] NSWCA 336
Case
[2003] NSWCA 336
Decision Date
CaseChat Overview and Summary
In *Kwan v Kang*, the Court of Appeal of New South Wales considered an appeal concerning allegations of apprehended bias by a judge. The dispute arose from findings made by Santow J at an interlocutory stage, which the appellant argued demonstrated a pre-judgment of the case.
The primary legal issue before the Court of Appeal was whether the judge's remarks and findings at the interlocutory hearing gave rise to a reasonable apprehension of bias, such that the judge was not impartial and a new trial was warranted. This required the court to apply the test for apprehended bias as established in *Johnson v Johnson*.
The Court of Appeal found that the judge's comments, particularly those made in support of interlocutory evidentiary rulings, were expressed in terms of finality and suggested a pre-judgment of the evidence. The court held that it is undesirable for judges to support interlocutory rulings by commenting on the evidence in a manner that suggests a concluded view. Consequently, the appeal was upheld, the orders of Santow J were set aside, and a new trial was ordered. The first respondent was ordered to pay half the costs of the appeal, and certificates were granted under the Suitors' Fund Act 1951. Further orders were made regarding the appellant's interest in a property to ensure its value remained above $300,000 pending the final determination of the proceedings.
Orders
Orders of the court
(1) Appeal upheld. Orders of Santow J set aside and new trial ordered. (2) The first respondent to pay half the costs of the appeal. (3) Certificates are granted to the appellant and the first respondent under the Suitors' Fund Act 1951, if they are otherwise entitled. (4) Upon the first respondent giving to the Court the usual undertaking as to damages, it is ordered that, up to and including the time of the final determination by this Court of these proceedings as against the appellant, the appellant either himself or by his servants or agents shall not assign, dispose of, charge or encumber his interest in the property at and known as 21 Cammeray Road, Castle Cove, being the land comprised in Folio Identifier 507/200619 (the "Property") so as in no way to reduce the monetary value of his interest in the Property below $300,000.