Lowe v Pascoe (No 3) - [2012] NSWSC 907

Supreme Court

New South Wales

Medium Neutral Citation: Lowe v Pascoe (No 3) [2012] NSWSC 907
Hearing dates: 8 August 2012
Decision date: 08 August 2012
Jurisdiction: Equity Division
Before: Gzell J
Decision:
Application dismissed.

Catchwords: PROCEDURE - Courts and judges generally - application that judge recuse himself - whether statement in judgment gave rise to reasonable apprehension of bias - whether fair-minded observer would so conclude
Cases Cited: Lowe v Pascoe (No 2) [2012] NSWSC 885
ASIC v Rich [2004] NSWSC 970
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411
Kwan v Kang [2003] NSWCA 336
British American Tobacco Australia Services v Laurie [2009] NSWCA 414
British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283
Category: Interlocutory applications
Parties: Geoffrey Alan Lowe (First Plaintiff)
Mary Lowe (Second Plaintiff)
Scott Pascoe (First Defendant)
Margaret Sze Tu (Second Defendant)
Helen Sze Tu (Third Defendant)
Janet McNamara (Fourth Defendant)
Shiu Shing (Sunly) Sze Tu (Fifth Defendant)
Shie How (Gordon) Sze Tu (Sixth Defendant)
Representation: Counsel:
C R C Newlinds SC with C H Withers (Plaintiffs)
J Stoljar SC (First defendant)
D Williams SC with J D Little (Fifth and sixth defendants)
Solicitors:
Holding Redlich (Plaintiffs)
Argyle Lawyers (First defendant)
CLS Legal (Fifth and sixth defendants)

File Number(s): SC 2005/262284

Judgment

Mr and Mrs Lowe, the plaintiffs, have asked me to recuse myself because of a statement made in my reasons for judgment in Lowe v Pascoe (No 2) [2012] NSWSC 885.

In that matter I concluded that five cash payments journals and a report of Jason J Murray of 18 January 2011 should be admitted into evidence in the fresh hearing, and I so directed.

In the course of my reasons, I recited the fact that Shiu Shing (Sunly) Sze Tu, the fifth defendant, found at least some of the journals in 2007 but made a deliberate decision not to produce them, having spoken with Margaret Sze Tu (Margaret), the second defendant, and Helen Sze Tu (Helen), the third defendant. He said that one or other of them said he should not produce the documents.

Sunly looked at the journals again in the course of the litigation before Smart AJ but decided not to produce them. He said he was advised by his then counsel that it was too late.

It was only when he changed solicitors that a third supplementary list of documents discovering the journals was served.

I said that those matters might have been determinative of an application to re-open. But while still significant, they were not so telling when a fresh trial had been ordered. I then said at [32]:

"And there are countervailing circumstances. The cash payments journals are predominately in the handwriting of Mrs Lowe who obviously knew of their existence yet she never mentioned them in giving discovery."

It was submitted that I had by such emphatic language pre-judged an…

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 Lowe v Pascoe (No 3)

Details

AGLC: Lowe v Pascoe (No 3) [2012] NSWSC 907
Case: [2012] NSWSC 907
Decision Date: 08 August 2012

CaseChat Overview and Summary

In Lowe v Pascoe (No 3), the dispute involved the application of a judge to recuse himself from a case on the basis of apprehended bias. The matter was heard in the Supreme Court of Victoria. The applicant, Lowe, contended that a statement made in a prior judgment by the judge gave rise to a reasonable apprehension of bias. Lowe argued that this statement led a fair-minded observer to conclude that the judge had prejudged the matter. The respondent, Pascoe, opposed the application, contending that the statement did not reflect any bias on the part of the judge.

The legal issue before the court was whether the statement in the prior judgment constituted bias and whether a fair-minded observer, having regard to the material facts, would apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the matters before him. The court needed to consider the language used in the prior judgment and whether it suggested any pre-judgment of the issues in the current case. The court had to evaluate if the statement demonstrated any inclination or predisposition to decide the case in a particular way, and whether such inclination could give rise to a reasonable apprehension of bias.

The court concluded that the statement made in the prior judgment did not constitute bias. The statement did not indicate that the judge had prejudged any issue or had any inclination or predisposition to decide the matter in a particular way. The court held that a fair-minded observer, fully informed of the facts and circumstances, would not apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the issues in the current case. Consequently, the application to recuse the judge was dismissed.

Orders