McHugh v Australian Jockey Club Limited

[2011] FCA 436

FEDERAL COURT OF AUSTRALIA

McHugh v Australian Jockey Club Limited [2011] FCA 436  

Citation:		McHugh v Australian Jockey Club Limited [2011] FCA 436
Parties:		BRUCE MCHUGH v AUSTRALIAN JOCKEY CLUB LIMITED, VICTORIAN RACING CLUB LIMITED, AUSTRALIAN RACING BOARD LIMITED, RACING INFORMATION SERVICES AUSTRALIA PTY LIMITED and THOROUGHBRED BREEDERS AUSTRALIA LIMITED
File number:		NSD 1187 of 2009
Judge:		BENNETT J
Date of judgment:		21 April 2011
Cases cited:		Ebner v Official Trustee (2000) 205 CLR 337 applied Margarula v  Northern Territory of Australia (2009) 175 FCR 333 cited
Date of hearing:	20-21 April 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	12
Counsel for the Applicant:	Mr A Tonking SC with Mr J Lazarus
Solicitor for the Applicant:	Brock Partners
Counsel for the First and Second Respondents:	Mr A Bannon SC with Ms R Higgins
Solicitor for the First and Second Respondents:	Johnson Winter & Slattery
Solicitor for the Third Respondent:	Mr T Price of Yeldham Price O'Brien Lusk
Counsel for the Fourth Respondent:	The Fourth Respondent did not appear
Counsel for the Fifth Respondent:	Mr J Emmett
Solicitor for the Fifth Respondent:	Esplins Solicitors

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1187 of 2009

BETWEEN:

BRUCE MCHUGH
Applicant

AND:

AUSTRALIAN JOCKEY CLUB LIMITED
First Respondent

VICTORIAN RACING CLUB LIMITED
Second Respondent

AUSTRALIAN RACING BOARD LIMITED
Third Respondent

RACING INFORMATION SERVICES AUSTRALIA PTY LIMITED
Fourth Respondent

THOROUGHBRED BREEDERS AUSTRALIA LIMITED
Fifth Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	2 MAY 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Pursuant to the inherent jurisdiction of the Court, Bennett J recuses herself from these proceedings.

2.There be no order as to the costs of the notice of motion dated 20 April 2011.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1187 of 2009

BETWEEN:

BRUCE MCHUGH
Applicant

AND:

AUSTRALIAN JOCKEY CLUB LIMITED
First Respondent

VICTORIAN RACING CLUB LIMITED
Second Respondent

AUSTRALIAN RACING BOARD LIMITED
Third Respondent

RACING INFORMATION SERVICES AUSTRALIA PTY LIMITED
Fourth Respondent

THOROUGHBRED BREEDERS AUSTRALIA LIMITED
Fifth Respondent

JUDGE:	BENNETT J
DATE:	21 APRIL 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. By notice of motion dated 20 April 2011, the first and second respondents seek an order that I recuse myself from any further participation in these proceedings.  I am the docket judge for this matter.  The matter is set down for a six week hearing commencing

   
   

   29 August 2011.  The application is made on the ground that there exists a reasonable apprehension of bias by reason of my connection with two of the applicant’s witnesses in these proceedings, Mr Vrisakis and Mr Hartnell (the Witnesses).  The third and fifth respondents support the application.  The applicant opposes the application.

2. I do not propose to set out my knowledge of the Witnesses in detail.  These matters have previously been placed on the transcript in directions hearings and in a case management conference.

3. As soon as I realised that the Witnesses were to be witnesses in the proceedings, I disclosed to the parties that I knew the Witnesses.  My initial reading of the Witnesses’ affidavits led me to believe that the Witnesses were not central to the case the applicant seeks to make.  I was of the view that the Witnesses’ evidence was supportive of facts that would either be generally accepted or facts that would be presented by other witnesses.  I declined to recuse myself voluntarily from the proceedings because I was of the view that there could be no reasonable apprehension of bias in the hearing of the proceedings.

4. It now seems that, while the applicant does not accept that, from his perspective, the Witnesses are central to his case, that perception is not shared by the first, second, third and fifth respondents.  Those respondents indicate that they will challenge the evidence of the Witnesses, both as to fact and possibly as to credit. 

5. The first and second respondents assert that:

   ·the credit of the Witnesses will likely be called into question during the hearing;

   ·the Court will likely be called upon to reject, or not accept, the evidence of the Witnesses;

   ·the Witnesses have an interest in the outcome of the proceeding; and

   ·what may be the full range of the Witnesses’ personal and financial affairs will be the subject of challenge.

6. It is important to bear in mind, as was observed by Reeves J in Margarula v  Northern Territory of Australia (2009) 175 FCR 333 at [39], that:

   Judges have a duty to exercise their judicial function and to hear those cases properly assigned to them, they are not at liberty to decline to hear cases without good cause.

7. It is also important, in my view, that judges must be robust in taking that duty seriously, in that a judge should not easily accede to an application that he or she recuse himself or herself from hearing a case.  This is to ensure that there is no attempt on the part of a party to transfer a case from a judge whom that party does not want to hear the case.  It is also important for case management reasons.

8. I reject outright any suggestion of any actual bias.  Indeed, no such suggestion has been made.  To the extent that I have noted in previous directions hearings that my term at the Australian National University was coming to a close and that, if necessary, I could resign from a board on which Mr Hartnell and I both serve, that does not indicate any personal interest in staying on the case, in the sense described in Ebner v Official Trustee (2000) 205 CLR 337 at [21] per Gleeson CJ, McHugh, Gummow and Hayne JJ. The interest that I had in sitting on this case was not a personal one, but rather a professional interest, both because of my obligation to sit on it and because it seems to be particularly interesting from a legal perspective.

9. I remain personally convinced that I ought not to be disqualified from hearing the case.  However, I note that in Ebner Gleeson CJ, McHugh, Gummow and Hayne JJ stated that even though a judge may form that view, he or she may properly decline to sit (at [21]). I have formed the view that it is proper that I recuse myself from these proceedings on the basis of my acquaintanceship with Mr Vrisakis. My acquaintanceship with Mr Vrisakis forms the basis of my decision. I see my acquaintanceship with Mr Hartnell of much less significance.

10. In the circumstances, it is appropriate, in my view, that this matter be transferred to another judge of the Court.  As it is probable that the hearing date will be maintained, I do not believe that there will be any substantial consequential prejudice to the parties.  This is an important part of my decision.

11. The applicant has asked that I delay making orders today so that he can consider his position in terms of whether he still intends to rely on the evidence of the Witnesses, particularly Mr Vrisakis.  If the evidentiary basis of the applicant’s submissions does not change, I will make the orders sought by the first and second respondents in their notice of motion.  I will also vacate the hearing date insofar as the Court as presently constituted is concerned.

12. I also note that, in my view, there is sufficient time for this matter to be prepared, in the ordinary course, to ensure that the case is ready for hearing on the previously allocated dates, should those dates be convenient to the Court. 

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:        21 April 2011