Neale v Mahony
[2019] FCCA 2240
•9 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NEALE v MAHONY | [2019] FCCA 2240 |
| Catchwords: PRACTICE AND PROCEDURE – BANKRUPTCY – Communication to the Court that indicates that the applicant objects to the docketed Judge hearing the case on the basis of the Judge and applicant having been involved in litigation in opposition to each other prior to the appointment of the Judge to this Court – a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial and unprejudiced mind to the resolution of the proceeding – proceeding returned to the Registry to be docketed to another Judge of the Court. |
| Cases cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 James Woodward Neale v Bank of Western Australia Ltd; Bank of Western Australia Ltd v James Woodward Neale [2014] NSWSC 315 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 Neale v Commonwealth Bank of Australia trading as Bank of Western Australia Ltd [2015] NSWCA 272 |
| Applicant: | JAMES WOODWARD NEALE |
| Respondent: | JOHN FRANCIS MAHONY |
| File Number: | SYG 927 of 2019 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 9 August 2019 |
| Delivered at: | Sydney |
| Delivered on: | 9 August 2019 |
REPRESENTATION
| No appearance by or on behalf of the Applicant. |
| Counsel for the Respondent: | Mr A. E. Maroya of Counsel |
| Solicitors for the Respondent: | Mahony Law |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The proceeding be referred to the List Manager of the Sydney Registry of the Court for reassignment to another General Federal Law Judge of the Court in Sydney.
Costs of today reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 927 of 2019
| JAMES WOODWARD NEALE |
Applicant
And
| JOHN FRANCIS MAHONY |
Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
In this matter, presently before me in my Friday directions list on referral by Registrar Morgan, Mr James Woodward Neale is the Applicant against Mr John Francis Mahony as Respondent.
Prior to my coming to this Court I had for many years been involved as Counsel opposed to Mr Neale in two pieces of litigation.
First, to the best of my recollection, in the late 1990s or the early 2000s I was Counsel for the ANZ Bank opposed to Mr Neale in a case in the District Court of New South Wales, which case ran for some years but never actually ended in a court hearing.
Further, from June 2011 until some months prior to my appointment to this Court as a Judge in December 2015 I was involved as Counsel for the Commonwealth Bank of Australia, through its division BankWest (the Bank), in litigation against Mr Neale (who acted for himself) in the Common Law Division of the Supreme Court of New South Wales (see James Woodward Neale v Bank of Western Australia Ltd; Bank of Western Australia Ltd v James Woodward Neale [2014] NSWSC 315) and then in the Court of Appeal (see Neale v Commonwealth Bank of Australia trading as Bank of Western Australia Ltd [2015] NSWCA 272). Over that period of time I would have appeared on approximately 30 to 50 occasions as Counsel for the Bank opposed to Mr Neale in contested interlocutory hearings. At some point during the course of this litigation Mr Mahony, who is a solicitor, provided legal services to Mr Neale. There was a 14-day hearing which extended over a period of three weeks, in which I appeared as Counsel for the Bank and Mr Neale represented himself before Hammerschlag J at first instance.
It is true to say that in the litigation in which I was involved with Mr Neale he conducted himself as a gentleman, and our relations generally ranged between cordial and civil.
However, it seems to me that anybody who knew of the roles of myself and Mr Neale in the litigation to which I have referred, including the many lawyers who would know of it, would regard it as very strange that a case in which Mr Neale was now a party was actually being heard presently by myself in this Court as a Judge. To the reasonable observer there might be a reasonable apprehension of bias on the appropriate principles set out in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 and other relevant cases.
When this matter was before Registrar Morgan on 11 June 2019 Mr Neale himself, when told for the first time that the matter was being docketed to me, instinctively and intuitively raised objection, and he was right to do so. It would be, in my view, entirely inappropriate for me to hear any case in which Mr Neale was a party. Such was what I was going to say to Mr Neale today, but he has not appeared.
It is true that he has not taken up the advice of Registrar Morgan on 11 June 2019 to file a formal motion that I recuse myself, but he has communicated with the Court, and that communication indicates to me that he objects to my hearing the case. Mr Maroya of Counsel, who appears for the Respondent today, does not oppose my recusing myself.
Accordingly, I will do so, and the matter will be returned to the Registry to be docketed to another Judge of the Court by an order following the form of order utilised by Finkelstein J in like circumstances in Kirby v Centro Properties Ltd and Another (No 2) (2008) 172 FCR 376.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 15 August 2019
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