Neale v Mahony - [2019] FCCA 2240

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
Kirby v Centro Properties Ltd and Another (No 2) (2008) 172 FCR 376

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…

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: [2019] FCCA 2240
Decision Date: 9 August 2019

CaseChat Overview and Summary

In *Neale v Mahony*, the applicant objected to the judge assigned to their bankruptcy proceeding, arguing that a prior history of litigation between them meant the judge might not be impartial. The applicant contended that a fair-minded lay observer would reasonably apprehend that the judge might not bring an unprejudiced mind to the resolution of the matter.

The central legal issue before Dowdy J was whether the applicant's objection to the docketed judge, based on their prior adversarial litigation, gave rise to a reasonable apprehension of bias. This required the court to consider the test for apprehended bias, specifically from the perspective of a fair-minded and informed lay observer.

Dowdy J applied the well-established test for apprehended bias, which requires consideration of whether a reasonable member of the public, knowing the facts, would apprehend that the judge might not bring an impartial mind to the issues. The judge found that the prior history of litigation between the applicant and the judge, occurring before the judge's appointment to the court, was sufficient to create such an apprehension. Consequently, the proceeding was returned to the Registry to be docketed to another judge of the Court.

Orders