Pastizzi Cafe Pty Ltd v Hossain (No 2)

Case •

[2011] NSWSC 766

•

20 July 2011

Supreme Court


New South Wales

Medium Neutral Citation: Pastizzi Cafe Pty Ltd v Hossain (No 2) [2011] NSWSC 766
Hearing dates:20 July 2011
Decision date: 20 July 2011
Jurisdiction:Equity Division
Before: Gzell J
Decision:

Application to stand down dismissed.

Catchwords: PROCEDURE - Apprehended Bias - reference to $100 a week in Pastizzi Cafe Pty Ltd v Hossain [2011] NSWSC 765 was to an affidavit not then read - told issue hotly contested - whether should stand down
Legislation Cited: Uniform Civil Procedure Rules 2005
Practice Note SC Eq 5
Cases Cited: Australian Securities and Investments Commission v Rich [2005] NSWSC 149; (2005) 190 FLR 242
Category:Procedural and other rulings
Parties: Pastizzi Cafe Pty Ltd (First Plaintiff)
Deborah Ross (Second Plaintiff)
Len Ross (Third Plaintiff)
Miraj Hossain (First Defendant)
Talukder Enterprises (Second Defendant)
Representation: Counsel
A McInerney/M Bennett (Plaintiffs)
J R Young (Defendants)
Solicitors
Michael Fitzgerald (Plaintiffs)
Mooney & Kennedy Solicitors (Defendants)
File Number(s):2011/153417

EX TEMPORE Judgment

  1. I have been asked to disqualify myself as a result of a comment made in the course of delivering an ex tempore judgment on an interlocutory basis with respect to the admission or non-admission in evidence of two expert reports.

  1. In refusing the application to allow that evidence to be adduced, there were a number of bases on which I based my decision. One basis was that there had been an arrangement struck between the first plaintiff and the ATO to pay a debt at $100 a week while this dispute was still in train.

  1. I have been told that in so doing I made reference to an affidavit that has not yet been read.

  1. I do not regard that as indicating to a reasonable person an apprehension of bias on my part sufficient to cause me to stand down. The reference was only one of a number of bases upon which I made my ruling and it was in relation to an interlocutory matter.

  1. I am told that the statement will be hotly contested. No doubt I will hear, in due course, the basis of that contest and will be in a position to rule, ultimately, on the issues with which I will be presented.

  1. I decline the application to stand down.

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Decision last updated: 21 July 2011

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