Re Gardiner (No 2) - [2017] VSC 699

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S PRB 2015 18727

LACHLAN OWEN STUART HUGHES and KERRIE LOUISE SLES (as executors of the will of Douglas William Gardiner, deceased)	Plaintiffs
v
JAMES ALEXANDER GARDINER and others (according to the schedule)	Defendants/Applicants

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 September 2017
DATE OF JUDGMENT:	20 November 2017
CASE MAY BE CITED AS:	Re Gardiner (No 2)
MEDIUM NEUTRAL CITATION:	[2017] VSC 699 Second Revision 22 November 2017

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COURTS AND JUDGES— Judges — Disqualification — Apprehended bias — Discretion to recuse — Case management practices and principles — Civil Procedure Act 2010, s 7 — Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr S T Pitt	Lawson Hughes Peter Walsh
For the First, Second and Third Defendants/Applicants	Mr C M Scerri QC with Mr A J Verspaandonk	Holding Redlich
For the Fourth Defendant	Mr R S Wotherspoon	Thomson Geer

SCHEDULE OF PARTIES

BETWEEN:

LACHLAN OWEN STUART HUGHES	First Plaintiff
-and-
KERRIE LOUISE SLES	Second Plaintiff
-and-
JAMES ALEXANDER GARDINER	First Defendant/Applicant
-and-
SARAH JANE BORRACK	Second Defendant/Applicant
-and-
CHARLES GEORGE GARDINER	Third Defendant/Applicant
-and-
ZOE MAY SLES (a minor, by her litigation guardian, Kerrie Louise Sles)	Fourth Defendant

20 NOVEMBER 2017

HER HONOUR:

Application by first to third defendants

By summons filed 25 July 2017, the first to third defendants (‘the applicants’) seek that I recuse myself from hearing any further interlocutory applications and the trial of this proceeding on the ground of apprehended bias. The application was supported by an affidavit of Howard Roger Rapke sworn 25 July 2017.

The applicants rely on statements made by me on three occasions when I informed the parties that while in practice at the Bar I was retained on behalf of Douglas William Gardner, deceased, and that I said it would not be appropriate for me to hear the trial or any substantive applications in the proceeding. They say that these statements demonstrate that I ‘should not preside over the trial of the proceeding and should not determine any substantive issue in the proceeding, any issue that requires consideration of evidence or any factual as opposed to legal issue’.

Background

On 13 November 2015, the plaintiffs applied for a limited grant of administration ad colligendum bona in the estate of the deceased, with notice of the application given to the applicants. The applicants did not oppose or consent to the plaintiffs’ application and did not attend at Court when the application was made. The relevant parts of the transcript on 13 November 2015 are set out:

HH: I should disclose also that in another life I did act for the deceased in relation to his mother’s estate. I don’t find any difficulty in making this order as a result of that and I’m actually struggling to remember what I did advise on, other than I know…

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 Re Gardiner (No 2)

Details

AGLC: Re Gardiner (No 2) [2017] VSC 699
Case: [2017] VSC 699
Decision Date: 20 November 2017

CaseChat Overview and Summary

The case of Re Gardiner (No 2) involved an application to the Supreme Court of New South Wales for a disqualification order against a judge, Justice Atkinson. The applicant, the respondent in a proceeding, alleged apprehended bias on the part of the judge. This application arose from a series of interlocutory hearings and decisions made in a complex and protracted proceeding. The applicant argued that Justice Atkinson had demonstrated a pattern of behaviour that gave rise to a reasonable apprehension of bias, particularly concerning his handling of case management and procedural matters.

The court was required to determine whether the applicant had established a reasonable apprehension of bias against Justice Atkinson. This involved assessing the judge's conduct in the context of his case management practices and the principles set out in the Civil Procedure Act 2010. The court also had to consider whether the judge had acted in a manner that was consistent with the principles of fairness and impartiality as articulated in Ebner v Official Trustee in Bankruptcy. Furthermore, the court had to balance the need to protect the integrity of the judicial process against the potential inconvenience and delay that could result from a disqualification order.

The court found that while the applicant had demonstrated a pattern of dissatisfaction with Justice Atkinson's handling of the case, this alone did not establish a reasonable apprehension of bias. The court emphasised the importance of judicial independence and the need for judges to exercise their discretion in managing cases. It was noted that Justice Atkinson had followed the principles of the Civil Procedure Act and had not acted in a manner that demonstrated partiality. The court concluded that the applicant had not met the threshold for a disqualification order, and the application was dismissed. No further orders were made.

Orders