Reid v Hubbard (No 2)

[2004] FCA 180

FEDERAL COURT OF AUSTRALIA

Reid v Hubbard (No 2) [2004] FCA 180

PRACTICE AND PROCEDURE – whether costs should be awarded on indemnity basis and/or against legal practitioners personally – whether the Court can invoke O 62 r 9(1) Federal Court Rules of its own motion – sequence of submissions – application for disqualification on ground of apprehended bias – whether views expressed in judgment constitute bias by way of preconception – application of test in context of O 62 r 9(1)

Federal Court Rules O 62 r 9(1)

Johnson v Johnson (2000) 201 CLR 488 applied
Shire of Gisborne v King [1995] 1 VR 103 at 106 followed
Vakauta v Kelly (1989) 167 CLR 568 applied

SUSAN REID & ANOR V JOHN HAROLD HUBBARD & ANOR (No 2)
V 933 OF 2003

HEEREY J
26 FEBRUARY 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 933 OF 2003

BETWEEN:

SUSAN REID
FIRST APPLICANT

MICHAEL JAMES REID (by his litigation guardian SUSAN REID)
SECOND APPLICANT

AND:

JOHN HAROLD HUBBARD
FIRST RESPONDENT

ESANDCEE PTY LTD (ACN 073 887 822)
SECOND RESPONDENT

JUDGE:

HEEREY J

DATE OF ORDER:

26 FEBRUARY 2004

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The motion filed on 24 February 2004 is dismissed

2.Submissions of the appellants and solicitors and counsel be filed and served by 9 March 2004, and those of the second respondent by 19 March 2004

3.Costs of the motion be costs in the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 933 OF 2003

BETWEEN:

SUSAN REID
FIRST APPLICANT

MICHAEL JAMES REID (by his litigation guardian SUSAN REID)
SECOND APPLICANT

AND:

JOHN HAROLD HUBBARD
FIRST RESPONDENT

ESANDCEE PTY LTD (ACN 073 887 822)
SECOND RESPONDENT

JUDGE:	HEEREY J
DATE:	26 FEBRUARY 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On 5 December 2003 I dismissed an appeal against a judgment of Bryant CFM which had dismissed an application by the appellants Susan Reid and Michael James Reid to set aside a bankruptcy notice procured by the second respondent Esandcee Pty Ltd and directed to the first respondent John Harold Hubbard: Reid v Hubbard [2003] FCA 1424. I adjourned the question of costs to a date to be fixed for further argument as to whether there should be orders that (a) the appellants pay the second respondent's costs upon an indemnity basis; and (b) such costs be paid personally in whole or in part by the appellants' counsel and solicitors or some of them.

2. On 9 December 2003, at my direction, my Associate sent an email to the parties as follows:

   “His Honour has fixed the costs hearing at 10.15 am on 25 March 2004. 

   His Honour is of the view that, because of the conflict of interest on the issue of costs, it would be inappropriate for the appellants to be represented by their present solicitors and counsel.

   Submissions are to be…