Rotstein and Associates Pty Ltd v Slaveski

[2009] FCA 1590

FEDERAL COURT OF AUSTRALIA

Rotstein & Associates Pty Ltd v Slaveski [2009] FCA 1590

PRACTICE AND PROCEDURE – application for disqualification on grounds of apprehended bias – whether fair-minded lay observer may reasonably apprehend judge might bring an impartial mind to the resolution of application – whether any realistic possibility the outcome of litigation would affect value of shareholding

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 applied

ROTSTEIN & ASSOCIATES PTY LTD (ACN 117 539 063) v LJUPCO SLAVESKI

VID 567 of 2009

BROMBERG J
18 DECEMBER 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 567 of 2009
GENERAL DIVISION

BETWEEN:	ROTSTEIN & ASSOCIATES PTY LTD (ACN 117 539 063) Applicant
AND:	LJUPCO SLAVESKI Respondent

JUDGE:	BROMBERG J
DATE OF ORDER:	18 DECEMBER 2009
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application to disqualify be dismissed.

2.The proceeding be listed for hearing on Tuesday, 22 December 2009 at 10.15 am.

3.Costs of today be reserved.

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

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 567 of 2009
GENERAL DIVISION

BETWEEN:	ROTSTEIN & ASSOCIATES PTY LTD (ACN 117 539 063) Applicant
AND:	LJUPCO SLAVESKI Respondent

JUDGE:	BROMBERG J
DATE:	18 DECEMBER 2009
PLACE:	MELBOURNE

EX TEMPORE REASONS FOR JUDGMENT

1. This matter has come on this morning for a directions hearing.  In the course of submissions as to when the matter should be listed for hearing I was asked by the respondent, Mr Ljupco Slaveski, whether I hold any shares in the Commonwealth Bank of Australia (CBA).  I confirmed that I did.  Mr Slaveski then made an application that I disqualify myself because of my shareholding. 

2. I had intended that during the directions hearing I would record the fact that I do hold a relatively small number of shares in the CBA as well as having a number of accounts with the CBA.  I intended to do that in order to give any of the parties present an opportunity to make an application that I disqualify myself from hearing the matter.  In particular, I noted that in the notice stating the grounds of opposition to the application dated 4 June 2009 and filed by Mr Slaveski, he alleges that the applicant, Rotstein & Associates Pty Ltd, is in conspiracy with the CBA to send him bankrupt so that he is unable to sue the CBA. 

3. Having considered Mr Slaveski’s application that I disqualify myself, I refuse it.  The High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 identified the relevant considerations for an application of this kind. I have had regard, in particular, to whether there is any realistic possibility that the outcome of this litigation could affect the value of my shareholding in the CBA. I am satisfied that there is no possibility that the outcome of this litigation could have any affect on the value of my shareholding with the CBA.

4. In the circumstances, it could not be said that a fair-minded lay observer may reasonably apprehend that I might not bring an impartial mind to the resolution of the application before me.  Accordingly, I reject the application and will consider when the matter should be listed for hearing. 

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.

Associate:

Dated:        23 December 2009

Counsel for the Applicant:	Mr B Basavanand
Solicitor for the Applicant:	Rotstein Lockwood Reddy Lawyers Pty Ltd
The respondent appeared in person

Date of Hearing:	18 December 2009
Date of Judgment:	18 December 2009