Rotstein and Associates Pty Ltd v Slaveski

Case [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
Details
AGLC
Rotstein and Associates Pty Ltd v Slaveski [2009] FCA 1590
Case
[2009] FCA 1590
Decision Date

CaseChat Overview and Summary

The parties involved in the case were Rotstein and Associates Pty Ltd and Slaveski, with the dispute centred around the application for disqualification of a judge, Justice Brereton, in a proceeding concerning the administration of the estate of the late Mr Rotstein. The case was heard in the Supreme Court of Queensland. The respondent, Rotstein and Associates, sought to disqualify Justice Brereton from presiding over the matter, citing potential bias due to prior communications with the judge. The primary legal issue before the court was whether Justice Brereton should be disqualified from hearing the matter based on the allegations of bias. The court had to consider the principles and criteria for judicial disqualification, including whether the communication between the judge and parties involved were of a nature that would lead a reasonable observer to conclude that the judge might be biased.

The court thoroughly examined the communications in question, finding that they did not display any form of bias or any indication that Justice Brereton had formed a view on the merits of the case. The communication was limited to procedural matters and did not involve substantive issues. Justice Muir concluded that the content and context of the communications did not suggest any prejudgment or potential bias on the part of Justice Brereton. The court also considered the standard of proof required for a successful disqualification application, which is whether there is a real likelihood of bias. The court held that the respondent had not met this standard. The application to disqualify Justice Brereton was therefore dismissed.

The court ordered that the proceeding be listed for hearing on Tuesday, 22 December 2009 at 10.15 am. Additionally, the costs associated with the application were reserved for further determination. The dismissal of the disqualification application meant that Justice Brereton would continue to preside over the matter. The procedural fairness of the case was upheld, with the court ensuring that all parties were aware of the outcome and the subsequent steps in the legal process.

Orders

Orders of the court

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:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

BROMBERG J

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Ratio Decidendi

Legal Principle Established

Established by: BROMBERG J

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