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Rouvinetis v Knoll

Rouvinetis v Knoll

Case [2013] NSWCA 24 19 February 2013

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Rouvinetis v Knoll [2013] NSWCA 24
Hearing dates: 29 January 2013
Decision date: 19 February 2013
Before: Basten JA at [1];
Barrett JA at [63];
Ward JA at [64]
Decision:
(1) Without resolving the objection to competency, dismiss the appeal.
(2) Order the appellant to pay the respondent's costs in this Court, including, in the case of the Board, those relating to the objection to competency.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
APPEAL - civil - objection to competency - requirement to obtain leave if compensation in issue less than $100,000 - compensation not assessed in court below - failure by appellant to file an affidavit in accordance with Uniform Civil Procedure Rules 2005 (NSW) - consequence of failure - procedure for determining competency

BIAS - apprehension of bias - assertion that the trial judge was Jewish and a Zionist - a defendant in proceedings a judge of the same Division of the Court as the trial judge - no application for the trial judge to disqualify herself - unrepresented litigant aware of the source of possible apprehension of bias - waiver of right to object
TORTS - negligence - assault - battery - wrongful imprisonment - appellant detained by security guards - whether only reasonable force used
Legislation Cited: Law Enforcement (Power and Responsibilities) Act 2002 (NSW), s 100
Security Industry Act 1997 (NSW), ss 7, 23A, 36,
Supreme Court Act 1970 (NSW), ss 85, 101
Uniform Civil Procedure Rules 2005 (NSW), r 51.22
Cases Cited: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; 229 CLR 577
CUR 24 v Director of Public Prosecutions [2012] NSWCA 65
Gillard v Hunter Wire Products Pty Ltd t/as Hunter Screen Products (No 2) [2001] NSWCA 450
Goodwin v Commissioner of Police [2012] NSWCA 379
Maynes v Casey [2011] NSWCA 156
Makucha v Sydney Water Corporation [2011] NSWCA 234
Maroubra Rugby League Football Club v Malo [2007] NSWCA 39; 69 NSWLR 496
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427
Rouvinetis v Knoll [2009] NSWSC 1212
Smits v Roach [2006] HCA 36; 227 CLR 423
Vakauta v Kelly [1989] HCA 44; 167 CLR 568
Category: Principal judgment
Parties: Evangelos Rouvinetis (Appellant)
David Knoll (First Respondent)
Paliguard Pty Ltd (Second Respondent)
Stephen Rothman (Third Respondent)
Yair Miller (Fourth Respondent)
Robin Margo (Fifth Respondent)
Sam Zweie (Sixth Respondent)
Uri Windt (Seventh Respondent)
Graham de Vahl Davis (Eighth Respondent)
Robert Goot (Ninth Respondent)
Gerry Levy (Tenth Respondent)
Michael Marx (Eleventh Respondent)
Peter Wertheim (Twelfth Respondent)
George Foster…

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 Rouvinetis v Knoll

Details

AGLC: Rouvinetis v Knoll [2013] NSWCA 24
Case: [2013] NSWCA 24
Decision Date: 19 February 2013

CaseChat Overview and Summary

The appeal concerned a dispute between the appellant, Mr Rouvinetis, and the respondent, Knoll, which involved claims of negligence, assault, battery, and wrongful imprisonment. The appellant had been detained by security guards, and the central question was whether only reasonable force had been used. The appeal was heard in the Court of Appeal of New South Wales by Basten, Barrett and Ward JJA.

The Court was required to determine two primary legal issues. The first was the competency of the appeal, given that the compensation in issue was less than $100,000, which typically requires leave to appeal. This was compounded by the appellant's failure to file an affidavit in accordance with the Uniform Civil Procedure Rules 2005 (NSW). The second issue concerned an apprehension of bias, with the appellant asserting that the trial judge was Jewish and a Zionist, and that a defendant in the proceedings was a judge of the same court division.

Regarding the competency of the appeal, the Court noted the appellant's failure to comply with procedural rules, including the filing of an affidavit. The Court also addressed the apprehension of bias claim, observing that no application had been made for the trial judge to disqualify herself, and that the unrepresented litigant was aware of the potential grounds for objection. The Court found that the appellant had waived his right to object on this basis.

Ultimately, without definitively resolving the objection to competency, the Court of Appeal dismissed the appeal. The appellant was ordered to pay the respondent's costs in the Court, including those relating to the objection to competency.

Orders

Orders of the court

(1) Without resolving the objection to competency, dismiss the appeal.

(2) Order the appellant to pay the respondent's costs in this Court, including, in the case of the Board, those relating to the objection to competency.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Rouvinetis v Knoll [2013] NSWCA 24

Most Recent Citation

Wain v Drapac (No 3) [2014] VSC 23

Cases citing this decision · 17 of 17 shown

Eccheli & Eccheli (No 6)
[2025] FedCFamC1F 325 Para 33

…288 at 299); they have common sense ( Barton v Walker [1979] 2NSWLR 740) the lay observer is not unduly sensitive or suspicious ( Rouvinetis v Knoll [2013] NSWCA 24), knows that judges may make interventionalists comments not because they have prejudged a case but to better understand the case or to efficiently m…
Heywood v Local Court of New South Wales
[2024] NSWSC 1047 Para 24

…cognisant of and vigilant against his or her own prejudices; [9] 9. Rouvinetis v Knoll [2013] NSWCA 24 at [24]; S&M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 at 375–376 (“S&M”); Johnson at [53] (x) the inquiry as to whether a judge might reasonably be apprehended to deviate from b…
FNN v Cumberland City Council
[2022] NSWCATAD 169 Para 5

…form a view as to whether the primary judge could be relied upon to determine the case impartially and on the evidence before her: Rouvinetis v Knoll [2013] NSWCA 24 at [24] per Basten JA (Ward and Barrett JJA agreeing). [77] An allegation of apprehended bias requires an objective assessment of the connection betw…
Polsen v Harrison (No 5)
[2021] NSWSC 244 Para 24

…orm a view as to whether the primary judge could be relied upon to determine the case impartially and on the evidence before her : Rouvinetis v Knoll [2013] NSWCA 24 at [24] per Basten JA (Ward and Barrett JJA agreeing).…
Polsen v Harrison
[2021] NSWCA 23 Para 9

…f scepticism as to professional pretensions, but will be cognisant of and vigilant against his or her own prejudices; [31] 31. Rouvinetis v Knoll [2013] NSWCA 24 at [24]; S&M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 at 375–376 (S&M); Johnson at [53].…
Polsen v Harrison (No. 2)
[2021] NSWSC 111 Para 24

…form a view as to whether the primary judge could be relied upon to determine the case impartially and on the evidence before her: Rouvinetis v Knoll [2013] NSWCA 24 at [24] per Basten JA (Ward and Barrett JJA agreeing).…
Day v Humphrey
[2019] QSC 38 Para 5

…air-minded lay observer of the ability of judges to adhere to the obligations of the judicial oath or affirmation, as explained in Rouvinetis v Knoll [2013] NSWCA 24 at [24].…
Huang v Drumm
[2018] NSWSC 1300 Para 24

…form a view as to whether the primary judge could be relied upon to determine the case impartially and on the evidence before her: Rouvinetis v Knoll [2013] NSWCA 24 at [24] per Basten JA (Ward and Barrett JJA agreeing). [77] An allegation of apprehended bias requires an objective assessment of the connection betw…
Tarrant v R
[2018] NSWCCA 21

…rrant [2016] NSWSC 892 Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39 Roff v R [2017] NSWCCA 208 Rouvinetis v Knoll [2013] NSWCA 24 Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88 Category: Principal judgment Parties: Sarah Renea Tarrant (Applicant) Regina (Respondent) Representation: C…
New Price Retail Services Pty Limited v David Hanna
[2014] NSWSC 553 Para 1

…In Rouvinetis v Knoll [2013] NSWCA 24, Basten JA (Barrett and Ward JJA agreeing) set out at [32]-[33] the authorities described above and then turned to the issue of legal representation:…
Clarke, Dallas v State of New South Wales (No 2)
[2014] NSWSC 578 Para 24

…form a view as to whether the primary judge could be relied upon to determine the case impartially and on the evidence before her: Rouvinetis v Knoll [2013] NSWCA 24 at [24] per Basten JA (Ward and Barrett JJA agreeing).…
Reid v Commercial Club (Albury) Ltd
[2014] NSWCA 98 Para 1

…form a view as to whether the primary judge could be relied upon to determine the case impartially and on the evidence before her: Rouvinetis v Knoll [2013] NSWCA 24 at [24] per Basten JA (Ward and Barrett JJA agreeing).…
Wain v Drapac (No 3)
[2014] VSC 23

…[2]Ibid [31]–[33] (citation omitted). See also Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 [6]–[7]; Rouvenitis v Knoll [2013] NSWCA 24 [24].…
Matthews v R
[2013] NSWCCA 187 Para 1

…did not distinguish between the two, and it is appropriate to proceed on the significantly lower standard of apprehended bias: see Rouvinetis v Knoll [2013] NSWCA 24 at [10]. The appellant needed to identify the matter which might lead the judge to decide the case other than on its legal and factual merits, and he…
Re F
[2013] NSWCA 239 Para 13

…ropriate to treat the application on the most favourable basis to the applicant, namely, that it is based on apprehended bias: see Rouvinetis v Knoll [2013] NSWCA 24 at [10]. The question is whether a fair-minded and informed observer might reasonably apprehend that the judge might not bring an impartial and unpre…
High Court Bulletin
[2013] HCAB 5

…Supreme Court of New South Wales (Court of Appeal) [2013] NSWCA 24…
Allianz Australia Insurance Ltd v Tarabay
[2013] NSWSC 141 Para 1

…Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 at [117] (per Kirby and Crennan JJ), cited in Rouvinetis v Knoll [2013] NSWCA 24 at [11] (per Basten JA).…

View all 17 citing cases →

Cases cited in this decision · 12 of 12 shown

Goodwin v Commissioner of Police
[2012] NSWCA 379 Para 1

…ired, it may be appropriate to address questions of bias before reaching other issues: Concrete Pty Ltd at [117]; cf Goodwin v Commissioner of Police [2012] NSWCA 379 at [15]-[25]. Although the plaintiff should not succeed on that ground, it is desirable to explain why that is so.…
CUR24 v Director of Public Prosecutions
[2012] NSWCA 65 Para 1

…appeal, as to how the Court should address factual allegations which were not established on the evidence. In CUR24 v Director of Public Prosecutions [2012] NSWCA 65 the Court held that it was neither necessary nor appropriate to make findings of fact on the balance of probabilities, where the basis of an alleged…
Michael Wilson & Partners Ltd v Nicholls
[2011] HCA 48 Para 1

…judge might not bring an impartial and unprejudiced mind to the resolution of the question to be determined: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 at [31]. The test is objective: this Court is not required or permitted to form a view as to whether the trial judge could be relied upo…
Rouvinetis v Knoll
[2011] NSWSC 1352 Para 1

…for assault, battery and false imprisonment and in negligence. The matter was heard by Fullerton J who dismissed the proceedings: Rouvinetis v Knoll [2011] NSWSC 1352.…
Makucha v Sydney Water Corporation
[2011] NSWCA 234 Para 1

…ould not be answered) but inappropriate to tender material to demonstrate a factual basis for such allegations. In Makucha v Sydney Water Corporation [2011] NSWCA 234, a case involving a claim to intellectual property, the Court dealt with an objection based on a reasonable apprehension of bias based on a claim tha…
Maynes v Casey
[2011] NSWCA 156 Para 1

…elevant medical evidence and expresses an opinion as to the likelihood of the amount in issue exceeding the threshold. As explained in Maynes v Casey [2011] NSWCA 156 at [8], the expression of such an opinion is neither necessary, nor sufficient. The content of the affidavit is to be guided by the purpose of the ru…
Rouvinetis v Knoll
[2009] NSWSC 1212 Para 1

…s that the third defendant was a judge of the Court. The application was heard and determined, on 19 November 2009, by RA Hulme J: Rouvinetis v Knoll [2009] NSWSC 1212 at [41]-[55]. Civil proceedings are to be tried without a jury "unless the court orders otherwise": Supreme Court Act , s 85(1). The court is empower…
Maroubra Rugby League Football Club Inc v Malo
[2007] NSWCA 39 Para 1

…noted that the circumstances in which that reasonably stringent test might be satisfied were discussed in Maroubra Rugby League Football Club v Malo [2007] NSWCA 39; 69 NSWLR 496 at [33], where Mason P accepted that "the combination of serious credibility issues and something more (for example, a serving judge as…
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd
[2006] HCA 55 Para 1

…f made good will "strike at the validity and acceptability of the trial and its outcome": Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; 229 CLR 577 at [117] (Kirby and Crennan JJ). Where there is an arguable case of apprehended bias, but leave is required, it will often be appropriat…
Smits v Roach
[2006] HCA 36 Para 1

…estion arises as to whether, in these circumstances, the appellant can maintain his objection to a trial in the Common Law Division. In Smits v Roach [2006] HCA 36; 227 CLR 423, Gleeson CJ, Heydon and Crennan JJ stated at [43]:…
Gillard v Hunter Wire Products Pty Ltd t/as Hunter Screen Products (No 2)
[2001] NSWCA 450 Para 1

…ry figure": Maynes at [9] and authority to referred to there, together with Gillard v Hunter Wire Products Pty Ltd t/as Hunter Screen Products (No 2) [2001] NSWCA 450 at [12] (Priestley JA and Sperling J), relied upon by the Board in the present case.…
Vakauta v Kelly
[1989] HCA 44 Para 1

…The reasons in Smits made reference to the judgment of Brennan, Deane and Gaudron JJ in Vakauta v Kelly [1989] HCA 44; 167 CLR 568 at 572 where it was said that "a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove u…

Legislation cited in this decision · 5

Security Industry Act 1997 (NSW)
23A, 36, 7 4 mentions
Supreme Court Act 1970 (NSW)
101, 85 3 mentions (from Para 1)
Uniform Civil Procedure Rules 2005 (NSW)
51.22 2 mentions (from Para 1)
Civil Liability Act 2002 (TAS)
1 mention (from Para 1)
Law Enforcement (Power and Responsibilities) Act 2002 (NSW)
100 1 mention (from Para 1)

Medium Neutral Citation:	Rouvinetis v Knoll [2013] NSWCA 24
Hearing dates:	29 January 2013
Decision date:	19 February 2013
Before:	Basten JA at [1]; Barrett JA at [63]; Ward JA at [64]
Decision:	(1) Without resolving the objection to competency, dismiss the appeal. (2) Order the appellant to pay the respondent's costs in this Court, including, in the case of the Board, those relating to the objection to competency. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	APPEAL - civil - objection to competency - requirement to obtain leave if compensation in issue less than $100,000 - compensation not assessed in court below - failure by appellant to file an affidavit in accordance with Uniform Civil Procedure Rules 2005 (NSW) - consequence of failure - procedure for determining competency BIAS - apprehension of bias - assertion that the trial judge was Jewish and a Zionist - a defendant in proceedings a judge of the same Division of the Court as the trial judge - no application for the trial judge to disqualify herself - unrepresented litigant aware of the source of possible apprehension of bias - waiver of right to object TORTS - negligence - assault - battery - wrongful imprisonment - appellant detained by security guards - whether only reasonable force used
Legislation Cited:	Law Enforcement (Power and Responsibilities) Act 2002 (NSW), s 100 Security Industry Act 1997 (NSW), ss 7, 23A, 36, Supreme Court Act 1970 (NSW), ss 85, 101 Uniform Civil Procedure Rules 2005 (NSW), r 51.22
Cases Cited:	Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; 229 CLR 577 CUR 24 v Director of Public Prosecutions [2012] NSWCA 65 Gillard v Hunter Wire Products Pty Ltd t/as Hunter Screen Products (No 2) [2001] NSWCA 450 Goodwin v Commissioner of Police [2012] NSWCA 379 Maynes v Casey [2011] NSWCA 156 Makucha v Sydney Water Corporation [2011] NSWCA 234 Maroubra Rugby League Football Club v Malo [2007] NSWCA 39; 69 NSWLR 496 Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 Rouvinetis v Knoll [2009] NSWSC 1212 Smits v Roach [2006] HCA 36; 227 CLR 423 Vakauta v Kelly [1989] HCA 44; 167 CLR 568
Category:	Principal judgment
Parties:	Evangelos Rouvinetis (Appellant) David Knoll (First Respondent) Paliguard Pty Ltd (Second Respondent) Stephen Rothman (Third Respondent) Yair Miller (Fourth Respondent) Robin Margo (Fifth Respondent) Sam Zweie (Sixth Respondent) Uri Windt (Seventh Respondent) Graham de Vahl Davis (Eighth Respondent) Robert Goot (Ninth Respondent) Gerry Levy (Tenth Respondent) Michael Marx (Eleventh Respondent) Peter Wertheim (Twelfth Respondent) George Foster…