SILKCHIME PTY LTD -v- WARWICK ENTERTAINMENT CENTRE PTY LTD [2013] WASCA 164

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASCA 164
Court:	THE COURT OF APPEAL (WA)	Published:	22/07/2013
Case No:	CACV:105/2012	Heard:	1 JULY 2013
Coram:	PULLIN JA	Delivered:	1/07/13
No of pages:	8	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
PDF Version

Parties:	SILKCHIME PTY LTD WARWICK ENTERTAINMENT CENTRE PTY LTD
Catchwords:	Courts and judges Application for judge to disqualify himself from sitting Whether any reasonable apprehension of bias based on a comment made during submissions in another appeal Principles governing the application
Legislation:	Nil
Case References:	Carey v Commissioner for Consumer Protection [2012] WASC 8 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SILKCHIME PTY LTD -v- WARWICK ENTERTAINMENT CENTRE PTY LTD [2013] WASCA 164 CORAM : PULLIN JA HEARD : 1 JULY 2013 DELIVERED : 1 JULY 2013 PUBLISHED : 22 JULY 2013 FILE NO/S : CACV 105 of 2012 BETWEEN : SILKCHIME PTY LTD

Appellant

AND

WARWICK ENTERTAINMENT CENTRE PTY LTD

Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : LE MIERE J

Citation : WARWICK ENTERTAINMENT CENTRE PTY LTD (RECEIVERS AND MANAGERS APPOINTED) atf THE WARWICK ENTERTAINMENT CENTRE UNIT TRUST -v- SILKCHIME PTY LTD (RECEIVERS AND MANAGERS APPOINTED) atf THE SILKCHIME UNIT TRUST [No 2] [2012] WASC 275

File No : CIV 1094 of 2008

(Page 2)

Catchwords:

Courts and judges - Application for judge to disqualify himself from sitting - Whether any reasonable apprehension of bias based on a comment made during submissions in another appeal - Principles governing the application

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant : Mr A Metaxas

Respondent : Mr J A Thomson SC & Ms V MacMillan

Solicitors:

Appellant : Metaxas & Hager

Respondent : Corrs Chambers Westgarth

Case(s) referred to in judgment(s):

Carey v Commissioner for Consumer Protection [2012] WASC 8
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70

(Page 3)

1 PULLIN JA: When this appeal came on for hearing on 1 July 2013, the appellant made an application that I disqualify myself from sitting on the appeal. After hearing submissions, I refused to do so and dismissed the application with reasons to follow. These are the reasons for that decision.

2 To understand the appellant's application, it is necessary to say something briefly and in broad terms about the current appeal and then to mention likewise the circumstances of another earlier appeal on which I sat.

This appeal

3 In this appeal, the appellant (Silkchime) alleges that Le Miere…

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.

Keep reading for free

Create a free CaseChat account to read Silkchime Pty Ltd v Warwick Entertainment Centre Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] WASCA 164
Decision Date: 22 JULY 2013

CaseChat Overview and Summary

Silkchime Pty Ltd initiated legal proceedings against Warwick Entertainment Centre Pty Ltd, challenging the terms of a contract related to the operation of a music venue. The dispute came before the court, which was required to determine whether the judge presiding over the case should recuse himself due to a perceived risk of bias. This risk arose from a comment made by the judge during submissions in a separate appeal, which the applicant claimed could lead a reasonable observer to doubt the judge's impartiality.

The legal issues before the court involved the principles governing the application for a judge to disqualify themselves due to a perceived bias. The applicant argued that the judge's comment in the separate appeal created a reasonable apprehension of bias, necessitating the judge's recusal. The court examined the comment in question and assessed whether it demonstrated a partiality that would prevent a fair trial. The court considered whether the comment was sufficiently serious to suggest the judge's impartiality was compromised.

After careful consideration, the court found that the comment made by the judge did not give rise to a reasonable apprehension of bias. The court held that the comment was made in the context of a different appeal and did not reflect any bias or partiality towards the parties or the issues in the current case. The court found that a reasonable observer, fully informed of the facts, would not conclude that the judge's impartiality was in doubt. Consequently, the application for the judge to recuse themselves was dismissed.

The court's final order was that the application to disqualify the judge from the case was dismissed. The case would proceed before the same judge, who was deemed to be impartial and capable of delivering a fair judgment. The court's decision underscored the high threshold for establishing a reasonable apprehension of bias and reinforced the principle that such applications are to be approached with caution.

Orders

Orders of the court

Application dismissed

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.