Basten JA at [1] Campbell JA at [24] Macfarlan JA at [227]
Decision:
(1) Set aside the order numbered (1) purportedly made in the court below on 26 October 2011.
(2) Otherwise, appeal dismissed.
(3) Appellant to pay costs of the First and Second Respondents.
[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 AND NEW TRIAL - bias of trial judge - where the trial judge is alleged to have been vitiated by actual or apprehended bias - allegations of bias must be dealt with first on appeal as the discovery of bias taints the whole of the judgment below
APPEAL AND NEW TRIAL - bias of trial judge - where the trial judge is alleged to have been vitiated by actual or apprehended bias - it is not prejudgment for a trial judge to rely on a party, without objection, seeking to confine the issues it agitates to particular arguments it has put forward at trial
EVIDENCE - proof of documents - where print-out of email produced before the court purporting to show email and its attachments were sent to a particular addressee - reasonable to assume that in the ordinary course of business emails reach their intended recipient - conclusion supported by s 161 Evidence Act 1995
JUDGMENT - reasons for judgment - amendment by judge to judgment after delivery of reasons extempore - extent to which amendments are permissible - permissible amendments are limited to matters which were clearly in the judge's mind at the time or are merely editorial or stylistic - changes of substance are not permitted - the inclusion of an order not requested by either party supported by reasons not addressed by either party is a change of substance - order set aside
JUDGMENT - reasons for judgment - amendment by judge to judgment after delivery of reasons extempore - where amendments were impermissible - proper course on appeal is to read judgment as if amendments had not been made
PRACTICE AND PROCEDURE - expedition list - not necessary for trial judge having an expedited matter come before him or her to question the reason for the placement of the matter in the expedition list - reasonable to proceed on the basis that the matter ought to be dealt with as expeditiously as practicable in the circumstances
REAL PROPERTY - service of notices - s 170 Conveyancing Act 1919 - the legislatively enumerated methods of service serve to increase, not limit, the ways…
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.
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Details
AGLC
Spencer v Bamber [2012] NSWCA 274
Case
[2012] NSWCA 274
Decision Date
CaseChat Overview and Summary
The appeal concerned allegations of actual or apprehended bias against the trial judge, Black J, and the validity of amendments made to his judgment after its initial delivery. The dispute centred on the service of a Notice of Intention to Apply for Foreclosure on the appellant mortgagor, with the appellant arguing that the notice was not properly served. The appeal was heard by Basten, Campbell and Macfarlan JJA of the Court of Appeal of New South Wales.
The Court of Appeal was required to determine whether the trial judge had demonstrated actual or apprehended bias, and whether the amendments made to his reasons for judgment after delivery were permissible. Additionally, the Court considered the sufficiency of service of the foreclosure notice under section 170 of the Conveyancing Act 1919, and whether the trial judge erred in proceeding with the hearing without an adjournment.
The Court found that the trial judge's reliance on the parties to confine the issues to those argued at trial did not constitute prejudgment. Regarding the service of the notice, the Court held that an email sent to the mortgagor's solicitor, which was attached to an email sent to the mortgagor's known email address, constituted actual service, a conclusion supported by section 161 of the Evidence Act 1995. The Court determined that the amendments made by the trial judge to his judgment after delivery were impermissible as they constituted changes of substance, including the inclusion of an order not requested by the parties and unsupported by their arguments. The Court therefore ordered that the impermissible amendment be set aside and the judgment read as if the amendments had not been made. The appeal was otherwise dismissed.
Orders
Orders of the court
(1) Set aside the order numbered (1) purportedly made in the court below on 26 October 2011.
(2) Otherwise, appeal dismissed.
(3) Appellant to pay costs of the First and Second Respondents.
[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
The basis for the inference is as follows. The email from Mr McKell of 18 June 2010 ([61] above) was addressed to Mr Peter King, and to the email address that Mr McKell said in cross-examination was the Appellant's email address on 18 June 2010, and the only email address of the Appellant of which Mr McKell was aware. The body of the email showed that the Appellant was an intended addressee. The correspondence that was attached to it was correspondence that was of particular relevance to the affairs of the Appellant. Further, the email of Mr McKell on 23 June 2010 ([65] above) was sent to the email address that Mr McKell had identified as being that of the Appellant, the body of the email showed that it was intended for the Appellant, and both the heading and the text of the email showed that it related to foreclosure proceedings. The text was written on a basis that assumed that the recipient would understand what was meant by "the foreclosure matter" and "the notice". These matters provide grounds for a strong inference, in the absence of any evidence to the contrary, that the emails of 18 June 2010 and 23 June 2010 were received by the Appellant. Such an inference arises not only as a matter of ordinary experience that emails usually reach their addressee, but also from s 161 Evidence Act 1995. The fact that there was now that extra evidence, and that it had the significance that was discussed in the course of the hearing before Black J, and in his reasons for judgment, cried out for the Appellant to make an affidavit proving, if such was the fact, that he had not received any of those emails. Such an affidavit could be quite brief. It is the type of affidavit that a competent solicitor could take instructions for, and draft or dictate, inside several hours. Alternatively, those matters cried out for cogent evidence to be provided that explained why the medical condition of the Appellant was such that he could not undertake the task of giving instructions for, and preparing such an affidavit. By the time of the hearing on 26 October 2011, a reasonable time in which to take those steps had elapsed. The second arises from the fact that an application for adjournment was made to Black J, but no such application was made to Pembroke J. Sometimes a judge might adjourn a hearing of his own motion if the judge needs to give his or her attention to some more urgent matter that has arisen. My consciousness of the limitations of my own imagination make me refrain from saying that it could never happen that circumstances would arise when a judge should adjourn a hearing of his own motion when all parties to litigation are represented by counsel before him, no one applies for an adjournment, and no emergency has arisen concerning a matter other than the one listed before the judge. However, such a situation must be extremely rare, if it ever arises. Further, whether an adjournment is granted is a discretionary matter concerning practice and procedure, capable of being challenged only on the grounds in House v R (1936) 55 CLR 499. No attempt was made in the present appeal to identify which of the possible grounds upon which House v R might be invoked should be applied here. I am unpersuaded that the judge was in error in not adjourning the case, or that his failure to adjourn it is indicative of either apprehended bias or actual bias.