Spencer v Bamber

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.