Sturesteps v Khoury (No 2) - [2017] NSWSC 1525

Supreme Court

New South Wales

Medium Neutral Citation: Sturesteps v Khoury (No 2) [2017] NSWSC 1525
Hearing dates: 3 November 2017
Date of orders: 03 November 2017
Decision date: 03 November 2017
Jurisdiction: Equity - Applications List
Before: Parker J
Decision:
Recusal application dismissed

Catchwords: Civil Procedure – recusal application – apprehended bias – where Judge as counsel made allegations of fraud against party in prior unrelated proceedings – where party is appearing as junior counsel in applications to be heard before Judge – no disqualification
Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Category: Procedural and other rulings
Parties: George Osvald Sturesteps (First Plaintiff)
Beryl Donna Sturesteps (Second Plaintiff)
Dieb Peter Khoury (First Defendant)
Benjamin & Khoury Pty Ltd (Second Defendant)
Representation:
Counsel:
P Menzies QC/CJ Bevan (Plaintiffs)
R Gration (Defendants)
Solicitors:
WM Lawyers Pty Ltd (Plaintiffs)
Benjamin & Khoury Pty Ltd (Defendants)

File Number(s): 2014/24406
Publication restriction: Nil

Judgment – EX TEMPORE

(revised and issued 10 november 2017)

The plaintiffs seek to have me recuse myself from hearing two interlocutory applications which are fixed for hearing before me as the Applications Judge next Friday, 10 November. The plaintiffs in these proceedings, Mr and Mrs Sturesteps, are former clients of the first defendant, Mr Khoury. The second defendant is an incorporated legal practice, of which Mr Khoury is a director. Mr Khoury, and then the second defendant, acted for Mr and Mrs Sturesteps in earlier proceedings in this Court concerning the collapse of the HIH group of companies. Those proceedings were very protracted and it is said that approximately $3 million was paid to Mr Khoury for representation in those earlier proceedings. Mr and Mrs Sturesteps now claim that they have been overcharged by Mr Khoury and seek recoupment of a sum said to amount to some $1 million or so.
The proceedings were commenced in 2014, but are not yet ready for hearing. There have been extensive interlocutory disputes concerning the form of the pleadings. The current statement of claim is a document styled "Second Further Amended Statement of Claim", which was filed on 13 February this year. The defendants filed their Defence to that Second Further Amended Statement of Claim on 6 June 2017.
The plaintiffs have applied for orders requiring the provision of answers to what are said to be requests for particulars of the Defence and for further orders directed towards preparation of the case for hearing, with a view to it being fixed for hearing at some point in the first half of 2018. The plaintiffs’ notice of motion was filed on 13 July 2017. The defendants have applied for leave to amend the Defence. The defendants’ notice of motion was filed on 14 August 2017.
Pursuant to the usual requirements of the Applications List, the parties have filed written submissions in support of their respective application and in…

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 Sturesteps v Khoury (No 2)

Details

AGLC: Sturesteps v Khoury (No 2) [2017] NSWSC 1525
Case: [2017] NSWSC 1525
Decision Date: 03 November 2017

CaseChat Overview and Summary

The case of Sturesteps v Khoury (No 2) involved the applicant, Sturesteps, seeking the recusal of a Judge who had previously made allegations of fraud against the respondent, Khoury, in unrelated proceedings. Khoury, who was appearing as junior counsel in applications before the Judge, argued that the Judge's prior involvement as counsel in the earlier proceedings created an apprehension of bias. The High Court of Australia was tasked with determining whether the prior involvement of the Judge was sufficient to necessitate recusal.

The central legal issue before the court was whether the Judge's prior allegations of fraud against Khoury in a separate matter warranted recusal due to apprehended bias. The court needed to consider the principles governing judicial recusal and whether the circumstances created a real likelihood of bias in the current proceedings. Specifically, the court examined whether the Judge's prior conduct could reasonably give rise to an apprehension of bias in the mind of a fair-minded lay observer.

The court found that the Judge's prior involvement as counsel in unrelated proceedings, where allegations of fraud were made against Khoury, did not create a real likelihood of bias in the current case. The court held that the Judge's prior conduct did not involve any findings or determinations that would suggest a predisposition in the current proceedings. Furthermore, the court noted that Khoury had not provided any evidence of partiality or any other factors that would support a finding of apprehended bias. The court concluded that the Judge's impartiality was not compromised and denied the application for recusal.

No further orders were made by the court beyond the denial of the recusal application. The case underscores the importance of impartiality in judicial proceedings and the stringent standards required to establish apprehended bias in the context of a recusal application.

Orders