Szaintop Homes Pty Ltd v Krok
[2012] VSCA 176
•6 August 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No S APCI 2012 0148
| SZAINTOP HOMES PTY LTD (ACN 004 771 895) ATF THE HEAD SZAJNTOP FAMILY TRUST; THE IMEG FAMILY TRUST; THE S SZAJNTOP & OTHERS FAMILY TRUST and OTHERS (According to the Schedule) | Applicants |
| V | |
| MELISSA SARAH KROK IN HER OWN CAPACITY AND IN HER CAPACITY AS EXECUTRIX OF THE ESTATE OF DANIEL SZAJNTOP (Deceased) | First Respondent |
| V | |
| SDJ ASSETS PTY LTD (ACN 120 451 550) | Second Respondent |
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| JUDGES | WEINBERG JJA and DAVIES AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 3 August 2012 |
| DATE OF JUDGMENT | 6 August 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 176 |
| RULING APPEALED FROM | Krok v Szaintop Homes Pty Ltd (ACN 004 771 895) & Ors (Unreported, Supreme Court of Victoria, 2 August 2012) (Judd J) |
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PRACTICE AND PROCEDURE — Comments made by trial judge during course of directions hearing said to give rise to apprehension of bias —Trial judge refused application to disqualify himself— Decision interlocutory —Application for leave to appeal —Whether decision attended by sufficient doubt to warrant reconsideration — Whether lower threshold to be applied to applications for leave to appeal in matters involving questions of apprehended bias —Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 and Barakat v Goritsas (No 2) [2012] NSWCA 36 considered — Fair-minded observer taken to be aware of context in which comments made —Leave to appeal refused..
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| APPEARANCES: | Counsel | Solicitors |
| For The Applicants | Mr R Merkel QC and Mr B Gibson and Mr E A Gisonda | Charlesworth Josem Partners Pty Ltd |
| For The First Respondent | Mr R M Garratt QC and Mr J S Graham | Maddocks |
| For The Second Respondent | Mr J Slattery | HML Ebsworth Lawyers |
THE COURT:
The applicants are the first to sixth defendants in Supreme Court proceeding S CI 04045 of 2010, and the plaintiffs and first to sixth defendants by counterclaim in Supreme Court proceeding S CI 05599 of 2010.
By summons dated 3 August 2012, the applicants seek leave to appeal against orders made on 2 August 2012 by the judge who is to try these proceedings. By those orders, his Honour refused to transfer the proceedings to another judge for hearing and determination. He also ordered the applicants to pay costs.
The summons before this Court does not, in terms, seek leave to appeal from the Court as it is presently constituted. Rather, it seeks orders that the Court of Appeal hear and determine the application for leave and the appeal together, and that this process be expedited. Nonetheless, the argument presented before us on Friday afternoon and early evening was largely directed towards the grant of leave. We have therefore proceeded on the basis that we should deal with this matter as an application for leave to appeal.
The background facts may be briefly stated. The applicants are the trustees of various family trusts. The plaintiff alleges that the applicants have breached their duties as trustees, and seeks to have them removed and replaced by new trustees. The applicants deny having breached any such duties, and seek to retain their positions as trustees.
It should be noted that there is an issue between the parties as to whether the plaintiff is, relevantly, an object of at least some of the trusts.[1] There is also an issue as to whether she otherwise has standing to pursue her claims.
[1]This issue prompted the trial judge’s comment to counsel for the applicants: ‘So you’re seriously going to contend that Mrs Krok is not a general beneficiary of those trusts?’: Transcript of 31 July 2012, page 12. Although the applicants’ written submissions relied in part upon that comment as grounding an apprehension of bias, counsel for the applicants did not press that point with any vigour in oral submissions.
The trial of this matter was scheduled to commence on 2 August 2012. The case has been the subject of continuing mediation. In an effort to see whether the matter could be resolved, the trial judge had previously extended the date for completion of the mediation to 1 August 2012, and directed that a further mediation be conducted on that day.
The matter came before his Honour at a directions hearing on 31 July 2012. The purpose of that hearing was to enable an additional party, SDJ Assets Pty Ltd, to be joined. That matter was regarded as a formality, and was dealt with as such.
The discussion that ensued after joinder had been ordered formed the basis of the application presently before this Court. The transcript of the events of 31 July 2012 has been exhibited to an affidavit filed on behalf of the applicants. The salient passages are at pages 3-7, 12 and 13-14 of the transcript. It is useful to set them out in full:
HIS HONOUR: … Mr Magee, you’re sitting in the wings taking a low profile in all of this. I wanted to ask you a question, and this is not directed only to you but to you and Mr Garratt in particular and Mr Jopling of course, once an order’s made, will be a participant. It concerns the appointment of new trustees, and I speak of course without having heard the evidence, I’ve begun reading material to try and work out where the areas of dispute are, but if one puts to one side the factual contentions between the parties about matters of conduct and the like and look only at the objective facts as they exist, which seem to me to be so far as I can discern at this early stage non—contentious, there is a critical breakdown in the family relationship that seems to bear upon the ability of your clients to continue to properly act as trustees. Now, if that’s right, you may form the view that the appointment of new trustees is almost inevitable; I don’t know whether that’s a position that you’ve considered or would concede, I am in no position myself to form any view, but just bear with me for one minute.
If that’s the realistic position in order to ensure the proper administration of the trust in the context in which the events have occurred in the family over the last five or so years, the real issues might well be better analysed and determined in much shorter compass with the assistance of independent trustees.
I know that in a sense it’s floating a wildcard at this late stage in the preparation of trial, but I’m trying to perhaps encourage the parties to take a practical view of the issues in the case, and I’m not directing this only at you because you’re standing there but I’m directing it at everybody so that the real issues can be determined properly and expeditiously. Because, if new trustees were to be appointed, one needs to make sure that the new trustees are bound by the decisions that are made in relation what’s complained about by the Krok interests.
I hope you understand what I’m doing is really thinking out loud to try and make sure that the trial is as helpful to the parties as possible.
MR MAGEE: Your Honour, I’m sorry Your Honour felt the need to say that, what you’ve just said, because that will sort of send a dagger into my client’s heart; she will think Your Honour’s predetermine[d] this matter. Your Honour’s tone suggests that, look the real issue here is that there’s a breakdown in the relationship and it’s inevitable that trustees will be appointed. That is not the case, that misunderstands the case, and misunderstands what the issues are before the court. So, Your Honour, I really have to talk to my client about this. She was concerned that she’d been mugged as it were earlier on when we lost the Anton Piller order, and we’ll show that that was obtained straight out of perjury, we’ve got that clear.
One of the issues that the court will have to address is the conduct of a person seeking to have somebody removed. As you imagine, we’ve looked extensively at all the authorities where this does and it’s not a simple question of saying, there’s a breakdown of a family relationship.
If a person chooses to conduct themselves in a way that breaks down a family relationship then no family trust is safe. When this trial commences you will see that the factual background to this case is such that the plaintiff has been the person who has been pursuing this, as it were, conduct which he says causes a breakdown.
HIS HONOUR: You see Mr Magee, I think you’re misunderstanding what I’m saying. What I’m endeavouring to do, and as I’ve said I stand back without hearing the evidence, without having read all the material, but trying to discern what is not contentious, and sometimes judges are required to say things to ensure that the real issues become the focus of the trial. Now, I’m not going to be dissuaded from saying that if I think it’s necessary.
MR MAGEE: I’m not suggesting that Your Honour — Your Honour may say what Your Honour wishes in the way that Your Honour thinks is necessary, but it does raise considerable personal difficulties with the client. We think that there’s every chance at the end of this case that no orders will be made, that no orders will be made when one hears the evidence.
At some stage Your Honour we have to address this issue and the issue is, what exactly is in dispute and what exactly can be heard in this trial, and what standing does the client, does the plaintiff have in respect of all of these trusts or is she merely related to sub—trusts? There are very complicated legal issues which have not been canvassed thus far but which will need to be canvassed.
Now, Your Honour, I’m very concerned that Your Honour chose to say that this morning and Your Honour — — —
HIS HONOUR: You’ve said that once already.
MR MAGEE: Yes, I know Your Honour, perhaps I’ll say no more Your Honour. If Your Honour thinks it’s necessary to have some consensus about new trustees being joined now so that they be bound by any orders, was that the thrust of — — —
HIS HONOUR: You obviously didn’t understand what I said. I was trying to formulate a strategy that the parties may consider on the premise, on the premise that you obviously reject, so there’s no point in pursuing it any further.
MR MAGEE: No, I don’t reject the premise that we might lose Your Honour, I accept that.
HIS HONOUR: No, no, on the premise that new trustees may inevitable. Now you’ve said to me that that’s not the case, you’ve just made your position clear. Now, if that’s so, then there’s no point in pursuing it any further.
MR MAGEE: As Your Honour pleases.
HIS HONOUR: My objective was to try and drill down to the real issues.
MR MAGEE: Your Honour, with respect, I agree with your Honour, there are a set of core issues at the bottom of all this; when you strip it all away, it is in quite narrow compass. The problem is that some of the stuffing that you strip away is going to be important and bear on matters such as discretion; that’s what the issue is going to be. When relief is sought, the applicant’s conduct, is it relevant? Is it relevant, that will be one of the issues in this case. We say it is, they say it’s not, we say it is. I think you’ve heard each other and what we say this morning Your Honour; I won’t say any more
…
HIS HONOUR: So you’re seriously going to contend that Mrs Krok is not a general beneficiary of those trusts?
MR MAGEE: Yes, Your Honour.
HIS HONOUR: She’s the daughter of a specific beneficiary, isn’t she?
MR MAGEE: No, Your Honour.
HIS HONOUR: Was that the right description?
MR MAGEE: It’s primary and general.
HIS HONOUR: Primary.
MR MAGEE: Yes, Your Honour. It’s just a question of, with those, you’ve read our learned friend’s submission in relation to it, we will contend not only is that wrong and does violence, but when you look at the trust deed itself, she’s not, and of course the object did not survive the death of her father. It didn’t survive to the estate. She’s either within the description or she’s not, and we say in that trust she is not. It’s a simple enough point Your Honour, I can articulate it now for you if you wish.
HIS HONOUR: Okay.
…
HIS HONOUR: I don’t understand. Someone might have to explain to me at some point what all the animosity has to do with the exercise of powers and discretions. I can understand the relevance of it to the question whether or not a new trustee ought to be appointed, and it cuts both ways because one takes into account the conduct of all parties as a factor that might bear that question. But when there are powers and discretions to be exercised for the benefit by a trustee, why should the conduct, assuming that there’s some reprehensible conduct of a beneficiary that might offend another beneficiary, be a matter that bears upon the exercise of power by the trustee or a discretion?
Now, I might be misunderstanding the law. When I was reading the submissions, that question came to my mind, that’s all.
His Honour’s comments, during the course of discussions with counsel provoked a subsequent application by summons to have him disqualify himself on the ground of apprehended bias. That application was strongly opposed by the plaintiff. The application was heard on 2 August 2012. His Honour delivered a ruling in which he declined to transfer the proceedings to another judge. That ruling appears at pages 64-67 of the transcript of that date. It is in the following terms:
HIS HONOUR: The first to sixth defendants in proceeding 4045 of 2010 and the plaintiff and first and sixth defendants by counterclaim in proceeding 5599 of 2010 have made application by summonses dated 1 August 2012 that their proceedings be transferred to another judge for hearing and determination on the basis that there was a reasonable apprehension of bias. I will refer to the applicants in this ruling as the defendants.
The applications were based on comments made by me in the course of exchanges with counsel shortly before the trials were to commence, in a context where an application had been made to add a party and other directions were sought in anticipation of the trial commencing today, following the resumption of a mediation yesterday.
I do not propose to recite the relevant parts of the transcript. Suffice to say the defendants’ counsel contended that there were critical aspects to what was conveyed by the court that required the transfer of the proceedings to be heard and determined by another judge or that a real issue had arisen as to whether that step should be taken in the proper exercise of discretion or for reasons of prudence. These critical aspects, identified by counsel for the defendants, may be summarised as follows.
First, the question whether new trustees should be appointed was a central issue at trial, as was the plaintiff’s standing as a beneficiary; second, a fair reading of the transcript conveyed the impression that the court had determined that the appointment of new trustees was inevitable; third, the parties were being sent to mediation with that view having been conveyed, giving a material advantage to the plaintiff; fourth, a fair reading of the transcript conveyed the impression that the court had determined that the trusts were not properly conducted and consequently this litigation would not be properly conducted by the present trustees in the interests of the beneficiaries; fifth, the court had indicated some scepticism about the veracity of the defendants’ challenge to the plaintiff’s standing as a beneficiary.
It is always difficult for a judge to review his or her own comments in the context of an application of this kind. I accept that it is essential to avoid a technical examination of the words and to look more at the impressions that might be conveyed to the fair-minded observer with the attributes mentioned by Kirby J in Johnson v Johnson.
But, doing the best I can, I’m not persuaded that a fair-minded observer might reasonably apprehend that the court, as presently constituted, might not bring an impartial and unprejudiced mind to the resolution of the questions that are required to be decided in these proceedings.
The relevant principles were conveniently condensed by the Court of Appeal in AJH Lawyers Pty Ltd v Careri & Ors. I will not repeat them here. In my opinion the relevant comments made, and recorded in the transcript, do not, for the most part, even go so far as to fall into the category of a forthright or robust indication of a judge’s tentative view. I accept that the comment concerning the plaintiff’s position as a beneficiary may be so understood.
A fair reading of the transcript indicates that the exchanges were no more than an attempt to ascertain the real issues at trial, and whether the issues might be narrowed, and thus the scope of the trial more confined. That is an obligation of the parties under the Civil Procedure Act. Judicial intervention to achieve that objective is to be encouraged.
This proceeding is in List B under my supervision. I am ordinarily required to hear and determine such proceedings. In AJH Lawyers the Court of Appeal said, “... as noted in Antoun, judges should not ‘too readily accept recusal because a party has demanded it’ . Further, as held in Ebner, ‘ [j]udges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. ... If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case’.”
The events that occurred do not require disqualification or call for the exercise of the discretion to withdraw from the case. On the contrary, this case is fixed for trial. The trial is anticipated to take up to four weeks. It involves a bitter family dispute. The sooner it is resolved, the better. There have already been delays in reaching trial. The proceedings were initially fixed for trial in February of this year. That date was vacated and a new trial date found to accommodate the convenience of the parties. In my opinion the trial should now proceed. The applications are refused.
There was then a successful application on behalf of the plaintiffs for costs. His Honour’s ruling on that issue appears at page 69 of the transcript and is in the following terms:
HIS HONOUR: Yes. The plaintiffs have made application for the costs of the application by the defendants that these proceedings be transferred to another judge. The defendants submit that no order for costs should be made having regard to the nature of the application as one concerning the due administration of justice. In my opinion, the ordinary order for costs should be made, but in so doing I do not intend to convey that the application was not genuinely made or that it was made without any foundation. I will so order.
Mr Merkel QC, who appeared before this Court, as well as below, on behalf of the applicants, submitted that, given the expected length and cost of the trial, it was reasonable for his clients to seek leave to appeal against his Honour’s refusal to disqualify himself now, and not to await final judgment. He acknowledged that the trial judge’s orders were interlocutory in nature, and that leave to appeal was therefore required.
Mr Merkel accepted that the principles that govern leave to appeal from interlocutory decisions are well established, as indeed they are. These are that such leave is granted where ‘(i) the decision in question is attended by sufficient doubt to
warrant its being reconsidered, and (ii) substantial injustice would result if leave were refused, supposing the decision to be wrong’.[2]
[2]Applicant’s Outline of Submissions, page 2; Bienstein v Bienstein (2003) 195 ALR 225, 231 [29]; Niemannv Electronic Industries Ltd [1978] VR 431, 441-2.
However, Mr Merkel qualified his acceptance of these principles somewhat by arguing that, in light of recent authority, the current position regarding leave was as follows:
Save in a case where the decision is not attended by any doubt whatsoever, the criteria will ordinarily be satisfied in the case of an application for leave to appeal against the rejection of an application that a judge not hear a matter due to apprehended bias if a long and costly trial would be wasted if the judge’s decision were incorrect: Michael Wilson & Partners Ltd v Nicholls [(2011) 244 CLR 427, 451 (Gummow ACJ, Hayne, Crennan and Bell JJ) (‘Michael Wilson’)].
For this reason, it will usually be appropriate to grant leave to appeal against the rejection of an application that a judge not hear a matter due to apprehended bias provided the appeal is bona fide and is not made without any foundation whatsoever: Barakat v Goritsas (No 2) [2012] NSWCA 36, [64] [(‘Barakat’)]. If the position were otherwise the refusal of leave affords the appellants with bias as a ground of appeal if the decision is adverse to them.[3]
[3]Applicant’s Outline of Submissions, page 2.
Implicitly, at least, Mr Merkel submitted that, as a result of Michael Wilson and Barakat, the correct approach to the grant of leave, in matters of this nature, involved the applicants’ having to satisfy a lower threshold than would otherwise be the case in relation to applications for leave to appeal against interlocutory decisions. He submitted that leave should be granted, in matters of this kind, if the appeal was not ‘patently untenable’, and a long and costly trial would be wasted if the judge’s refusal to stand aside turned out to be incorrect.
In our opinion, the passages in Michael Wilson and Barakat upon which Mr Merkel relied do not support his contention that the test for leave in such matters has been significantly altered.
Michael Wilson concerned the question of waiver. The respondents in that case had not sought leave to appeal immediately after the trial judge refused an application that he disqualify himself on the grounds of apprehended bias. The issue to be determined was whether, in those circumstances, the respondents should be permitted to raise disqualification on appeal from a final judgment.
It is in that context that the particular paragraph in the joint judgment, upon which Mr Merkel relied, should be understood. That paragraph was in the following terms:
As explained earlier these points need not be decided. It is, however, important to add, contrary to what was said in the Court of Appeal, that an application for leave to appeal against the rejection of an application that a judge not hear a matter due to apprehended bias may well be a cause where the usual criteria would require leave to be granted, at least if a long and costly trial would be wasted if the judge’s decision were incorrect.[4]
[4]Michael Wilson (2011) 244 CLR 427, 451 [86] (citations omitted).
The paragraph in question was a direct response to what had been said by Basten JA in the Court of Appeal where, at paragraph 77 of his Honour’s reasons for judgment, he had focused upon the undesirability of fragmentation as a consideration against the grant of leave. Basten JA had specifically raised doubts, in that paragraph, about the wisdom of permitting ‘collateral challenge’,[5] rather than treating the refusal by a judge to disqualify himself or herself as a ground of appeal from the final judgment. Paragraph 86 in the joint judgment of the High Court was clearly intended to correct that observation. It was not, in our view, intended to do more. In particular, it was not designed to formulate a special rule lowering the threshold for the grant of leave from decisions by trial judges who refused to disqualify themselves to something less than the requirements ordinarily understood to apply in that area.
[5]Nicholls v Michael Wilson & Partners Ltd (2010) 243 FLR 177, 197.
As regards Barakat, Mr Merkel relied upon paragraph 64 of the judgment of Basten JA in which his Honour (with the agreement of Young JA and Sackville AJA) said:
It is because of the particular role placed upon a judge in determining a recusal application that it will frequently be appropriate to grant leave to appeal, assuming the challenge is not patently untenable and where a long and costly trial would be avoided if the decision below were incorrect: Michael Wilson & Partners at [86].[6]
[6][2012] NSWCA 36, [64].
The paragraph in question must be read in context. It is important to note that it was immediately preceded by a passage that reads follows:
63.It is likely that judgments on recusal applications should, in most situations, be addressed with caution on an appeal or application for judicial review. Although a recusal application does not involve a judge deciding a matter in which she or he has an interest (there being no legal “interest” in sitting or not sitting on a particular case) the judge is nevertheless called upon to rule on the possible effect of his or her conduct on a fair-minded lay observer. That assessment may, at least subconsciously, be influenced by the judge’s assessment of his or her own ability to determine the case impartially. Further, a challenge to the position or conduct of a judge may have the tendency to exacerbate, or to appear to exacerbate, any level of conflict between the judge and a party or counsel appearing in the case. In most circumstances, that consideration will militate in favour of brief reasons, accepting that brevity may need to be tempered by the need to demonstrate that the various matters raised have been taken into account.
It was against that background that Basten JA went on to say as follows:
65.This not being a case in which it could be said that the applicant’s complaints were patently without merit, it is appropriate that there be a grant of leave to appeal. The leave application and the appeal having been listed concurrently, the appeal must be determined.
Barakat, properly understood, seems to us to be directed towards the approach that a trial judge should take when considering whether to grant leave to appeal from his or her own decision to refuse to disqualify himself or herself on the grounds of apprehended bias. The passage upon which Mr Merkel relies suggests, for the reasons set out in the judgment, that a judge, in that situation, should be more ready to grant leave than would otherwise be the case. The passage does not, of itself, suggest that an appellate court should approach the question of leave without considering for itself whether the decision under challenge was attended by sufficient doubt to warrant reconsideration. To read the passage as supporting a change of that magnitude would be to accord it altogether too much weight.
In our opinion, the approach to be adopted in relation to applications of this nature, when brought before this Court, remains that set out in Niemann v Electronic Industries Ltd,[7] a case which has been consistently followed for many years.
[7][1978] VR 431.
We turn then to the question whether his Honour’s decision is attended with sufficient doubt to warrant reconsideration. Mr Merkel submitted that his Honour’s ruling was plainly erroneous because he had failed, in that ruling, to address the correct question. He had asked himself whether a fair-minded lay observer might reasonably apprehend that the Court had pre-determined an issue or issues in the proceeding. The question that should have been addressed was whether the trial judge’s statements, on 31 July 2012, might reasonably have conveyed to a fair-minded lay observer the impression that his Honour had stated a position, views, or a state of affairs that he might not be inclined to depart from at trial.[8]
[8]British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283, 331, 333 (‘Laurie’).
Mr Merkel also submitted that his Honour’s statements would have conveyed to the relevant lay observer a view that the impending mediation was pointless, because the applicants would inevitably be removed as trustees. In addition, he submitted that those statements would have conveyed to the relevant lay observer the impression that his Honour doubted the ability of the applicants to conduct the proceedings before him in a proper manner. Either impression would have been sufficient to warrant his recusal.
Mr Merkel finally submitted that it was obvious that there was merit in the application, given the trial judge’s own expressed view, in the ruling on costs, that the application had not been without foundation.
Mr Garratt QC, who appeared for the plaintiffs, opposed the grant of leave. He submitted that the usual principles that govern leave to appeal should apply, and that the decision below was not attended by sufficient doubt to warrant reconsideration. Indeed, he went further and submitted that his Honour’s refusal to disqualify himself was plainly correct. We agree.
The statements upon which the application for disqualification was based were made at a directions hearing two days before the trial was due to commence. A fair-minded lay observer, appropriately informed, would know that the statements were made in that context. Such an observer would also know that in a directions hearing before trial the Court may explore whether the parties have narrowed, or might further narrow, the issues in dispute between them. Such an observer would know that a trial judge is charged by law with the duty to assist the parties to narrow the issues in dispute in order ‘to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute in the case’.[9] Moreover, the lay observer would understand that the parties and their legal practitioners are required by law to use reasonable endeavours to narrow the scope of issues in dispute in a proceeding.[10] A fair-minded lay observer would be aware that the parties were represented by counsel who, in the discharge of their professional duties to the Court, and to their clients, would have informed their clients of those matters.
[9]Civil Procedure Act 2010 ss 7, 8, 47 and 48.
[10]Ibid s 23.
A fair-minded observer would also have known that the judge, when confronted with the assertion by the applicants’ senior counsel that his clients would think that the judge had ‘predetermine[d] matters,[11] explained to the parties that he was simply trying to discern what was not contentious in order to ensure that the real issues became the focus of the trial.[12] The lay observer would also have known that his Honour had explained to senior counsel for the applicants that senior counsel ‘obviously did not understand what [the judge had] said’.[13] The observer would have known that the statements about which counsel had complained were made by his Honour in the course of ‘trying to formulate a strategy that the parties may consider’.[14] Finally, the observer would have known that when his Honour became aware that the premise upon which he had based that strategy was rejected by senior counsel for the applicants, his Honour told the parties that there was no point in pursuing it any further, and did not do so.[15] In the circumstances, the applicants’ complaint of apprehended bias is without merit.
[11]Transcript of 31 July 2012, page 4 lines 22-6.
[12]Ibid page 5, lines 18-26 and page 7, lines 2-3.
[13]Ibid page 6 line 20.
[14]Ibid page 6, lines 21-2.
[15]Ibid page 6, lines 21-4.
For the sake of completeness, we note that Mr Merkel submitted that the law relating to apprehended bias had been qualified somewhat by the approach taken by the majority in Laurie which involved a distinction between predetermination, and mere statements which the reasonable bystander would consider it unlikely that a judge would depart from. If a distinction of that kind is to be drawn from Laurie, as to which we express no conclusion, it is not a distinction that is of any relevance to this case. His Honour’s ruling seems to us to have addressed both issues,[16] and therefore to be free from the central error upon which the applicants have built their case for leave to appeal.
[16]His Honour’s ruling refers several times to the ‘impression’ that his statements might have conveyed to a ‘fair-minded observer’. Twice, he links that impression to the question of predetermination, but, on at least one occasion, he speaks of impression in a broader, and more general, sense.
It follows that, for the reasons set out above, we would refuse leave to appeal. We would do so irrespective of whether the orthodox test for leave is to be applied, or whether the lower threshold for which Mr Merkel contended is to be accepted.
Leave to appeal is refused. The summons dated 3 August 2012 is dismissed with costs.
Schedule of Parties
SZAINTOP HOMES PTY LTD (ACN 004 771 895) ATF THE HEAD SZAJNTOP FAMILY TRUST; THE IMEG FAMILY TRUST
First Applicant
- and –
LANDHAL PTY LTD (ACN 097 562 671) ATF THE LANDHAL SZAJNTOP FAMILY TRUST; AND THE LANDHAL LEJFER UNIT TRUST
Second Applicant
- and –
HAPPYTEX PTY LTD (ACN 006 596 934) ATF THE HAPPYTEX UNIT TRUST
Third Applicant
- and –
MEARO BRANWEN NOMINEES PTY LTD (ACN 005 173 473) ATF THE SZAJNTOP HOLDING TRUST; THE FREDA SARA SZAJNTOP AND SZAINDEL SZAJNTOP JOINT FAMILY TRUST; THE FREDA SARA SZAJNTOP FAMILY TRUST; AND THE DANIEL SZAJNTOP AND SZAINDL SZAJNTOP FAMILY TRUST
Fourth Applicant
- and –
SZAINDL SZAJNTOP ATF THE SZAJNTOP FAMILY TRUST
Fifth Applicant
- and –
FREDA SARA SZAJNTOP
Sixth Applicant
- and –
MELISSA SARAH KROK IN HER OWN CAPACITY AND IN HER CAPACITY AS EXECUTRIX OF THE ESTATE OF DANIEL SZAJNTOP (Deceased)
First Respondent
- and –
SDJ ASSETS PTY LTD (ACN 120 451 550)
Second Respondent
0