Szaintop Homes Pty Ltd v Krok - [2012] VSCA 176

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…

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

Case: [2012] VSCA 176
Decision Date: 6 August 2012

CaseChat Overview and Summary

In Szaintop Homes Pty Ltd v Krok, the dispute involved a challenge to the trial judge's impartiality during a directions hearing. Szaintop Homes, the appellant, sought the recusal of the trial judge, Justice Stevenson, alleging that comments made during the hearing indicated a potential bias. Krok, the respondent, opposed the application, maintaining that the judge's remarks did not warrant recusal. The matter was brought before the Court of Appeal to determine the validity of the trial judge's refusal to disqualify himself.

The legal issues before the court were whether the comments made by the trial judge during the directions hearing were sufficient to create an apprehension of bias, and if the trial judge's decision not to recuse himself was correct. Additionally, the court needed to assess whether the interlocutory nature of the decision warranted reconsideration and if a different standard should be applied to appeals involving questions of apprehended bias. The court referenced Michael Wilson & Partners Ltd v Nicholls and Barakat v Goritsas (No 2) to guide its reasoning.

The Court of Appeal determined that the fair-minded observer, aware of the context in which the comments were made, would not perceive a reasonable apprehension of bias. The court found that the comments did not undermine the judge's impartiality. The appeal was interlocutory, and the court applied the principles in Michael Wilson & Partners Ltd v Nicholls, which established that a lower threshold should be applied when considering appeals involving questions of apprehended bias. However, the court concluded that the appellant did not demonstrate sufficient doubt about the trial judge's decision to warrant reconsideration. Consequently, the Court of Appeal dismissed the application for leave to appeal.

The final orders of the court were that the application for leave to appeal was refused, and no further appeal would be entertained on the matter of the trial judge's refusal to recuse himself.

Orders