The Liquidator, S Pty Limited and Rand and Ors (No 2)

[2010] FamCA 733

FAMILY COURT OF AUSTRALIA

THE LIQUIDATOR, S PTY LIMITED & RAND & ORS (NO. 2) [2010] FamCA 733

FAMILY LAW – COURTS AND JUDGES – Disqualification
FAMILY LAW – PRACTICE AND PROCEDURE – Case management

APPLICANT: The Liquidator,
S Pty Limited

3^rd RESPONDENT: Mr G Rand

4^th RESPONDENT: Mrs N Rand

11^th RESPONDENT: C Pty Ltd

FILE NUMBER: SYF 2153 of 2001

DATE DELIVERED: 24 June 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Cohen

HEARING DATE: 24 June 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Cotman SC with
Mr Tobin

SOLICITOR FOR THE APPLICANT: Brown & Partners

COUNSEL FOR THE RESPONDENT: Mr Feller SC with
Mr Milanovic

SOLICITOR FOR THE RESPONDENT: Cadmus Lawyers

Orders

1. That the oral application made by the Third, Fourth and Eleventh Respondents for Justice Cohen to disqualify himself from any further hearing of these proceedings is hereby dismissed.

2. That any application by the 3^rd, 4^th and 11^th Respondent for transfer, security for costs and challenge to the jurisdiction of the Family Court of Australia in this matter will be heard at 10am 5 July 2010.

3. That the further dates set for hearing of 6-9 July 2010 are hereby vacated.

4. That the timetable for the filing of documents in this matter is hereby suspended until further order.

5. That the application of Mr Weston filed 16 June 2010 is hereby adjourned to

   
   

   5 July 2010 for hearing at 10am.

6. That the commencement time of hearing the various applications fixed for 10am 5 July 2010 will be delayed until such time as counsel can arrive from their commitment to attend the swearing in of Associate Justice Hallen in the Supreme Court of New South Wales.

7. That costs are reserved.

IT IS NOTED that publication of this judgment under the pseudonym Liquidator, S Pty Ltd & Rand and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2153 of 2001

THE LIQUIDATOR, S PTY LIMITED

Applicant

And

MR G RAND

3^rd Respondent

And

MRS N RAND

4^th Respondent

And

C PTY LTD

11^th Respondent

REASONS FOR JUDGMENT

1. In these proceedings, the 4^th and 11^th respondents seek that I disqualify myself.  Their ground is that they have made a complaint about my conduct to the Chief Justice of the Court.  I was not aware of this complaint until I was informed that that was the ground of the application, and I was not aware of what I might have done or what might be alleged that I had done until Mr Feller informed me of it.

2. Originally, I took the view that because I could not imagine what the complaint might be about, I should not know.  But on more mature reflection, I came to the view, which I think is a correct one, that I should know the broad nature of the complaint.  Mr Feller informed me that it was that when setting a timetable by way of directions for the preparation for the trial of these proceedings, I was more tolerant of delays by the applicant than I have been towards the respondent, or that I imposed shorter time limits on the respondent than I had previously permitted the applicant to have.

3. I must admit, I find that this basis for a complaint not only unfounded, but difficult to understand.  All I have tried to do so far is to give all parties a reasonable time to prepare the case for trial.  And, in fact, although I have set time limits on the three respondents who have made the application that I disqualify myself, I have already extended those time limits on one occasion, when I was informed that the respondents could not meet, or had failed to meet, time limits which I had previously extended for the preparation by them of their case.

4. I do not propose to go through each step that has been undertaken in the evolution of this case towards a hearing, because I think that would require a lengthy adjournment so all of the details could be obtained from a transcript, a transcript which I do not have. I am of the view that in the event that a reasonable bystander did have access to a transcript and could consider all of the steps that had been taken in the progression of this matter towards hearing, it would be highly unlikely that it could be thought that any orders that I have made were unfair to the three respondents by comparison to the way in which I have treated the applicant, to the extent that it would indicate bias or provide the bystander with a reasonable apprehension that I was biased.

5. I shall refuse to disqualify myself.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen delivered on 24 June 2010.

Associate:     

Date:              19 August 2010