Versace v Monte - [2003] FCA 126

FEDERAL COURT OF AUSTRALIA
Versace v Monte [2003] FCA 126
PRACTICE AND PROCEDURE – application for disqualification on grounds of apprehended bias – principles relating to apprehended bias – damage required to be shown on question of liability – damage not insubstantial – quantum of damages not determined – whether apprehension of predisposition to quantum of damages – whether judge should disqualify himself from assessing damages
Davids Distribution Pty Limited v National Union of Workers (1999) 91 FCR 463 cited
Lynch v Zurich Australian Insurance Limited (unreported, New South Wales Court of Appeal, 10 November 1998) cited
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 cited
Bienstein v Bienstein [2003] HCA 7 discussed
GIANNI VERSACE SpA, SANTO VERSACE, DONATELLA VERSACE v
FRANK MONTE aka FRANCOIS FERDINAND MONTENERI and ARKITUDE HOLDINGS PTY LIMITED
N 1184 of 2001
TAMBERLIN J
SYDNEY
3 MARCH 2003

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N1184 OF 2001

BETWEEN:

GIANNI VERSACE SpA
FIRST APPLICANT

SANTO VERSACE
SECOND APPLICANT

DONATELLA VERSACE
THIRD APPLICANT

AND:

FRANK MONTE aka FRANCOIS FERDINAND MONTENERI
FIRST RESPONDENT

ARKITUDE HOLDINGS PTY LIMITED
(ACN 096 646 016)
SECOND RESPONDENT

JUDGE:

TAMBERLIN J

DATE OF ORDER:

3 MARCH 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
The Notice of Motion filed by the first respondent on 7 February 2003 is dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N1184 OF 2001

BETWEEN:

GIANNI VERSACE SpA
FIRST APPLICANT

SANTO VERSACE
SECOND APPLICANT

DONATELLA VERSACE
THIRD APPLICANT

AND:

FRANK MONTE aka FRANCOIS FERDINAND MONTENERI
FIRST RESPONDENT

ARKITUDE HOLDINGS PTY LIMITED
(ACN 096 646 016)
SECOND RESPONDENT

JUDGE:

TAMBERLIN J

DATE:

3 MARCH 2003

PLACE:

SYDNEY

REASONS FOR JUDGMENT

A Notice of Motion has been filed by the first respondent (“Monte”) seeking an order that I disqualify myself from assessing damages in this matter on the grounds of apprehended bias. It is not suggested that I would in fact be biased but rather, it is submitted by Monte that:
“... his choice of language and the statements made in his judgment [of 8 March 2002] could give rise to a reasonable apprehension he had made up his mind as to damage to the second and third Applicants [Santo and Donatella Versace] and their entitlement to damages. Paragraphs 204-207 of the judgment give the impression his Honour has found the second and third Applicants suffered substantial damage and the only issue in the forthcoming assessment of damages will be how much. The Respondents and persons reading the judgment could apprehend that his Honour would award a large monetary sum in compensation for the damage which he has found the second and third Applicants have suffered.”
The relevant principles in relation to apprehended bias are well settled. The material to establish apprehended bias must be assessed in the light of an assumption that judicial officers act with honesty and discretion: see

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: [2003] FCA 126
Decision Date: 3 MARCH 2003

CaseChat Overview and Summary

The case of Gianni Versace SpA, Santo Versace, and Donatella Versace v Frank Monte aka Francois Ferdinand Monteneri and Arkitude Holdings Pty Limited was heard in the Federal Court of Australia. The applicants were seeking damages for defamation and trade practices violations, while the respondents sought to disqualify the judge from assessing damages on grounds of apprehended bias. The core legal issue before the court was whether the judge's earlier comments in the judgment could give rise to a reasonable apprehension of bias in assessing the quantum of damages.

The court held that the principles of apprehended bias require a reasonable and objective basis for perceiving that the case may not be decided impartially. There must be substantial grounds to believe that the judge has made up their mind on a particular issue. In this instance, the judge found that the applicants had established some damage, which was sufficient to determine liability, but the exact quantum of damages was to be determined separately. The submissions by the respondents did not show a commitment to a conclusion on the amount of damages. The delay in raising the apprehension of bias further undermined the respondents' argument. The court dismissed the application for disqualification, concluding that there was no reasonable apprehension that impartial attention would not be given to the evidence on damages.

Orders