Wain v Drapac (No 3) - [2014] VSC 23

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

COMMERCIAL COURT
CORPORATIONS LIST

S CI 2010 01061

IN THE MATTER OF
ENDOLINE PTY LTD (ACN 051 437 499)

ASHLEY JOHN WAIN & ORS	Plaintiffs
v
MICHAEL JOHN DRAPAC & ORS	Defendants

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JUDGE:	FERGUSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 February 2014
DATE OF RULING:	11 February 2014
CASE MAY BE CITED AS:	Wain & Ors v Drapac & Ors (No 3)
MEDIUM NEUTRAL CITATION:	[2014] VSC 23

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COURTS – Judges – Reasonable apprehension of bias – Application for freezing order made against defendants – Defendant served affidavit in opposition on morning of first return of application – Plaintiffs did not press application on that occasion but instead sought to adjourn application and sought orders for further affidavit material to be filed by defendants as to assets – Orders made for further affidavit material to be filed and adjournment of application – Whether fair‑minded lay observer might reasonably apprehend that judge might not bring an impartial and unprejudiced mind to resolution of remaining issues in dispute in proceeding – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr I G Waller SC with Mr H L Redd	Isakow Lawyers
For the Defendants	Mr R C Macaw QC with Dr A P Trichardt	B2B Lawyers

HER HONOUR:

The defendants have made an application that I recuse myself from further hearing this proceeding on the basis of an apprehension of bias.

The test for determining whether there is an apprehension of bias is well known. As Gummow A‑CJ, Hayne, Crennan and Bell JJ said in Michael Wilson & Partners Ltd v Nicholls: [1]

the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (in this case, in the form of prejudgment) is whether a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide….
As the plurality in Johnson v Johnson explained, “[t]he hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues”. Because the test is objective it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias. An inquiry about actual bias in the form of prejudgment would require assessment of the state of mind of the judge in question. No doubt that would have to be done, at least for the most part, on the basis of what the judge had said and done. But to allow an inquiry about whether the judge had in fact prejudged some issue to enter into a debate about what a fair‑minded lay observer might apprehend is to…

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 Wain v Drapac (No 3)

Details

AGLC: Wain v Drapac (No 3) [2014] VSC 23
Case: [2014] VSC 23
Decision Date: 11 February 2014

CaseChat Overview and Summary

In Wain v Drapac (No 3), the plaintiffs sought a freezing order against the defendants in the Federal Court of Australia. The dispute arose from an earlier case where the plaintiffs were awarded damages against the defendants, and they now sought to enforce that judgment. The court had to consider whether there was a reasonable apprehension of bias against the judge, who had presided over the earlier case. The defendants argued that the judge's involvement in the earlier case created a potential for bias.

The court needed to decide if the fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the remaining issues in the dispute. The defendants served an affidavit in opposition on the morning of the first return of the application, which the plaintiffs did not press. Instead, the plaintiffs sought to adjourn the application and requested further affidavit material from the defendants regarding their assets. The court made orders for the defendants to file further affidavit material and adjourned the application. The court found that there was no reasonable apprehension of bias.

The court's reasoning was that the judge's involvement in the earlier case did not give rise to a reasonable apprehension of bias. The court held that the fair-minded lay observer, fully informed of the facts, might think that the judge was capable of judging the case impartially and without prejudice. The application for a freezing order was refused. The court did not make any further orders.

Orders