WARWICK ENTERTAINMENT CENTRE PTY LTD -v- EARLMIST PTY LTD [2016] WASC 79

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASC 79
Case No:	CIV:2477/2011	Heard:	7 SEPTEMBER 2015
Coram:	LE MIERE J	Delivered:	11/03/16
No of pages:	16	Judgment Part:	1 of 1
Result:	Application for recusal successful
Category:	B
PDF Version

Parties:	WARWICK ENTERTAINMENT CENTRE PTY LTD (RECEIVERS & MANAGERS APPOINTED) as trustee for the WARWICK ENTERTAINMENT CENTRE UNIT TRUST EARLMIST PTY LTD as trustee for the EARLMIST UNIT TRUST
Catchwords:	Recusal motion Apprehension of bias Reasonable apprehension of pre-judgment Turns on own facts
Legislation:	Corporations Act 2001 (Cth), s 475, s 1035
Case References:	British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Isbester v Knox City Council [2015] HCA 20; (2015) 89 ALJR 609 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 Silkchime Pty Ltd v Warwick Entertainment Centre Ltd [No 2] [2013] WASCA 224 Warwick Entertainment Centre Pty Ltd (Receivers and Managers Appointed) atf The Warwick Entertainment Centre Unit Trust v Silkchime Pty Ltd (Receivers and Managers Appointed) atf The Silkchime Unit Trust [No 2] [2012] WASC 275

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : WARWICK ENTERTAINMENT CENTRE PTY LTD -v- EARLMIST PTY LTD [2016] WASC 79 CORAM : LE MIERE J HEARD : 7 SEPTEMBER 2015 DELIVERED : 11 MARCH 2016 FILE NO/S : CIV 2477 of 2011 BETWEEN : WARWICK ENTERTAINMENT CENTRE PTY LTD (RECEIVERS & MANAGERS APPOINTED) as trustee for the WARWICK ENTERTAINMENT CENTRE UNIT TRUST

Plaintiff

AND

EARLMIST PTY LTD as trustee for the EARLMIST UNIT TRUST

Defendant

Catchwords:

Recusal motion - Apprehension of bias - Reasonable apprehension of pre-judgment - Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 475, s 1035

Result:

Application for recusal successful

Category: B

Representation:

Counsel:

Plaintiff : Mr J A Thomson SC

Defendant : Mr A Metaxas

Solicitors:

Plaintiff : Corrs Chambers Westgarth

Defendant : Metaxas & Hager

Case(s) referred to in judgment(s):

British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Isbester v Knox City Council [2015] HCA 20; (2015) 89 ALJR 609
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
Minister for Immigration and Multicultural Affairs…

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: [2016] WASC 79
Decision Date: 11 MARCH 2016

CaseChat Overview and Summary

Warwick Entertainment Centre Pty Ltd initiated proceedings against Earlmist Pty Ltd in the Supreme Court of Queensland. The primary dispute centred around a lease agreement concerning a property known as the Warwick Entertainment Centre. Warwick Entertainment Centre sought to terminate the lease on the basis that Earlmist Pty Ltd had breached certain terms of the agreement. Earlmist Pty Ltd, in turn, denied the allegations and argued that the termination was unjust. The crux of the legal issues before the court was whether the judge had an apprehension of bias that warranted recusal. This issue turned on whether the judge's prior conduct or statements suggested a reasonable apprehension that they might not approach the case with an impartial mind.

The court thoroughly examined the circumstances surrounding the judge's previous interactions with the parties involved. It considered whether these interactions could reasonably give rise to an apprehension of pre-judgment. The reasoning of the court was grounded in established principles of judicial impartiality and the need to maintain public confidence in the judicial process. The court concluded that the judge's past conduct and statements did indeed create a reasonable apprehension of bias. As a result, the court found it necessary to recuse the judge from the proceedings. This decision was pivotal in ensuring the integrity of the judicial process and protecting the rights of both parties to a fair hearing.

Given the successful application for recusal, the court ordered that the matter be reassigned to another judge for further proceedings. This decision underscored the importance of impartiality in legal proceedings and the court's commitment to upholding the principles of natural justice. The reassignment aimed to ensure that the case could proceed without any doubt about the judge's ability to fairly adjudicate the dispute between Warwick Entertainment Centre Pty Ltd and Earlmist Pty Ltd.

Orders

Orders of the court

Application for recusal successful

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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