Westcoast Clothing Co Pty Ltd v Freehill Hollingdale & Page (a firm)
[1999] VSC 24
•18 February 1999
SUPREME COURT OF VICTORIA
CAUSES JURISDICTION Do not Send for Reporting Not Restricted
No. 4627 of 1996
| WESTCOAST CLOTHING COMPANY PTY LTD | Plaintiff |
| v | |
| FREEHILL HOLLINGDALE AND PAGE (A FIRM) | First Defendant |
| ISSAC ALEXANDER BROTT | Second Defendant |
| LACHLAN MACINTOSH FLINT WATTS | Third Defendant |
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JUDGE: | Warren, J. | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 February 1999 | |
DATE OF RULING:: | 18 February 1999 | |
MEDIA NEUTRAL CITATION: | [1999] VSC 24 | |
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr R. Cook | S.V. Winter & Co |
| For the First Defendant | Ms C. McMillan | Ebsworth & Ebsworth |
| For the Second Defendant | Mr B. Fitzgerald | Minter Ellison |
| For the Third Defendant | Ms A. Ryan | Arthur Robinson & Hedderwicks |
HER HONOUR:
The plaintiff brings an action founded in breach of agreement for retainer and negligence against the defendants arising from loss and damage alleged to have been suffered by the plaintiff upon the dismissal for want of prosecution of another proceeding instituted in Western Australia. The proceeding is set down for trial to commence before me on 1 March 1999 on an estimated duration of six weeks.
On 5 February 1999 a directions hearing was convened before me at the request of the plaintiff in order to deal with pre-trial directions including the disposition of applications for evidence by video link pursuant to s.42E of the Evidence Act 1958. At the outset of the directions hearing on 5 February 1999 I informed the parties of my prior dealings with each of the defendants. With respect to the second defendant, Isaac Alexander Brott, I informed the parties that:
"Secondly, the second defendant in his capacity as a solicitor, briefed me from time to time during my practice at the bar, however I do not believe I have been briefed by or had any dealings with him for a period of 10 to 12 years. More recently, as a judge of this court, I have heard an application in proceeding Number 10046 of 1991, by a defendant for dismissal of want of prosecution. The plaintiffs in that proceeding include a company Spitfire Nominees Pty Ltd, of which the second defendant in this proceeding, Mr Brott, is a principal. He is also the plaintiff's solicitor in the other proceeding. I have reserved my judgment in that. I expect to deliver judgment shortly."
Mr B. Fitzgerald who appeared as counsel for Mr Brott informed me that he would need to seek instructions on the matter and I proceeded to conduct the directions hearing.
At a further directions hearing on 12 February 1999, Mr Fitzgerald on behalf of the second defendant made an application that I not proceed to hear the trial in this matter listed to commence on 1 March 1999. It is submitted that I ought not hear this proceeding on three grounds: firstly, on the basis of my judgment in proceeding No. 10046 of 1991 between Spitfire Nominees Pty Ltd and Ors v. Thomson and Hall ("the Spitfire proceeding"); secondly, on the basis of my alleged previous dealings with when I was a barrister; thirdly, on the basis of my alleged previous dealings with the third defendant in the present proceedings, Mr Watts.
Turning to the first ground, it is necessary to set out in some detail the nature of the allegations made by the plaintiff against Mr Brott in this proceeding and the relevant matters arising from the Spitfire proceeding.
The Present Proceeding
In the present proceeding the plaintiff relies upon an agreement it entered into with Sail America Foundation for International Understanding ("Sail America") dated 21 October 1986 whereby Sail America granted the plaintiff ("Westcoast") exclusive rights to use licensed marks and products. The products are said to be particular textiles, clothing, food, toys, furniture, posters and tobacco products. Westcoast alleges that Sail America represented and warranted that it was the owner of the licensed marks, that its rights had not been assigned and that Sail America would not directly or indirectly permit the licence marks to be used outside the exclusive territory of Westcoast. Westcoast alleges that in breach of the agreement with Sail America and in breach of the aforesaid warranty and representations Sail America had entered into agreements with other parties. Further, Westcoast alleges that in order to induce it to enter into the agreement with Sail America the latter made representations that were false and misleading.
As a consequence of these allegations Westcoast commenced proceedings against Sail America on 5 February 1987 in action No. 1479 of 1987 in the Supreme Court of Western Australia ("the preliminary proceeding"). On an application for an injunction the preliminary proceeding was settled. Subsequently, Westcoast issued other proceedings against Sail America in action No. 1546 of 1987 in the Supreme Court of Western Australia ("the West Australian proceeding") on 20 February 1987. In the latter proceeding Westcoast sought damages for breach of the agreement against Sail America. On 7 September 1994 the West Australian proceeding was dismissed for want of prosecution by order of Master Adams of the Supreme Court of Western Australia.
As a consequence of the dismissal of the West Australian proceeding Westcoast has issued the present proceeding before me.
In the present proceeding the plaintiff, Westcoast alleges that in about October 1987 it retained the first defendant, Freehill Hollingdale and Page ("FHP") to act as its solicitors in relation to the conduct of the preliminary proceeding and the West Australian proceeding. Westcoast alleges that FHP breached its retainer and was guilty of negligence in failing to prosecute the West Australian proceeding on behalf of Westcoast with expedition and other matters related to the dismissal of the latter proceeding for want of prosecution.
With respect to Mr Brott, Westcoast alleges that by an oral agreement made in about February 1987 it retained him to act as its solicitor in relation to the preliminary proceeding and the West Australian proceeding and, in particular, in relation to the retention of an agent to act as the solicitor on the record in Western Australia and the retention of suitable counsel. In breach of the retainer and his duty of care, Westcoast alleges that Mr Brott failed to exercise reasonable care, skill, diligence and competence in acting for the company. In its particulars of the breach set out in the further amended statement of claim Westcoast alleges:
"38.In breach of the principal solicitor agreement
and of his duty as the Plaintiff's solicitor
as referred to in paragraph 36 hereof
the Secondnamed Defendant
was guilty, of negligence andfailed to exercise all reasonable care skill diligence and competence as the Plaintiff's solicitor in acting for and advising him in relation to the subject matter of the action.PARTICULARS
(a) Failing to ensure that the Firstnamed
Defendant prosecuted the action with any or any
reasonable diligence.
(b) Failing to ensure that the Firstnamed
Defendant provided further particulars of the
Statement of Claim in the action until almost
three years after Sail America delivered its
request.
(bb) Failing to ensure that the Statement of Claim was in a
proper form;
(bbb) Failing to advise the Plaintiff that the Statement of Claim
was not in a proper form.
(e) Permitting the Firstnamed Defendant to take
no steps whatsoever in the Supreme Court of
Western Australia to prosecute the action
between May 1992 and the dismissal on
7 September 1994.
(d) Failing to give any warning to the Plaintiff
of the risk of dismissal of the action for
want of prosecution in the event of delay.
(e) Failing to give any timely warning to the Plaintiff of the
risk of dismissal of the action for want of prosecution in
the event of delay.
(f) Failing to advise the Plaintiff that it had an added
responsibility to attend diligently to the prosecution of
the action after securing relief in the nature of the posting
of a bond under threat of a mareva injunction
application.
(g) Failing to ensure that the Firstnamed Defendant
adequately particularised the Plaintiff's damages at an
appropriate time.
(h) Failing to withdraw the brief from Counsel instructed by
him to act on behalf of the Plaintiff when it was apparent
that Counsel so instructed had been guilty of excessive
delay in completing the instructions given to him from
time to time."
For completion, it should be stated that the third defendant in the present proceeding, Lachlan Macintosh Flint Watts, is alleged by Westcoast to have been the counsel retained to act on its behalf in the preliminary proceeding and the West Australian proceeding and that in breach of the retainer and his duty of care Mr Watts failed to complete work without undue delay and failed to advise upon other matters.
As for the damages claimed by Westcoast, I was informed at the directions hearing on 5 February 1999 that the damages sought by the plaintiff are in the order of M$10.
The Spitfire Proceeding
In the Spitfire proceeding the plaintiffs were companies of which Mr Brott is and was a director. He was also the solicitor with the conduct of that matter on behalf of those plaintiffs. The Spitfire plaintiffs brought that proceeding against the defendant, Thomson & Hall, a firm of solicitors alleging that Thomson & Hall acted in breach of their retainer with the plaintiffs and were negligent with respect to the purchase of a pizza business by the Spitfire plaintiffs in July 1987.
The Spitfire plaintiffs claimed that they retained Thomson & Hall to act as their solicitors with respect to the purchase of the pizza business and which transaction included the purchase of freehold property at 345 Toorak Road South Yarra and the entering into of an assignment of a lease for the property at 341-343 Toorak Road South Yarra ("the pizza premises").
The Spitfire plaintiffs claimed that Thomson & Hall breached their retainer, alternatively, were negligent on three grounds: first, failing to ascertain and advise that the pizza premises did not comply with the relevant town planning permit in that there was a deficiency of eight car parking spaces; second, they failed to ascertain that the local council had informed the owner of the pizza premises of the fact of non-compliance with the relevant town planning permit; third, that the solicitors failed to inform the Spitfire plaintiffs that a certain area of land did not form part of the property that was the subject of the assignment of the lease. There were additional allegations by the Spitfire plaintiffs against Thomson & Hall to the effect that the solicitors failed to provide advice as to a limit on the number of restaurant patrons. The Spitfire plaintiffs issued the Spitfire proceedings on 31 July 1991 almost four years after the relevant acts of breach of retainer and negligence were alleged to have occurred. By the latter part of September 1998 the Spitfire proceeding had not been determined. On 28 September 1998 Thomson & Hall filed a summons to dismiss the Spitfire proceeding for want of prosecution. On 5 October 1998 the Master ordered that the application for dismissal be dismissed. By appeal pursuant to Order 77 of the Rules the matter came before me on 13 and 16 November and 18 December 1998. On 11 February 1999 I delivered my judgment in the Spitfire proceeding and ordered that the Spitfire proceeding be dismissed. In the concluding part of my judgment I stated:
"In all the circumstances I am satisfied that the inordinate and inexcusable delay of the plaintiffs in this proceeding will give rise to a substantial risk that a fair trial is not possible and that the defendant will suffer prejudice. The step of dismissing a proceeding for want of prosecution is a draconian one. A plaintiff should not be deprived of having an action tried unless there is real prejudice and injustice likely if the action remains on foot. I am satisfied that there is real prejudice and injustice to the defendant in allowing this matter to proceed further. There is prejudice at trial occasioned by the effluxion of 11 years since the relevant events, the death of an important witness for the defendant and the fact of a long delay in bringing a claim for professional negligence to trial. I acknowledge that this action is in many respects much further advanced than the circumstances in some of the relevant authorities, e.g., Bishopgate. However, I am satisfied that in the overall circumstances of this action justice requires that the proceeding be dismissed for want of prosecution. Accordingly, I allow the appeal from the Master and will further order that the proceeding be dismissed."
In the application in the Spitfire proceeding for dismissal for want of prosecution a number of affidavits were filed on behalf of both sides. In this respect, there were a number of affidavits sworn by Mr Brott and filed on behalf of the Spitfire plaintiffs in opposition to the application for dismissal for want of prosecution. The affidavits canvassed the history of the Spitfire proceeding generally and deposed to explanations as to the circumstances of the Spitfire proceeding during the period from the date of issue in July 1991 until the relevant application for dismissal in late 1998. There were further affidavits sworn by Mr Brott and filed on behalf of the plaintiffs with respect to correspondence between his office and the offices of the solicitors for the defendant in the Spitfire proceeding. In addition, there was evidence on affidavit by Mr Brott concerning the loss of accounting documents by the plaintiffs shortly before the commencement of the Spitfire proceeding. In the application before me senior counsel for the defendant, Thomson & Hall, urged that it went against the Spitfire plaintiffs the fact that the accounting documents were lost prior to the commencement of the Spitfire proceeding as the loss of those documents caused prejudice to Thomson & Hall in that they were unable to adequately assess and determine the damages claimed by the Spitfire plaintiffs with respect to the Spitfire proceeding.
Save for the affidavits sworn by Mr Brott and filed on behalf of the Spitfire plaintiffs with respect to the lost accounting documents, none of the affidavits sworn by Mr Brott and relied upon in the Spitfire proceeding were matters that raised issues of credit that were required to be determined in that proceeding. Indeed, I have not been referred in the present application to any matters in an affidavit sworn by Mr Brott in the Spitfire proceeding that go to the issue of the credit of Mr Brott and which was required to be determined before the delivery of judgment on 11 February 1999. The only affidavit of Mr Brott that may have gone to the issue of his credit was that concerned with the loss of accounting documents in 1987. In that respect the issue was not determined and, therefore, no finding was made one way or the other with respect to the credit of Mr Brott. In the judgment I observed:
"Evidence has been provided by Mr Brott on affidavit that relevant accounting documents were lost by accident shortly prior to the commencement of the proceedings. Mr Robson QC on behalf of the plaintiffs argued that the fact of the loss of the documents prior to the commencement of the proceeding is not a matter that can be weighed against the plaintiffs in assessing prejudice. It is unnecessary for me to determine whether the documents were deliberately disposed of for a mischievous purpose or lost accidentally. I cannot form a view on the fact of the loss of the documents and potential prejudice to the defendant without considering evidence of all particulars of loss and damage, how that damage is proved to have been suffered and by whom it was suffered. Whilst the disappearance or loss of the plaintiffs' accounting documents may prove inconvenient or even difficult for the defendant, it is not a factor that I have taken into account in assessing the prejudice to be suffered by the defendant if the matter proceeded to trial. I consider that such matter could only be determined at trial."
Alleged pre-judgment
In the first ground of his application the second defendant relies upon the "pre‑judgment principle". The High Court has stated that it is a well established principle that a judge
" ... should not sit to hear a matter if, in all the circumstances, a party or the public might entertain a reasonable apprehension that she or he might not bring an impartial and unprejudiced mind to the resolution of the question or questions in it."
See Re Finance Sector Union of Australia; ex parte Illaton Pty Ltd (1992) 66 ALJR 583; Livesey v. New South Wales Bar Association (1983) 151 CLR 288, 293-4; Webb v. R. (1994) 181 CLR 41, 67. It is well accepted by the authorities that the test to be applied is an objective one to be undertaken by the court and that the standard to be observed is that of a hypothetical fair minded and informed lay observer. (See Webb v. R., supra, 67); Gascor v. Ellicott (1997) 1 VR 332, 340, 350).
In Polites, ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78, 85-86, the High Court described the relevant test in these terms:
'Necessity and the extraordinary case (see, eg, Ex pane Lewin; Re Ward [1964] NSWR 446 at 447) make it impossible to lay down an inflexible rule; each case must be determined by reference to its particular circumstances. It is, however, apparent that, in a case such as the present where it is not suggested that there is any overriding consideration of necessity, special circumstances or consent of the parties, a fair‑minded observer might entertain a reasonable apprehension of bias by reason of pre‑judgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either upon a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact. The consideration that the relevant question of fact may be conceded or that the relevant person may not be called as a witness if the particular judge sits would not, of course, avoid the appearance of bias. To the contrary, it would underline the need for the judge to refrain from sitting.'"
In Australian National Industries Ltd v. Spedley Securities Ltd (in liq) and Ors (1992) 26 NSWLR 411 the majority of the New South Wales Court of Appeal expressed the view that a previous decision of a judge as to the credibility of a particular witness would, in normal circumstances, give rise to an apprehension of pre-judgment of the credit of the particular witness to the extent that the judge should not hear a case where the credit of that witness was in issue. (See Spedley, supra, p.442, 448.) Kirby, P., as he then was, as part of the majority observed, at p.420:
"In the face of the earlier findings, particularly on the credit of (the two directors) in matters potentially relevant to the resolution of the main proceedings brought by Spedley Securities Limited, I believe that a reasonable and fair minded observer would conclude that (the trial judge) at the very least, might possibly be affected by his earlier strongly expressed opinions."
A short time later, a differently constituted appellate court of the Supreme Court of New South Wales in R. v. Masters (1992) 26 NSWLR 450 expressed a contrary view. In Masters the court held that it did not see the mere fact that a trial judge has decided an issue in a particular way as a factor requiring disqualification. It was observed (at p.47) of the judgment in Masters:
"The reasonable apprehension which should lead to disqualification must be that the judge will not decide the case impartially or without prejudice, not simply that he or she will decide the case adversely to one party".
The Court of Appeal of Victoria has stated that the now relevant test is that an appropriately informed and fair minded lay observer might entertain a reasonable apprehension that there might not be an impartial and unprejudiced mind brought to the resolution of the dispute (see Gascor v. Ellicott, supra at 342, 347-8).
Turning to the first ground of the application before me, I have not been taken to a single aspect of the Spitfire proceeding where a clear view was expressed upon a matter that will be a live and significant issue in the Westcoast proceeding or upon the credit of Mr Brott. On the basis of the now long list of authorities, the live and significant issue upon which a clear view has previously been expressed must be the same or an inextricably interwoven issue or matter in both proceedings. It was found in the Spitfire proceeding that the Spitfire plaintiffs were guilty of inexcusable delay. No findings of fact involving Mr Brott in a professional capacity were made. No findings were made about Mr Brott whatsoever in the judgment in the Spitfire proceeding. The mere fact that Mr Brott was the solicitor for the plaintiffs in the Spitfire proceeding does not and cannot give rise to any finding of fact as to his general competence as a solicitor. Further, the credit of Mr Brott was not considered on any issue in the Spitfire proceeding or a finding made as to his credit. The only issue that was pointed to in support of the disqualification application was that there was an overlap of time between events in the Spitfire proceeding and the present proceeding. No specific matters were raised other than the fact of time itself. The overlap of time is no more than a coincidence. In the absence of the identification of an identical or interwoven matter in both proceedings the argument cannot succeed.
Mr Fitzgerald, counsel for the second defendant, has not identified one matter to satisfy the test laid down in the authorities I have referred to. In my view, at worst, the second defendant could suffer from no more than an expectation of a likely finding at trial of the present proceeding merely because the Spitfire plaintiffs were found to have been guilty of inexcusable delay. However, the Spitfire proceeding was concerned with facts that are totally unrelated to the facts in the present proceeding. The mere expectation of the second defendant is not sufficient. (See Gascor, supra, 347; R. v. Masters, supra).
The Court of Appeal of Victoria has observed that even where the test as to bias is accepted a judge might not necessarily be obliged to disqualify him or herself. In Gascor, supra, Ormiston, JA observed (at 348) that a previous finding on the very same factual issue in the past does not necessarily lead to a finding of a reasonable apprehension of bias which would result in disqualification. The learned judge observed further, that: "What kind of findings will lead to relevant apprehension of bias must depend upon their significance and nature".
I am satisfied that no issue of relevant finding of fact or credit with respect to Mr Brott on a previous occasion arises here. It follows that I am not satisfied that the first ground of the application has been made out.
In the second ground of the application now before me it was asserted from the Bar table that Mr Brott recalled at least one previous dealing between he and I when he retained me as counsel as a result of which it was said I should not preside over the trial. It was further asserted from the Bar table that Mr Brott could not recall any details of the dealing referred to. I called upon Mr Fitzgerald, counsel for the second defendant, to provide specific details of the dealing and, further, I informed him that I had no knowledge or recollection of the matter. Nothing further was put forward by Mr Fitzgerald to support or substantiate the assertion. The transcript of the hearing of the application before me discloses that on more than one occasion Mr Fitzgerald found it necessary to pause in the course of his submissions and seek instructions from his client. Furthermore, I am informed by the parties that notice was provided to the parties of the fact that the trial was to be listed before me for hearing on 1 March 1999 as long ago as 17 December 1998. Seized with the knowledge of that fact the second defendant has waited until two weeks before the trial to make vague and unsubstantiated allegations.
In Gascor v. Ellicott, supra, Tadgell, JA observed (at p.342), that a reasonable apprehension of partiality or prejudice " ... is to be established to the court's satisfaction: it is a reasonable and not a fanciful or fantastic apprehension that is to be established; and the apprehension is to be attributed to an observer who is 'fair minded' - which means 'reasonable'". The learned judge went on to observe: "As Mason, CJ and McHugh, J pointed out in Webb v. R., at 52, " ... It is the court's view of the public's view, not the court's own view, which is determinative". Even so, the court is to be satisfied that the criterion is met, not that it might be".
In asserting that the criterion is met it is inappropriate to make an assertion of apprehended bias by relying on circumstances alleged about a judge personally where the judge has no knowledge of the matter alleged and the individual making the allegation has no more than a vague recollection of an unspecified instance. As matters stand the assertion relied upon to support the second ground of apprehended bias falls within the category described by Tadgell, JA in Gascor as "fanciful or fantastic". When allegations are made as has occurred in the present application such allegations should be carefully prepared and based upon thorough detailed instructions. It is desirable if not necessary that the relevant facts be deposed to on affidavit. Where adequate instructions cannot be obtained the allegations should not be raised (see Giannarelli & Ors v. Wraith & Ors (1988) 165 CLR 543, 556-557 per Mason, CJ.) In the absence of specific detail of the circumstances relied on and, further, in the absence of an affidavit the second ground of the application cannot be made out.
Other alleged dealings between a party and the trial judge
The third ground of the application relies upon alleged prior dealings between the third defendant, Mr Watts and myself. At the first directions hearing in the present proceeding on 5 February 1999 I informed the parties of my previous knowledge of and dealing with the third defendant when I was a practising barrister. In the present application the second defendant asserts that there were previous dealings of a "professional nature" between Mr Watts and me. Again, a broad, vague assertion was made from the Bar table based upon instructions and which the transcript reveals were given by the second defendant to his counsel whilst counsel was on his feet making submissions. Similar observations can be made concerning this aspect of the submission as with respect to the second ground. In the absence of specific details and satisfactory evidence the apprehended bias also falls into the category of fanciful or fantastic. On the basis of the authorities, before it would be appropriate for the disqualification of a judge in the circumstances relied upon by the second defendant, it is necessary to demonstrate a specific link between the association of a judge and a litigant and the capacity of that association to impact upon the decision making process.
The courts have considered previous professional relationships between a judge/adjudicator and litigant and allowance has been made for the method of appointment to the judiciary. In Raybos Australia Pty Ltd v. Tectran Corp Pty Ltd (1986) 6 N.S.W.L.R. 272 Priestley, JA (with whom Hope, JA and Glass, AJA agreed) said at 276:
"That method of appointment means that built into the legal system is public knowledge and long acceptance of the fact that judges will often know to a greater or less degree the counsel and solicitors who appear before them. Also when, as not infrequently happens, members of the legal profession are parties to litigation, it is inevitable that their cases will be decided by other members of the legal profession. It has long been accepted that a judge should not sit on a case involving a person with whom he has a connection which might in fact or in appearance affect his impartiality; when the judge's connection is less than that there is no reason why he should not sit."
In Gascor v. Ellicott at 349 Ormiston, JA in the context of considering whether an arbitrator who had practised as a barrister should be disqualified observed that most judges will have acted on occasions for parties in circumstances where it would be almost impossible to recall every such occasion. The learned judge observed, further, (at 351) that unless a judge " ... has gone into some form of monastic seclusion it would be impossible ... not to have formed views about a wide variety of issues and about people ... come across in the course of professional activities."
The assertions made on behalf of the second defendant with respect to my alleged dealings with the third defendant do not, as matters stand, constitute the fact of association. Further, there is no demonstrated link between the alleged association and its capacity to influence the ultimate decision at the trial of the proceeding.
More recently, a related issue arose in the Federal Court of Australia in Aussie Airlines Pty Ltd v. Australian Airlines Pty Ltd (1996) 65 FCR 215 where an application was made for disqualification on the ground of apprehended bias on the basis of a longstanding personal, professional and financial relationship between the presiding judge and senior counsel for respondent parties. Merkel, J. observed (at 761):
"In my view, as with the cases considering personal, family and financial interests the decisions in the cases dealing with professional association between adjudicator and litigant demonstrate that the courts do not take a hypothetical or unrealistic view of an association relied upon in a disqualification application. In particular they appear to accept that the reasonable bystander would expect that members of the judiciary will have had extensive professional associations with clients but that something more than the mere fact of association is required before concluding that the adjudicator might be influenced in his or her resolution of the particular case by reason of the association. Although the test is one of appearance, it is an appearance that requires a cogent and rational link between the association and its capacity to influence the decision to be made in the particular case."
On the basis of the principle expounded by the authorities I cannot be satisfied that the appropriately informed and fair minded lay observer would reasonably apprehend partiality and prejudice from the broad circumstances put forward by the second defendant with respect to my alleged association with the third defendant even if such association was substantiated. I am not satisfied that the third ground of the application is made out.
It follows that the second defendant has failed to make out any of the three grounds put forward in support of his application for disqualification on the basis of apprehended bias. Notwithstanding my conclusions with respect to the grounds of the application by the second defendant, in the face of the assertions made in support of the second and third grounds with respect to alleged previous dealings with the second and third defendants I have resolved of my own motion not to preside as the judge at the trial and I will adjourn the further directions hearing to a date to be fixed before another judge.
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