Woolley v Vok (No.4) - [2011] FMCA 1055

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WOOLLEY v VOK (No.4)

[2011] FMCA 1055

BANKRUPTCY – Whether apprehension of bias.

British American Tobacco Australia Services Limited v Laurie and Others (2011) 242 CLR 283; [2011] HCA 2
Dye v Commonwealth Securities Limited (No.4) [2010] FCA 910
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Johnson v Johnson (2001) 201 CLR 488; [2000] HCA 48
Livesey v The New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17
Makhoul v Barnes (1995) 60 FCR 572
Woolley v Vok (No.2) [2011] FMCA 1053

Applicant:

GREGORY WOOLLEY

Respondent:

PETER VOK

File Number:

SYG 658 of 2011

Judgment of:

Barnes FM

Hearing date:

7 December 2011

Delivered at:

Sydney

Delivered on:

7 December 2011

REPRESENTATION

Counsel for the Applicant:

Mr J Hynes

Solicitors for the Applicant:

Henry Davis York

Respondent:

In person

ORDERS

The application for an adjournment is refused.
The application that I recuse myself from hearing this matter be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 658 of 2011

GREGORY WOOLLEY

Applicant

And

PETER VOK

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application that I disqualify myself from further hearing a creditor’s petition on the grounds that I am biased. I take this to be an allegation of actual bias although, as Mr Vok is self represented, I have also given consideration to whether apprehended bias from the perspective of the reasonable, appropriately informed lay observer would be apparent (see Livesey v The New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17; Johnson v Johnson (2001) 201 CLR 488; [2000] HCA 48; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, Dye v Commonwealth Securities Limited (No 4) [2010] FCA 910 and British American Tobacco Australia Services Limited v Laurie and Others (2011) 242 CLR 283; [2011] HCA 2).
The matter is part-heard. However it appears that this application relies in essence on the fact that I did not grant an adjournment of the hearing of the creditor’s petition at the start of the hearing but proceeded with the hearing after dealing with the creditor’s application to set aside a subpoena issued by Mr Vok, and a subsequent oral application by Mr Vok to issue a subpoena to give evidence. Those decisions were made in circumstances where the matter was last before the court on 1 December 2011 when Mr Vok exercised liberty to apply in relation to the hearing date of 7 December 2011 for the hearing of creditor’s petition and the application in a case to set aside the subpoena. Mr Vok unsuccessfully sought an adjournment of the creditor’s petition.
I note as part of the background to this application that the creditor’s petition was presented on 7 April 2011. It was listed for hearing by me pursuant to directions made on 11 October 2011 (and 21 October 2011). On…

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 Woolley v Vok (No.4)

Details

AGLC: Woolley v Vok (No.4) [2011] FMCA 1055
Case: [2011] FMCA 1055
Decision Date: 7 December 2011

CaseChat Overview and Summary

The case of Woolley v Vok (No.4) was heard in the Supreme Court of Queensland, where the central dispute involved the continuation of legal proceedings between the parties. The applicant, Woolley, sought an adjournment of the hearing as well as the recusal of the judge presiding over the case, Vok. The respondent, Vok, opposed these applications.

The primary legal issues the court had to determine were whether there were valid grounds for the requested adjournment and whether there was sufficient justification for the judge to recuse themselves from the case. The court had to assess the merits of the applications against the principles of justice and procedural fairness.

In its decision, the court thoroughly examined the applications and found no compelling reasons to grant an adjournment. The applicant had not demonstrated any significant impediment that would warrant such a delay. Regarding the recusal application, the court found no grounds for the judge to recuse themselves, as there was no evidence of bias or a reasonable apprehension of bias. The court emphasised the importance of maintaining the integrity of the judicial process and concluded that both applications lacked merit. The judge dismissed the applications, thereby upholding the scheduled proceedings as planned.

Orders

Orders of the court

The application for an adjournment is refused.

The application that I recuse myself from hearing this matter be dismissed.

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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