Yamaha Motor Finance Australia Pty Limited v Coast to Coast Boating Pty Limited

[2017] NSWSC 518

Supreme Court

New South Wales

Medium Neutral Citation:

Yamaha Motor Finance Australia Pty Limited v Coast to Coast Boating Pty Limited [2017] NSWSC 518

Hearing dates:

1 May 2017

Date of orders:

01 May 2017

Decision date:

01 May 2017

Jurisdiction:

Equity

Before:

Pembroke J

Decision:

Application dismissed with costs

Catchwords:

BIAS – apprehension – dialogue with counsel at directions hearing – indications of concern – no reasonable apprehension of bias

Cases Cited:

Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Vakuata v Kelly [1989] HCA 44; (1989) 167 CLR 568

Category:

Procedural and other rulings

Parties:

Yamaha Motor Finance Australia Pty Limited – plaintiff
Coast to Coast Boating Pty Ltd – first defendant
Mark Robert Durnian – second defendant
Robert Daniel Durnian – third defendant
Patricia Ann Durnian – fourth defendant
Melinda-Jane Durnian – fifth defendant

Representation:

Counsel:
S Robertson – for the plaintiff
No appearance for the first defendant
M Gunning – for the second defendant
A Justice – for the third and fourth defendants
No appearance for the fifth defendant

 

Solicitors:
Bayside Solicitors – for the plaintiff

  No appearance for the first defendant
Mills Oakley – for the second defendant
Vanguard Lawyers – for the third and fourth defendants
No appearance for the fifth defendant

File Number(s):

2015/237159

Judgment

1. This is an application by the defendants seeking to disqualify me from the hearing on the ground of apprehended bias. It arises out of a directions hearing last Friday in which I made clear that I had not mastered all of the facts but that I was seeking assistance from counsel as to the elucidation of the issues in the case. Not only did I question a number of aspects of the defences of the three defendants, but I made clear on several occasions that I had not reached a concluded view.

2. For example I said, among other things, that I would like to see the second defendant in the witness box as soon as possible on the morning of the first day of the hearing, ‘then I will have a better idea of the strength of his case’. In another passage I remarked that although I have not seen the detail of the evidence, I was ‘unlikely to be favourable to an unjust contracts review claim’. Then I emphasised, ‘but you never know’.

3. In another passage after requesting counsel for the second defendant to be realistic, and after informing him that there was no point going through the paces in a hopeless case if all it means is that the defendants will just incur further and further costs and more anxiety, I added ‘I am not saying I have reached a conclusion at all’. Finally, in a further passage, I stated that I wished to reiterate and emphasise that I would not take kindly to timewasting by unmeritorious defendants, ‘if that is what it proves to be’.

4. Experienced counsel know that judges are, by training and practice, well qualified to suspend judgment until the conclusion of evidence and submissions while expressing concern, even scepticism, about issues in the course of the hearing. To do so at the directions hearing stage, before the evidence has been elicited or the submissions have been put, is even more indicative of a judge who is simply seeking assistance in understanding and addressing the genuine issues in dispute.

5. These truisms were no more clearly stated than by the plurality in Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at 493 in which their Honours stated that:

… the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to Court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx.

6. Their Honours went on to explain:

Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented.

7. It has always been my experience, as an advocate and judge, that counsel are assisted by judicial indications of preliminary views and concerns. The High Court in Johnson clearly thought so. The plurality said at 493:

On the contrary, [judges] will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.

8. And in Vakuata v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 571, Brennan, Deane and Gaudron JJ spoke of ‘the dialogue between Bench & Bar which is so helpful in the identification of real issues and real problems in a particular case’.

9. All that happened at the directions hearing on Friday last week was that counsel for the second defendant and those representing the third and fourth defendants were put on notice of the need to be in a position to address what appeared to me, at that stage, to be genuine concerns as to the strength of their defences. Whether those defences are good will be determined over the next few days. I dismiss the application and order the second defendant to pay the plaintiff's costs forthwith.

Decision last updated: 03 May 2017