Radic v Henley Properties (NSW) Pty Ltd [2000] FCA 1292

FEDERAL COURT OF AUSTRALIA Radic v Henley Properties (NSW) Pty Ltd [2000] FCA 1292 COURTS AND JUDGES – disqualification – apprehended bias – whether expression of preliminary views on transfer of proceedings grounds for disqualification. Trade Practices Act 1974 (Cth), s 86A.

Johnson v Johnson [2000] HCA 48, applied. Re JRL; Ex parte CJL (1986) 161 CLR 342, cited. Galea v Galea (1994) 19 NSWLR 263, cited.

SACKVILLE J 12 SEPTEMBER 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 624 OF 2000

BETWEEN: SINISA RADIC

FIRST APPLICANT

BORKA RADIC

SECOND APPLICANT

AND: HENLEY PROPERTIES (NSW) PTY LTD

RESPONDENT

JUDGE: SACKVILLE J

DATE OF ORDER: 12 SEPTEMBER 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. Paragraph 4 of the motion filed in court on 1 September 2000 be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 624 OF 2000

BETWEEN: SINISA RADIC

FIRST APPLICANT

BORKA RADIC

SECOND APPLICANT

AND: HENLEY PROPERTIES (NSW) PTY LTD

RESPONDENT

JUDGE: SACKVILLE J

DATE: 12 SEPTEMBER 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 1 September 2000, the applicants filed a motion in Court seeking orders, inter alia, that I disqualify myself from further participation in the present proceedings. I gave the applicants leave to make the motion returnable instanter. The basis of the application is that the applicants have a reasonable apprehension that I have prejudged the case and am incapable of approaching it with an open mind.

the proceedings 2 The dispute between the parties arises out of a building contract entered into between the applicants and the respondent on or about 16 April 1998 ("the Contract"). The Contract, so it appears, provided for the respondent, which is a builder, to erect a brick house on the applicants' land at Barden Ridge. 3 The proceedings in this Court were commenced by an application and statement of claim filed on 14 June 2000. The applicants sought declarations that the respondent had engaged in conduct which contravened ss 51AA(1) and 52(1) of the Trade Practices Act 1974 (Cth) ("TP Act"). The applicants also sought declarations that they had "properly terminated" the Contract. In addition, the applicants sought damages. 4 Prior to the proceedings being instituted in this Court, the respondent had commenced proceedings in the Local Court at Sydney against the applicants. It appears that in those proceedings, which were instituted by way of a statement of liquidated claim, the respondent claimed $29,151 allegedly due under the terms of the Contract. The Local Court proceedings have not yet been resolved. 5 The applicants were also given leave on 1 September 2000 to file an amended statement of claim in this court. That leave was granted without prejudice to any motion the respondent might wish to file to strike out the amended statement of claim. 6 In order to understand the nature and course of the proceedings, it is necessary to refer to the original statement of claim filed on behalf of the applicants. That document pleads that in or about early 1998 the applicants had discussions with representatives of the respondent with a view to having a brick house erected upon their property at Barden Ridge. It then pleads that on 16 April 1998, the applicants entered into the Contract. Work on the house commenced under the Contract, so it is alleged, on or about 19 August 1998 and was due to be completed on or before 19 March 1999. 7 The statement of claim alleges that, prior to the date of the Contract, the respondent represented to the applicants, inter alia, that it had a good reputation; that it had the skills to build a house; and that it would complete the construction of the house on schedule. It is then said that the applicants relied on the representations when they signed the agreement, believing the representations to be "true and reliable". 8 It is next pleaded that the representations were misleading or deceptive in a number of respects. It is alleged, for example, that the respondent had frequently been late in completing work and that it had received many complaints about the quality of its work. It is also said that the staff employed by the respondent was "generally uncooperative, inexperienced and inefficient". 9 The statement of claim alleges that as a result of the representations having been made in contravention of the TP Act, and by reason of the applicant's reliance thereon, they suffered loss and damage "within the meaning of and for the purposes of [ss 82 and 87 of the TP Act]". The particulars of damage, which are said to be estimated to the date of the statement of claim only and continuing, are as follows: "(a) Costs of Repairing defects as per Reports of C S Barrett Building Consultants, including removing and rectifying the brick work, in excess of $100,000. (b) Liquidated Damages (to be advised). (c) General Damages including loss of new home for in excess of twelve months and expenses related thereto. (d) Inconvenience associated in the schooling of the [applicants'] two children." 10 The statement of claim includes additional allegations that the respondent engaged in unconscionable conduct, in contravention of s 51AA of the TP Act. This claim is based on what are said to be misrepresentations by the respondent in the course of the building work, together with unjustified demands by the respondent for payment under the Contract. The statement of claim also alleges that the respondent refused to grant the applicants access to the building site in order to enable an expert to advise them, although the pleading appears to concede that the respondent agreed to an inspection "just before the Notice of Motion was due to be heard in the Local Court".