FEDERAL COURT OF AUSTRALIA Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2004] FCA 483 PRACTICE and PROCEDURE – whether trial judge should disqualify himself from further hearing of proceedings on ground of apprehended bias – that course opposed by applicant – final hearing of proceedings already in progress for two full hearing days – application dismissed Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd and Anor [2004] FCA 169 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd and Anor [2004] FCA 293 Livesey v New South Wales Bar Association (1983) 151 CLR 288 referred to Vakauta v Kelly (1989) 167 CLR 568 applied Australian National Industries Ltd v Spedley Securities Ltd (1992) 26 NSWLR 411 referred to Sankey v Whitlam (1977) 1 NSWLR 333 referred to Johnson v Johnson (2000) 201 CLR 488 referred to Reid v Hubbard (No 2) [2004] FCA 180 applied Versace v Monte [2003] FCA 126 applied Bienstein v Bienstein (2003) 195 ALR 225 applied CONCRETE PTY LTD v PARRAMATTA DESIGN AND DEVELOPMENTS PTY LTD, GHASSAN FARES, PARRAMATTA DESIGN AND DEVELOPMENTS PTY LTD AND CONCRETE PTY LTD N 1509 OF 2003 CONTI J 8 APRIL 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1509 OF 2003 BETWEEN: CONCRETE PTY LTD APPLICANT AND: PARRAMATTA DESIGN & DEVELOPMENTS PTY LTD FIRST RESPONDENT GHASSAN FARES SECOND RESPONDENT PARRAMATTA DESIGN & DEVELOPMENTS PTY LTD CROSS CLAIMANT CONCRETE PTY LTD CROSS RESPONDENT JUDGE: CONTI J DATE OF ORDER: 8 APRIL 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Application of the respondents that the presiding judge disqualify himself from the further hearing of the proceedings be dismissed. 2. The issue of costs of the application for disqualification be reserved. 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 1509 OF 2003 BETWEEN: CONCRETE PTY LTD APPLICANT AND: PARRAMATTA DESIGN & DEVELOPMENTS PTY LTD FIRST RESPONDENT GHASSAN FARES SECOND RESPONDENT PARRAMATTA DESIGN & DEVELOPMENTS PTY LTD CROSS CLAIMANT CONCRETE PTY LTD CROSS RESPONDENT JUDGE: CONTI J DATE: 8 APRIL 2004 PLACE: SYDNEY REASONS FOR JUDGMENT Introduction 1 The hearing of the subject proceedings for final relief commenced on 1 April 2004 and continued throughout 2 April 2004, after which the proceedings were adjourned part heard for further hearing on 8 April 2004. The issue arising in the proceedings relates to the existence or otherwise of copyright in certain plans and drawings relating to a residential unit development proposed to be erected by the applicant/cross-respondent ('applicant') on vacant land at Nelson Bay in the State of New South Wales. The land had been earlier purchased by the applicant from trustees for sale appointed in the context of disputes between the principals of a third party corporation Toyama Pty Limited on the one hand, and the principals of Landmark Building Developments Pty Limited on the other hand, the latter being the second respondent, Mr Fares, who is an architect, and a solicitor Mr Barrak, who was formerly the solicitor on the record for the respondents/cross-claimant ('respondents'). Those disputes are apparently the subject of proceedings in the Supreme Court of New South Wales. The plans and drawings the subject of these proceedings are the subject of an existing development approval of the local governmental authority. A concern of the applicant is that such approval may expire before the present litigation is resolved. 2 I have earlier given two interlocutory judgments in the proceedings adversely to the respondents as follows: (i) on 11 February 2004, I dismissed the respondents' application made on 9 February 2004 for cross-vesting of the proceedings to the Supreme Court of New South Wales (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd and Anor [2004] FCA 169); those proceedings apparently involve Toyama Pty Ltd and Landmark Building Developments Pty Ltd; (ii) subsequently on 5 March 2004, I dismissed the respondents' application made on 24 February 2004 for, inter alia, separate questions to be determined prior to the substantive hearing of the present proceedings (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd and Anor [2004] FCA 293). The reasons for interlocutory judgment in relation to each of those unsuccessful applications of the respondents reflect some of the further factual background to the present proceedings, which need not here be repeated. 3 At the close of the hearing on a final basis of the present trial proceedings on 2 April 2004 (part heard), the second principal witness for the respondents Mr Barrak had not completed his oral evidence, in that he was still being cross-examined; the first principal witness for the respondents (Mr Fares) had completed his oral evidence, inclusive of his cross examination. Both Mr Barrak and Mr Fares were at least directors of the first respondent Parramatta Design & Developments Pty Limited at the time the development approval of the local government authority was given. However prior to commencement of the final hearing, Mr Barrak had caused the Court to be informed through counsel that he was no longer a shareholder or director of the first respondent, and as such would gain no financial benefit from the outcome of these proceedings. 4 As may be appreciated from the reasons for my interlocutory judgment of 5 March 2004, in the events which have happened, the respondents effectively bear the onus of establishing breach of copyright in the building plans for the development, and hence the reason why the respondents were first to enter upon the giving of evidence, other than of a formal nature, at the final hearing of the proceedings now in progress. 5 The respondents have been represented in the presently part heard final hearing by Mr Murr SC and Mr Hall of counsel, and the applicant has been represented by Mr Rayment QC and Mr Kell of counsel. Nature or basis of the present application for disqualification 6 At the resumption of the final hearing of the proceedings on 8 April 2004, being the appointed third hearing day, the respondents made application, without prior notice, formal or informal, that I disqualify myself from any further hearing of the proceedings on the ground of apprehended bias. It had been anticipated by the applicant that it would be commencing the presentation of its case, and the applicant had accordingly arranged for a principal witness to travel to Sydney from a country address. This application was premised on what was said on behalf of the respondents to be 'three primary assertions', as follows: (i) in the view of the 'fair minded observer' (Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 300) or 'the reasonable person' (Vakauta v Kelly (1989) 167 CLR 568 at 573) (the reasonable person being coined by counsel for the respondents repetitively as John Citizen), it could reasonably be said that I was 'largely persuaded towards a concluded view as to the outcome of these proceedings'; (ii) prior to the final hearing, I had already adopted a view as to the credibility of the respondents' witnesses Mr Fares and Mr Barrak, which would lead John Citizen to conclude that I had prejudged the credibility of at least Mr Barrak; and (iii) on account of (i) and (ii) above, there exists 'a perceived bias' present in the mind of John Citizen as the hypothetical observer of these proceedings to date, possibly inclusive, so it would seem, of some aspect of the interlocutory proceedings. 7 The present application for disqualification was made on behalf of the respondents by Mr Hall of counsel. Mr Murr SC did not appear for the respondents on this present disqualification application, notwithstanding that until the making of the present application for disqualification, he had been leading Mr Hall throughout the final hearing of the proceedings, though he had not appeared in the antecedent interlocutory proceedings. With commendable frankness, Mr Hall stated at the outset of the application for disqualification that 'Mr Murr had provisionally agreed to be a party to this application, but that [r]egrettably at the last moment Mr Murr informed my instructing solicitor that he did not believe the application should be made'. The respective addresses of counsel on this disqualification issue concluded at 3.33 pm, though the substantial majority of the time of the hearing of the application was occupied by Mr Hall's oral submissions, focusing as they did on a large folder of documentary material. At the conclusion of counsels' addresses, I formally dismissed this disqualification application, and at Mr Rayment's request, I reserved the question of the costs thereof for later submissions. Mr Rayment made the complaint that because no prior warning of the disqualification application had been made, preparation for the hearing on that day had been largely wasted. Mr Rayment formally objected from the outset to this unforeshadowed course being pursued by the respondents. The respondents contentions on the application for disqualification 8 Mr Hall opened the case for my disqualification by expressing his understanding that '… where a litigant seeks the disqualification of a judicial officer from hearing a proceeding on the grounds of bias, the Judge in question must decide whether he or she should continue to sit and that this may be done without formalities'. He then proceeded to cite, at considerable length, the discussion and listing of the numerous authorities appearing in the Butterworths loose-leaf service entitled 'The ABC of Evidence' under the heading 'Bias' in the segment from pages 4011 to 4034, where reference appears to a very large number of reported cases, including Livesey and Vakauta. He referred me with particular emphasis to the following passage in Australian National Industries Ltd v Spedley Securities Ltd (1992) 26 NSWLR 411 at 437-438, where Mahoney JA said as follows: 'In my opinion, four things emerge from the decision in Livesey and the cases which have succeeded it: (a) the disqualification of a judge for apprehended pre-judgment depends on form rather than substance; (b) whether there is unacceptable appearance of pre-judgment is to be decided, not according to likelihood, but according to possibility; (c) it is to be judged, not according to what the court and the parties know, but according to the impressions of a lay person who does not know the facts; and (d) there will be an unacceptable appearance of pre-judgment if the judge had previously dealt with the issue of fact or credibility which is before him in the instant case.' Mr Hall also referred me (inter alia) to the further passage recorded in Butterworths from the judgment in Sankey v Whitlam (1977) 1 NSWLR 333 at 346 (per Moffitt P with whom Reynolds JA agreed): 'To proceed in the face of possible bias is regarded as unjust simply because of possible injustice. To decline to proceed further after a partial hearing, when neither bias nor possible bias exists in fact, may not only produce injustice in fact due to the financial burden and the delay due to the need to recommence the hearing, but may also give rise to the possibility of injustice in other ways. A trial or procedure once embarked upon will continue until its termination, unless a valid legal reason requires otherwise.' 9 Mr Hall contended nevertheless that the tests for judicial disqualification were satisfied by reason of observations on my part appearing in the transcripts of two prior interlocutory hearings, and thereafter during the first two days of the final hearing. Mr Hall's opening observations were courteously framed as follows: 'Now, I don't make this application lightly or suggesting to your Honour that you have pre-judged the matter or that you are pursuing this trial with an element of bias. I don't make this application on those grounds. I make this application on the basis that, in my respectful submission, what matters here is the view of a third party independent observer and that when the facts and circumstances that I would seek to take your Honour to in respect of this application are known, that third party observer would conclude that should this trial proceed, that there are present to date issues of pre-judgment and issues of apprehended bias. So I guess what I'm asking your Honour to do on the basis of this application and the material I propose to take your Honour to, is to step down from the Bench for a moment, so to speak, and to imagine that you are John Citizen sitting in the back of the courtroom and on the basis of the matters that I would seek to take your Honour to, to ask of John Citizen whether or not your Honour should continue to hear the case. If John Citizen were of the view that perhaps you would best step away from the case, then I invite your Honour to do so on the basis of the matters that I seek to take you to. In very succinct terms, the application is two-fold as it must be: one, apprehended prejudice, and secondly, apprehended pre-judgment.' 10 The matters and circumstances to which counsel for the respondents referred me in support of the application for disqualification were in summary as allows, emphasis being made on the cumulative effect of these matters and of those circumstances, rather than upon any single or discrete instance: (i) what appears in the transcript of the first day's hearing on 1 April 2004 at pages 9 (lines 15 to 30), 11 (lines 10 to the end of the page), 12 and 13, 18, 71, 90-91, 108, 126, 135, 137 and 189 to 193; I do not think that in the circumstances, it is necessary or expedient to reproduce that bulk of material; (ii) the reasons and conclusions broadly expressed in my reasons for the two interlocutory judgments already identified, being reasons which of course speak for themselves; subsequently it would seem that the substantive basis for complaint put forward in relation to those two interlocutory outcomes was that the former solicitor on the record for the applicant (Mr Costa) had misled the Court because of '… the way in which he has put the evidence before the court and ensured that certain evidence wouldn't come before the court, has misled your Honour'; I should observe at once that it is difficult to conceive how that alleged conduct of Mr Costa bears upon the ground put forward as to apprehended bias on my part; (iii) the content of a letter of advice dated 7 August 2003 furnished by Mr McEwen SC to Costa & Associates; that letter was subsequently at the request of counsel for the respondents in any event notionally withdrawn from the large bundle of documentary material handed up to the Court in support of the application for my disqualification, and any further reliance thereon was eschewed; moreover all of the annexures paginated 10 to 86, inclusive of that letter of advice, together with the affidavit of Mr Barrak of 22 March 2004, were also notionally withdrawn from the bundle which had been initially handed up to the Court in support of the application, upon the basis implicitly that the same were no longer relied on; (iv) the so-called 'series of events 16 October 2003 to 1 April 2004', and in particular my '… willingness to look beyond the corporate entities in this matter…', and my references made, at least since 5 March 2004, '… to the competing equities of the respective parties in respect of the copyright material [the] subject of these proceedings'; and (v) my observations made at the interlocutory hearing of 11 February 2004 (transcript pages 17 and 18), including in particular those observations to the effect that the circumstances put forward by Mr Rayment QC in support of the applicant's request for the appointment of a date for an early hearing were 'overwhelming'. I have been unable to distil from the foregoing material, viewed in isolation as well as cumulatively, any fair or reasonable basis upon which I could justify or rationalise any viable basis for stepping down from the present proceedings; on the contrary, there seems to me to have been an inability on the part of the respondents to comprehend or appreciate the nature and purpose of the observations made. 11 A further segment of submissions advanced on behalf of the respondents was seemingly to the effect that I had already formed favourable views upon the merits of the applicant's case by the time of commencement of the final hearing, without being aware of the falsity or incompleteness of certain documents (identified as 56 in all) which had not been thus far formally produced to or tendered in Court (including ANZ Bank documents) or tendered in evidence. I was unable to discern anything contained in that voluminous material which bore relevantly upon the present application in any viable way. Mr Hall submitted that '… the emphasis is on form over substance in an application such as this'; I was not referred to any document within that voluminous and largely disconnected material that I could discern to be of any decisive or potentially decisive significance to the present application. The respondents contend that Mr Costa is in reality a corporator in relation to the applicant, but I find it presently difficulty to comprehend how that circumstance bears upon the present issue of disqualification. Nothing has been pleaded in relation to Mr Costa, nor has there yet been articulated to me in any event how any continuing financial interest on his part in relation to the applicant and its proposed development bears upon the copyright issues I am required to resolve. 12 In summary, whilst Mr Hall provided to me a large bundle of documentary instances in purported support of the present application, I have been unable to discern how the same rationally points to pre-judgment on my part of any issue arising in the proceedings, being any issue relevantly arising from the limited scope of pleadings in relation to a principal cause of action for breach of copyright. By way of further illustration, complaint was seemingly raised as to my use of the expression 'corporator' in relation to any person or persons controlling the decision-making of proprietary companies involved in the litigation, as though the conduct of any such persons was immaterial or irrelevant by reason of a supposed corporate veil. At the present time, my jurisdictional functions are dictated by the pleadings, and I have thus far not found it to be helpful for issues to be foreshadowed or ventilated outside the scope of the presently pleaded issues. The applicant's responses 13 Senior counsel for the applicant responded relatively briefly, and understandably so, since he had been given no prior warning of any description of the present application; he referred me to a recent restatement of the principles by the High Court, as to judicial disqualification, upon the basis of appearance of bias, in Johnson v Johnson (2000) 201 CLR 488. In the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at 492-3, the following appears: 'It has been established by a series of decisions in this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason on the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide… The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded on the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial".' 14 It was contended on behalf of the applicant that these tests for disqualification had not been fulfilled in relation to any instance cited by the respondents; no evidence was said to have been elicited from which a reasonable bystander could form the view that this present disqualification application could get off the ground…'. I was referred to passages in Vakauta at 571-572 appearing in the joint judgment of Brennan, Deane and Gaudron JJ, which contains principles which, it was contended, the respondents in the course of their submissions had failed to adequately address. 15 It was further submitted on behalf of the applicant that observations made in relation to the solicitor Mr Costa were 'completely out of place', as well as irrelevant, and unsupported by any evidence; in that context, he commented, in my opinion correctly, that '[w]hy it should be thought that in any way that was sought to be hidden or covered up in this case is equally obscure' and further, that 'each of the propositions which we are called upon to answer is inaccurate and inappropriate in regard to Mr Costa and generally in regard to this application'. There is apparent substance in that further submission, unless and until something decisive of or bearing upon the issues I am required to resolve concerning any role or conduct concerning Mr Costa has been placed in evidence before me, and any consequential amendments to the pleadings duly implemented. My conclusions 16 In my opinion, the briefly and succinctly framed submissions of senior counsel for the applicant are correct. To the extent that I have been able to comprehend the import or significance of the submissions of counsel for the respondents, I have been unable to distil any viable basis for my disqualifying myself from further presiding in these proceedings. Obviously if both parties sought my removal, I would readily stand down forthwith from any further hearing of the proceedings, but so long as the applicant opposes any such course with apparent justification, it is clearly my duty as a judicial officer to continue to preside at the present hearing of the proceedings. As I read the authorities on the subject, what has stood in the way of many judges not disqualifying themselves in contentious circumstances has been their concern that an opposing party may thereby suffer some measure of prejudice or disadvantage unfairly in the context of the litigation for the time being prevailing. Further authorities arising for consideration 17 Some further references to authorities, in chronological sequence of reporting, is in my opinion apposite, being authorities that tend to address circumstances beyond which the principles already cited may fall for consideration. The first dictum to which I would additionally refer is to be found in re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342 at 352, where Mason J (as he then was) said: 'It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be 'firmly established': Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at pp 553-554; Watson (1976) 136 CLR, at p 262; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12, at p 14; 32 ALR 47, at pp 50-51). Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.' 18 Further as to Vakauta, Dawson J said at 575 as follows: 'Preconceptions do not necessarily mean bias on the part of the judge who holds them. As was said by Charles J in R v London County Council; Ex parte Empire Theatre (1894) 71 LT 638 at 639, 'preconceived opinions - though it is unfortunate that a judge should have any - do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded'. And in this Court in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 161 CLR 342 at 372, a majority was of the opinion that when bias arising from preconceptions is in question, as distinguished from bias through interest, there must be strong grounds for finding its existence. A judge 'must so have conducted himself that a high probability arises of a bias inconsistent with the fair performance of his duties, with the result that a substantial distrust of the result must exist in the minds of reasonable persons.' In Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342 at 372, I expressed the view that suspicion of bias may well be ineradicable where the bias is thought to result from preconceptions existing independently of the case. That is so, but it is not to say that bias is inevitably displayed merely because a judge holds preconceptions or reveals that he does. Unfortunate or not, it is virtually unavoidable that a judge, sitting in a jurisdiction such as that in which the trial judge was sitting, should form some view concerning a party appearing in case after case and of the expert witnesses habitually called by that party. But, as was pointed out in Reg. v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 554, a fair and unprejudiced mind 'is not necessarily a mind which has not given thought' to relevant matters or one which, having thought about them, 'has not formed any views or inclination of mind upon or with respect' to them.' Although Dawson J was in the minority in Vakauta, I observe, as did Heerey J in Reid v Hubbard (No 2) [2004] FCA 180 at [16], that his Honour's general statements reflect correct restatement of applicable principles. They are principles to which the respondents' submissions appear to reflect little or no recognition in the particular circumstances with which I am presently confronted. 19 Recently in this Court in Versace v Monte [2003] FCA 126 at [2], after observing that the relevant principles in relation to apprehended bias are well settled, Tamberlin J continued as follows in terms of the application of those principles: 'The material to establish apprehended bias must be assessed in the light of an assumption that judicial officers act with honesty and discretion: see Davids Distribution Pty Limited v National Union of Workers (1999) 91 FCR 463 at 510. There must be a reasonable and objective basis for an apprehension or perception that the case may not be decided impartially and without prejudice: see Lynch v Zurich Australian Insurance Limited (unreported, New South Wales Court of Appeal, 10 November 1998). Where it is alleged that there is pre-judgment it must be shown that there is a commitment to a conclusion already formed irrespective of the evidence or arguments to be presented: see Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100.' I do not think that I have been provided with a sufficiently reasonable or objective basis for apprehension or perception that the case may not be decided impartially and without prejudice on my part. That is not to say that I have been mystified, if not troubled, as to the relevance of at least the basis for the majority of the respondents' present submissions. However there is still some distance to travel in this litigation, including the cross-examination of the applicant's witnesses, before I think I will gain more insight into the merits of the respective cases of the parties. 20 I should further add that the use of the words 'in all the circumstances' in Livesey at 293-294 (Mason, Murphy, Brennan, Deane and Dawson JJ) implicitly requires that the existence of apprehended bias must be viewed as a whole and in the context in which the judicial officer's conduct complained of has occurred. That principle has been recently reaffirmed by the High Court in Bienstein v Bienstein (2003) 195 ALR 225 at 231-232, where the High Court discussed a refusal by Hayne J to disqualify himself for apprehended bias. Also in Livesey, I should add for completeness, it was said at 299-300 that it is impossible to lay down an inflexible rule, and that each case must be determined by reference to its own circumstances; in particular at 300, the following appears: 'It is, however, apparent that, in a case such as the present … a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness…'. 21 I am satisfied that the present application for disqualification has not adequately addressed the principles restated in these latter authorities in particular, in the light of the present state of the pleadings, and that it would be wrong for me to stand aside upon the basis of the present application made on behalf of the respondents, being a course which is of course opposed by the applicant. I have not consciously formed any concluded views on the merits of either party's case or on the credibility of any of the testimonies I have thus far read and heard. The application should be dismissed and, as already observed, the question of costs is to be reserved for the time being. 22 I should add that immediately prior to publishing these reasons, there was delivered to my Chambers fifteen pages of written submissions, with many pages of annexures, together with a covering letter of Mr Brian Donovan QC dated 21 April 2004 reading as follows: 'Myself and Mr Hall have been instructed to put material before your Honour in relation to the disqualification. We are both aware that your Honour has ruled on this and put forward the enclosed material with no disrespect whatever to your Honour. The material is put forward as a supplement of that of 8th April 2004, for your Honour to consider and if appropriate grant leave to reopen the Application. No further oral submissions will be sought to be made in relation to the material and if leave were granted the only material and submissions would be the enclosed. Again no oral submission would be made.' 23 I think that it would be inappropriate and without sufficient justification for me to grant the leave to re-open sought by the respondents, and thereby cause further delay in the ultimate resolution of the proceedings. If the respondents seek to pursue my disqualification, the appropriate course is for the respondents to seek the leave of a Full Court to this Court to appeal my present interlocutory decision not to disqualify myself from the further hearing of the proceedings. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate: Dated: 22 April 2004 Counsel for the Applicant: B W Rayment QC and D T Kell Solicitor for the Applicant: Oliveri Attorneys Counsel for the Respondent: T A Hall Solicitor for the Respondent: Proctor & Associates Date of Hearing: 8 April 2004 Date of Judgment: 8 April 2004