Kirby v Centro Properties Limited (No 2) [2008] FCA 1657

FEDERAL COURT OF AUSTRALIA

Kirby v Centro Properties Limited (No 2) [2008] FCA 1657

COURTS AND JUDGES – bias – reasonable apprehension of bias – judge's pecuniary interest in a party due to ownership of shares in corporate class action defendant – judge's pecuniary interest in the litigation due to membership in plaintiff class – whether fair-minded lay observer would reasonably apprehend that judge's loss of $19,000 in trading of defendant's shares, said to be caused by the same fraudulent conduct alleged by plaintiff, would prevent the judge from bringing an impartial mind to the proceedings – disclosure – inadvertent failure by judge to disclose financial interest in the litigation – whether judge's prompt divestiture of financial interest and waiver of all claims arising out of or relating to the facts alleged in the pleadings is sufficient to cure apprehension of bias – whether application for recusal may be brought by notice of motion – precedent – whether trial judge should follow appellate decision of another Australian jurisdiction where that decision has been both criticised and approved in appellate dicta of judge's own jurisdiction 28 USC s 455 American Isuzu Motors Inc v Ntsebeza 128 SCt 2424 Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 Bahonko v Nurses Board of Victoria (No 2) [2007] FCA 351 Barton v Walker (1979) 2 NSWLR 740 Brooks v The Upjohn Company (1998) 85 FCR 469 Certain Underwriter, In re 294 F3d 297 (2d Cir 2002) Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Gas & Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48 Gordon v Reliant Energy Inc 141 FSupp2d 1041 (SDCal 2001) Idoport Pty Limited v National Australia Bank Ltd [2004] NSWSC 270 Initial Public Offering Securities Litigation, In re 174 FSupp2d 70 (SDNY 2001) Key Pharmaceutical Inc v Mylan Labs Inc 24 FSupp2d 480 (WDPa 1998) Kidder Peabody & Co v Maxus Energy Corp 925 F2d 556 (2d Cir 1991) Kirby v Centro Properties Limited [2008] FCA 1505 Lee v Cha [2008] NSWCA 13 Literary Works in Electronic Databases Copyright Litigation, In re 509 F3d 136 (2d Cir 2007) Parramatta Design & Developments Pty Ltd v Concrete Pty Ltd (2005) 144 FCR 244 Polites, Re (1991) 173 CLR 78 Rajski v Wood (1989) 18 NSWLR 512 R v Australian Stevedoring (1953) 88 CLR 100 Tramonte v Chrysler Corp 136 F3d 1025 (5th Cir 1998) US v Will 449 US 200 (1980) Warner-Lambert v Kent 128 SCt 1168 (2008) Witness v Marsden (2000) 49 NSWLR 429 ABA Model Code of Judicial Conduct (2004) Canon 3E(1)(c) RICHARD KIRBY v CENTRO PROPERTIES LIMITED and CPT MANAGER LIMITED