Michael Wilson & Partners Limited v Nicholls [2011] HCA 48

HIGH COURT OF AUSTRALIA

GUMMOW ACJ,

HAYNE, HEYDON, CRENNAN AND BELL JJ

MICHAEL WILSON & PARTNERS LIMITED APPELLANT

AND

ROBERT COLIN NICHOLLS & ORS RESPONDENTS

Michael Wilson & Partners Limited v Nicholls [2011] HCA 48

1 December 2011

S67/2011

ORDER

1. Appeal allowed with costs.

2. Set aside paragraphs 3, 4, 5, 6 and 7 of the orders of the Court of Appeal of the Supreme Court of New South Wales made on 15 September 2010.

3. Remit the matter to the Court of Appeal for further consideration of:

(a) grounds 5(b) to (c), 6 to 15, 17(b) to (d), 18, 20 and 21 of the Amended Notice of Appeal dated 7 May 2010; and

(b) the Notice of Cross-Appeal dated 29 January 2010.

4. Costs of the appeal to the Court of Appeal, including the costs of the hearing on remitter, be in the discretion of that Court.

5. Money paid into Court by the appellant, in satisfaction of a condition of the grant of special leave, be paid out to or at the direction of the appellant.

On appeal from the Supreme Court of New South Wales

Representation

B W Walker SC with M Walton SC and D F C Thomas for the appellant (instructed by Clayton Utz Lawyers)

G C Lindsay SC with G W McGrath SC and A D B Fox for the respondents (instructed by Henry Davis York)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Michael Wilson & Partners Limited v Nicholls

Courts and judges – Bias – Apprehended bias – Appellant successfully applied ex parte to use respondents' affidavits for foreign proceedings and criminal investigations on several occasions – Judge relied on appellant's unchallenged affidavit evidence – Applications heard in closed court and orders made preventing respondents knowing about applications – Whether fair-minded lay observer might reasonably apprehend judge might not bring impartial and unprejudiced mind to resolution of issues at trial of action.