Eliezer v The Owners – Strata Plan No. 51682 [2020] NSWSC 1600

Supreme Court New South Wales

Medium Neutral Citation: Eliezer v The Owners – Strata Plan No. 51682 [2020] NSWSC 1600 Hearing dates: 05 November 2020 Date of orders: 05 November 2020 Decision date: 05 November 2020 Jurisdiction: Common Law Before: Garling J Decision: The application of the plaintiff that I disqualify myself from hearing these proceedings is refused Catchwords: COURTS AND JUDGES — Bias — Apprehended bias – whether a previous decision would cause a reasonable observer to think that the decision maker will not bring a fair mind – application dismissed - no point of principle Legislation Cited: Uniform Civil Procedure Rules 2005 Cases Cited: Eliezer v The Owners – Strata Plan No 51682 [2017] NSWCA 325 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (200) 205 CLR 337 Texts Cited: Not Applicable Category: Procedural and other rulings Parties: Supriya Eliezer (P) The Owners – Strata Plan No. 51682 (D) Representation: Counsel: Self-represented A Spencer (D2-4) J Li (D5-11)

Solicitors: Gilbert M Johnstone & Co (D2-4)) J Li (D5-11) File Number(s): 2015/123687 Publication restriction: Not Applicable

EX TEMPORE Judgment 1. Application has been made this morning by Supriya Eliezer ("the plaintiff") to me to disqualify myself from hearing the Notice of Motion filed by the plaintiff on 18 August 2020. That Motion was listed for hearing today before the Duty Judge of the Common Law Division. As it happens, I am the Duty Judge for this week. 2. The Notice of Motion seeks orders in the following terms: "1. Pursuant to the grounds in UCPR 36.15(1) that the order for costs in motions decided on 5 March 2017, 9 May 2017 and on 15 June 2017 be varied such that the order for costs does not apply in favour of the second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth and eleventh defendants. 2. Any application by the said defendants for costs assessments based on the above costs order be stayed. 3. Any other orders as the Court sees fit." 1. The orders sought to be varied were those made on 5 March 2017 by N Adams J, on 9 May 2017 by Johnson J and on 15 June 2017 by me. Each of the three judges, including myself, delivered reasons for judgment at the time the orders were made. 2. The plaintiff made an application for leave to appeal to the Court of Appeal against the judgments of N Adams J and myself. That application was dismissed: Eliezer v The Owners – Strata Plan No 51682 [2017] NSWCA 325. The identified respondents in the appeal proceedings are also the defendants in this matter. 3. In the course of making submissions to the Court this morning on the substantive Motion, it became apparent that the plaintiff was seeking to make a submission that it was inappropriate that I hear and determine the Motion filed on 18 August 2020. At that point, I interrupted the plaintiff's submissions to ensure that the intention of the plaintiff was clear, namely that an application was being made for me not to hear the Motion. The plaintiff identified that such an application was being made and that it was based upon the principle which might conveniently and shortly be called "apprehended bias". 4. This principle is one where, to put it in summary terms, the Court is asked to determine whether a fair-minded lay observer, acting reasonably, might apprehend that a judge may not bring an impartial mind to the decision on the substantive application: see Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (200) 205 CLR 337.