HASSIB NJJAR (T/A CEDAR MANAGEMENT) v THE MINISTER FOR PUBLIC WORKS STATE OFFICE BLOCK SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL HANDLEY JA 3 December 1990 [1990] NSWCA 86 Handley JA In this matter MrEinfeld of Queens Counsel moves for orders extending the time for filing a notice of appeal, for leave to adduce fresh evidence, for leave to add Mr Ernest Edward Morris as a respondent to the proceedings, for a stay of execution and for expedition. The case is unfortunately complicated as a matter of procedure and there are significant difficulties in the case so far as the ultimate merits are concerned. On 12 February 1990 Giles J adopted the report of Mr EA Morris who had heard and determined a reference pursuant to Pt72 of the rules of court in a matter in the Construction List. Following publication of his honour's reasons for judgment on 12 February, final orders were made on 16 February entering judgment in favour of the nominal defendant for $25,000 plus interest of $4,548.62 together with costs, including the remuneration of the referee and the costs of the transcript of evidence. The unsuccessful plaintiff in the proceedings in the Construction List filed a Notice of Appeal in this Court out of time on 3 July 1990, well out of time. One of the orders sought is an order extending the time for filing that Notice of Appeal. The only ground on which the appellant proposes to support that appeal relates to the existence of actual or ostensible bias on the part of the referee which was not known to the appellant at any material time and which it is said vitiates the report and should lead to the reversal of Giles J's decision adopting that report. This ground of appeal is necessarily dependent upon the Court receiving and acting on what is alleged to be fresh evidence relating to the allegations of bias, because it is clear that this matter was neither raised before the referee during the reference, nor before Giles J in the proceedings in February this year to adopt the report. There is dispute as to whether the evidence truly constitutes fresh evidence, bearing in mind the strict tests applied by this Court, in conformity with decisions of the High Court, in determining what is and what is not fresh evidence. It is not appropriate for a single judge to attempt to resolve the fresh evidence question in this application. There is a further application which arises from the appellant's application to join Ernest Edward Morris, the referee, as a party to the appeal. The appellant seeks orders against Mr Morris, that he pay the costs of the reference and of the proceedings in this Court of the appeal. Obviously, the Court cannot decide whether such an order should be made, except in proceedings in which Mr Morris is a party. It is by no means self-evidence that Mr Morris can be joined in proceedings of this nature. Under Pt72 r3 the Court may appoint any person as a referee. Under r3(2) a judge, master, registrar or other officer of the court may be appointed and may act as a referee in certain circumstances. Even if the allegations of actual or ostensible bias are made out in proceedings conducted by a judge or other judicial officer in the ordinary way, the result is not an order for 2 UNREPORTED JUDGMENTS costs being made against that judge or judicial officer and he or she would not be a necessary or proper party to any appeal from a decision affected by such bias. Prima facie, it is likely that a similar result would follow if the judge or judicial officer were appointed a referee under Pt72 13. On the other hand, where an arbitration is conducted by an arbitrator who is guilty of actual misconduct as opposed to technical misconduct in the arbitration, it is well established that in the proper case orders for costs can be made against the arbitrator and he or she will be a proper party in proceedings to set aside or enforce the award. Not only does the appellant seek an order for costs against the referee as indicated, but counsel appearing for the nominal defendant has also indicated that the Crown would not necessarily accept that orders for costs could appropriately be made against it in the event of the appeal succeeding, since so it was submitted it was not responsible for the nomination of Mr Morris, nor was it aware at any material time of the matters alleged to give rise to the bias in question. I should add that the bias arises out of contracts between Mr Morris's company or what is said to be Mr Morris's company and the State Department of Public Works. The Crown may have been entitled to act on the basis that inquiries had been made by the appellant as to the existence or otherwise of any such contracts between Mr Morris's company and the Department. This is a factor in the Crown's attitude towards the making of any order for costs against it, if the appeal were to succeed. In these circumstances where the appellant seeks orders for costs against the referee, where the Crown does not acknowledge that it would be liable for the same costs if the appeal succeeds and where the propriety of joining the referee in proceedings of this kind raises important questions of principle which are not the subject of any direct authority, it is not appropriate for me to attempt to decide this as a single judge on a motion of this kind. Mr Dorter rightly emphasised the fact that the appellant has the benefit of Legal Aid, so that any order for costs which may be made in favour of his client, the referee, could only be enforceable up to the cap of $5,000. This is an important consideration and normally would cause the Court to think very carefully allowing the referee to be joined in proceedings of that kind. However, in the present case I can hardly dismiss Mr Morris's proceedings without deciding a number of very important issues which will arise in the proceedings itself. In these circumstances, it seems to me the appropriate course is for the Amended Notice of Motion dated 29 November 1990 to be referred to a Full Court for determination, together with the appeal commenced by the Notice of Appeal out of time filed on 3 July this year. The appeal should proceed on the amended Notice of Appeal, which will be initialled by me and dated today's date. Since the only issue in the appeal turns on the admissibility and effect of the allegedly fresh evidence relied upon by the appellant, there is no need for normal appeal books to be prepared, but the appellant should prepare, file and serve application books which his solicitors can have leave to print themselves, containing the affidavits in support of the Notice of Motion which comprise the allegedly fresh evidence, being the affidavits of Jacqueline Lobo of 9 November 1990 and of the appellant, Hassib Najjar of 10 August 1990, together with the evidence in answer filed and served by the Crown Solicitor. It is possible that further evidence may yet be filed. WRASSIB NJJAR (T/A CEDAR MANAGEMENT) v THE MINISTER FOR PUBLIC WORKS STATE OFFICE BLOCK (Handley JA) Since I have declined to dismiss Mr Morris from the proceedings, I propose to direct that all affidavits which have not yet been served on Mr Dorter, the solicitor for Mr Morris, be filed and served by Wednesday this week, 5 December and that Mr Dorter have an appropriate period which I will ask him to nominate shortly, to file any evidence in answer and I will then limit a time for any material in reply from the appellant. I will also direct that notices to attend for cross examination be delivered by a certain date which I will fix. I will also direct that notice of objection as to form in respect of any of the affidavits, be given to the party submitting the evidence and I will put the matter in the Registrar's callover for a date to be fixed, probably going into a callover during February. With a view to this matter being dealt with efficiently by a Full Court I give the following directions: Any further affidavit in chief relied upon by the appellant is to be filed and served before 5 p.m. on 5 December. Any affidavits in answer on behalf of Mr Morris are to be filed and served on or before 12 December. Mr Bailey has informed me that the Crown does not propose to file any further evidence in answer, but of course may wish to do so in the light of any further evidence in chief filed by the appellant. Any further evidence from the Crown in answer is also to be filed and served by 12 December. Evidence in reply on behalf of the appellant is to be filed and served by 5 pm on 19 December. On or before that date each of the parties will notify the other or others as the case may be, of any objections as to form which it proposes to take to the affidavit evidence filed by that party or those parties. Any such objections to the appellant's evidence in reply is to be notified by 23 January 1991. I fix 23 January 1991 as the return date for any subpoenae for production of documents which any party wishes to issue. I also fix 23 January 1991 as the date on or before which any party shall notify the other or others of the names of any deponents of affidavits whom it wishes to attend before a Full Court for cross examination on those affidavits. I direct that the matter be placed in the Registrar's callover on 6 February 1991 with a view to being allocated a date as soon thereafter as convenient to the Court and counsel. I order that the costs of the proceedings to date be costs in the proceedings before the Full Court. A stay of execution is continued until the hearing of the motion by the Full Court or further order.