ABRAM v NATIONAL AUSTRALIA BANK LTD [1997] NSWCA 7

ABRAM v NATIONAL AUSTRALIA BANK LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, PRIESTLEY and POWELL JJA 19-20 April 1997, 1 May 1997

[1997] NSWCA 7

NATURAL JUSTICE — APPREHENDED BIAS — WHETHER TRIAL JUDGE DISQUALIFIED FROM HEARING PROCEEDINGS — appellant and Hastie charged by Bank with contempt of court — at hearing Bank and defendants joined in asking that the proceedings be dismissed — no evidence called for prosecutor — judge cross-examines defendants — proceedings against Hastie dismissed — judge makes findings of fact in Hastie's case relevant to case against appellant — trial judge refuses to allow proceedings against appellant to be dismissed — trial judge refuses to disqualify himself from hearing the further prosecution of the proceedings against the appellant — On appeal, held, by the court: (1) trial judge's orders invalidated on basis he should have disqualified himself from hearing further prosecution of contempt proceedings on grounds of apprehended bias; (2) trial judge's orders refusing

the appellant leave to prosecute certain witnesses for perjury should also be treated as vitiated: per Powell JA, observations on procedure and on whether elements of contempt could be satisfied in the circumstances of the case. Webb v The Queen (1994) 181 CLR 41

Commissioner of Police v Reid (1989) 16 NSWLR 453

Cachia v Hanes (1994) 179 CLR 403

Livesey v NSW Bar Association (1983) 151 CLR 288

Yeldham v Rajski (1989) 18 NSWLR 48

Mason P, Priestley and Powell JJA

The background.

On 3 August 1994 O' Keefe CJ Comm D found Mr J Abram guilty of contempt of court. Mr Abram and Mr RM. Hastie had been charged with contempt "in that they entered the premises known as 24 Mulgrave Road, Mulgrave on 16 July 1993 and remained thereon until 19 July 1993 and secured those premises against the Plaintiff Bank's interest and denied the Bank its servants and agents access to the premises".