SAVAGE and ORS v LUNN and ORS [1998] NSWCA 204

SAVAGE v LUNN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY and SHELLER JJA and SHEPPARD AJA 15 October 1998, 10 November 1998 [1998] NSWCA 204

PRACTICE — Court of Appeal — rehearing — issues not addressed in earlier judgment

APPEAL — bias of trial Judge EQUITY — defences — laches — knowledge of facts

The claimants (appellants on appeal and defendants at trial) sought a rehearing of issues which they claimed were not dealt with, sufficiently or at all, in the Court's reserved judgment delivered on 9 March 1998. The issues were the alleged ostensible bias (including pre-judgment) of the trial Judge and laches.

HELD - dismissing the motion: (1) The claimants' submissions relating to ostensible bias of the trial Judge should be rejected. Neither the Judge's reasons of 14 October 1994, nor his Honour's conduct thereafter, provided any basis for a finding of ostensible bias or pre-judgment prior to 14 October 1994. Vakauta v Kelly (1989) 167 CLR 568 considered. (2) The principle stated in this Court's original judgment that proof of laches "ordinarily" requires proof by the defendant that the plaintiff remained inactive after acquiring "sufficient knowledge of the facts" was correct, and not controverted by the authorities cited by the claimants. (3) This Court's earlier reasons were sufficient in respect of both issues.

Handley, Sheller JJA and Sheppard AJA This appeal was heard by the Court as presently constituted over nine days in September 1997, and our reserved judgment was delivered on 9 March 1998. By notice of motion dated 20 May, the appellants sought a rehearing of issues which they submit were not dealt with, sufficiently or at all, in the Court's reserved judgment. The issues in question were the alleged ostensible bias (including pre-judgment) of the trial Judge and laches.