DOVADE PTY LTD and ORS v WESTPAC BANKING CORPORATION and ANOR [1998] NSWCA 71

DOVADE PTY LTD v WESTPAC BANKING CORPORATION SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P 26 November 1998

[1998] NSWCA 71

Mason P On 14 October 1998 I refused the appellants leave to issue a subpoena. This is a fresh application to issue an amended form of subpoena that is narrower in some respects than its predecessor. The application was heard on 11 November 1998 and it was opposed by the respondents.

In the course of that hearing yet further amendments were foreshadowed to the draft Amended Notice of Appeal for which leave to amend will be sought at the hearing presently fixed for 8 December 1998. A further version of this document was (with leave) delivered to my chambers on 11 November 1998. It is highly unsatisfactory that yet further amendments to the Court record are being foreshadowed at this very late stage in the proceedings. I have been pressing the appellants since 30 April 1998 to specify with particularity the grounds upon which they contend that a reasonable apprehension of bias arose from any non-disclosure on Rolfe J's part. It is proper that the appellants should be required to specify with particularity the grounds upon which this appeal is sought to be pressed. I shall therefore address this latest document (referring to it as the Notice of Appeal), noting that leave has yet to be given for its filing.

Grounds 23-32 detail alternatively and cumulatively the bases upon which it will be contended that Rolfe J created a situation of "apprehended bias" by non-disclosure of various relationships with Westpac Banking Corporation.

Before addressing the application for leave to issue a further subpoena, I shall refer to the various relationships and summarise my understanding of the evidence presently established by affidavits filed in the appeal and read before me. Reference to "the relevant time" is to 26 September 1995, the day in which the trial commenced before Rolfe J. This is the date identified in the subpoena sought to be issued. To assist with the due despatch of the hearing of the appeal I will direct the parties to indicate prior to the hearing the extent to which this summary is disputed as between the parties.