New South Wales Court of Appeal CITATION : Kremer v Schwartz [2003] NSWCA 86 HEARING DATE(S) : 08/04/02 JUDGMENT DATE : 8 April 2003 JUDGMENT OF : Meagher JA at 1, 9; Sheller JA at 7; Ipp JA at 8 DECISION : Appeal dismissed with costs. CATCHWORDS : Conduct of trial judge after reservation of judgment - Reasonable apprehension of bias - Judge's wife shareholder in firm of which plaintiff's solicitor was director. Samuel Isaac Kremer PARTIES : v Jerry Leslie Schwartz FILE NUMBER(S) : CA 40026 of 2002 COUNSEL : A: I G Harrison SC & M F Galvin R: J D Hislop & P Gormly SOLICITORS : A: Whittens Lawyers & Consultants R: Turner Whelan Lawyers LOWER COURT District Court JURISDICTION : LOWER COURT DC 6547 of 2000 FILE NUMBER(S) : LOWER COURT Downs DCAJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40026 of 2002 MEAGHER JA SHELLER JA IPP JA Tuesday, 8 April 2003 SAMUEL ISAAC KREMER v JERRY LESLIE SCHWARTZ Judgment 1 MEAGHER JA: The plaintiff, the appellant, sued the defendant/respondent in respect of an accident which took place on 16 September 1997. Liability was not in issue, quantum was. The case was heard before Acting District Court Judge Downs on 25 and 26 October 2001 and judgment was delivered on 17 December 2001. The plaintiff obtained of at least eighteen thousand two hundred and fifty dollars although the precise figure seems to be somewhat in doubt. The plaintiff now appeals. 2 The sole ground of appeal is rather unusual and is as follows: "There arises a reasonable apprehension of bias in the conduct of the learned trial judge after completion of the evidence and whilst the matter had been reserved for judgment, such reasonable bias arising from and there follows a catalogue of alleged events". 3 The facts if such they may be called are as follows. His Honour's wife held a large parcel of shares in a company called Queensland Opals NL, the chairman of which happened to be Mr Whitten, a solicitor, the sole practitioner of the firm called Messrs Whittens, the firm of solicitors which was handling the plaintiff's action. I hasten to add that Mr Whitten personally had nothing to do with the plaintiff's action which was conducted by one of his employed solicitors, a Mr Deutsch. His Honour had a power of attorney from his wife. His Honour, being dissatisfied with the manner in which the business of Queensland Opals NL was being conducted, had various acrimonious interchanges with the chairman of that company, Mr Whitten which were partly oral and partly in writing. 4 Insofar as they consisted of writing there was a letter of 23 October from his Honour to the Company which came to Mr Whitten's attention on 28 October. Insofar as they were oral, there was a lively interchange between Mr Whitten and the judge at the Annual General Meeting on 28 November 2001. At the time of these various interchanges his Honour was not conscious of the fact that Mr Whitten, the Company's chairman, was the solicitor in a case which was then before him nor apparently was Mr Whitten conscious of the fact that his Honour was the judge who was trying one of his firm's cases. In these circumstances it is submitted by the appellant that there arose a reasonable apprehension of bias because his Honour's behaviour. 5 In my view that submission is, not to put too fine a point on it, simply absurd. That the judge was angry with the solicitor on a matter which had nothing to do with the plaintiff's action is clear beyond doubt but in my view no reasonable man, being fully informed of all the above facts and being fair minded could possibly fear that his Honour might, on that account, be recreant to his duty. 6 In my view the appeal should be dismissed with costs. 7 SHELLER JA: I agree. 8 IPP JA: I agree. 9 MEAGHER JA: The order of the Court therefore the appeal is dismissed with costs. ****** Last Modified: 04/16/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.