British American Tobacco Australia Ltd v Peter Gordon & Anor [2007] NSWSC 109

New South Wales Supreme Court

CITATION : British American Tobacco Australia Ltd v Peter Gordon & Anor [2007] NSWSC 109 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 13-14 December 2006

JUDGMENT DATE : 22 February 2007

JURISDICTION : Equity Division

JUDGMENT OF : Brereton J

DECISION : Indication that judge would not sit on hearing in which there might be issue as to alleged iniquity. Decline to disqualify from hearing of transfer application. Held that not disqualified by apprehended bias from hearing and determining interlocutory proceedings on 29 November 2006, and further that orders made on 29 November 2006 should not be set aside for non-disclosure.

CATCHWORDS : COURTS AND JUDGES – Disqualification – Bias – Judge in own cause – Procedure – whether notice of motion for disqualification cognisable – whether notice of motion necessary – held, unnecessary - Apprehended bias – whether prior professional relationship between lawyer and client will disqualify lawyer, on becoming a judge, from sitting in proceedings to which former client is a party – whether reasonable apprehension of prejudgment of an issue – whether reasonable apprehension that judge may be predisposed to a view of the issue because of "interest" in propriety of past involvement – whether reasonable apprehension that judge may decide issue influenced by extraneous material previously briefed and subject to legal professional privilege of former client – whether reasonable apprehension of bias on an issue in case disqualifies judge from hearing interlocutory applications in which that issue will not arise – held, it does not.

LEGISLATION CITED : (NSW) Jurisdiction of Courts (Cross Vesting) Act 1987 (USA) Racketeer Influenced & Corrupt Organization Statute 1961