Pastizzi Cafe Pty Ltd v Hossain (No 2) [2011] NSWSC 766

Supreme Court New South Wales

Medium Neutral Citation: Pastizzi Cafe Pty Ltd v Hossain (No 2) [2011] NSWSC 766 Hearing dates: 20 July 2011 Decision date: 20 July 2011 Jurisdiction: Equity Division Before: Gzell J Decision: Application to stand down dismissed. Catchwords: PROCEDURE - Apprehended Bias - reference to $100 a week in Pastizzi Cafe Pty Ltd v Hossain [2011] NSWSC 765 was to an affidavit not then read - told issue hotly contested - whether should stand down Legislation Cited: Uniform Civil Procedure Rules 2005 Practice Note SC Eq 5 Cases Cited: Australian Securities and Investments Commission v Rich [2005] NSWSC 149; (2005) 190 FLR 242 Category: Procedural and other rulings Parties: Pastizzi Cafe Pty Ltd (First Plaintiff) Deborah Ross (Second Plaintiff) Len Ross (Third Plaintiff) Miraj Hossain (First Defendant) Talukder Enterprises (Second Defendant) Representation: Counsel A McInerney/M Bennett (Plaintiffs) J R Young (Defendants) Solicitors Michael Fitzgerald (Plaintiffs) Mooney & Kennedy Solicitors (Defendants) File Number(s): 2011/153417

EX TEMPORE Judgment 1I have been asked to disqualify myself as a result of a comment made in the course of delivering an ex tempore judgment on an interlocutory basis with respect to the admission or non-admission in evidence of two expert reports. 2In refusing the application to allow that evidence to be adduced, there were a number of bases on which I based my decision. One basis was that there had been an arrangement struck between the first plaintiff and the ATO to pay a debt at $100 a week while this dispute was still in train. 3I have been told that in so doing I made reference to an affidavit that has not yet been read. 4I do not regard that as indicating to a reasonable person an apprehension of bias on my part sufficient to cause me to stand down. The reference was only one of a number of bases upon which I made my ruling and it was in relation to an interlocutory matter. 5I am told that the statement will be hotly contested. No doubt I will hear, in due course, the basis of that contest and will be in a position to rule, ultimately, on the issues with which I will be presented. 6I decline the application to stand down.