Casquash Pty Ltd v NSW Squash Limited (No 1) [2012] NSWSC 533

Supreme Court New South Wales

Medium Neutral Citation: Casquash Pty Ltd v NSW Squash Limited (No 1) [2012] NSWSC 533 Hearing dates: 8 May 2012 Decision date: 25 May 2012 Jurisdiction: Equity Division Before: Pembroke J Decision: Application refused Catchwords: APPREHENDED BIAS - expression of provisional views by trial judge - principles applicable Legislation Cited: Civil Procedure Act 2005 Cases Cited: British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 Category: Interlocutory applications Parties: Casquash Pty Ltd - plaintiff NSW Squash Limited - defendant Representation: Counsel: P Bolster - for the plaintiff F Kunc SC - for the defendant Solicitors: Swaab Attorneys - for the plaintiff Thomas Hugh Walker - for the defendant File Number(s): 2012/00124714

Judgment 1This is an application by the defendant for my disqualification. It arises because in the plaintiff's opening I expressed provisional views about the strength of the contentions put forward by the defendant on what appeared to be the three principal issues in dispute. Those issues appeared to depend primarily on the proper construction of a lease between the plaintiff and the defendant. In relation to each of those matters I had the benefit of an outline of submissions from both parties and both parties provided me with copies of all affidavits on which they rely and all documents which they proposed to tender. 2This case has been given extreme expedition because I thought it was in the interests of justice and in the interests of the parties that it be treated in that way. When the matter came before me on 26 April there was no suggestion on the part of the defendant that there was any claim, or could be any claim, for rectification of any aspect of the lease in question. I have had the benefit yesterday of reviewing all of the documents because the parties were not ready to proceed on the day that was allotted. The day that was allotted was given to the parties as a favour to them in the course of my conduct of the duty judge's list. It was a source of great concern to me that the parties were not ready so that the matter could proceed on Monday. It did appear that the initial cause of the inability of the parties to proceed was a very large number of affidavits prepared by the defendant relatively late. I have, as I said, looked at the affidavits and the submissions and am distressed by the apparent irrelevance of much of the material that is put forward by the defendant in particular. 3The parties are both represented by counsel; the defendant represented by senior counsel. The overriding obligation of both of them and of their instructing solicitors, and particularly in the expedition list, is to ensure that only the real issues in dispute are litigated and that the only issues put forward for determination by the Court are issues in relation to which there is a proper basis for opposing contentions: Section 56(1) and (3), Civil Procedure Act 2005. 4I have expressed provisional views. I made it explicit that they were provisional views and I am always open to opposing views. I have not yet heard any argument developed on the part of the defendant for any reasonably sensible opposing view to that put forward by the plaintiff in relation to what I initially perceived to be the three principal issues in contention. There may be such an argument. I will wait and see. And there may be other issues. 5One of the bases on which the application is now being put forward is said to be the strength and tone of the views that I expressed on a provisional basis during the plaintiff's opening. That seems to me to be a completely baseless ground on which to make an application for disqualification of a trial judge. Whether the tone is expressed tentatively or firmly, it is just another provisional view and it was no doubt encouraged in this case by my sense of irritation at what appeared to be a great deal of expense being incurred by the parties in relation to what appeared to be three very short issues. 6I am not satisfied that any reasonable person who understands the system of justice under which we operate could think that I could not bring an unbiased mind to the resolution of the issues in dispute when all the evidence, all the cross examination and all the submissions are complete: Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 352; Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, 493 and 508; British American Tobacco Australian Services Ltd v Laurie [2011] HCA 2, [46], [71] and [78]-[84]. In determining what a reasonable person would think, a pragmatic and realistic approach is called for. It is also necessary to recognise the modern tendency towards greater judicial intervention, the object of which is to achieve the expeditious resolution of the proceedings by identifying the real issues in dispute and the strength of the opposing contentions. 7In British American Tobacco (supra), French CJ at [46] endorsed the proposition that a reasonable member of the public is not "unduly sensitive". And he recognised that the extent of judicial intervention that sometimes accompanies modern case management might surprise those from another era who anticipate and expect stony judicial silence. He adopted the following statement by the plurality in Johnson v Johnson (supra): Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. (emphasis added) 8French CJ dissented in the result in British American Tobacco (supra) but not in the statement of applicable principle. In Johnson v Johnson (supra) Kirby J had also referred to the concept of sensitivity, stating at [53] that a reasonable member of the public is not "unduly sensitive or suspicious". 9In truth, the fair and expeditious resolution of the real issues in dispute is assisted, not hampered, by the articulation of concerns, reservations and doubts, on a provisional basis, by the trial judge. The expression of such views, even if the tone is robust, does not by itself indicate a closed mind. This is especially so during the plaintiff's opening. Rather, it indicates that there are issues that will need to be addressed in evidence or submissions; issues that at the beginning of the hearing are causing concern to the trial judge. I refuse the application. oOo 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. Decision last updated: 25 May 2012