Maxwell-Smith v Hall [2012] NSWCA 284

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Maxwell-Smith v Hall [2012] NSWCA 284 Hearing dates: 31 August 2012 Decision date: 31 August 2012 Before: Basten JA at [1]; Tobias JA at [1] Decision: (1) With respect to the application for leave to appeal from orders made in the District Court on 20 April 2012: (i) dismiss the application with respect to grounds 1-3 of the second amended draft notice of appeal, based on claims of apprehended bias or procedural unfairness; (ii) with respect to the second respondent: (a) grant leave to the applicants to appeal in respect of orders 1-4; (b) by consent, allow the appeal and set aside orders 1-4; (iii) dismiss the application with respect to the first respondent; (iv) with respect to the third respondent, stand over the application to allow instructions to be obtained and direct that such instructions be conveyed to the Registrar within seven days and to the applicants as soon as reasonably practicable. (2) With respect to the application for leave to appeal from order 4(a) made by the District Court on 27 January 2012, striking out paragraph 16(vi) of the amended statement of claim, dismiss the application. (3) There be no order as to the costs of the applicants and the first and second respondents in this Court. (4) Make no order as to the costs of the proceedings in the District Court on 20 April 2012. (5) Reserve consideration of any order in respect of the costs of the third respondent in this Court. (6) Direct that any further hearing of the application with respect to the third respondent be fixed by arrangement with the Registrar. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: JUDGES - apprehended bias - judge disclosed friendship with partner of defendant solicitor's firm - plaintiff did not object - whether a litigant in person should be taken to have waived right to object - whether plaintiff expressly declined to object - whether facts reveal reasonable apprehension of bias