Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Harris v Bellemore (No 2) [2013] NSWCA 17 Hearing dates: 8 February 2013 Decision date: 08 February 2013 Before: Beazley JA at [1]; [11] Macfarlan JA at [2] Decision: The application for summons for leave to appeal is dismissed with costs. [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: APPEAL - application for leave to appeal dismissed - no issue of principle Cases Cited: Concrete Pty Limited v Parramatta Design & Developments Pty Ltd [2006] HCA 55; 229 CLR 577 Michael Wilson & Partners v Nicholls [2011] HCA 48; 244 CLR 427 Category: Procedural and other rulings Parties: Paul Harris (Applicant) Michael Bellemore (Respondent) Representation: Counsel: B M J Toomey QC/E G Romaniuk (Applicant) S R Donaldson SC/E C Muston/L M Jackson (Respondent) Solicitors: T D Kelly & Co (Applicant) Blake Dawson (Respondent) File Number(s): 2012/270445 Decision under appeal Jurisdiction: 9111 Citation: Harris v Bellemore (No 4) [2012] NSWSC 878 Date of Decision: 2012-08-03 00:00:00 Before: McCallum J File Number(s): 2010/92491; 2001/20699 Judgment 1BEAZLEY JA: I will ask Macfarlan JA to give the first judgment. 2MACFARLAN JA: This is an application by the plaintiff in the court below for leave to appeal against a decision of McCallum J dated 3 August 2012 ([2012] NSWSC 878) declining to make an order referring to another judge for hearing issues that this court remitted to her Honour for determination. 3Previously, on 29 March 2010, her Honour had delivered final judgment in the proceedings ([2010] NSWSC 176) but on 21 July 2011 an appeal to this Court was allowed in part and certain issues were remitted to her Honour for determination ([2011] NSWCA 196). 4The first basis for the plaintiff's application to her Honour was that her Honour had no power to deal with the issues because she was functus officio, having earlier delivered a final judgment in the matter. Secondly, the plaintiff contended that her Honour should disqualify herself for apparent bias because a fair-minded lay observer might reasonably think that her Honour might not bring an open mind to determination of the issues. This contention was based on comments her Honour made in the judgment of 29 March 2010. In particular, the plaintiff relied on statements in that judgment to the effect that it did not appear that the plaintiff's procurvatum medical condition had any functional significance. 5On his application for leave to appeal, the plaintiff contends, first, that McCallum J rejected his application upon the basis that she was bound by the view of this court expressed in its judgment of 21 July 2011 that her Honour should determine the issues and erroneously did not give independent consideration to the question of whether she should disqualify herself for apparent bias. In relation to this argument, I note the following statement of her Honour in the judgment of 3 August 2012: "29 In my view, a fair-minded lay observer so informed would not entertain a reasonable apprehension that I have lost impartiality on the questions remitted, particularly knowing that, since publishing the principal judgment, I have enjoyed the benefit of appellate correction." 6The plaintiff also contends that, if her Honour had given such independent consideration to the issue, she would have concluded that she should disqualify herself. Further, the plaintiff's draft Notice of Appeal suggests that he wishes to agitate the functus officio point on appeal. 7In light of the High Court's decision in Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 (particularly at [74] - [86]) it was no doubt prudent, if not necessary, for the plaintiff to seek to appeal against her Honour's decision on the bias issue if he wanted to ensure that he could pursue his objection on any appeal that might be brought from her Honour's determination of the issues remitted to her by this Court. However, the substantive arguments that the plaintiff wishes to put on appeal, if leave is granted, do not appear to me to be sufficiently compelling to warrant a grant of leave to enable an appeal to be brought at this stage of the proceedings. I say no more about the merits of the arguments as they may arise for consideration on a later appeal. 8Discretionary factors also weigh against the plaintiff. The proceedings have already been fragmented by the need to remit matters for determination by the primary judge. Further fragmentation would be undesirable, particularly as a grant of leave to appeal to this Court could lead to considerable delay, taking into account the appeal hearing that would have to be fixed and the probability of a reserved judgment. There would also be a possibility of a further application for special leave to appeal to the High Court. 9Furthermore, as the primary judge presided over the six week final hearing that occurred at first instance, the hearing concerning the issues remitted to her should be relatively short. If the plaintiff is dissatisfied with her decision he can appeal to this Court. That appeal can encompass the apprehended bias point, although on that appeal the plaintiff would likely have to make the election referred to in the judgment of Kirby and Crennan JJ in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; 229 CLR 577 at [117]. 10For these reasons I propose that the application for leave be dismissed with costs. 11BEAZLEY JA: I agree with those reasons. I would only add that in relation to the decision just referred to by Macfarlan JA, that is of, Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd, I think there have been comments in other cases as to the operation of that principle and parties will undoubtedly have that in mind should this matter ever go on appeal again. 12The orders of the court therefore are: That the application for summons for leave to appeal is dismissed with costs. ********** 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: 14 February 2013