Bezer v Bassan [2017] NSWCA 333

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bezer v Bassan [2017] NSWCA 333 Hearing dates: 1 December 2017 Date of orders: 01 December 2017 Decision date: 19 December 2017 Before: Gleeson JA, Payne JA, Sackville AJA Decision: 1. Grant leave to appeal. 2. Appeal dismissed. 3. Applicant to pay the costs of the appeal. 4. Note that the stay order by McCallum J on 25 August 2017 has expired. Catchwords: ADMINISTRATIVE LAW – bias – apprehended bias – applicant sought order that primary judge disqualify herself on the basis of apprehended bias – applicant submitted witness was bullied by primary judge and that witness feared he had committed perjury as a result – whether primary judge erred in declining to disqualify herself – no ground for concluding that a fair-minded lay observer might reasonably apprehend that primary judge might not bring an impartial mind to the resolution of the issues in the case – primary judge's interventions designed to clarify whether witness was a factual or expert witness – no complaint made by counsel at the time conduct occurred

APPEAL – whether applicant required leave to appeal – whether primary judge's refusal to disqualify herself constituted a judgment or order – whether failure to seek leave to appeal against disqualification decision precluded the issue being pressed on appeal against final judgment Legislation Cited: District Court Act 1973 (NSW), s 127 Supreme Court Act 1970 (NSW), s 69 Cases Cited: Barakat v Goritsas [2012] NSWCA 8 Bezer v Bassan (District Court, 28 August 2017, unrep) Bezer v Bassan [2017] NSWCA 214 British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Federated Engine-Drivers' and Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398 Gas & Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Lee v Cha [2008] NSWCA 13 Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Re Nash (No 2) [2017] HCA 52 Stone v Moore (2015) 122 SASR 54; [2015] SASC 46 Category: Principal judgment Parties: Christopher Bezer (Applicant) Troy Bassan (Respondent) Representation: Counsel: Mr D Campbell SC / Mr D Del Monte (Applicant) Mr W Fitzsimmons / Mr M Nesbeth (Respondent)