Davis v Insolvency and Trustee Service Australia

1 When this matter was called on at 10.15 am this morning, Counsel for the applicant made an application that I should disqualify myself from hearing the Motion that is fixed before me today on the basis that either I am actually biased against the applicant or that there is a reasonable apprehension of bias on my part against the applicant. Counsel did not make clear which of these alternative allegations was being made. I had the impression that both were being asserted. By Motion fixed before me today, the second respondent seeks an order pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) that the proceedings be dismissed. 2 The basis of the disqualification application is that, in light of a judgment which I delivered at 9.45 am this morning (Davis v Insolvency and Trustee Service Australia (No 1) [2009] FCA 562), I should not proceed to hear the Motion because I had come to final views in respect of matters which inevitably arise for decision on that Motion. In support of that submission, Counsel for the applicant drew my attention to several passages in this morning's judgment and submitted that, in those passages, I had travelled beyond what was required by the relevant principles and made conclusive findings of fact. 3 At [48] and [49] of that judgment, I set out what I considered to be the relevant principles governing the grant of interlocutory injunctive relief in aid of private rights. Counsel for the applicant has repeatedly submitted that all that I was obliged to do was ascertain whether there was a triable issue in respect of the claims being advanced in support of the relief sought on 24 April 2009. I disagree. I made clear at [48] and [49] of the judgment delivered earlier this morning that the principles which are in play here are those set out in those paragraphs. What is required is more than a triable issue. 4 In my view, in order to determine the application for interlocutory relief made by the applicant on 24 April 2009, it was necessary for me to consider whether there was a serious question to be tried in respect of the claims which were said to support that application and also to address, if necessary, the balance of convenience and justice. That is what I did. 5 The substance of what has been put to me this morning in support of the disqualification application is that I have made definitive findings on matters which are up for consideration in the Motion which is to be called on before me shortly. I do not agree. As I have already mentioned, in the paragraphs to which my attention has been drawn, I was addressing whether or not there was a serious question to be tried. That was made clear by the heading to [61] and by the way in which I expressed the conclusion which I reached (at [73]) on the claim for an interlocutory injunction in respect of the s 72A Notice, that is to say, that the applicant had failed to establish that there was a serious question to be tried in relation to the relief sought. 6 Given the types of arguments that were advanced in respect of the s 72A Notice which was the subject of the interlocutory application determined by this morning's judgment, in my opinion, I was required to look at that Notice and come to a view about those arguments for the purpose of considering whether or not there was any serious question to be tried. I do not think that being required to undertake that exercise in the context in which I did, precludes me from hearing the present application. For those reasons I decline to disqualify myself. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.