Oakley Thompson & Co Pty Ltd v Maisano [2015] VSC 209

Oakley Thompson & Co Pty Ltd v Maisano [2015] VSC 209 - VSC 2015 case summary — Zoe

[15]

I then contacted my lawyers Mr Tim Davies of Oakley Thompson he arranged a meeting with Ken Adams the AAMI lawyer in relation to the termination of my sign and we threatened legal action against AAMI. I was subsequently given a draft Statutory Declaration that had been prepared by AAMI's Lawyers and was awaiting to sign it.
I was advised by Philip Oswald to instigate proceedings against AAMI via my solicitor but I didn't actually have to sue AAMI.
After this meeting my work continued and my sign was never removed. I did however have to sign the Statutory Declaration prepared by AAMI's solicitors in order to retain my work. On 29 July 2008 I received a facsimile from Oakley Thompson attaching a letter from Freehill Holding & Page solicitors confirming that AAMI had withdrawn the termination of my sign. The Facsimile page reads as follows"I guess we will have to wait and see what happens next with AAMI it is probably time to think about suing Bodycorp". Now produced and shown to me and marked Exhibit "MM-1" is a true copy of the facsimile and letter dated 29 July 1998 to my affidavit. Now produced and shown to me and marked Exhibit "MM-2" is a true copy of the facsimile from Oakley Thompson dated 11.8.98 attaching a letter dated 10 August 1998 from Freehill, Hollingdale & Page attaching the Statutory Declaration.
The Statutory Declaration that was signed on 1/9/98 which was prepared by Ken Adams at Freehills Solicitors states in clause 14 that Bodycorp repaid $19,000 to me of the $25,000. I want to correct that clause the money was paid to me by Mr Gino Francese and that $6,000 was deducted for rent arrears owed to Mr Francese. The comments about AAMI offices in the Statutory Declaration which I was hesitant to comment about when asked by Ken Adams he told me that I just have to corroborate with it as other Bodycorp franchisees have made similar comments in particular the statutory declaration made by Steve Morrish so I went along with it even though I did not hear those comments from anybody at Bodycorp or Tony Murdaca.

[51]

The relevant principles governing the issue of apprehended bias are well settled. Essentially, there are eight relevant principles.

...

Secondly, as noted in Antoun,[10] judges should not "too readily accept recusal because a party has demanded it".[11] Further, as held in Ebner,[12] "[j]udges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. ... If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case".[13] That being said, the principle that a judge should not disqualify him or herself too readily is not a "blanket that smothers the effect of disqualification where it has already arisen".[14]

Thirdly, the test for a reasonable apprehension of bias was stated in Johnson[15] as being "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide".[16] The word "might" in the phrase "might not bring an impartial and unprejudiced mind" was clarified in Ebner as referring to "possibility (real and not remote), not probability".[17] On the basis of Ebner, where, as in this case, "the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge".[18]

Fourthly, the apprehension in question is apprehension that the judge will not decide the case impartially, not merely an apprehension that he or she "will decide the case adversely to one party".[19]

Fifthly, the application of the test involves two steps. The first step is "the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits".[20] The second step is the "articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits".[21] Contrary to AJH Lawyers' submission,[22] the two-step approach is applicable to cases of apprehended bias on the ground of prejudgment.[23] In such a case, the matter to be identified in the first step is the conduct of the judge said to give rise to apprehension of bias. And the logical connection that needs to be articulated in the second step is the logical connection between the conduct of the judge and the feared prejudgment of a question the judge is required to decide.[24]

Sixthly, "the perception of a lay observer will not be as informed as the perception of a lawyer, particularly a litigation lawyer".[25] The fictional lay observer "is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge".[26] Yet the fictional observer is taken to understand the dynamics of modern judicial practice. Modern judges "are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them".[27] "[T]he expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias".[28]

Seventhly, "[a] line is drawn between forthright and robust indications of a trial judge's tentative views on a point of importance in a trial and an impermissible indication of prejudgment that has the effect of disqualifying the judge from further conduct of the proceedings".[29] A key factor determining whether that line has been crossed is the extent to which the views expressed by the judge appear to be final rather than merely tentative.[30]

Finally, ["j]udges do not have to devote unlimited time to listening to unmeritorious arguments. Sometimes, a brief hearing will suffice".[31] That having been said, when a party makes an application, the judge must normally give the party some reasonable opportunity to make submissions in support of that application.[32] This is so even if the judge's preliminary view is that the application will be unmeritorious.[33] If the judge refuses an application before receiving any submissions, the impression created by that conduct is not erased if the judge, after having announced his or her decision, agrees to listen to the party's submissions under sufferance.[34]

[65]

HIS HONOUR: Insofar as the plaintiff seeks to rely on P10 [being the Further Affidavit], as I understand it, I will repeat what I have said previously, it seeks to rely upon paragraph 16 and the paragraphs referrable to the statutory declaration and paragraph 25 and paragraphs referrable to the letter of 14 August 1998 and not otherwise. And they do so for the sole basis of attacking the credit of Mr Maisano. Now, in relation to that, as I understand it, all 3 parties before me are asking me to accept what is contained in the affidavit insofar as it concerns the conduct of Mr Maisano. Is that correct?

MR LEVINE: From our point of view, yes.

HIS HONOUR: Mr Maisano has told me that is correct. That is still correct, is it?

MR MAISANO: That is correct, Your Honour.

HIS HONOUR: Yes, and for the plaintiff that is correct?

MR SENATHIRAJAH: Yes, Your Honour.

HIS HONOUR: So therefore if it is an issue, the issue upon which you are seeking to rely is not in issue between the parties. Does that mean that the apprehension application ought to be put to one side on that basis at least, because I don't have to determine it because it seems to me everybody has a common ground?

MR LEVINE: We will be seeking to rely upon paragraph 25 in relation to how it extends to Mr Broadbent as well and that's what they relied upon. They relied upon that specific paragraph and it's my submission that they can't simply be very selective about that paragraph and state that it's true in relation to Mr Maisano when it deals with conferences and discussions he had with Mr Broadbent.

HIS HONOUR: Yes.

MR LEVINE: It can't be half true. Now if they are willing to concede that Mr Broadbent acted in that way then so be it.

HIS HONOUR: I am not asking for any concession though. The evidence is before the court and if you want to make submissions to that effect of course you can.

MR LEVINE: I don't wish to make submissions. I wish to cross-examine Mr Broadbent because it would be my understanding that they will not accept it. They will be simply stating that even though it was a conversation between 2 people that only 1 person is subject to it, not Mr Broadbent. So I would be seeking to rely upon it in relation to Mr Broadbent as well.

HIS HONOUR: All right, well, I haven't got that application before me now. I am dealing with the apprehension of bias application.

MR LEVINE: Then I will be making that application, Your Honour, but we will be seeking to rely upon it on its entirety and I will be seeking to have Mr Broadbent recalled.

HIS HONOUR: I understand that.

MR LEVINE: Yes.

HIS HONOUR: But let's just deal ---

MR LEVINE: If that's not before you at this stage, I would be seeking the determination of this disqualification to be done at the same time based on the submissions that I have made.

HIS HONOUR: I am sorry, I haven't quite followed what you have said.

MR LEVINE: I need to - the 2 applications follow together, Your Honour.

HIS HONOUR: Yes.

MR LEVINE: So it would be my submission that my client should have leave to have Mr Broadbent recalled and put these matters to him and that if leave was to be granted it would be inappropriate for Your Honour in those circumstances to hear the case.

HIS HONOUR: Yes, all right. So as I understand it at the moment, you are now deferring your application without any prejudice to your ability to make it again.

MR LEVINE: Yes, Your Honour.

HIS HONOUR: All right.

MR LEVINE: But if I do renew it, it will be done - I would be renewing it on the basis of the submissions that I have made now so that we don't have to ---

HIS HONOUR: No, you don't have to make those submissions again. So I will treat as deferred the application to have me disqualified. I assume the plaintiff has just got notice of your application or intended application to have Mr Broadbent cross-examined?

MR LEVINE: Yes, that's correct.

At a glance

Court

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Before

Source

Judgment (114 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (9)