Radin v Commonwealth Bank of Australia

REASONS FOR JUDGMENT (application to judge to disqualify himself) (ex tempore) 1 By a notice of motion filed on 12 March 1999, Mr Radin, asks me to disqualify myself from hearing proceedings NG 695/95, NX 57/94, and NG 632/96 ("the current proceedings") which are fixed for hearing commencing on 29 March 1999. The motion is supported by an affidavit of Mr Radin sworn 11 March 1999. As he says, these three proceedings follow a lengthy earlier hearing of three other proceedings, NG 437/96, NG 984/95, and NG 985/95 ("the earlier proceedings"). 2 In the earlier proceedings Mr Radin, his mother and his former wife were the respective applicants. The Commonwealth Bank of Australia ("the Bank") was the respondent in all three. The applicants sought relief in respect of mortgages they had given to the Bank. They were unsuccessful. I gave judgment in favour of the Bank in the earlier proceedings on 23 October 1998. 3 In his affidavit in support of the present motion, Mr Radin refers to passages of my earlier Reasons for Judgment. The case which he seeks to make on the motion is one of "reasonable apprehension of bias". It is based on those passages, on my having observed Mr Radin giving evidence over a lengthy period in the earlier proceedings, and on the view which I formed in those proceedings as to the credit of his former wife. 4 Although the case put by Mr Radin is one of reasonable apprehension of bias, I think it appropriate to say at the outset that I am not conscious of holding any view against his credit. However, this is not enough: the question is whether a reasonable person might think that I might be biased against him. 5 In its submissions, the Bank has provided a chronology. I will not go to the detail of it but it does seem appropriate to say something of the background to the current proceedings. In proceeding NG 695/95 Mr Radin is the applicant, and the Bank and a receiver appointed by it, Mr Brown, are the respondents. In that proceeding Mr Radin alleges that there is an agreement between him and the Bank entitling him to receive a certain share of debts recovered in respect of his former legal practice which he sold to Ms Stefanovic and Ms Milicevic. He alleges that the respondents engaged in misleading or deceptive conduct in various respects and that they wrongfully repudiated the sharing agreement. 6 In proceeding NX57 of 1994 Mr Radin seeks review of the decision of the trustee under his deed of arrangement under Part X of the Bankruptcy Act 1966 (Cth) to permit the Bank to vote at a certain meeting of Mr Radin's creditors. The Bank seeks a termination of the deed of arrangement and a sequestration order. 7 In proceeding NG632 of 1996 the Bank seeks certain relief against Ms Stefanovic and Ms Milicevic in relation to the deed of sale under which Mr Radin sold his practice to them. 8 The current proceedings involve issues and facts different from those of the earlier proceedings although certain documents may be common to both. 9 On 30 May 1996 Sheppard J provisionally fixed proceedings NX 57/94 and NG 695/95 for hearing following the hearing of the earlier proceedings at the discretion of the trial judge. On 22 August 1996 his Honour ordered that the third of the current proceedings, proceeding NG 632/96, by then transferred to this Court, be heard at the same time as the above two proceedings and that all three be heard after the conclusion of the hearing of the earlier proceedings, and that in so far as the same may be relevant, evidence in each be evidence in the others. 10 On 27 November 1996, it was noted that the earlier proceedings were set down for hearing from 3 March 1997 to 21 March 1997 and that the current proceedings were to be heard from 24 March 1997 to 4 April 1997. 11 On 16 December 1996 I vacated those hearing dates and fixed the earlier proceedings for hearing from 10 March 1997 to 2 April 1997 and the current proceedings for hearing from 3 April 1997 to 17 April 1997. 12 The hearing of the earlier proceedings commenced on 17 March 1997. They were heard over broken periods. On 2 October 1997 the current proceedings were set down for hearing from 18 to 22 May and on 25 May 1998. 13 On 21 April 1998 Mr Radin moved to vacate the dates fixed for the hearing of the current proceedings on the basis that depending on my conclusion in the earlier proceedings, the current proceedings might prove to be futile. On that occasion the possibility of my making findings adverse to Mr Radin's credit in the earlier proceedings was raised by counsel for the Bank. However, as noted below, it transpired that I did not find against his credit. 14 As noted earlier, on 23 October 1998 I delivered Reasons for Judgment in the earlier proceedings. On 23 November 1998 Mr Radin filed a notice of appeal in his proceeding NG437 of 1996. 15 On 9 December 1998 counsel who then appeared for Mr Radin submitted that it would be appropriate for the current proceedings to be transferred from my docket to that of another judge for the reason that I must have formed certain views with respect to the credit of witnesses in the course of the hearing of the earlier proceedings. This matter had been raised by him orally at an earlier directions hearing. On 10 December 1998 I indicated that I had considered this matter and thought it appropriate that the three current proceedings stay in my docket. 16 I said that I had re-read my earlier Reasons for Judgment which had confirmed my impression that I had not made any finding against the credit of Mr Radin, although there were particular issues on which I did not accept his recollection. The matter was not pursued further by or on behalf of Mr Radin until shortly before the present notice of motion was filed. 17 I turn now to the particular matters submitted by Mr Radin in support of the motion. The first is that I observed him over a long period in the witness box in the earlier proceedings and must have formed some impression of his credit by reason of that fact. He elaborates by saying that he is entitled to have a judge who can bring a "fresh mind" to the current proceedings. It is true that I did observe Mr Radin over a long period in the witness box. It is therefore true in a limited sense that I cannot bring an entirely fresh mind to bear on him as a witness in the current proceedings. However, I do not think that this leads to the conclusion that I should disqualify myself. It is not the law that where a judge has seen a person giving evidence, even recently and over a long period, that the person is entitled to have a different judge hear further litigation in which that person is a party. 18 The argument appears to be that because I observed Mr Radin over a long period in the witness box and decided against him in his earlier proceeding, a reasonable person might think that I might not bring an unbiased mind to bear on the current proceedings. I do not accept the argument. The reasonable person would wish to know whether I decided against Mr Radin because I did not believe him. It is clear on a reading of the earlier Reasons for Judgment that I made no finding against Mr Radin's credit, although I made findings against the credit of his former wife, about which I will say something more below. 19 I should say at this point that I have read every paragraph of Mr Radin's affidavit in support of the present motion and also the passages in my earlier Reasons for Judgment to which he refers. There are 15 relevant paragraphs in his affidavit, each of which refers to a passage in the Reasons for Judgment. I do not think it necessary to deal with all fifteen individually and I propose to refer only to those that I regard as the more significant ones in the present context. 20 In par 7(iv) of Mr Radin's affidavit, he says that at page 6 of the earlier Reasons for Judgment I found that there could be some collusion between himself, his former wife and his mother to establish the case that there was a capacity to refinance the indebtedness to the Bank. The relevant passage is: " ... and, on the other hand, the attitude which she [Judith Radin - Mr Radin's former wife] Michael [Mr Radin] and Vladimirka [Mr Radin's mother] asked me to accept that she took to a request by Michael that she cooperate with him in refinancing the indebtedness to the bank." 21 The reference to what the three Radins "asked me to accept" is a reference to what they were asking me in their submissions to accept and does not at all suggest that I was of the mind that they were colluding. The reference is to what they, through their legal representatives, were submitting at the end of the day. 22 Subparagraph 7(xii) of Mr Radin's affidavit concerns a passage on page 184 of the Reasons for Judgment. That passage related to a property in the Blue Mountains, title to which was in the name of Mr Radin's former wife, but in respect of which there was a document to the effect, as I recall, that she held on trust for Mr Radin and two other men. According to the earlier Reasons for Judgment, on 17 March 1981, the Building Society ("United Permanent") to which the wife had mortgaged that property, wrote to her asserting that a leasing arrangement had been entered into without the Society's prior knowledge or consent. The letter said this: "As a result of the continued leasing, the Society could, under its Rules, initiate action to call up the outstanding Loan Balance. However, this action would not be commenced by the Society without giving you a full six months notice of its intentions. " 23 After setting out that passage from the Building Society's letter, I said this in the earlier Reasons for Judgment: "Clearly, United Permanent had come to suspect that the concessional rate first home loan had been obtained under false pretences." 24 What is submitted in this respect by Mr Radin is that a reasonable person might think that I might have formed the view that he, Mr Radin, had been involved in a false pretence to the Building Society. But I made no finding to that effect and apart from noting that there was a falling out among the three beneficiaries, default on the loan and a sale of the property by United Permanent, the matter is left there in the Reasons for Judgment. The context in which the passage occurred related to the issue of the familiarity of Mr Radin's former wife with dealings in real estate. I do not think that a reasonable person would think upon reading the passage that I had or might have thought that Mr Radin had been involved in a misleading of the Building Society. 25 A further ground relates generally to Mr Radin's association with his former wife in the buying and selling of property. He points out that I have referred to the fact that they were "business partners", and it is clear that for a time, at least in a general commercial sense, they were. But it does not follow that his credit is in any way affected by my finding against the credit of his former business partner. Indeed, the Reasons for Judgment show that in various respects I preferred Mr Radin's evidence to that of his former wife. It is common ground that Mr Radin's former wife will not be a witness in the current proceedings. 26 The final matter relates to a Mr Doyle who gave evidence in support of Mr Radin's earlier proceeding. In assessing the evidence of Mr Doyle (not that of Mr Radin), I referred to the fact that Mr Radin had assisted Mr Doyle to obtain employment and I referred to the fact that Mr Doyle was generally supportive of Mr Radin. This, however, goes only to the credit of Mr Doyle (if it does that) and not at all to that of Mr Radin. There is nothing untoward whatever in the fact that Mr Radin had assisted Mr Doyle and the earlier Reasons for Judgment do not suggest that I thought otherwise. 27 As I said earlier, there are numerous other passages in the earlier Reasons for Judgment to which Mr Radin's affidavit refers and I do not think it necessary to go to them. I have read them all and I have read the passages in my earlier Reasons for Judgment to which they refer. They do not support the case of reasonable apprehension of bias. 28 Accordingly I dismiss the motion brought by notice of motion filed 12 March 1999 and order Mr Radin to pay the Bank's and Mr Brown's costs of the motion. I certify that the preceding twenty eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren .