Versace v Monte

Reasons for Judgment 1 A Notice of Motion has been filed by the first respondent ("Monte") seeking an order that I disqualify myself from assessing damages in this matter on the grounds of apprehended bias. It is not suggested that I would in fact be biased but rather, it is submitted by Monte that: "... his choice of language and the statements made in his judgment [of 8 March 2002] could give rise to a reasonable apprehension he had made up his mind as to damage to the second and third Applicants [Santo and Donatella Versace] and their entitlement to damages. Paragraphs 204-207 of the judgment give the impression his Honour has found the second and third Applicants suffered substantial damage and the only issue in the forthcoming assessment of damages will be how much. The Respondents and persons reading the judgment could apprehend that his Honour would award a large monetary sum in compensation for the damage which he has found the second and third Applicants have suffered." 2 The relevant principles in relation to apprehended bias are well settled. The material to establish apprehended bias must be assessed in the light of an assumption that judicial officers act with honesty and discretion: see Davids Distribution Pty Limited v National Union of Workers (1999) 91 FCR 463 at 510. There must be a reasonable and objective basis for an apprehension or perception that the case may not be decided impartially and without prejudice: see Lynch v Zurich Australian Insurance Limited (unreported, New South Wales Court of Appeal, 10 November 1998). Where it is alleged that there is pre-judgment it must be shown that there is a commitment to a conclusion already formed irrespective of the evidence or arguments to be presented: see Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100. 3 The High Court has recently considered the question of apprehended bias in Bienstein v Bienstein [2003] HCA 7. That case involved a request that Hayne J should disqualify himself from hearing a case on the basis of a submission that there may be a public perception of prejudice because of his Honour's likely association with members of the legal profession, judicial officers and court officers in Melbourne, the subject of Mrs Bienstein's complaints. The Full Court on appeal considered that his Honour was entitled to refuse to accede to the request of Mrs Bienstein as it had no proper basis. In the course of dismissing the appeal, the Court reaffirmed the principle that it was important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of an appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their cases tried by someone thought to be more likely to decide in their favour. A judge should not disqualify himself or herself on the basis of an asserted apprehension of bias unless substantial grounds are established.

reasoning in the present case 4 From the outset of the proceedings it has been made clear that the applicants were required to establish some damage to make out liability and that quantum of damage was always intended to be determined separately in both the defamation and trade practices matters in the light of any further evidence which might be adduced. The damage shown had to be more than notional or totally insubstantial but quantum did not arise on determination of liability. In order to obtain an injunction or an appropriate declaration it is necessary to establish some apprehended or actual damage to constitute the causes of action. 5 Monte has submitted that no damage whatsoever had been suffered by the second and third applicants. There has been no finding made as to any specific quantum or range of damage and the judgment on liability does not go beyond asserting that there is some real damage which is not "insignificant" or "insubstantial". This is a far cry from a commitment to an award of any sum or of a large amount of damages as alleged in the submissions on behalf of Monte on this application. 6 The evidence of Mr Beaton, a marketing consultant, called by the applicants was that the Versace "brand" had suffered substantial economic damage to date and that more damage could be apprehended unless the injunction was granted. My conclusion on the uncontradicted evidence was that as a matter of inference, in addition to the damage to the Versace brand, the reputations of Santo and Donatella Versace were likely to have suffered damage. But of course, this finding is subject to further evidence as to quantum. If the Versace parties cannot establish any damage, or on the evidence to be adduced, Monte and the second respondent ("Arkitude") establish that no damage has been suffered, then the appropriate finding will be made. Of course, the brand "Versace" is the surname of Santo and Donatella Versace. It follows that as a matter of logic some actual damage is likely to have been suffered. This is an inference which is capable of rebuttal by Monte and Arkitude. As a consequence of deciding whether an injunction should be granted, some past and apprehended damage has been, in my view, made out and that is what was necessarily involved in the determination of the liability question. I have an open mind as to whether the applicants can prove any specific amount of damage or whether it is large or small and will consider this question in the light of evidence to be adduced. 7 The word "substantial" in my judgment is used in the sense of more than minimal, illusory or nominal damage sufficient to grant the relief sought on the first part of the hearing. 8 Counsel for the applicants points out that the judgment on liability was delivered on 8 March 2002 and the question of apprehended bias has not been raised until eleven months later. This is not consistent with an acute concern as to bias on the part of Monte. This delay, in the submission of counsel, provides some support for the view that the apprehended "bias" was not immediately apparent to Monte and the delay in raising this question has not been explained. 9 In my view, there is no substance in the submission that a reasonable person reading the judgment as a whole and in context would apprehend a commitment to any particular range or amount of damages or indeed conclude that there is a predisposition that the amount of damages cannot be shown by cogent evidence to be insubstantial. There can, in my view, be no reasonable apprehension that impartial attention and evaluation will not be given to the evidence adduced by Monte or Arkitude on the issue of damages. 10 For the above reasons I dismiss the application by Monte with costs. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

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