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[2003] FCA 126
procedural. The Notice of Motion filed by the first respondent on 7 February 2003 was dismissed with costs.
No linked legislation citations have been extracted yet.
Monte asked the judge to step aside from deciding damages, arguing that the earlier judgment made it seem as though substantial damages had already been decided. The Court said the earlier finding was only that some more-than-minimal damage existed for the liability stage. The amount of damages remained undecided and would depend on further evidence. The judge found no reasonable basis to think he had closed his mind to that evidence and dismissed the motion with costs.
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1,987 words · generated 28/09/2026
This is a procedural decision in ongoing Federal Court proceedings between Gianni Versace SpA, Santo Versace and Donatella Versace, as applicants, and Frank Monte and Arkitude Holdings Pty Limited, as respondents. The reasons were delivered by Tamberlin J in Sydney on 3 March 2003.
Monte applied to have Tamberlin J disqualify himself from assessing damages. He did not allege actual bias. Rather, he argued that language in the judge’s earlier liability judgment, delivered on 8 March 2002, could lead a reasonable reader to think that the judge had already decided Santo and Donatella Versace had suffered substantial damage and that only the amount remained to be determined. Monte’s stated concern was that this might create an apprehension that the judge would award a large sum: [1].
The judge rejected that reading. He explained that the earlier hearing determined liability and related relief, not the amount of damages. The applicants had to establish damage beyond the merely nominal or insubstantial to support the relevant causes of action and relief, but quantum was to be assessed separately in light of further evidence: [4], [7]. The disqualification motion was dismissed with costs: [10].
The distinction between those two questions is central to the reasons. Finding enough damage to establish a claim or support an injunction did not mean deciding whether damages were large, small, or even ultimately quantifiable. The Court treated the earlier finding as limited to what had to be decided at the first stage.
Tamberlin J began by setting out the apprehended-bias principles. The assessment assumes that judicial officers act honestly and with discretion. There must be a reasonable and objective basis for thinking the case might not be decided impartially. Where the complaint is prejudgment, the asserted facts must show a commitment to a conclusion irrespective of the evidence or arguments still to come: [2]. The Court also referred to the High Court’s recent decision in Bienstein v Bienstein [2003] HCA 7, including the need for substantial grounds before a judge disqualifies themself: [3].
The judge then identified what the earlier liability determination did, and did not, decide. From the outset, damage had been required to make out liability, while the amount of damage was reserved for later determination. The damage needed at that stage had to be more than “notional or totally insubstantial”, but quantum did not arise for decision in the liability determination: [4]. In the current reasons, he clarified that “substantial” in the earlier judgment meant more than minimal, illusory or nominal damage sufficient for the relief sought at that first stage: [7].
The evidence at the liability stage included evidence from a marketing consultant, Mr Beaton, that the Versace brand had suffered substantial economic damage and that more damage could be apprehended without an injunction. The judge inferred that the reputations of Santo and Donatella Versace were also likely to have suffered damage. But he expressly made that finding subject to further evidence about quantum. He said that if the applicants could not establish damage, or if Monte and Arkitude established that no damage had been suffered, the appropriate finding would be made. He also said he had an open mind about whether any specific amount could be proved and whether it would be large or small: [6].
That qualification answered the core of Monte’s argument. The judge distinguished an inference that some damage existed from a conclusion about the amount payable. His earlier finding did not establish a particular sum, a range, or a commitment to make a substantial award: [5], [6], [9]. He concluded that a reasonable person reading the judgment as a whole and in context would not apprehend such a commitment: [9].
The Court also noted that the motion was brought about eleven months after the liability judgment. The applicants submitted that this delay was inconsistent with an acute concern about bias and that it had not been explained: [8]. The judge recorded this point, but his conclusion focused on the meaning of the earlier judgment and the absence of a reasonable apprehension that he would fail to evaluate the later evidence impartially: [9].
The decision therefore rests on the whole-context reading of the earlier reasons, the separation of liability from quantum, and the judge’s express statement that the damages question remained open. It does not treat a prior finding necessary to establish liability as automatically disqualifying a judge from deciding a later issue in the same proceedings.
The judgment presents the applicable apprehended-bias principles as settled, not as a new test. At [2], it cites Davids Distribution Pty Limited v National Union of Workers for the assumption that judicial officers act honestly and with discretion; Lynch v Zurich Australian Insurance Limited for the need for a reasonable and objective basis for apprehension; and Laws v Australian Broadcasting Tribunal for the requirement that alleged prejudgment involve commitment to a conclusion irrespective of the evidence or arguments to be presented.
At [3], Tamberlin J discusses Bienstein v Bienstein [2003] HCA 7. As described in these reasons, that case reaffirmed that judicial officers should discharge their duty to sit and should not accede too readily to bias allegations. The passage also identifies a concern that parties might otherwise think they can obtain a judge they consider more likely to decide in their favour by seeking disqualification. The judgment says that substantial grounds are required.
The “before” position in the present proceedings was that the applicants had established some damage at the liability stage, sufficient for the relief then in issue. The “after” position following this motion was that the same judge remained responsible for assessing damages, with the amount still to be determined on further evidence. The motion did not change the stated legal test; it applied that test to the scope and context of the earlier judgment.
The reasons do not purport to alter the general law of bias, set out an exhaustive test, or determine the lawfulness of any conduct in the underlying dispute. They explain why this particular prior finding did not, in the judge’s view, show prejudgment of quantum.
At [2], the judgment states: “There must be a reasonable and objective basis for an apprehension or perception that the case may not be decided impartially and without prejudice.” In plain English, a party’s personal concern is not enough by itself. The alleged circumstances must provide an objectively reasonable basis for thinking impartial decision-making may be affected.
Also at [2], the judgment says that prejudgment requires “a commitment to a conclusion already formed irrespective of the evidence or arguments to be presented.” In plain English, having expressed a view on an issue does not necessarily establish prejudgment of a different issue. The concern is whether the decision-maker has closed their mind to relevant material still to be considered.
At [6], the judge says: “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.” This passage is important because it directly addresses the issue raised by Monte. The judge described quantum as unresolved and dependent on future evidence.
At [7], Tamberlin J explains that “substantial” meant damage “more than minimal, illusory or nominal” for the purpose of obtaining relief at the earlier stage. In context, “substantial” was not being used as a finding that the damages award itself would be substantial in monetary terms.
At [9], the judge concludes there could be no reasonable apprehension that impartial attention and evaluation would not be given to evidence from Monte or Arkitude. This is the application of the bias principles to the particular question of future damages assessment.
The decision is most directly relevant to a procedural situation where a party seeks a judge’s disqualification from a later stage of proceedings because an earlier ruling is said to reveal prejudgment. The key features here were that the earlier judgment dealt with liability, a finding of some damage was needed for liability or relief, and the amount of damages had expressly been left for further evidence: [4]–[7].
The case illustrates why the exact issue decided earlier matters. The judge distinguished the threshold finding that there was some real damage from the separate question of the amount, if any, that could be proved. The earlier reasons also contemplated rebuttal and further evidence from the respondents: [6]. That context was important to the conclusion that the judge had not committed to a quantum outcome.
The decision should not be read as saying that earlier judicial comments can never support a disqualification application. The reasons apply the stated test to the judgment before the Court and conclude that its wording, read as a whole and in context, did not demonstrate commitment to a particular result: [9]. Nor do the reasons decide what result would follow where a judge has made express findings on the very issue later to be determined, or where the record contains other circumstances relevant to impartiality. Those questions are not resolved by this judgment.
The ruling also addresses an application brought after a substantial interval. The applicants relied on the roughly eleven-month delay, and the judge recorded that it had not been explained: [8]. The judgment treats that as contextual support, not as a standalone bar to a bias application.
The supplied judgment contains no information about how later courts treated Versace v Monte itself. It therefore does not support claims that the case was later followed, distinguished, approved, or overruled.
The judgment does discuss earlier authorities. It cites Davids Distribution Pty Limited v National Union of Workers (1999) 91 FCR 463 at 510, Lynch v Zurich Australian Insurance Limited (unreported, New South Wales Court of Appeal, 10 November 1998), and Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100 when setting out the principles at [2]. It discusses Bienstein v Bienstein [2003] HCA 7 at [3], describing the High Court’s reaffirmation of the duty to sit and the need for substantial grounds before disqualification.
On the material provided, the safe account of the precedent’s treatment is limited to those citations and the reasoning in this judgment. The supplied text does not give a later-cases history, so no broader account can be grounded in it.
The judgment did not determine the amount of damages, whether a specific amount could be proved, or whether the eventual amount would be large or small. Those matters were expressly left to further evidence: [6]. It also did not finally determine whether damage would be established after that further evidence. The judge stated that the respondents could establish that no damage had been suffered and that the appropriate finding would then be made: [6].
The reasons do not identify the outcome of the underlying defamation and trade practices proceedings beyond the stated liability-stage context. They do not provide a subsequent damages assessment or explain what evidence was later admitted. They also do not provide information about any appeal or later judicial consideration of this disqualification decision.
As to apprehended bias more generally, the judgment states the principles it applies but does not attempt to define every circumstance that could amount to prejudgment. Its holding is confined to the motion before it: on the record and wording described, the judge did not consider there to be a reasonable apprehension that he had predetermined quantum: [9]. Whether a different combination of findings, statements, procedural history, or other circumstances would satisfy the stated test is not answered here.
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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.
Solicitor for the Respondents: Horowitz & Bilinsky
Versace
Monte
The Notice of Motion filed by the first respondent on 7 February 2003 was dismissed with costs.