Irwin v Pamplin (No 2) [2021] NSWSC 1026

Irwin v Pamplin (No 2) [2021] NSWSC 1026

The recusal application was dismissed because the alleged pre-determination concerned an interlocutory case-management issue that would not affect the parties' substantive rights, and a reasonable observer would not think Parker J had closed his mind to the defendants' submissions. The separate hearing order was granted because the plaintiff's claim principally sought an account, which is ordinarily taken after entitlement is determined, and because deferring accounts and alternative pecuniary relief until after liability and entitlement issues was likely to focus the proceedings and best achieve the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW).

Jurisdiction
Australia
Judgment Date
12 August 2021
Procedural Posture
Procedural Rulings / Interlocutory Application for Recusal and Separate Hearing Under R 28.2 of the Uniform Civil Procedure Rules 2005 (nsw)
Outcome
The defendants' oral recusal application was dismissed; the plaintiff's application for separate determination was substantially granted; the notice of motion was otherwise dismissed; the defendants were ordered to pay the plaintiff's costs of the recusal application and notice of motion.
Legal Topics
['separate Hearing' 'deferral of Determination of Relief' 'account' 'damages' 'overriding Purpose' 'recusal' 'apparent Pre Determination' 'case Management']
['civil Procedure' 'equity' 'courts and Judges'] ['separate Hearing' 'deferral of Determination of Relief' 'account' 'damages' 'overriding Purpose' 'recusal' 'apparent Pre Determination' 'case Management']

Case Brief

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Procedural Posture

Procedural Rulings / Interlocutory Application for Recusal and Separate Hearing Under R 28.2 of the Uniform Civil Procedure Rules 2005 (nsw)

Legal Issues

  1. 1 ["Whether Parker J should recuse himself from hearing or determining the plaintiff's notice of motion because of alleged apparent pre-determination at a case-management hearing." 'Whether certain prayers for relief and the taking of accounts should be determined separately and after liability and related entitlement issues.' 'Whether deferring an account and assessment of pecuniary relief was best calculated to achieve the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW).']

Ratio Decidendi

The recusal application was dismissed because the alleged pre-determination concerned an interlocutory case-management issue that would not affect the parties' substantive rights, and a reasonable observer would not think Parker J had closed his mind to the defendants' submissions. The separate hearing order was granted because the plaintiff's claim principally sought an account, which is ordinarily taken after entitlement is determined, and because deferring accounts and alternative pecuniary relief until after liability and entitlement issues was likely to focus the proceedings and best achieve the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW).

Court Disposition

The defendants' oral recusal application was dismissed; the plaintiff's application for separate determination was substantially granted; the notice of motion was otherwise dismissed; the defendants were ordered to pay the plaintiff's costs of the recusal application and notice of motion.

Orders

  • ["Order that the defendants' oral application made on 12 August 2021 that Parker J recuse himself from hearing or determining the plaintiff's notice of motion filed on 11 August 2021 is dismissed." 'Order that pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW), prayers 9, 10, 16, 17, 19, 21 and 26 to...