Australian Competition and Consumer Commission v Sensaslim Australia Pty Ltd (In Liquidation) (No 2) [2011] FCA 1013

Australian Competition and Consumer Commission v Sensaslim Australia Pty Ltd (In Liquidation) (No 2) [2011] FCA 1013

A fair-minded lay observer would not reasonably apprehend that the Judge, by making the ex parte email service order, had pre-judged any questions or would not bring an impartial mind to questions concerning the relationship between respondents. The order was procedural and based on evidence available, not on a finding of substantive issues.

Parties
Applicant: Australian Competition and Consumer Commission; First Respondent: Sensaslim Australia Pty Ltd (In Liquidation) ACN 140 333 133; Second Respondent: Peter Clarence Foster; Third Respondent: Peter Leslie O'Brien; Fourth Respondent: Adam Troy Adams; Fifth Respondent: Michael Anthony Boyle
Jurisdiction
Australia
Judgment Date
31 August 2011
Procedural Posture
Application for Judicial Disqualification / Interlocutory Application; Order on Recusal for Apprehended Bias
Outcome
Application for judicial disqualification dismissed; costs ordered against the applicant.
Legal Topics
Apprehended Bias, Judicial Procedural Orders, Disqualification of Judge
Courts and Judges Apprehended Bias Judicial Procedural Orders Disqualification of Judge

Case Brief

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Parties

Australian Competition and Consumer Commission

Applicant

Sensaslim Australia Pty Ltd (In Liquidation) ACN 140 333 133

First Respondent

Peter Clarence Foster

Second Respondent

Peter Leslie O'Brien

Third Respondent

Adam Troy Adams

Fourth Respondent

Michael Anthony Boyle

Fifth Respondent

Procedural Posture

Application for Judicial Disqualification / Interlocutory Application; Order on Recusal for Apprehended Bias

Legal Issues

  1. 1 Whether there was a reasonable apprehension of bias in the making of an ex parte service order involving a particular email address
  2. 2 Whether a fair-minded lay observer might reasonably apprehend the Judge would not bring an impartial mind to case resolution

Ratio Decidendi

A fair-minded lay observer would not reasonably apprehend that the Judge, by making the ex parte email service order, had pre-judged any questions or would not bring an impartial mind to questions concerning the relationship between respondents. The order was procedural and based on evidence available, not on a finding of substantive issues.

Court Disposition

Application for judicial disqualification dismissed; costs ordered against the applicant.

Orders

  • The second respondent's application for disqualification brought by notice of motion dated 5 August 2011 be dismissed.
  • The second respondent is to pay the applicant's costs of and incidental to that application.