Kwan v Kang & 2 Ors [2003] NSWCA 336

Kwan v Kang & 2 Ors [2003] NSWCA 336

Although Santow J was entitled to revise his earlier reasons, the written judgment of 16 August 2001, read with the revised judgment and the disqualification judgment, included emphatic statements in paras 37 and 44 that documents were prepared in furtherance of fraud or abuse of power. Those statements went to the very fraud issue central to the trial, were made before the first respondent had closed and before the appellant had given evidence, and were not adequately withdrawn or explained as mistaken. A fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the ultimate fraud issue. Santow J therefore erred in refusing...

Jurisdiction
Australia
Judgment Date
09 December 2003
Procedural Posture
Civil Appeal / Appeal From Supreme Court Equity Division Judgment and Refusal to Disqualify Trial Judge
Outcome
Appeal upheld; orders of Santow J set aside; new trial ordered.
Legal Topics
['apprehended Bias by Reason of Pre Judgment' 'disqualification of Judge' 'revision of Reasons for Judgment' 'client Legal Privilege' 'fraud Exception to Privilege' 'fraudulent Conveyances' 'new Trial']
['practice and Procedure' 'natural Justice' 'evidence' 'equity' 'conveyancing'] ['apprehended Bias by Reason of Pre Judgment' 'disqualification of Judge' 'revision of Reasons for Judgment' 'client Legal Privilege' 'fraud Exception to Privilege' 'fraudulent Conveyances' 'new Trial']

Case Brief

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Procedural Posture

Civil Appeal / Appeal From Supreme Court Equity Division Judgment and Refusal to Disqualify Trial Judge

Legal Issues

  1. 1 ['Whether Santow J was entitled to revise his written judgment of 16 August 2001.' 'Whether findings made in an interlocutory evidentiary ruling under s 125 of the Evidence Act 1995 gave rise to a reasonable apprehension of bias by reason of pre-judgment.' 'Whether Santow J erred in refusing to disqualify himself.' "Whether, if apprehended bias was established, a new trial should be ordered rather than dismissing the first respondent's claim."]

Ratio Decidendi

Although Santow J was entitled to revise his earlier reasons, the written judgment of 16 August 2001, read with the revised judgment and the disqualification judgment, included emphatic statements in paras 37 and 44 that documents were prepared in furtherance of fraud or abuse of power. Those statements went to the very fraud issue central to the trial, were made before the first respondent had closed and before the appellant had given evidence, and were not adequately withdrawn or explained as mistaken. A fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the ultimate fraud issue. Santow J therefore erred in refusing...

Court Disposition

Appeal upheld; orders of Santow J set aside; new trial ordered.

Orders

  • ['Appeal upheld. Orders of Santow J set aside and new trial ordered.' 'The first respondent to pay half the costs of the appeal.' "Certificates are granted to the appellant and the first respondent under the Suitors' Fund Act 1951, if they are otherwise entitled." 'Upon the first respondent giving to the Court the...