Brown v DML Resources [2001] NSWSC 250

Brown v DML Resources [2001] NSWSC 250

There is no reasonable apprehension of bias when a judge who made ex parte orders, with specific provision for affected parties to apply to set aside those orders, hears the subsequent application; the orders were made on the implied basis that the judge may change his mind when both sides have been heard.

Parties
Plaintiff: Martin Russell Brown; Plaintiff: Timothy James Cuming; Defendant: DML Resources Pty Limited (In liquidation); Defendant: DML Resources (WA) Pty Limited (In Liquidation); Applicant: BP Australia Holdings Pty Ltd
Jurisdiction
Australia
Judgment Date
29 March 2001
Procedural Posture
Equity Proceedings / Pre Trial, Application for Judge's Disqualification Due to Apprehended Bias
Outcome
Judge did not disqualify himself; application for disqualification dismissed.
Legal Topics
Apprehended Bias, Ex Parte Orders, Judicial Disqualification
Practice and Procedure Corporations Law Apprehended Bias Ex Parte Orders Judicial Disqualification

Case Brief

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Parties

Martin Russell Brown

Plaintiff

Timothy James Cuming

Plaintiff

DML Resources Pty Limited (In liquidation)

Defendant

DML Resources (WA) Pty Limited (In Liquidation)

Defendant

BP Australia Holdings Pty Ltd

Applicant

Procedural Posture

Equity Proceedings / Pre Trial, Application for Judge's Disqualification Due to Apprehended Bias

Legal Issues

  1. 1 Whether a judge who made an ex parte order with leave to affected party to set it aside should disqualify himself from hearing the application
  2. 2 Whether the procedural history or communication between parties constitutes waiver of bias objection

Ratio Decidendi

There is no reasonable apprehension of bias when a judge who made ex parte orders, with specific provision for affected parties to apply to set aside those orders, hears the subsequent application; the orders were made on the implied basis that the judge may change his mind when both sides have been heard.

Court Disposition

Judge did not disqualify himself; application for disqualification dismissed.

Orders

  • Applicant (BP) in the hearing on 19 April ordered to pay plaintiffs' costs with respect to today's hearing and matters incidental to the issues raised.