Kirby v Centro Properties Limited (No 2) [2008] FCA 1657

Kirby v Centro Properties Limited (No 2) [2008] FCA 1657

Given the presence of real doubt as to whether a fair-minded lay observer would apprehend bias from the judge's loss in shares allegedly due to the conduct complained of, the judge decided to recuse himself to avoid delay and additional costs that may result from an appeal, adopting a cautious approach as advised in Ebner.

Parties
Applicant: Richard Kirby; Respondent: Centro Properties Limited; Respondent: CPT Manager Limited; Respondent: Centro Retail Limited; Respondent: Centro MCS Manager Limited; Applicant: Nicholas Vlachos; Applicant: Monatex Pty Ltd; Applicant: Ramon Franco
Jurisdiction
Australia
Judgment Date
14 November 2008
Procedural Posture
Shareholder Class Action / Application for Recusal of Judge
Outcome
Recusal granted (case reassigned)
Legal Topics
Bias, Reasonable Apprehension of Bias, Recusal, Judicial Disqualification, Shareholder Class Actions
Courts and Judges Procedure Bias Reasonable Apprehension of Bias Recusal Judicial Disqualification Shareholder Class Actions

Case Brief

Summary, issues, holding and outcome

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Parties

Richard Kirby

Applicant

Centro Properties Limited

Respondent

CPT Manager Limited

Respondent

Centro Retail Limited

Respondent

Centro MCS Manager Limited

Respondent

Nicholas Vlachos

Applicant

Monatex Pty Ltd

Applicant

Ramon Franco

Applicant

Procedural Posture

Shareholder Class Action / Application for Recusal of Judge

Legal Issues

  1. 1 Whether reasonable apprehension of bias arises due to judge's pecuniary interest in a party (shareholding) and loss from allegedly wrongful conduct forming the subject of the proceeding
  2. 2 Whether disclosure and divestiture cure apprehension of bias
  3. 3 Whether recusal should occur

Ratio Decidendi

Given the presence of real doubt as to whether a fair-minded lay observer would apprehend bias from the judge's loss in shares allegedly due to the conduct complained of, the judge decided to recuse himself to avoid delay and additional costs that may result from an appeal, adopting a cautious approach as advised in Ebner.

Court Disposition

Recusal granted (case reassigned)

Orders

  • The proceedings be referred to the List Manager for reassignment to another judge of the Victoria District Registry of the Federal Court.
  • Costs reserved.