Michael David & 19 Ors v Vamiso Pty Ltd [2004] NSWSC 326

Michael David & 19 Ors v Vamiso Pty Ltd [2004] NSWSC 326

The motion failed because the evidence did not establish actual bias or apprehended bias. The referee was entitled to test the experts' reasoning and had not prejudged the matter. The relationship between counsel and the referee was found to be professional, and the referee's provision of expert reports for clients of the defendant's solicitors, in the context of technology and construction practice and the referee's duties, did not give rise to a reasonable apprehension of bias, whether considered individually or cumulatively.

Jurisdiction
Australia
Judgment Date
22 April 2004
Procedural Posture
Motion Under Part 72 Rule 10 of the Supreme Court Rules 1970 to Set Aside an Order Referring Matters to a Referee / Application to Remove or Disqualify Referee for Actual and Apprehended Bias
Outcome
Motion dismissed; plaintiffs to pay the defendant's costs of the Motion.
Legal Topics
['referees' 'actual Bias' 'apprehended Bias' 'expert Conclave' 'expert Evidence' 'disclosure of Professional Relationships']
['civil Procedure' 'equity' 'building and Construction'] ['referees' 'actual Bias' 'apprehended Bias' 'expert Conclave' 'expert Evidence' 'disclosure of Professional Relationships']

Case Brief

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Procedural Posture

Motion Under Part 72 Rule 10 of the Supreme Court Rules 1970 to Set Aside an Order Referring Matters to a Referee / Application to Remove or Disqualify Referee for Actual and Apprehended Bias

Legal Issues

  1. 1 ["Whether the referee's questioning of or testing of an agreement between experts during the reference established actual bias." 'Whether the relationship between counsel for the defendant and the referee gave rise to a reasonable apprehension of bias.' "Whether the referee's past and present retainer to provide expert reports for clients of the defendant's solicitors gave rise to a reasonable apprehension of bias." 'Whether the circumstances relied on by the plaintiffs, considered cumulatively, gave rise to a reasonable apprehension of bias.']

Ratio Decidendi

The motion failed because the evidence did not establish actual bias or apprehended bias. The referee was entitled to test the experts' reasoning and had not prejudged the matter. The relationship between counsel and the referee was found to be professional, and the referee's provision of expert reports for clients of the defendant's solicitors, in the context of technology and construction practice and the referee's duties, did not give rise to a reasonable apprehension of bias, whether considered individually or cumulatively.

Court Disposition

Motion dismissed; plaintiffs to pay the defendant's costs of the Motion.

Orders

  • ['The Motion is dismissed.' "The plaintiffs are to pay the defendant's costs of the Motion."]