Kang v Kwan & 2 Ors [2001] NSWSC 708

Kang v Kwan & 2 Ors [2001] NSWSC 708

The matters relied on by the First Defendant, including the expression of the earlier judgment, alleged factual errors, and the judge's consideration of privileged documents under s125 and s133 of the Evidence Act, did not establish that a fair-minded observer informed of the circumstances would reasonably apprehend that the judge might decide the case other than on its legal and factual merits. Any objection to the judge considering the privileged documents had in any event been waived with knowledge that the judge would see privileged documents not seen by the parties. Nor did prudential considerations justify declining to sit, given the costs, delay, strain and prejudice that aborting...

Jurisdiction
Australia
Judgment Date
17 August 2001
Procedural Posture
Application for Disqualification of a Judge on the Ground of Reasonable Apprehension of Bias / During Hearing, After Written and Ex Tempore Judgments on Admissibility of Privileged Communications and Documents
Outcome
Judge not disqualified and should sit.
Legal Topics
['disqualification of a Judge' 'reasonable Apprehension of Bias' 'pre Judgment' 'waiver' 'legal Professional Privilege' 'admissibility of Privileged Communications and Documents' 'prudential Decision Whether to Sit']
['procedure' 'evidence'] ['disqualification of a Judge' 'reasonable Apprehension of Bias' 'pre Judgment' 'waiver' 'legal Professional Privilege' 'admissibility of Privileged Communications and Documents' 'prudential Decision Whether to Sit']

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Procedural Posture

Application for Disqualification of a Judge on the Ground of Reasonable Apprehension of Bias / During Hearing, After Written and Ex Tempore Judgments on Admissibility of Privileged Communications and Documents

Legal Issues

  1. 1 ['Whether the judge should disqualify himself from further hearing the matter on the ground of reasonable apprehension of bias or pre-judgment arising from the terms of the judgments delivered on 16 August 2001.' 'Whether the First Defendant had waived any objection to the judge considering privileged documents for the purposes of s125 of the Evidence Act.' 'Whether, even if not disqualified, the judge should as a matter of prudence decline to continue sitting.']

Ratio Decidendi

The matters relied on by the First Defendant, including the expression of the earlier judgment, alleged factual errors, and the judge's consideration of privileged documents under s125 and s133 of the Evidence Act, did not establish that a fair-minded observer informed of the circumstances would reasonably apprehend that the judge might decide the case other than on its legal and factual merits. Any objection to the judge considering the privileged documents had in any event been waived with knowledge that the judge would see privileged documents not seen by the parties. Nor did prudential considerations justify declining to sit, given the costs, delay, strain and prejudice that aborting...

Court Disposition

Judge not disqualified and should sit.

Orders

  • ['The judge declined to disqualify himself from hearing the balance of the case on the ground of apprehended bias or pre-judgment.' 'The judge was not persuaded that, as a matter of prudence, he should decline to sit and considered it his duty to continue to sit.' 'Costs in relation to the judgments of 16 August...