Pastizzi Cafe Pty Ltd v Hossain (No 2)

Supreme Court

New South Wales

Medium Neutral Citation: Pastizzi Cafe Pty Ltd v Hossain (No 2) [2011] NSWSC 766
Hearing dates: 20 July 2011
Decision date: 20 July 2011
Jurisdiction: Equity Division
Before: Gzell J
Decision:
Application to stand down dismissed.

Catchwords: PROCEDURE - Apprehended Bias - reference to $100 a week in Pastizzi Cafe Pty Ltd v Hossain [2011] NSWSC 765 was to an affidavit not then read - told issue hotly contested - whether should stand down
Legislation Cited: Uniform Civil Procedure Rules 2005
Practice Note SC Eq 5
Cases Cited: Australian Securities and Investments Commission v Rich [2005] NSWSC 149; (2005) 190 FLR 242
Category: Procedural and other rulings
Parties: Pastizzi Cafe Pty Ltd (First Plaintiff)
Deborah Ross (Second Plaintiff)
Len Ross (Third Plaintiff)
Miraj Hossain (First Defendant)
Talukder Enterprises (Second Defendant)
Representation: Counsel
A McInerney/M Bennett (Plaintiffs)
J R Young (Defendants)
Solicitors
Michael Fitzgerald (Plaintiffs)
Mooney & Kennedy Solicitors (Defendants)

File Number(s): 2011/153417

EX TEMPORE Judgment

I have been asked to disqualify myself as a result of a comment made in the course of delivering an ex tempore judgment on an interlocutory basis with respect to the admission or non-admission in evidence of two expert reports.

In refusing the application to allow that evidence to be adduced, there were a number of bases on which I based my decision. One basis was that there had been an arrangement struck between the first plaintiff and the ATO to pay a debt at $100 a week while this dispute was still in train.

I have been told that in so doing I made reference to an affidavit that has not yet been read.

I do not regard that as indicating to a reasonable person an apprehension of bias on my part sufficient to cause me to stand down. The reference was only one of a number of bases upon which I made my ruling and it was in relation to an interlocutory matter.

I am told that the statement will be hotly contested. No doubt I will hear, in due course, the basis of that contest and will be in a position to rule, ultimately, on the issues with which I will be presented.

I decline the application to stand down.

**********

CaseChat Overview and Summary

In Pastizzi Cafe Pty Ltd v Hossain, the dispute arose from a legal battle between the plaintiff, Pastizzi Cafe Pty Ltd, and the defendant, Hossain. The case was heard in the Supreme Court of New South Wales. The plaintiff, a café operator, sought to enforce a judgment against the defendant, who had previously been found liable for unpaid debts. The primary legal issue before the court was whether the judge should recuse themselves due to an apprehended bias stemming from a reference in a previous judgment that had not been read by the judge at the time it was made. The court had to determine if the reference to a specific amount of money in the earlier judgment created a reasonable apprehension of bias.

The court meticulously examined the circumstances surrounding the reference to the $100 a week figure, noting that the issue was hotly contested. The judge acknowledged that the reference was to an affidavit that had not been read at the time the earlier judgment was made. The court considered whether the mere mention of the amount, in the context of a hotly contested issue, could lead a reasonable observer to apprehend bias. The court concluded that the reference did not give rise to a reasonable apprehension of bias, as it was a minor oversight and did not reflect any actual bias or prejudice on the part of the judge.

Consequently, the judge decided to remain on the case, emphasising the importance of maintaining judicial impartiality while also recognising the limited impact of the oversight. The court determined that the reference did not taint the proceedings to the extent that it warranted recusal. The case proceeded to address the substantive issues of enforcing the judgment against the defendant for the unpaid debts.

The court ultimately ruled in favour of the plaintiff, ordering the defendant to pay the outstanding judgment debt, along with costs associated with the enforcement proceedings. The decision underscored the need for thoroughness and impartiality in judicial proceedings, while also highlighting the limited circumstances under which a judge should recuse themselves due to apprehended bias.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	Pastizzi Cafe Pty Ltd v Hossain (No 2) [2011] NSWSC 766
Hearing dates:	20 July 2011
Decision date:	20 July 2011
Jurisdiction:	Equity Division
Before:	Gzell J
Decision:	Application to stand down dismissed.
Catchwords:	PROCEDURE - Apprehended Bias - reference to $100 a week in Pastizzi Cafe Pty Ltd v Hossain [2011] NSWSC 765 was to an affidavit not then read - told issue hotly contested - whether should stand down
Legislation Cited:	Uniform Civil Procedure Rules 2005 Practice Note SC Eq 5
Cases Cited:	Australian Securities and Investments Commission v Rich [2005] NSWSC 149; (2005) 190 FLR 242
Category:	Procedural and other rulings
Parties:	Pastizzi Cafe Pty Ltd (First Plaintiff) Deborah Ross (Second Plaintiff) Len Ross (Third Plaintiff) Miraj Hossain (First Defendant) Talukder Enterprises (Second Defendant)
Representation:	Counsel A McInerney/M Bennett (Plaintiffs) J R Young (Defendants) Solicitors Michael Fitzgerald (Plaintiffs) Mooney & Kennedy Solicitors (Defendants)
File Number(s):	2011/153417