National Australia Bank Ltd v Busby [2012] VCC 40 (6 February 2012)

Last Updated: 16 April 2012

IN THE COUNTY COURT OF VICTORIA

Revised (Not) Restricted

AT MELBOURNE
COMMERCIAL LIST
BANKING & FINANCE DIVISION

Case No. CI-10-04315

NATIONAL AUSTRALIA BANK LTD	Plaintiff
v.
GARY GORDON BUSBY AND ANOR	Defendants

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	6 February 2012
DATE OF JUDGMENT:	6 February 2012 (revised on 14 February 2012)
CASE MAY BE CITED AS:	National Australia Bank Ltd v Busby
MEDIUM NEUTRAL CITATION:	[2012] VCC 40

REASONS FOR JUDGMENT

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Catchwords: Practice and procedure – Bias – Judge disclosing shareholding in one of the parties in the trial before him – Application that the judge disqualify himself – Whether a reasonable perception of bias – McFarlane v NAB Ltd [2007] VSCA 275 followed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C. Salpigtidis	Thompsons Lawyers
For the First Defendant	In person
For the Third Defendant	In person

HIS HONOUR:

1. The application by Mr Walters for the adjournment of the trial was determined by me before lunch. Mr Connell has now withdrawn. He appeared for Mr Walters on the application on a fee declined basis and he has now returned to a trial in the Federal Magistrates' Court.
2. At the commencement of the application this morning, I informed the parties that I was responsible for the management of a body which held approximately 2,400 National Australia Bank shares. I am the director of a company which is the trustee of a private superannuation fund of which my wife and I are the beneficiaries. I made the disclosure earlier because I considered that I was obliged to do so. I did indicate, however, that I considered that I would be able to fairly and appropriately determine the application. Before the application was heard, counsel for the first defendant, the third defendant and the plaintiff indicated that they had no objection with me proceeding to hear the application. I indicated before lunch that the trial would proceed before me at 2.30pm.
3. Mr Walters who now represents himself has indicated that in his view, it is appropriate that I should withdraw from the case because of the perception of bias on the basis of the shareholding I earlier disclosed. There is no reason why Mr Walters should be bound by the indication given by his counsel this morning which was in respect of the application. Mr Busby has joined with Mr Walters in his application. The bank's counsel has suggested that there is no reason why I should withdraw.
4. I consider that it is not appropriate for me to withdraw and that I should proceed with the trial. In a recent decision of the Court of Appeal in McFarlane v. National Australia Bank Limited [2007] VSCA 275, the Court of Appeal comprised of Maxwell P and Chernov and Nettle JJA, dealt with a ground of bias raised in the appeal before them. It was alleged that,

"The trial judge displayed bias because he refused to stand down from hearing the matter even though he was asked to, and because of his financial interests with the National Australia Bank Limited".

The Court at paragraphs 46 and 47 stated,

"This ground is without substance. At the commencement of the trial the judge disclosed that parcels of shares in the bank were held respectively by his superannuation fund, his wife, and his mother's estate. His Honour also disclosed that he banked with the National Australia Bank and that the bank held a mortgage over property on which money was still owing. The judge stated that he had no difficulty bringing an independent and impartial mind to the case. Shares in banks are widely held throughout the community. It is a commonplace that judges or their relatives, or related entities, hold shares in one or more banks. Invariably the size of the shareholding is infinitesimally small relative to issued capital of the bank in question. A fair minded observer aware of the facts would not remotely think that this judge, or any other judge in a similar position, might not bring an impartial mind to the resolution of the question to be decided".

5. The Court of Appeal in McFarlane was following the principles set out by the High Court in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337. The High Court has also said that in considering applications to stand down where perceived bias is the issue, it is important that judges do not avoid the responsibility upon them to proceed with the case unless the issue raised has substance.
6. I consider that in the present circumstances it is appropriate for me to proceed with the trial of this matter.
   

Certificate
I certify that these 2 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 6 February 2012 and revised on 14 February 2012.
Dated: 14 February 2012
Hannah Christensen
Associate to His Honour Judge Anderson