Michael Wilson & Partners Limited v. Nicholls and Ors

Lower Court Judgment

15/09/2010 Supreme Court of New South Wales (Court of Appeal)(Basten JA, Young JA, Lindgren AJA)

[2010] NSWCA 222

Catchwords

Practice and procedure — Supreme Court procedure — Abuse of process — Applicant obtained judgment against respondents in New South Wales Supreme Court ("NSWSC") for knowing participation in breach of fiduciary duty by a non-party — London arbitrators subsequently issued interim award upholding breach of duties by non-party but denying compensation to applicant ("the Award") — Respondents not party to the Award — Whether abuse of process for applicant to seek to enforce judgment in NSWSC in face of the Award.

Practice and procedure — Courts and judges — Disqualification of judges for interest or bias — Apprehended bias — Application of lay observer test in Johnson v Johnson (2000) 201 CLR 488 — Whether lay observer test "unnecessary" and "wholly artificial" where judge personally apprehends bias — Whether conclusion of New South Wales Court of Appeal on trial judge's apprehensible bias justified on facts.

Practice and procedure — Waiver — Trial judge refused to recuse himself ("the recusal decision") and invited respondents to appeal the recusal decision — Respondents did not appeal the recusal decision until after trial and judgment adverse to respondents delivered — Whether the recusal decision an order or judgment —Whether the recusal decision amenable to appeal — Whether respondents waived right to appeal the recusal decision by proceeding with trial.

Short particulars