Yamaha Motor Finance Australia Pty Limited v Coast to Coast Boating Pty Limited

This is an application by the defendants seeking to disqualify me from the hearing on the ground of apprehended bias. It arises out of a directions hearing last Friday in which I made clear that I had not mastered all of the facts but that I was seeking assistance from counsel as to the elucidation of the issues in the case. Not only did I question a number of aspects of the defences of the three defendants, but I made clear on several occasions that I had not reached a concluded view.

For example I said, among other things, that I would like to see the second defendant in the witness box as soon as possible on the morning of the first day of the hearing, ‘then I will have a better idea of the strength of his case’. In another passage I remarked that although I have not seen the detail of the evidence, I was ‘unlikely to be favourable to an unjust contracts review claim’. Then I emphasised, ‘but you never know’.

In another passage after requesting counsel for the second defendant to be realistic, and after informing him that there was no point going through the paces in a hopeless case if all it means is that the defendants will just incur further and further costs and more anxiety, I added ‘I am not saying I have reached a conclusion at all’. Finally, in a further passage, I stated that I wished to reiterate and emphasise that I would not take kindly to timewasting by unmeritorious defendants, ‘if that is what it proves to be’.

Experienced counsel know that judges are, by training and practice, well qualified to suspend judgment until the conclusion of evidence and submissions while expressing concern, even scepticism, about issues in the course of the hearing. To do so at the directions hearing stage, before the evidence has been elicited or the submissions have been put, is even more indicative of a judge who is simply seeking assistance in understanding and addressing the genuine issues in dispute.

These truisms were no more clearly stated than by the plurality in Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at 493 in which their Honours stated that:

Their Honours went on to explain:

It has always been my experience, as an advocate and judge, that counsel are assisted by judicial indications of preliminary views and concerns. The High Court in Johnson clearly thought so. The plurality said at 493:

And in Vakuata v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 571, Brennan, Deane and Gaudron JJ spoke of ‘the dialogue between Bench & Bar which is so helpful in the identification of real issues and real problems in a particular case’.

All that happened at the directions hearing on Friday last week was that counsel for the second defendant and those representing the third and fourth defendants were put on notice of the need to be in a position to address what appeared to me, at that stage, to be genuine concerns as to the strength of their defences. Whether those defences are good will be determined over the next few days. I dismiss the application and order the second defendant to pay the plaintiff's costs forthwith.