High Court of Australia

Michael Wilson & Partners Limited v Nicholls [2011] HCA 48

244 CLR 305

1 Dec 2011

Case Number: S67/2011


Gummow ACJ, Hayne, Heydon, Crennan, Bell JJ


Courts and judges – Bias - Apprehended bias - Appellant successfully applied ex parte to use respondents' affidavits for foreign proceedings and criminal investigations on several occasions - Judge relied on appellant's unchallenged affidavit evidence - Applications heard in closed court and orders made preventing respondents knowing about applications - Whether fair-minded lay observer might reasonably apprehend judge might not bring impartial and unprejudiced mind to resolution of issues at trial of action.

Practice and procedure – Appeal - Trial judge refused respondents' pre-trial disqualification applications - Trial judge offered to make orders facilitating urgent appeal - Whether order on disqualification application capable of appeal - Respondents did not seek leave to appeal - Whether respondents permitted to raise disqualification on appeal from final judgment.

Abuse of process – Multiple proceedings - Appellant commenced arbitration proceeding against solicitor in London for breach of fiduciary duty then proceeding against respondents in Supreme Court of New South Wales for knowingly assisting solicitor's breach and in tort - Loss from substantially same breaches of fiduciary duty alleged in both proceedings - Proceedings could not be brought in one venue - Supreme Court delivered judgment before arbitrators delivered award on liability - Findings about appellant's loss differed - Whether Supreme Court proceeding abuse of process.

Equity – Remedies - Solicitor liable to appellant for breach of fiduciary duty - Respondents liable to appellant for knowingly assisting solicitor's breach - Whether respondents' liability ancillary to, coordinate with or necessarily limited by solicitor's liability - Equity against double recovery - Whether respondents have equity to prevent appellant enforcing Supreme Court judgment against them where particular loss satisfied pursuant to arbitral award against solicitor.

Words and phrases – "abuse of process", "appeal", "apprehended bias", "arbitration", "disqualification", "double recovery", "ex parte application", "multiple proceedings", "order".


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