Cachia v Westpac Financial Services Ltd

[1999] FCA 161

FEDERAL COURT OF AUSTRALIA

Cachia v Westpac Financial Services Ltd [1999] FCA 161

SALV LAURENCE CACHIA v WESTPAC FINANCIAL SERVICES LIMITED

NG 3723 of 1996

LINDGREN J
17 FEBRUARY 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 3723 OF 1996

BETWEEN:	SALV LAURENCE CACHIA Applicant
AND:	WESTPAC FINANCIAL SERVICES LIMITED (IN THE MATTER OF WESTPAC REAL PROPERTY GROWTH TRUST) Respondent

JUDGE:	LINDGREN J
DATE:	17 FEBRUARY 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(ruling on request for self-disqualification)

1. The applicant, Mr Cachia, who appears in person, asks that I disqualify myself.  The basis of the application is, as he puts it, that I have given directions in the past with which he has scrupulously complied, only to find that I have given later further directions which he perceives to be inconsistent with the earlier ones. More generally, he submits that it is important that a litigant have confidence that an independent judicial mind will be brought to bear on any issue arising for decision and asserts that he does not have that confidence in my case.

2. I do not think that grounds so formulated justify my disqualifying myself and I do not propose to do so.  But I will say more on this below.

3. It would be an easy and perhaps attractive course for me to accede to Mr Cachia’s request. But this would cast the burden of this proceeding onto another judge in circumstances in which I have a responsibility to continue to hear and determine the case unless a ground of disqualification recognised in law is made out.  In my opinion, no such ground exists here.

4. I say that I find the course that Mr Cachia suggests somewhat attractive because, like any judge, I would hope that every litigant appearing before me has the confidence described by Mr Cachia. It is disappointing for me to hear that he does not. Probably nothing I can say will cause him to change his mind.

5. I treat the relevant ground as reasonable apprehension of bias. This ground poses the question, not simply of Mr Cachia’s subjective state of mind, but of what a reasonable independent observer would think. Might such a person reasonably apprehend that I might not bring an independent mind to bear on any issue calling for decision in the proceeding? I think not.

6. Mr Cachia’s understanding seems to be that it was my responsibility to settle the form of his pleading, or, at least, to specify every defect in it, so that with the benefit of that judicial advice, he could file an amended pleading cured of all earlier defects. But under our system, I am required to decide issues tendered for decision and to give sufficient reasons for that decision, not to decide questions unnecessarily and not to give legal advice. Assume that thirty objections are taken to a pleading and four of them provide sufficient ground for a striking out order. The issue for decision is whether, in accordance with the rules, the pleading should be struck out, not whether each of the thirty grounds is established. A judge would not be required, even in the case of a self-represented applicant, to deal with the other twenty six grounds with a view to ensuring that they did not re-appear in an amended pleading. It is not the function of a court (in any event courts lack the time and resources) to assist litigants in person to that extent. (I do not say that what I have hypothesised occurred in the present case but apparently Mr Cachia thinks that something like it did.)

7. I do not think that a reasonable person reviewing the history of the matter including my earlier judgments would think that there is ground for belief that I might not bring an independent mind to bear on the issues to be tendered for my decision.

8. Accordingly, the request that I disqualify myself is refused.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice .

Associate:

Dated:             17 February 1999

The Applicant appeared in person
Counsel for the Respondent:	Mr N Perram
Solicitors for the Respondent:	Mallesons Stephen Jaques
Date of Hearing:	17 February 1999
Date of Judgment:	17 February 1999