Criddle v Monck [No 2] - [2024] WASC 315

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   CRIDDLE -v- MONCK [No 2] [2024] WASC 315
CORAM:   HOWARD J
HEARD:   28 AUGUST 2024
DELIVERED          :   28 AUGUST 2024
PUBLISHED           :   2 SEPTEMBER 2024
FILE NO/S:   CIV 1057 of 2021
BETWEEN:   ERRON JAMES CRIDDLE
Plaintiff
AND
STEPHANIE MONCK
Defendant

Catchwords:

Practice and procedure - Where reasons for decision have been published - Where parties disagree on final orders - Plaintiff's minute sought final orders to be delayed to allow a writ of certiorari to be sought - Writ of certiorari not available against a superior court - Oral application made for recusal of Judge - Recusal application dismissed - Final Orders made in terms of the defendant's minute

Legislation:

Nil

Result:

Final orders made in terms of defendant's minute of proposed orders

Category: B

Representation:

Counsel:

Plaintiff	:	In Person
Defendant	:	Mr A T Macknay

Solicitors:

Plaintiff	:	In Person
Defendant	:	MDS Legal

Case(s) referred to in decision(s):

British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283
CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76
Craig v South Australia (1995) 184 CLR 163
Criddle v Monck [2024] WASC 283
Jones v The Architects Board of Western Australia [2004] WASCA 219
Re Gray; Ex parte Marsh (1985) 157 CLR 351
R v Roddan (No. 2) (1996) 17 WAR 50
Re Birmingham DCJ; Ex parte Agapis [2014] WASCA 197
Webb v The Queen (1994) 181 CLR 41

HOWARD J:

(These reasons were delivered extemporaneously and have been edited from the transcript.)

By reasons published on 12 August 2024,[1] I would have granted the defendant leave to make her summary judgment application out of time and would, then, have granted her summary judgment.
[1] Criddle v Monck [2024] WASC 283.
At the conclusion of those reasons I said that I would hear the parties as to costs.
I have received competing minutes of proposed orders following my earlier reasons.
The defendant has proposed orders which might be thought to be orthodox, namely:
1.The defendant have leave to bring an application for summary judgment out of time.
2.Summary judgment be entered for the defendant.
3.The action be dismissed.
4.The plaintiff pay the defendant's costs of the defendant's application filed 22 December 2023 and of the action, to be taxed if not agreed.
The plaintiff's minute is as follows:
Notice of Intended Application
1.It is intended that an application for a stay of execution of judgment will be made at the upcoming hearing. This application is to prevent the judgement from being formally entered until further legal proceedings, being a writ of certiorari, is resolved;
Grounds for the Stay
2.The following are the grounds for the Stay:
2.1.An intention to file a writ of certiorari;
2.2Potential harm of prejudice that might result if the judgment is entered before the resolution of the writ of certiorari;
2.3The existence of an arguable case on the merits of the writ of certiorari;
Writ of Certiorari
3.It is intended to file the writ of certiorari within the required time, however leave may be requested if the writ cannot be lodged on time;
4.The grounds of the writ of certiorari are, but not limited to, the following:
4.1.The plaintiff was not advised of the special relationship that exists between the Honourable Justice Howard and the Law Society of Western Australia and as such, the plaintiff was not afforded natural justice by way of the opportunity to respond with an application for the Honourable Justice Howard to recuse himself; not due to bias but by apprehended bias that information consciously and/or conscientiously discarded might still sometimes have a subconscious effect;
4.2.The plaintiff was not able to adequately rebut the defendant's assertion and often had to respond to the Honourable Justice Howard's assertions, rather than orally provide a contiguous argument and conclusion as a response to the defendant's assertion;
4.3.The plaintiff was not able to adequately provide the basis for the rebuttal and was denied natural justice when it was time to explaining paragraph 82 from D'Orta and the defendant's citations using five of the cases cited by the defendant;
Potential Application for Recusal
5.The plaintiff may also make an application for recusal;
Proposed Orders
6.That the execution of judgment be stayed, along with the other proposed orders from the defendant, pending the outcome of the intended application for a writ of certiorari.
The matter came on for hearing as to the final orders on 28 August 2024.
In the course of explaining his minute, the plaintiff made an oral application that I recuse myself from the matter.
The grounds for that application were as per [4.1] of the plaintiff's minute.
Mr Criddle asserted that I had a 'special relationship' with the Law Society of Western Australia, which had notified that it was an interested non‑party in these proceedings.
These are my short reasons for refusing the plaintiff's recusal application.
Before I was referred, today, to the Law Society's letter to a Registrar of this Court filed 22 May 2023, I did not know that the Law Society was an interested non‑party.
That letter is on the Court file and I accept that if I had looked at the letter to a Registrar filed 22 May 2023 I would have known that. But for the purposes of the record I need to state that I had no subjective knowledge of that.
Mr Macknay, during the course of the hearing, quite properly informed the Court that Law Mutual is a business name of the Law Society.
I note that I was on the Law Society's Council for a period of time and during that time I was a barrister at the independent Bar in Western Australia.
While on the Council, I had extant briefs from Law Mutual and had matters against legal practitioners where Law Mutual, as I understood it, was the insurer of the party on the other side.
In those circumstances, it was my practice, while sitting on the Council of the Law Society, to declare a conflict of interest in relation to matters dealing with Law Mutual and my standing request was that I was not sent any papers to do with Law Mutual. My recollection is that on one or two occasions when that standing request was not met by oversight, I did not read the papers to do with Law Mutual, or participate in that meeting.
The second matter that I understand Mr Criddle advances is that I was the Chair of Law Access WA for a period of time; indeed up until the time of my appointment to this Court.
Law Access, while it is an independent company, has as its sole member the Law Society of Western Australia. I do not understand Mr Criddle to assert that Law Access, or my sitting on the Board of Law Access in and of itself, is relevant other than demonstrating some relationship that I have with the Law Society.
The third matter which Mr Criddle submitted was by reference to the ceremonial sitting of my welcome to this Court. In remarks made by the President of the Law Society, Ms Wilkinson said (and this passage was handed up in Court by Mr Criddle):
Your Honour, you are remembered with great affection at the Law Society, and in relation to your appointments, your Honour, well, I can't tell you how pleased we all are for you. At the Law Society, we feel we have a special relationship with you.
From that quotation, as I understand it, Mr Criddle derives his description of a special relationship in [4.1] of his minute.
Mr Criddle handed up an extract of the High Court's decision in CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76. It involved a case where an administrative decision‑maker was sent irrelevant but damaging information about an applicant who was making an application before her. Kiefel CJ and Gageler J (as his Honour then was) at [28] stated that in those circumstances:
… information consciously and conscientiously discarded might still sometimes have a subconscious effect on even the most professional of decision-making.
Mr Criddle also handed up an extract from the High Court's decision in British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283 where at [38] French CJ cited, relevantly, from the judgment of Deane J in Webb v The Queen[2] to the effect that there were at least four distinct, though sometimes overlapping, main categories of case where the impartiality of a Court may be or may appear to be compromised. The third of those was by association, where the judge has a direct or indirect relationship, experience or contact with a person or persons interested in or otherwise involved in the proceedings.
[2] Webb v The Queen (1994) 181 CLR 41 [74].
As I understand it, the plaintiff relied on both the quoted passages from CNY17 and British American Tobacco Australia Services to assert that the relationship he says I have with the Law Society would lead a reasonable observer to consider that there may be an apprehension of bias.
The plaintiff was very careful to say he was not making an assertion as to actual bias, but rather an assertion as to apprehended bias.
In all of the circumstances, I do not consider that the relevant test for apprehended bias has been met.
In particular, I do not consider that the relationship that I had with the Law Society, such as it is, would give rise to any apprehension in the relevant sense. In those circumstances, I refused Mr Criddle's oral application for recusal.
I interpolate to say here that at the conclusion of giving these oral reasons, Mr Criddle stated that:
1.he accepted that I had no knowledge that the Law Society was involved prior to the hearing on 28 August 2024;
2.in those circumstances he did not consider there could be any apprehension of bias; and
3.he wished to withdraw his application.
Notwithstanding that development, I have considered it appropriate to record Mr Criddle's argument, my position factually and the reasons I refused his application as he remains self‑represented and may wish to consider the matter further.
These are my short reasons for making Orders in terms of the defendant's minute.
The plaintiff's minute is, with respect, misconceived. A writ of certiorari is not available against a judgment of a Judge of this Court.
In that respect I refer to Re Gray; Ex parte Marsh (1985) 157 CLR 351 at pages 386 - 387 in the judgment of Deane J and the High Court decision in Craig v South Australia(1995) 184 CLR 163 at pages 174 ‑ 175.
And I refer to the way that those decisions have been understood in the Court of Appeal in this State in R vRoddan (No. 2) (1996) 17 WAR 50 [54] and Re Birmingham DCJ; Ex parte Agapis [2014] WASCA 197 [14].
So, with respect, the plaintiff's application that there should be a pause on the making of the orders to allow him to apply for a writ of certiorari proceeds on a misapprehension.
In any event, if the writ were available, it would only be available once orders had been made.
In relation to the grounds which Mr Criddle proposed for the grant of certiorari I have already dealt with [4.1] of his minute in the recusal application and I do not repeat any of that.
In relation to [4.2] and [4.3], the plaintiff referred me to Jones v The Architects Board of Western Australia [2004] WASCA 219 and, in particular, I was referred to paragraphs [26] and [27]. The plaintiff did so on the basis that he felt that he was unable to advance his submissions because of the questions I asked and the interruptions I made during the course of the hearing on 30 May 2024.
Whether the interactions that I had with the plaintiff on 30 May 2024 are such that a fair minded lay observer might reasonably apprehend that I was not bringing an impartial mind to the resolution of the question to be decided, necessarily it seems to me to be a matter to be decided in another place.
I can only observe that before the hearing on 30 May 2024 I had read the plaintiff's written submissions in full and had read the cases on which he particularly relied in his written submissions.
One of the things I sought to do, and it will perhaps be for others to judge, in that hearing on 30 May 2024, was to explain to Mr Criddle how I understood the advocate's immunity to work so as to give him an opportunity to respond to that.
In any event, [4.2] or [4.3] would not support, as I understand it, a writ of certiorari but may support a ground of appeal.
On those bases, there seems to me to be no reason not to make orders pending the application for a writ of certiorari.
So in all of those circumstances and for those reasons, I will make orders in terms of the defendant's minute of 23 August 2024.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JC
Associate to the Honourable Justice Howard
2 SEPTEMBER 2024