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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Criddle v Monck [No 2]

Details

AGLC: Criddle v Monck [No 2] [2024] WASC 315
Case: [2024] WASC 315
Decision Date: 2 SEPTEMBER 2024

CaseChat Overview and Summary

Criddle v Monck [No 2] is a case before the Supreme Court of New South Wales, where the plaintiff, Mr Criddle, and the defendant, Monck, were engaged in a dispute. The primary issue in this case revolved around the recusal of the Judge presiding over the case and the appropriateness of final orders after the reasons for the decision had been published. Mr Criddle sought to delay the final orders to allow for the possibility of seeking a writ of certiorari, which he believed would address his concerns about potential bias on the part of the Judge.

The legal issues before the court included whether the Judge had an impermissible relationship with the Law Society that could lead to an apprehension of bias, and whether a writ of certiorari was an appropriate remedy against a judgment of this Court. Mr Criddle relied on excerpts from the High Court decisions in CNY17 v Minister for Immigration and Border Protection and British American Tobacco Australia Services Limited v Laurie to argue that the Judge's association with the Law Society could lead a reasonable observer to suspect bias. However, the Judge found that Mr Criddle had not met the threshold for apprehended bias.

The court dismissed Mr Criddle's application for recusal, finding that his relationship with the Law Society did not give rise to any apprehension of bias. The court also noted that Mr Criddle had withdrawn his recusal application after acknowledging that he had no knowledge of the Judge's association with the Law Society prior to the hearing. The court concluded that a writ of certiorari was not available as a remedy against a judgment of this Court, referencing relevant High Court decisions. The final orders were made in terms of the defendant's minute, and the plaintiff's minute was deemed misconceived.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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; and3.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.