Ibrahim v Wadworth [No 2] - [2009] WASC 356

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: IBRAHIM -v- WADWORTH [No 2] [2009] WASC 356

CORAM: LE MIERE J

HEARD: 5 NOVEMBER 2009

DELIVERED : 2 DECEMBER 2009

FILE NO/S: CIV 2005 of 2009

BETWEEN: TAREK IBRAHIM
Plaintiff
AND
MAGAN WADWORTH
Defendant

Catchwords:

Courts and judges - Judges - Plaintiff's application to disqualify judge for perception of bias - Whether a fair-minded lay observer with knowledge of the material objective facts might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the question in issue - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff: In person
Defendant: Mr S F Popperwell

Solicitors:

Plaintiff: In person
Defendant: Pynt & Partners

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

Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71; (1997) 151 ALR 505
Webb v The Queen (1994) 181 CLR 41

LE MIERE J:

Introduction

On 29 October 2009 the plaintiff filed a chamber summons applying for an order that I disqualify myself for perception of bias.
The defendant had earlier applied to set aside the writ and service of the writ or alternatively to strike out the indorsement of writ and dismiss the action. The plaintiff had earlier applied for an extension of time to commence the action. The plaintiff's application for an extension of time to commence the action and the defendant's applications were heard on 19 October 2009. On 5 November 2009 I delivered my reasons for decision on those applications. The defendant moved for orders to be made in accordance with those reasons. The plaintiff then informed me, in effect, that his application for disqualification should have been determined before I gave judgment on the defendant's applications and the plaintiff's application for extension of time to commence the action.
I informed the plaintiff, in accordance with my understanding, that the court staff had originally indicated to the plaintiff that his application for disqualification and the delivery of the reserved judgments would be listed for 4 November 2009 but neither the application for disqualification nor the delivery of the reserved judgments was listed on that date because it was unsuitable to the plaintiff. I further informed the plaintiff, as it was my understanding, that his application for disqualification had not been listed for hearing on 5 November 2009 because it was not suitable to him. The filed copy of the plaintiff's chamber summons was initially indorsed with a return date and time of 4 November 2009 at 2.15 pm. The indorsement was then altered to 5 November at 10 am and finally to 23 November at 10 am.
The plaintiff informed me that he had told the court staff that he did not want his application for disqualification listed on 5 November 2009 because he wanted more time to prepare it but that he wanted his application for disqualification to be heard before I delivered reasons for decision on the outstanding applications. In those circumstances I invited the plaintiff to proceed with his application for disqualification before I made any orders on the defendant's application and the plaintiff's application for an extension of time to commence the action.

The bias rule

The test to be applied in determining whether a judge is disqualified by reason of the appearance of bias, as distinct from proved actual bias, is whether, in all the circumstances, a fair-minded lay observer with knowledge of the material objective facts might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the question in issue: Webb v The Queen (1994) 181 CLR 41, 67 (Deane J).

The plaintiff's case

The plaintiff's case is set out in an affidavit he swore on 2 November 2009. In that affidavit the plaintiff alleges both actual bias and a reasonable apprehension of bias. The plaintiff also made oral submissions. His oral submissions largely covered the same matters as are raised by the plaintiff in his affidavit.
The plaintiff submits that I was actually biased. Actual bias exists where the judge has pre-judged the case against the plaintiff, or acted with such partisanship or hostility as to show that the judge had a mind made up against the plaintiff and was not open to persuasion in favour of the plaintiff.
The plaintiff says that actual bias was demonstrated by my conduct towards him. I am not conscious of being prejudiced against the plaintiff or of having prejudged the applications against the plaintiff. But that is not the end of the matter. In Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71; (1997) 151 ALR 505 North J said:
A decision‑maker may not be open to persuasion and, at the same time, not recognise that limitation. Indeed, a characteristic of prejudice is the lack of recognition by the holder … Actual bias may exist even if the decision‑maker did not intend or did not know of their prejudice, or even where the decision‑maker believes, and says, that they have not prejudged a case (135).
I did not consciously prejudge the case or bring a prejudiced mind to the resolution of the issues before me. Nevertheless, the plaintiff says that such bias is apparent from what occurred. The plaintiff refers to some specific matters.
The plaintiff says that the defendant's solicitor hardly said much during the proceeding because I was doing the job for him arguing excessively with the plaintiff and trying to find holes in his evidence to defeat his application. I engaged in extensive discussion with the plaintiff for the purpose of trying to ensure that I understood his case and to give him an opportunity to respond to matters that appeared to be adverse to his case. Those matters do not demonstrate actual or apparent bias.
The plaintiff submits that I wrote down some notes whilst the plaintiff was talking. The plaintiff submits that the notes I made were only to note issues adverse to the plaintiff's case. I did make some notes during the course of the plaintiff's submissions. That was for the purpose of assisting me to understand and recall the plaintiff's submissions. That does not demonstrate actual or apparent bias.
The plaintiff complains that I interpreted everything he said in a way to defeat his application. The plaintiff says that an example is that when the plaintiff said that he had 10 appeals or so in the Supreme Court I argued that if the plaintiff had the time to file the 10 appeals then he had the time to start the present action before the one year limit expired.
The transcript discloses that in the course of his submissions the plaintiff said that he had brought at least 10 appeals to the Supreme Court from judgments of a judge of the Family Court. I then said to the plaintiff:
It might be said against you that you were able to commence those proceedings. You have been able to present, you say, about 10 proceedings in this court. Your health did not prevent you doing that. It might be thought why would your health prevent you commencing these proceedings when it did not prevent you commencing about 10, on your count, appeals to this court (ts 65).
The plaintiff then responded to that question. I do not find any evidence of prejudice or prejudgment in that exchange.
The plaintiff complains that I failed to understand, and refuse to understand, a number of aspects of his case. I have read the transcript of the hearing. I find that the plaintiff was given a fair and proper opportunity to present his case. I intervened in the course of the plaintiff's submissions to ask questions for the purpose of ensuring that I understood the plaintiff's case. I do not accept the plaintiff's submission in that respect.
The plaintiff complains that I stated that I 'did not have many dealing with the limitation action in relation to the defamation cases' and that the plaintiff had never before met a judicial officer who did not have much experience. The plaintiff appears to be referring to my exchange with counsel for the defendant when the defendant's and plaintiff's applications came before me on 3 August 2009. On that occasion counsel for the defendant referred to the factors the court might take into account in exercising a discretion under s 40(2) of the Limitation Act. In response I said to counsel:
Well, that raises an issue. I have only dealt with this section once before and in the end the parties came to the same view, so I didn't have to go very far, but my initial view, which the parties then concurred in, was that once the power is enlivened under s 40(2) there is no discretion. That is, the section says, 'if satisfied', so the question is ‑ no discretion involved in that. The court is either satisfied or its not (ts 18).
That exchange does not show any prejudice or prejudgment against the plaintiff. To the extent that there was any predisposition it was a predisposition in favour of the plaintiff's case. That is because the provisional view I expressed was that if the condition for the exercise of the power under s 40(2) of the Limitation Act 2005 (WA) is enlivened then the court must exercise the power in favour of the plaintiff.
The plaintiff submits that during the course of the hearing on 19 October 2009 I passed a note to the court orderly and the orderly subsequently left the court and then returned in the company of a security officer. A fair‑minded lay observer with knowledge that a security officer was present during a court hearing, whether at the instigation of the judge or not, would not for that reason entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the questions in issue.
The plaintiff submits that I 'allowed the defendant's solicitor to interrupt but when the plaintiff thought he stopped talking and started to talk he became upset'. At the commencement of the hearing on 19 October 2009 the plaintiff complained that he had received from the defendant an outline of submissions that morning and had not had enough time to consider it. I stated to the plaintiff that I had not made any directions for the filing or service of written submissions. I asked the plaintiff what it was in the submissions that took him by surprise and which he would want to respond to. The following exchange then occurred:
LE MIERE J: I want to see in what way you are prejudiced by anything that might be there and what it is that you want to respond to so let's go through them and see what it is in those submissions that is new to you and which you need time to respond to. The first matter is that in the submissions Mr Popperwell ‑ ‑ ‑
IBRAHIM, MR: That's not the point, your Honour. That's not the point. The point I'm trying to make to the court is I'm a litigant. I'm not legally represented. That's the first thing. That's a tactic that his client employed in the Family Court all along. She served things always when I'm in the court. In the same day I'm appearing in the court she serves affidavit.
LE MIERE J: Yes.
IBRAHIM, MR: That's the same tactic. If it's been filed on the 8th, why hasn't it been served on me on the 8th or the 9th? Why has been served on me today?
LE MIERE J: Can you just give me a minute, please?
IBRAHIM, MR: If the court's going to use this submission, then I'm entitled for adjournment. I can't really respond to some legal ‑ ‑ ‑
LE MIERE J: What we have to do with it is this: I did not make any orders saying the time by which any written submissions were to be filed. Mr Popperwell could come along and make such submissions as he saw fit. He chose to put them in writing so that you and I have some, albeit limited notice, of what it is he is going to say. There is no order that Mr Popperwell is in breach of, but what I want to look at is the substantive fairness and justice of the matter. So what I want to see is whether there is something that is unfair to you in these submissions.
IBRAHIM, MR: What's unfair to me is ‑ ‑ ‑
LE MIERE J: Wait a minute, please, Mr Ibrahim.
IBRAHIM, MR: It's unfair ‑ ‑ ‑
LE MIERE J: Wait a minute, please, Mr Ibrahim. I have not finished speaking.
IBRAHIM, MR: Well, you paused there for ‑ - ‑
LE MIERE J: Mr Ibrahim, would you just - - ‑
IBRAHIM, MR: Your Honour, you paused there so I thought you finished. If you pause, I thought you finished talking.
LE MIERE J: Now, Mr Ibrahim, I am looking to see if there is some real matter of unfairness or injustice, not something that is some technical point somebody can jump on. I want to see whether there is some real injustice or unfairness so what I want to do is look in Mr Popperwell's submissions to see what in there is something that you did not know or should not have known and something which you have not had an opportunity to deal with and which you should have an opportunity to deal with.
If there is nothing in those submissions that prejudices you, which is unfair to you, then it does not matter that you have not seen them before. If they just repeat things that we have been through before, it does not matter that you have not seen them before. So what I want to do is look at those submissions and see what in there is something which you did not have notice of and something which you properly anticipating matters ought not to have anticipated and dealt with so that it is unfair to you.
The mere fact that there is a document filed does not of itself mean there is any unfairness to you. It is only if there is something in there that is unfair that we need to go to. So we need to look at this document and see what is there in the document that raises something unfair to you. Okay (ts 49 ‑ 50).
A fair‑minded lay observer present during that exchange would not, by reason of the plaintiff having interrupted me and my response to that interruption, entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the questions in issue.
It is necessary to consider all of the matters referred to by the plaintiff in combination as well as each matter taken separately. I have given careful consideration to the plaintiff's affidavit. I listened carefully to the plaintiff's oral submissions. I have read the transcript of the proceedings before me on 3 August and 19 October 2009. I find that a fair minded lay observer with knowledge of the matters before the court on those occasions and having regard to the matters raised by the plaintiff would not entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the questions in issue.
It is the duty of a judge of this court to hear and determine matters listed for hearing before him or her. The judge should only disqualify him or herself if satisfied that he has not, or will not, bring an impartial and unprejudiced mind to the resolution of the questions in issue or that a fair-minded lay observer with knowledge of the material objective facts might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the questions in issue. I am not satisfied as to either of those matters. I decline to disqualify myself. The plaintiff's application will be dismissed.