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…

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 Ibrahim v Wadworth [No 2]

Details

AGLC: Ibrahim v Wadworth [No 2] [2009] WASC 356
Case: [2009] WASC 356
Decision Date: 2 DECEMBER 2009

CaseChat Overview and Summary

In the case of Ibrahim v Wadworth [No 2], the plaintiff sought to disqualify the judge on the basis of perceived bias. The dispute revolved around the judge's conduct during the proceedings, with the plaintiff alleging that the judge displayed bias through interactions with the plaintiff and the defendant's solicitor, as well as through the judge's note-taking and interpretation of the plaintiff's submissions.

The central legal issue before the court was whether the judge's conduct demonstrated actual or apparent bias, which would necessitate the judge's disqualification. The plaintiff argued that the judge's interactions and note-taking, along with the interpretation of the plaintiff's submissions, indicated a biased approach. The court had to determine if a fair-minded observer, with knowledge of the facts, might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the case.

The court found that the judge's conduct did not demonstrate actual or apparent bias. The judge's note-taking was for the purpose of understanding the plaintiff's case, and the judge's questions during the plaintiff's submissions were aimed at ensuring clarity and proper presentation of the case. The court concluded that the plaintiff's allegations of bias were unfounded and did not warrant disqualification of the judge.

The court dismissed the plaintiff's application for disqualification, affirming that the judge's conduct was appropriate and did not indicate any form of bias that would undermine the fairness of the proceedings.

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

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.