Jafari v 23 Developments Pty Ltd; Jafari v Alderuccio (No 1)
[2017] VSC 193
•7 APRIL 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
S CI 2010 02148
| KOUROSH JAFARI (ON HIS OWN BEHALF AND AS TRUSTEE OF THE ESSENCE UNIT TRUST) | Plaintiff |
| v | |
| 23 DEVELOPMENTS PTY LTD (ACN 112 616 976) & ORS | Defendants |
S CI 2011 01274
| KOUROSH JAFARI (ON HIS OWN BEHALF AND AS TRUSTEE OF THE ESSENCE UNIT TRUST) | Plaintiff |
| v | |
| JOHN ALDERUCCIO AND BRUNO ALDERUCCIO (TRADING AS ALDERUCCIO SOLICITORS) & ANOR | Defendants |
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JUDGE: | ELLIOTT J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 7 APRIL 2017 |
DATE OF RULING: | 7 APRIL 2017 |
DATE OF JUDGMENT: | 21 APRIL 2017 |
CASE MAY BE CITED AS: | JAFARI v 23 DEVELOPMENTS PTY LTD; JAFARI V ALDERUCCIO (NO 1) |
MEDIUM NEUTRAL CITATION: | [2017] VSC 193 |
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PRACTICE AND PROCEDURE – Application for recusal – Actual or perceived bias – Personal, profession and financial relationships – Self-represented litigant – Application dismissed.
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APPEARANCES (S CI 2010 02148): | Counsel | Solicitors |
| For the Plaintiff | In Person | |
| For the First and Second Defendants | Ms B Evert (solicitor) | Holman Webb Lawyers |
| For the Third Defendant | Ms H Stokes (solicitor) | Obst Legal |
| For the Fourth Defendant | No appearance | |
| For the Fifth Defendant | Mr M Lhuede (solicitor) | Piper Alderman |
APPEARANCES (S CI 2011 01274): | Counsel | Solicitors |
| For the Plaintiff | In Person | |
| For the First Defendants | Mr N De Young | Minter Ellison |
| For the Second Defendant | Mr M Lhuede (solicitor) | Piper Alderman |
HIS HONOUR:
A. Introduction
These proceedings arise out of an alleged thwarted development of 3 properties located at Buckley Street, Seddon (“the Land”), and owned by the plaintiff in each proceeding, Kourosh Jafari (“Jafari”), and his company, 63 Buckley Street Pty Ltd (in liquidation) (“the Company”). The Company is a defendant in both proceedings.[1]
[1]Both proceedings were initiated by Jafari and the Company jointly. For reasons unnecessary to go into, on 15 July 2016, it was ordered in both proceedings that the Company be removed as a plaintiff and added as a defendant.
In the first proceeding (“the 23 Developments Proceeding”), Jafari alleges he and the Company were in a partnership or joint venture with the first defendant, 23 Developments Pty Ltd, and the second defendant, Mario Pizarro, to develop the Land. He seeks a declaration that an interest in the Land is held on trust for himself and the Company. Jafari is also seeking damages for alleged representations made to him in relation to the partnership or joint venture, including by a lawyer.[2]
[2]This is a very broad summary and is not intended to identify all the issues in the 23 Developments Proceeding. Such an exercise is unnecessary for the purposes of the application.
In the second proceeding (“the Alderuccio Proceeding”), Jafari contends that the first defendants, John and Bruno Alderuccio (trading as “Alderuccio Solicitors”), improperly lodged caveats over 2 of the properties comprising the Land, as a result of which he and the Company were prevented from developing the Land. Jafari claims he and the Company suffered loss and damage as a result, and he seeks damages for lost development opportunities, amongst other things.[3] The allegations in the Alderuccio Proceeding arise out of an earlier proceeding, concerning conduct that was the subject of a trial and determination in this court.[4]
[3]This summary of the Alderuccio Proceeding is also broad.
[4]Bloomingdale Holdings Pty Ltd v 63 Buckley Street Pty Ltd [2008] VSC 168 (Hargrave J).
By summons filed 4 April 2017 in the Alderuccio Proceeding, Jafari sought an order that I recuse myself from the further hearing of that proceeding, and an order that the Alderuccio Proceeding be “heard and determined by an Auxiliary Justice from New South Wales and jury appointed by her Honour Chief Justice of the Supreme Court of Victoria”.
At the hearing of the summons, Jafari indicated that he made the same application in the 23 Developments Proceeding. As the active parties to both proceedings were before the court,[5] the hearing proceeded in respect of both.[6]
[5]The fourth defendant in the 23 Developments Proceeding, the Registrar of Titles, is not taking an active part in that proceeding and was not represented at the hearing.
[6]No objection to this approach was taken until shortly after I delivered my oral ruling. At that point, Jafari indicated his intention had been to “see how you treat this application first” (ie. in the Alderuccio Proceeding) before making the same application in the 23 Developments Proceeding. This was not the position conveyed to the court during the hearing. On the contrary, not only did Jafari reject the suggestion that the application was only made in the Alderuccio Proceeding, but the court confirmed Jafari’s position, namely that the application was made in both proceedings before submissions were made, and then all represented defendants in both proceedings made submissions with respect to the application without any objection.
Although the hearing was primarily focused on whether I should recuse myself, Jafari made submissions in respect of any Victorian judge who may be expected to take over the management of the proceedings. In essence, he submitted he could not get a fair trial from a Victorian judge. It was on that basis that he sought the appointment of a judge from New South Wales. As the need to consider any mechanism by which a judge from interstate would be able to determine the proceedings would not arise unless Jafari were successful in his recusal applications, I proposed that the court deal with those matters first.
On 7 April 2017, Jafari’s recusal applications in both proceedings were dismissed, on the basis that reasons would subsequently be published. It followed there was, and is, no need to specifically address the question whether a judge from outside of the jurisdiction should hear and determine the proceedings.
B. The parties’ contentions
Jafari’s arguments in support of his recusal applications involved 3 core contentions.
The first, and primary, contention was that the personal, profession and financial relationships between members of the judiciary, the Melbourne legal profession and the Legal Practitioners’ Liability Committee,[7] mean that no Victorian judge is capable of deciding the proceedings impartially or of fairly discharging her or his duties in doing so. Jafari contended the fact that all Victorian judges “were members of the [Legal Practitioners’ Liability Committee] while acting as lawyers” was of particular importance in this regard.
[7]Solicitors appointed by the Legal Practitioners’ Liability Committee have the conduct and control of the first defendants’ defence in the Alderuccio Proceeding.
The second contention, argued in support of the first and as its own ground, was that the history of the proceedings, and Jafari’s related proceedings in this court, demonstrate that Victorian judges are incapable of adjudicating Jafari’s claims impartially. To this end, in his affidavit affirmed in support of his summons, Jafari listed numerous proceedings with which he has been involved, and named 15 judges and associate judges of the Supreme Court, including the Chief Justice, as being direct subjects of his complaint. Those complaints include, for example, situations where:
(1) His versions of events has not been accepted by the court.
(2) The outcome of a proceeding has not been in his favour, despite Jafari having invested considerable time and effort into it.
(3) Significant costs orders have been made against him.
Finally, in respect of my own involvement, the third contention was that, although I had previously demonstrated “100 per cent impartiality” in a proceeding brought against Jafari by OPI Pacific Finance Pty Ltd in 2013,[8] at some time following the discontinuance of that proceeding “[my] impartiality changed”. According to Jafari, this change was visible in my dismissal of an earlier application by him to join certain alleged “concurrent wrongdoers” to the Alderuccio Proceeding.[9] As he put it, “[d]espite all the information and facts provided in [his] affidavit, they were ignored (as always) and [his] application was unfairly dismissed with enormous amount of costs against [him]”.[10]
[8]S CI 2013 03039.
[9]Jafari v Alderuccio [2015] VSC 684.
[10]There was no application made by Jafari for leave to appeal from this decision.
For completeness, Jafari also contended, perhaps in the alternative, that I should recuse myself because of my own alleged reputation for impartiality. Put simply, he contended that I had developed a reputation in the community for being an honest judge and a person of integrity and, were I required to find in favour of the defendants, that reputation would inevitably be diminished. As the relevant legal principles are concerned with demonstrating the fact or apprehension of an absence of impartiality, and not the opposite, I do not propose to deal with this submission beyond stating it provides no proper basis for a recusal application.
In response, the first defendants in the Alderuccio Proceeding submitted, by reference to relevant authorities, that the material before the court provided no basis for me to recuse myself from hearing and determining that proceeding. This submission was adopted by all of the represented defendants in both proceedings.
C. Principles to be applied
The authorities concerning when a judge must recuse herself or himself from a case are well established. The High Court set out the basic principle in Bienstein v Bienstein:[11]
A judge is disqualified from determining a case if the judge is biased or a party or a member of the public might reasonably apprehend that the judge is biased. Bias exists if the judge might not bring an impartial and unprejudiced mind to the resolution of the issues.
Further, a judge should not disqualify herself or himself “unless substantial grounds are established”.[12]
[11](2003) 195 ALR 225, 231 [30] (McHugh, Kirby and Callinan JJ). For an elaboration of the relevant principles, see AJH Lawyers Pty Ltd v Careri (2011) 34 VR 236, 241–243 [17]–[25] (Warren CJ, Hansen JA and Almond AJA).
[12]At 233 [36].
Bienstein v Bienstein involved long-running proceedings in the Family Court. Following hotly-contested hearings seeking maintenance from her husband to look after their disabled adult daughter, Mrs Bienstein, herself a self-represented litigant, applied to remove the proceedings into the High Court of Australia. Appearing initially before Hayne J, Mrs Bienstein applied for his Honour to disqualify himself on the basis of apprehended bias and a conflict of interest.
The basis for the application was founded upon “allegations of serious and possibly criminal misconduct in the Melbourne Registry of the Family Court and in the bodies which are supposed to regulate the Legal Profession in the state of Victoria”.[13] Based on this, it was contended if Hayne J sat in judgment of the removal application there would be a “real possibility of an actual conflict of interest and … a public perception of a conflict of interest and of consequent bias.”[14] It was further contended that there was a possibility of a conflict of interest and perception of bias because his Honour “stems from the Melbourne legal fraternity and is likely to have past and continuing associations and friendships with the solicitors, barristers, serving and retired Judges and Registrars who are subject to [Mrs Bienstein’s] very serious complaints”.[15]
[13]At 229 [18].
[14]Ibid.
[15]Ibid.
In dismissing Mrs Bienstein’s appeal from Hayne J’s refusal to recuse himself, the High Court canvassed the applicable legal tests and explained, relevantly for these proceedings: [16]
[A] reasonable apprehension of bias may exist where the presiding judge has a substantial personal relationship with a party to, or a person involved in, proceedings or a substantial personal relationship with a member of the family of that party or person. But absent such relationships or others like them, it is absurd to suggest that a reasonable apprehension of bias can exist merely because a person involved in the proceedings comes from a city where the judge once practised professionally or because the judge may have had professional dealings with that person in the course of professional practice … [O]rdinarily interaction (social or otherwise) between a practising lawyer who becomes a judge and other members of the legal community in that city does not itself give rise to an apprehension of bias if one of those members is involved in proceedings before the judge.
In short, the mere fact that a judge was part of the same profession as a litigant who appears before that judge is not a proper basis for the judge to recuse herself or himself.
[16]At 232 [33].
The underlying rationale of the rule requiring a judge to disqualify herself or himself where she or he is biased, or might reasonably been seen to be biased, is clear. But as Mason J explained in Re JRL; Ex parte CJL,[17] that rationale must not be applied too quickly:
Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.
[17](1986) 161 CLR 342, 352.7.
It follows that although a judge must recuse herself or himself where substantial grounds or a proper reason to do so is demonstrated, “that duty is met by an equal duty not to disqualify himself or herself save for a proper reason”.[18]
[18]Bodycorp Repairers Pty Ltd v Maisano (No 10) [2016] VSC 599, [9] (Riordan J).
D. Consideration
The grounds cited by Jafari fit squarely within the categories of relationships the High Court found in Bienstein v Bienstein were not sufficient to establish a reasonable apprehension of bias, or actual bias, on the part of a judge.
Further, although the history of these proceedings (and related proceedings) discloses that Jafari has been unsuccessful in some aspects of prosecuting his claims, that fact alone does not establish any bias, apprehended or otherwise, on the part of the court or any of its judges.
It is unavoidable that self-represented litigants in our legal system will often be placed at a disadvantage when prosecuting or defending legal claims. To an appropriate extent, the court attempts to remedy this disadvantage by assisting a self-represented litigant in the conduct of their claim.[19]
[19]Loftus v Australia and New Zealand Banking Group Ltd (No 2) [2016] VSCA 308, [27]–[28] (Redlich, Osborn and McLeish JJA), quoting Trkulja v Markovic [2015] VSCA 298, [39] and [44] (Kyrou and Kaye JJA and Ginnane AJA). See also Hamod v State of New South Wales [2011] NSWCA 375, [309] (Beazley JA, with whom Giles and Whealy JJA agreed), cited in Trkulja v Markovic [2015] VSCA 298, [34].
Although to an extent Jafari is then correct to submit that it is the “court’s duty to protect” him, he cannot reasonably expect the court to advocate on his behalf, let alone to give his arguments greater weight than they would otherwise merit.[20] It follows that references to previous unsuccessful applications cannot, without more, provide a rational basis for inferring bias, or apprehended bias, on the part of a judge.
[20]Cf Trkulja v Markovic [2015] VSCA 298, [41] (Kyrou and Kaye JJA and Ginnane AJA).
With respect to submissions directed specifically to me, Jafari did no more than identify decisions I have made in the past which were contrary to the then position contended for by Jafari.[21] To be clear, Jafari has not articulated any other grounds for concluding that I have approached my task with anything other than an impartial and unprejudiced mind, or that a party or a member of the public might reasonably apprehend that I have done so.
[21]See also par 11 above.
Accordingly, Jafari’s contentions do not disclose any “substantial grounds” or a “proper reason” for me to recuse myself from determining the proceedings, and it follows I am bound to not recuse myself.
A necessary consequence of my finding that I should not recuse myself is that Jafari’s contentions in respect of the broader Victorian judiciary, of which I am a part, cannot be accepted. There is therefore no need to consider any mechanism by which Jafari’s claims could be heard by a judge from outside of the jurisdiction.
In conclusion, it is for these reasons that Jafari’s applications to have me recuse myself, and for a New South Wales judge and jury to be appointed to hear and determine the proceedings, were dismissed in each of the proceedings.
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