Mahmoud v Australian Broadcasting Corporation (No 2)

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Mahmoud v Australian Broadcasting Corporation (No 2) [2017] NSWSC 763
Hearing dates: 2 June 2017
Decision date: 02 June 2017
Jurisdiction: Common Law
Before: McCallum J
Decision:
Plaintiff’s recusal application refused

Catchwords: PRACTICE AND PROCEDURE – application to have judge recuse herself on the grounds of actual bias – where judge had previously refused an application by the plaintiff – plaintiff alleging that earlier judgment discloses actual bias
Cases Cited: Mahmoud v Australian Broadcasting Corporation [2017] NSWSC 85
Category: Procedural and other rulings
Parties: Tosson Hussein Mahmoud (plaintiff)
Australian Broadcasting Corporation (first defendant)
Claire Aird (second defendant)
Fairfax Media Publications Pty Ltd (third defendant)
PT. Kompas Cyber Media (fourth defendant)
Security Business Bank of Sand Diego (fifth defendant)
Facebook, Inc. (sixth defendant)
Facebook Australia (seventh defendant)
Yahoo!7 Pty Ltd (eighth defendant)
Google Australia Pty Ltd (ninth defendant)
Yahoo! Inc. (tenth defendant)
Yahoo!7 Pty Limited (eleventh defendant)
Twitter Inc. (twelfth defendant)
YouTube, LLC (thirteenth defendant)
Veooz.com (fourteenth defendant)
Abix (fifteenth defendant)
ANTARA (sixteenth defendant)
Bakrie & Brothers Corporation (seventeenth defendant)
CT Corp (eighteenth defendant)
Emtek (nineteenth defendant)
PT Komopas Gramedia Group (twentieth defendant)
PT. Niskala Media Tenggara Company (twenty-first defendant)
Media Antarkota Jaya, PT (twenty-second defendant)
Sharp Corporation Headquarters (twenty-third defendant)
Media Troup (twenty-fourth defendant)
The MNC Media Group (twenty-fifth defendant)
The Tempo Media Group (twenty-sixth defendant)
Abdurizal Bakrie’s Visi Asia Media Group (twenty-seventh defendant)
BBC Indonesia (twenty-eighth defendant)
The British Broadcasting Commission (twenty-ninth defendant)
Fairfax Digital Australia & New Zealand Pty Ltd (thirtieth defendant)
Representation:
Counsel:
Plaintiff self-represented
L Barnett (first, second and eleventh defendants to amended statement of claim)
L Norman, solicitor (third and thirtieth defendants to amended statement of claim)
Solicitors:
Australian Broadcasting Corporation (first and second defendants to amended statement of claim)
Johnson Winter Slattery (eleventh defendant to amendment statement of claim)
Banki Haddock Fiori (third and thirtieth defendants to amended statement of claim)

File Number(s): 2015/219421

Judgment

HER HONOUR: This is an action for defamation brought by Mr Tosson Mahmoud. The proceedings are in the Defamation List, which is ordinarily conducted by me. Earlier in the proceedings, Mr Mahmoud brought an application by notice of motion filed 31 January 2017 seeking injunctive relief. I determined that application on 3 February 2017, publishing my reasons that date: see Mahmoud v Australian Broadcasting Corporation [2017] NSWSC 85.
The application for injunctive relief was refused. On the same date, I struck out the statement of claim with leave to re-plead. Mr Mahmoud has since filed an amended statement of claim as directed by me. The proceedings are before the Court today for further argument or directions following the filing of the amended pleading.
When the matter was called today, Mr Mahmoud indicated that he wished to make an application requesting me to disqualify myself on the grounds of actual bias. It is appropriate to determine that application first.
The material relied upon in support of the application is identified in a letter dated 2 June 2017 sent by Mr Mahmoud to my chambers. The basis for the application is set out in a detailed written document headed "Main Annexure A" attached to that letter. The letter and annexure will be marked for identification “MFI1” and placed on the file.
“Main Annexure A” is headed:

The whole world is watching
The slow cold blooded murder continues

In the body of the document, the appearance of which suggests that it has been copied to the email addresses of a large number of world leaders (with some notable exceptions), Mr Mahmoud has addressed paragraph by paragraph the reasons given in my earlier judgment. Without descending to the detail of the argument, in short, Mr Mahmoud asserts that parts of the judgment reveal my alleged bias and corruption. I have had regard to all of the assertions set out in Main Annexure A. I am not persuaded that a basis has been established for me to recuse myself in the proceedings.
As I informed Mr Mahmoud during argument, I do not hold any bias against him. For completeness, I might also observe that, contrary to an assumption expressed in Mr Mahmoud’s written submissions, I am not a Christian.
The application is refused.

**********

Amendments

15 June 2017 - Amendment to solicitor details on cover sheet

In the Federal Court, the plaintiff, Mahmoud, sought to have the judge recuse herself from hearing his case against the Australian Broadcasting Corporation due to alleged actual bias. The nature of the dispute was a defamation claim against the defendant, a media organisation. The plaintiff alleged that the judge's previous refusal of his application demonstrated actual bias against him. This was the second application by the plaintiff to have the judge recused, following an earlier dismissal of his initial application.

The court was tasked with determining whether the judge's previous refusal to recuse herself constituted actual bias, warranting her removal from the case. The plaintiff argued that the judge's conduct in dismissing his earlier application revealed a pre-existing state of mind that demonstrated actual bias. The defendant, on the other hand, maintained that the judge's earlier decision did not reflect actual bias, and that the plaintiff's application was without merit.

In its decision, the court found that the judge's earlier judgment did not demonstrate actual bias. The court held that a judge's refusal to recuse herself, in and of itself, did not constitute a pre-existing state of mind that would give rise to actual bias. The court found that the plaintiff's application was not well-founded, and dismissed it. The court further found that the plaintiff had not demonstrated any circumstances that would warrant the judge's recusal, and that the plaintiff's application was an abuse of process. Consequently, the plaintiff's application to have the judge recuse herself was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	Mahmoud v Australian Broadcasting Corporation (No 2) [2017] NSWSC 763
Hearing dates:	2 June 2017
Decision date:	02 June 2017
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Plaintiff’s recusal application refused
Catchwords:	PRACTICE AND PROCEDURE – application to have judge recuse herself on the grounds of actual bias – where judge had previously refused an application by the plaintiff – plaintiff alleging that earlier judgment discloses actual bias
Cases Cited:	Mahmoud v Australian Broadcasting Corporation [2017] NSWSC 85
Category:	Procedural and other rulings
Parties:	Tosson Hussein Mahmoud (plaintiff) Australian Broadcasting Corporation (first defendant) Claire Aird (second defendant) Fairfax Media Publications Pty Ltd (third defendant) PT. Kompas Cyber Media (fourth defendant) Security Business Bank of Sand Diego (fifth defendant) Facebook, Inc. (sixth defendant) Facebook Australia (seventh defendant) Yahoo!7 Pty Ltd (eighth defendant) Google Australia Pty Ltd (ninth defendant) Yahoo! Inc. (tenth defendant) Yahoo!7 Pty Limited (eleventh defendant) Twitter Inc. (twelfth defendant) YouTube, LLC (thirteenth defendant) Veooz.com (fourteenth defendant) Abix (fifteenth defendant) ANTARA (sixteenth defendant) Bakrie & Brothers Corporation (seventeenth defendant) CT Corp (eighteenth defendant) Emtek (nineteenth defendant) PT Komopas Gramedia Group (twentieth defendant) PT. Niskala Media Tenggara Company (twenty-first defendant) Media Antarkota Jaya, PT (twenty-second defendant) Sharp Corporation Headquarters (twenty-third defendant) Media Troup (twenty-fourth defendant) The MNC Media Group (twenty-fifth defendant) The Tempo Media Group (twenty-sixth defendant) Abdurizal Bakrie’s Visi Asia Media Group (twenty-seventh defendant) BBC Indonesia (twenty-eighth defendant) The British Broadcasting Commission (twenty-ninth defendant) Fairfax Digital Australia & New Zealand Pty Ltd (thirtieth defendant)
Representation:	Counsel: Plaintiff self-represented L Barnett (first, second and eleventh defendants to amended statement of claim) L Norman, solicitor (third and thirtieth defendants to amended statement of claim) Solicitors: Australian Broadcasting Corporation (first and second defendants to amended statement of claim) Johnson Winter Slattery (eleventh defendant to amendment statement of claim) Banki Haddock Fiori (third and thirtieth defendants to amended statement of claim)
File Number(s):	2015/219421