Ninan v Valuer General (WA) [No 2] - [2016] WASCA 170

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: NINAN -v- VALUER GENERAL (WA) [No 2] [2016] WASCA 170

CORAM: BUSS P
NEWNES JA

HEARD: 13 SEPTEMBER 2016

DELIVERED : 13 SEPTEMBER 2016

PUBLISHED : 29 SEPTEMBER 2016

FILE NO/S: CACV 30 of 2016

BETWEEN: GEORGE NINAN
Appellant
AND
VALUER GENERAL (WA)
Respondent

ON APPEAL FROM:
Jurisdiction              :  STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram  :JUSTICE J C CURTHOYS (PRESIDENT)
Citation  :NINAN and VALUER GENERAL [2016] WASAT 38
File No  :DR 420 of 2015, DR 421 of 2015

Catchwords:

Practice and procedure - Whether any of the grounds of appeal has reasonable prospect of succeeding - Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i) - Whether members of court should recuse themselves - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr J M Misso

Solicitors:

Appellant: In person
Respondent: State Solicitor's Office

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

Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Ninan v Valuer General (WA) [2016] WASCA 120
Vakauta v Kelly (1989) 167 CLR 568

JUDGMENT OF THE COURT: On 13 September 2016, we made the following orders in this appeal:
1.The appellant's oral application made today that the judges of the court sitting today recuse themselves or be removed be dismissed;
2.The appellant's application dated 9 June 2016 for review of Registrar Bush's decision dated 3 June 2016 be dismissed;
3.The appellant's application dated 23 May 2016 be dismissed;
4.The appeal be dismissed;
5.The appellant is to pay the respondent's costs of the appeal, including any reserved costs, to be taxed if not agreed.
We said we would give reasons for our decision. These are the reasons.

Background

Shortly stated, the appeal arises from a decision of Curthoys J in the State Administrative Tribunal in which his Honour dismissed, as an abuse of process, two applications by the appellant and his wife seeking to review decisions of the respondent. An appeal notice was filed in this court, by the appellant alone, on 19 April 2016. The appellant requires leave to appeal: State Administrative Tribunal Act 2004 (WA), s 105(1).
The appellant subsequently filed an interim application, dated 23 May 2016, seeking, in effect, an order prohibiting any registrar from taking any steps to have the appeal dismissed 'prematurely'.
On 3 June 2016, the Court of Appeal Registrar issued a notice for the appellant to show cause why the appeal should not be dismissed pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (the Court of Appeal Rules) on the basis that none of the grounds of appeal had a reasonable prospect of succeeding.
The appellant responded with an interim application,…

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.

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Details

Case: [2016] WASCA 170
Decision Date: 29 SEPTEMBER 2016

CaseChat Overview and Summary

In this appeal, the appellant, who resides in Thailand, sought to challenge a decision of Curthoys J in the State Administrative Tribunal (Tribunal). The appellant and his wife had sought to review decisions of the respondent, the Valuer General of Western Australia, but the Tribunal dismissed their applications as an abuse of process. The appellant filed an appeal in the Court of Appeal, but the appeal was dismissed on the basis that none of the grounds of appeal had a reasonable prospect of success. The appellant subsequently filed various applications, including an application that the judges of the Court of Appeal recuse themselves or be removed. The Court of Appeal dismissed all of the appellant's applications and the appeal.

The appeal raised a number of issues, including whether any of the grounds of appeal had a reasonable prospect of success, and whether the judges of the Court of Appeal should have recused themselves or been removed. The Court of Appeal considered that the appellant's claims of actual bias and a reasonable apprehension of bias were without merit, and that the appellant's applications were an attempt to delay the proceedings. The Court of Appeal also considered that the appellant's claims of fraud and collusion were unsupported, groundless and absurd.

The Court of Appeal dismissed the appeal and all of the appellant's applications. The Court of Appeal considered that the appellant's claims of actual bias and a reasonable apprehension of bias were without merit, and that the appellant's applications were an attempt to delay the proceedings. The Court of Appeal also considered that the appellant's claims of fraud and collusion were unsupported, groundless and absurd. The Court of Appeal ordered that the appellant pay the respondent's costs of the appeal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

JUDGMENT OF THE COURT: On 13 September 2016, we made the following orders in this appeal:1.The appellant's oral application made today that the judges of the court sitting today recuse themselves or be removed be dismissed;2.The appellant's application dated 9 June 2016 for review of Registrar Bush's decision dated 3 June 2016 be dismissed;3.The appellant's application dated 23 May 2016 be dismissed;4.The appeal be dismissed;5.The appellant is to pay the respondent's costs of the appeal, including any reserved costs, to be taxed if not agreed. We said we would give reasons for our decision. These are the reasons. Shortly stated, the appeal arises from a decision of Curthoys J in the State Administrative Tribunal in which his Honour dismissed, as an abuse of process, two applications by the appellant and his wife seeking to review decisions of the respondent. An appeal notice was filed in this court, by the appellant alone, on 19 April 2016. The appellant requires leave to appeal: State Administrative Tribunal Act 2004 (WA), s 105(1). The appellant subsequently filed an interim application, dated 23 May 2016, seeking, in effect, an order prohibiting any registrar from taking any steps to have the appeal dismissed 'prematurely'. On 3 June 2016, the Court of Appeal Registrar issued a notice for the appellant to show cause why the appeal should not be dismissed pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (the Court of Appeal Rules) on the basis that none of the grounds of appeal had a reasonable prospect of succeeding. The appellant responded with an interim application, dated 9 June 2016, for the review of the decision of the registrar to issue the notice to attend to show cause. Those three matters were listed for hearing on 23 June 2016. Arrangements were made for the appellant, who lives in Thailand, to attend by telephone. On the first occasion, the court received an email from the appellant on the morning of the hearing saying that he was too ill to participate in the hearing. The matters were adjourned and subsequently relisted for hearing on 4 July 2016. Again arrangements were made for the appellant to attend by telephone. On that occasion, the appellant again sent an email to the court on the morning of the hearing saying that he was too ill to participate in the hearing. Attempts to contact the appellant on the telephone number he had provided for the hearing were unsuccessful. In the circumstances, we considered that the appellant's claim to be too ill to make oral submissions by telephone had all the hallmarks of a delaying tactic. We were also of the preliminary view that on the material then before us none of the grounds of appeal appeared to have a reasonable prospect of success. We concluded that a springing order should be made, giving the appellant a further opportunity to be heard if his claim of incapacity was well founded. The following orders were made:Unless by 4.00 pm on 14 July 2016 the appellant files and serves an affidavit sworn or affirmed by a registered medical practitioner which explains and confirms in detail:(a)the existence, nature and symptoms of the appellant's alleged illness as specified in his email of 4 July 2016; and(b)the impact of the alleged illness on the appellant's capacity to make submissions to the court by telephone,1.The appellant's application dated 9 June 2016 for review of Registrar Bush's decision dated 3 June 2016 is dismissed;2.The appellant's application dated 23 May 2016 is dismissed;3.The appeal is dismissed;4.The appellant is to pay the respondent's costs of the appeal to be taxed.

Ratio Decidendi

Legal Principle Established

Where a party alleges that actual bias exists, the party must show that the mind of the decision‑maker is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 [72]. As Gleeson CJ and Gummow J observed in that case (at [71]), the question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. An allegation of actual bias must be 'distinctly made and clearly proved': Jia Legeng [69]. The written reasons for our decision of 4 July 2016 made it clear that our view of the appellant's case was a preliminary view based on the written material filed to that date by the appellant. The appellant was provided with a further opportunity to address the court orally to persuade us otherwise. It is entirely proper for a court to express preliminary views so that the litigant can address the issues and problems thereby identified: Vakauta v Kelly (1989) 167 CLR 568, 571. We had not formed any final view on the matter and there is nothing in the reasons for our decision of 4 July 2016 or otherwise that might reasonably suggest we had. The assertions of a cover up of fraud were unsupported, groundless and absurd, and we will not dignify them with any comment beyond those we make below. While it is not clear that the appellant sought to rely upon a reasonable apprehension of bias, for completeness it is appropriate to deal with it. The test to be applied in determining whether a judge is disqualified by reason of the appearance of bias is whether a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to determine: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11]. That requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that a judge might not bring an impartial mind to bear upon the issues that are to be decided: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [67]. The onus of establishing the facts upon which an allegation of a reasonable apprehension of bias is made lies on the party making it. There is nothing that could cause a fair‑minded lay observer reasonably to apprehend that we might not bring an impartial and unprejudiced mind to the resolution of the matters in question. It was for those reasons that we refused to recuse ourselves. So far as the appellant's oral submissions were directed to the substantive issues before the court they went no further than a reiteration of the same sort of allegations of fraud that had been made before the Tribunal. The written submissions filed on 24 August 2016 made similar allegations and alleged that the course we took on 4 July 2016 was a 'false' and 'devious' procedure that evidenced collusion with the respondent.