Shire of Katanning v Bride [No 3]
[2014] WASC 143
•17 APRIL 2014
SHIRE OF KATANNING -v- BRIDE [No 3] [2014] WASC 143
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 143 | |
| Case No: | CIV:2994/2009 | 14 APRIL 2014 | |
| Coram: | ALLANSON J | 17/04/14 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Matter referred to another judge | ||
| B | |||
| PDF Version |
| Parties: | SHIRE OF KATANNING EDWARD JAMES BRIDE |
Catchwords: | Courts and judges Recusal application Whether reasonable apprehension of bias Turns on own facts |
Legislation: | Federal Court Rules 2011 (Cth), r 4.12 |
Case References: | Antoun v The Queen [2006] HCA 2; (2006) 224 ALR 51 Bride v Shire of Katanning [2013] WASCA 154 British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Gallagher v Durack [1983] HCA 2; (1983) 152 CLR 238 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 R v Dunbabin; Ex parte Williams [1935] HCA 34; (1935) 53 CLR 434 Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 Shire of Katanning v Bride [No 2] [2011] WASC 248 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
EDWARD JAMES BRIDE
Defendant
Catchwords:
Courts and judges - Recusal application - Whether reasonable apprehension of bias - Turns on own facts
Legislation:
Federal Court Rules 2011 (Cth), r 4.12
Result:
Matter referred to another judge
Category: B
Representation:
Counsel:
Plaintiff : Mr P L Wittkuhn
Defendant : In person
Solicitors:
Plaintiff : McLeods Barristers & Solicitors
Defendant : In person
Case(s) referred to in judgment(s):
Antoun v The Queen [2006] HCA 2; (2006) 224 ALR 51
Bride v Shire of Katanning [2013] WASCA 154
British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Gallagher v Durack [1983] HCA 2; (1983) 152 CLR 238
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
R v Dunbabin; Ex parte Williams [1935] HCA 34; (1935) 53 CLR 434
Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342
Shire of Katanning v Bride [No 2] [2011] WASC 248
1 ALLANSON J: I was the trial judge in Shire of Katanning v Bride [No 2] [2011] WASC 248, in which the court determined two actions by the Shire of Katanning against Mr Bride for the payment of rates under the Local Government Act 1995 (WA). A central issue in the proceedings concerned whether the Australian Bank Ltd was a mortgagee in possession of the land (referred to in the decision as lot 29) during the relevant times. Materially, I found at [70] - [72]:
(1) Up to the end of 1989, the Australian Bank was not in actual possession of lot 29 as a mortgagee in possession.
(2) During the period from about 1985 to 2005, when Mr Bride re-entered lot 29, neither the Bank nor Mr Bride was, in fact, in possession. But throughout that period, Mr Bride was entitled to possession of it as the registered proprietor of an estate in fee simple. Within the meaning of par (b) of the definition of owner in the Local Government Act, Mr Bride was the owner of lot 29.
(3) Since 2005, Mr Bride has been in possession and entitled to possession of lot 29, and liable for the rates on the land.
2 Mr Bride appealed from my decision, and in Bride v Shire of Katanning [2013] WASCA 154 the Court of Appeal dismissed the appeal. While it dismissed the appeal, the Court of Appeal held that I had erred in my conclusion that the Bank had not been in possession of lot 29 in the period up to 2005. The Court of Appeal found that the acts of the Australian Bank were sufficient to establish the control and dominion necessary for the Australian Bank to have been 'in possession' as mortgagee by, at the latest, 13 September 1989 [134]. The Court of Appeal further found that by 2005 at the latest, it was a matter of fact the Australian Bank was no longer exercising any of its rights to take the benefit of, or enjoy, the land and was therefore not 'in possession' for the purposes of the Local Government Act [139].
3 At [142], Edelman J (Newnes JA agreeing) concluded:
Although the Australian Bank was in possession as mortgagee of the Land for a period, that possession came to an end by 2005 at the latest since the bank, as a matter of fact, was no longer exercising its rights to the Land from that date. From 2005, Mr Bride was a person who, whilst the rates or service charges were unpaid, became the owner of the land either because (i) he was 'in possession' as the holder of an estate of freehold in possession in the land, or if not then (ii) he was the holder of an estate of freehold in possession in the land in circumstances where no person was in possession under par (a) of the definition of owner. Mr Bride is therefore liable for the rates under s 6.55(1)(ii).
4 An application for special leave to appeal from the decision of the Court of Appeal was refused.
The procedural history
5 The Shire began the first of these proceedings in the Magistrates Court, claiming outstanding rates and charges in respect of the land for the period from 1984 to 2004. Mr Bride counterclaimed for damages in an amount that brought the action within the jurisdiction of the Supreme Court. The action was transferred to this court (as CIV 2994 of 2009) and was heard with the second action, begun in the Supreme Court, in which the Shire claims rates from 1984 to the present (CIV 2853 of 2010).
6 On 21 January 2010, Martin CJ, who was then managing the action, ordered the determination of the counterclaim in CIV 2994 of 2009 be deferred until the Shire's claim against Mr Bride had been determined.
7 Mr Bride also counterclaimed in the second action, CIV 2853 of 2010. On 2 February 2011, Martin CJ ordered that part of Mr Bride's defence and 'all paragraphs appearing under the heading Amended Counterclaim' be struck out without leave to re-plead, but without prejudice to Mr Bride's ability to maintain the same issues in his defence to the claim in CIV 2994 of 2009. Mr Bride did not appeal from those orders.
8 In effect, CIV 2853 of 2010 proceeded to trial in its entirety, there being no counterclaim. The claim in CIV 2994 of 2009 was determined, but the counterclaim remains unresolved.
9 By an application filed 1 April 2014, Mr Bride applied for orders:
1. That the defendant be given leave to amend the defence and counterclaim dated 19 January 2011 and limited to the period January 1987 until October 2005.
2. That the Commonwealth Bank of Australia be joined to the actions as a third party to the actions.
3. That the payment of the sum of rates claimed by the plaintiff be stayed until the determination of the above matters.
4. That a 'Referral Certificate' be issued to the defendant for legal representation in the preparation of the amended defence and counterclaim.
10 Mr Bride attempted to file this application by a document which contained the action number for both actions. Apparently, they could not be filed in that way, the actions not being consolidated. The action number CIV 2994 of 2009 was struck through so that the documents were taken to have been filed in CIV 2853 of 2010. On the procedural history set out above, that was the wrong election, as there is no counterclaim in the later action and the claim has been wholly determined. I have ordered the application to stand as filed in CIV 2994 of 2009.
11 The only order that Mr Bride sought that might apply in both actions is the application to stay enforcement. Because the Shire has not commenced any enforcement action it was not necessary to deal with that application immediately. Should the Shire take steps to enforce the judgment, any application to stay enforcement will need to be made in both actions.
12 I made no order on the request for a 'Referral Certificate'. The rules of this court have no equivalent to the Federal Court Rules 2011 (Cth) r 4.12, under which the court may issue a certificate to enable an applicant to obtain pro bono legal assistance. Mr Bride could not refer me to any source of power to make the order, and I know of none.
13 The Shire has also filed an application, filed 9 April 2014, to strike out the counterclaim without leave to re-plead, alternatively for summary judgment on the counterclaim.
The application that I disqualify myself
14 Normally those applications would come back before me, as the case manager. I listed a hearing to make directions for the purpose of completing outstanding matters. Mr Bride has, however, asked that I disqualify myself from sitting further on this action. Mr Bride alleges that my earlier decision was corrupt, and was for the sole purpose of 'whitewashing' the conduct of the solicitors who act for the Shire.
15 The allegation against me makes it necessary for me to consider my position as case manager. Were it necessary for Mr Bride to revisit the allegations he makes, he might do so in the same terms. The risk would arise that he would, in his conduct in court, go beyond what can properly be asserted in the course of submissions and do or say something that amounts to wilfully insulting the judge or interfering with the authority of the court, so as to be in contempt: see Gallagher v Durack [1983] HCA 2; (1983) 152 CLR 238; R v Dunbabin; Ex parte Williams [1935] HCA 34; (1935) 53 CLR 434, 447. Mr Bride's antipathy to me may impede the proper resolution of the matters before the court, and be an inefficient way to determine the action.
16 On that basis I considered whether, in the interests of the efficient progress of the litigation, it might be preferable to allocate it to another judge. I am not, however, satisfied that I should recuse for that reason. First, I have given careful consideration to whether the interests of justice would be better served by avoiding the distraction of any further airing of Mr Bride's claims against me. I believe the matter could proceed to resolution before me without any undue distraction. Mr Bride has expressed his position. It should not be necessary to go over those allegations again in dealing with the issues raised in the applications. Second, as a matter of principle, a litigant should not be able to determine the composition of the court by such behaviour.
17 I believe, however, that I must still determine Mr Bride's objection to me continuing as the trial judge by the application of well-known principles relating to disqualification of a judge for bias or ostensible bias. His allegations include the claim that a reasonable observer might believe that I might not determine the matter impartially.
18 In considering this issue I have had regard to the frequent warning in the authorities that a judge should avoid any tendency to be over-ready to disqualify himself or herself from presiding over an appointed trial: see Antoun v The Queen [2006] HCA 2; (2006) 224 ALR 51 [34]; Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 352; British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2 [70] - [72].
19 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 decide: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11]; British American Tobacco Australia Services Ltd v Laurie. It requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to the case: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [67]. That test gives effect to the requirement that justice should both be done and be seen to be done: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [6].
20 One of the ways in which an apprehension of bias may arise is where the judge has, in earlier hearings in the same proceedings or in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact: Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, 300; British American Tobacco Australia Services Ltd v Laurie.
21 In my earlier decision, I made no findings directly on the counterclaim. I made no finding based on credibility. The finding I made regarding possession by the Australian Bank in the period from 1989 to 2005 was a conclusion from primary facts that were largely uncontroversial. The error in that reasoning was identified by Edelman J in Bride v Shire of Katanning at [122] - [123]. The evidence supported the conclusion that the Australian Bank did perform sufficient acts demonstrating that it was dealing with the land as an occupying owner might have dealt with it, and I should have found those acts amounted to possession. Should that issue arise in the counterclaim, I would follow the findings and reasoning of the Court of Appeal.
22 In the peculiar circumstances of this case, however, a quite distinct issue arises. In its application to strike out the counterclaim, the Shire submits that, on whatever cause of action Mr Bride might rely, he would need to show that the Shire's position that he was the owner of the land under the Local Government Act 'was a position so wildly and obviously wrong that it was not reasonably open to the Shire to have taken that position'. The Shire relies on my finding that Mr Bride was the owner in the period covered by the counterclaim as precluding any claim that its position was not reasonably open to it. I may not agree with the Shire's statement of the issue. But when the issue for decision has been put in that way, the fair minded observer might believe that I might not be able to put aside the findings I have already made in deciding that issue.
23 For that reason, I believe it is necessary that the further conduct of this matter be before another judge.
12
1