JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: SNOOK -v- MAGISTRATE TREVOR DARGE [No 2] [2024] WASC 91
CORAM: SEAWARD J
HEARD: 21 MARCH 2024
DELIVERED : 25 MARCH 2024
FILE NO/S: CIV 2035 of 2023
BETWEEN: PIPPA VANESSA SNOOK
Applicant
AND
MAGISTRATE TREVOR DARGE
First Respondent
HOUSING AUTHORITY
Second Respondent
Catchwords:
Recusal application - Whether actual bias - Whether reasonable apprehension of bias - Turns on own facts
Practice and procedure - Whether declaration pursuant to O 70 Rules of the Supreme Court 1971 (WA) that a party to the action is incapable of managing their own affairs in these proceedings should be made - Application to appoint clinical psychologist - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 70 and O 28 r 1
Result:
Applications dismissed
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| First Respondent | : | No appearance |
| Second Respondent | : | Mr J Carroll |
Solicitors:
| Applicant | : | In Person |
| First Respondent | : | State Solicitor's Office |
| Second Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
A v City of Swan [No 5] [2010] WASC 204
Allregal Enterprises v Carpaolo Nominees Pty Ltd [2009] WASCA 33
Aloi v Bertola [No 2] [2013] WASC 214
Dalle-Molle v Manos [2004] SASC 102; (2004) 88 SASR 193
De Alwis v The State of Western Australia [No 2] [2015] WASCA 42
De Alwis v The State of Western Australia [No 4] [2015] WASCA 43
Donaldson v Nolan [No 2] [2015] WASC 158
Feldman v Nationwide News Pty Ltd [2020] NSWCA 260
Frigger v Kitay [No 8] [2015] WASC 104
Goddard Elliott (A Firm) v Fritsch [2012] VSC 87
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
Michael v The State of Western Australia [2007] WASCA 100
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
Mohareb v Kelso (No 2) [2018] NSWCA 246
MTI v SUL [No 2] [2012] WASCA 87
Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51
Ogbonna v CTI Logistics Ltd [2021] WASCA 24
Re Magistrate Trevor Darge; Ex Parte Snook [2023] WASC 386
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
Reynolds v Rayney [2023] WASCA 144
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 668
SEAWARD J:
Introduction
The substantive application before the court is an application under s 36 of the Magistrates Court Act 2004 (WA) for a review order requiring Magistrate Darge and the Housing Authority to satisfy the court that a decision made by the learned Magistrate on 12 July 2023 should not be set aside.
The matter was listed for a final review order hearing on 19, 21 and 22 March 2024. On 19 March 2024, I heard an application from the applicant, Ms Snook, to adjourn the final review order hearing. I…
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- Case
- [2024] WASC 91
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the magistrate had demonstrated actual bias or whether there was a reasonable apprehension of bias. The court needed to determine whether the magistrate's conduct in handling the adjournment application and in interactions with Ms Snook could lead a fair-minded observer to conclude that there was an actual bias or a reasonable apprehension of bias. This required an analysis of the magistrate's conduct and statements in light of the principles established in cases such as Minister for Immigration and Multicultural Affairs v Jia Legeng and Livesey v The New South Wales Bar Association.
After careful consideration of the evidence and submissions, the court found that the magistrate did not exhibit actual bias or create a reasonable apprehension of bias. The court held that the magistrate's actions were consistent with the fair and impartial performance of judicial duties, and that any perceived bias was not substantiated. The court further noted that it is often necessary to intervene with self-represented litigants to prevent unnecessary delays or disruptions. Consequently, the application for recusal was dismissed.
As a result of the court's decision, no further orders were made regarding the recusal of Magistrate Trevor Darge. The case proceeded with the magistrate continuing to preside over the matter.
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
In Minister for Immigration and Multicultural Affairs v Jia Legeng,[7] Hayne J observed that an assertion that a decision‑maker has prejudged or will prejudge an issue, and an assertion that there is a real likelihood that a fair-minded lay observer might reasonably apprehend that the decision-maker might not act impartially and without prejudice, in effect makes a statement which has several distinct elements at its foundation. His Honour elaborated: First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision‑maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case.[7] Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 [185]. In Livesey v The New South Wales Bar Association,[8] Mason, Murphy, Brennan, Deane and Dawson JJ held: It is … apparent that, in a case such as the present … a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, 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. The consideration that the relevant question of fact may be conceded or that the relevant person may not be called as a witness if the particular judge sits would not, of course, avoid the appearance of bias. To the contrary, it would underline the need for the judge to refrain from sitting. (emphasis added) I observe that it will often be necessary with a self-represented litigant for a judge to intervene in order to stop irrelevant matters being raised and to prevent unnecessary delays or disruptions.[9][9] Michael v The State of Western Australia [2007] WASCA 100 [65] (Steytler P, McLure JA & Miller AJA agreeing); De Alwis v The State of Western Australia [No 2] [2015] WASCA 42 [71]; Donaldson v Nolan [No 2] [2015] WASC 158 [19] (Beech J). The basis of Ms Snook's submission regarding actual bias on my part is that I prejudged the adjournment application based on previous court applications; that by my conduct I had indicated a preference for the submissions made by counsel for the Housing Authority; and that I gave undue weight to the submissions of counsel for the Housing Authority. Ms Snook has also referred to other specific matters in her email of 20 March 2024 at 4.02 pm. I did not (and do not) accept Ms Snook's submission that I am actually biased against Ms Snook or her case. I was satisfied (and remain satisfied) that that I am able to, and will, fairly, objectively and impartially deal with Ms Snook's legal arguments in the final review order hearing on their merits and in accordance with the proper performance of my judicial function.