Snook v Magistrate Trevor Darge [No 2]
[2024] WASC 91
•25 MARCH 2024
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 refused that application and provided oral reasons for so doing.
In a series of emails sent to the court on 19 and 20 March 2024, Ms Snook made two further applications:
(a)an application that I recuse myself from hearing the final review order hearing; and
(b)an application that the court appoint a specialist, for example, a clinical psychologist to examine and report on Ms Snook's degree of cognitive and executive impairment, and necessity of being represented.
I heard from Ms Snook, counsel for the Housing Authority and the amicus in relation to these applications on 21 March 2024. I dismissed each of those applications and indicated that I would publish my reasons for so doing at a later time. These are those reasons. Owing to the nature of the applications, these reasons have been prepared quickly, so that the parties are aware of the reasons for my decision.
After refusing the applications, the final order review hearing continued until its conclusion on 22 March 2024, after which I reserved my decision.
Background
The background to the substantive application is detailed in my decision published on 5 October 2023 in Re Magistrate Trevor Darge; Ex Parte Snook [2023] WASC 386 [1] ‑ [8] (Show Cause Decision). By way of brief overview:
(a)Ms Snook is a tenant of the Housing Authority and currently resides in a property leased to her by the Housing Authority in Beldon.
(b)On 7 November 2022, the Housing Authority issued a notice of termination to Ms Snook under s 64(1) of the Residential Tenancies Act 1987 (WA) (RT Act) requiring Ms Snook to give to the Housing Authority possession of the premises in 60 days (a so called 'no fault' termination). Ms Snook did not give up possession and instead applied to the Magistrates Court by application dated 24 November 2022, pursuant to s 64(3) of the RT Act, for an order that the residential tenancy agreement is not terminated, or in the alternative that the period within which Ms Snook must vacate the premises be extended.
(c)By application dated 30 January 2023, the Housing Authority applied under s 71 of the RT Act to the Magistrates Court for an order terminating the tenancy agreement and an order for possession of the premises.
(d)These two matters were heard together before Magistrate Darge on 29 June 2023. The learned Magistrate delivered his decision and reasons on 12 July 2023, whereby his Honour upheld the Housing Authority's application and ordered that the tenancy terminate on 10 September 2023, and vacant possession be provided on that date. The learned Magistrate also dismissed Ms Snook's application.
The matter originally came before me for an ex parte hearing on 28 September 2023. On 2 October 2023, I ordered that a show cause order be issued to the learned Magistrate and the Housing Authority in relation to the following four grounds only (and otherwise dismissed the application):
(a)That the learned Magistrate misdirected himself as to the requirements of s 71(3)(b)(i) of the RT Act in terms of the period of time within which the question of motive might be considered, and therefore was under a misapprehension as to the nature of his functions or powers.
(b)That the learned Magistrate misdirected himself as to the requirements of s 71(3)(b)(i) of the RT Act and took into account an irrelevant consideration by having regard to the question of the 'utility' of the residential tenancy agreement, and therefore was under a misapprehension as to the nature of his functions or powers.
(c)That the learned Magistrate denied the applicant natural justice by failing to inform the applicant that he would, in the exercise of his discretion, consider the question of the utility of the residential tenancy agreement and provide the applicant with an opportunity to make submissions.
(d)That the applicant was denied natural justice on the basis that she had not received the Housing Authority's Form 32A witness statements prior to the trial.
I also granted a stay of the decision of the learned Magistrate and associated enforcement orders made by a registrar of the Magistrates Court until further order.
The first respondent, Magistrate Darge, filed a notice of intention to abide by the decision of the court and has played no role in the proceedings.
The Housing Authority was notified of the Show Cause Decision and filed an appearance. The Housing Authority was later joined as the second respondent and given the opportunity to file affidavit evidence and submissions and be heard in accordance with the powers contained in O 56A r 3 and r 5 of the Rules of the Supreme Court 1971 (WA) (RSC).
At the directions hearing on 31 October 2023, both Ms Snook and the Housing Authority indicated they needed more time to prepare for the final hearing. At that directions hearing, I indicated to the parties that I had dates available for the final hearing in either December 2023 or January 2024. The Housing Authority submitted the final review order hearing should take place in December 2023, whereas Ms Snook submitted that it should take place in January 2024. The matter was listed for hearing over two days on 18 ‑ 19 January 2024. That is, on the dates requested by Ms Snook.
Since that occurred, Ms Snook has made a number of applications for an adjournment of the final review order hearing, including:
(a)an application heard on 28 November 2023. I delivered oral reasons after hearing the application. In those reasons I indicated that I considered it was premature to adjourn the hearing dates, and instead made programming orders for the filing of affidavits and submissions, and listed the matter for a further directions hearing to consider whether, following the filing of those documents, the hearing should proceed or not in January 2024. That directions hearing did not proceed, as Ms Snook obtained legal representation through Law Access, and the parties filed a minute of consent orders extending the dates by which Ms Snook was to file her affidavit evidence and submissions. No application was made in December 2023 to adjourn the hearing dates. The Housing Authority filed their affidavit and submissions on 19 December 2023 in accordance with my orders;
(b)a further application made immediately prior to the hearing in January 2024, which I heard on 17 January 2024. I granted that application as Ms Snook had contracted COVID‑19. The hearing was then relisted to 12 and 19 February 2024 (being the period of time sought by Ms Snook) and fresh programming orders regarding the filing and serving of Ms Snook's affidavit evidence and submissions were made. At this directions hearing, the solicitors previously representing Ms Snook also made an application to be removed from the court record. That order was made. It is not necessary to detail the reasons why that order was made;
(c)a further application made on the first day of the final review order hearing listed for 12 and 19 February 2024. This application was one of a number of interlocutory applications made by Ms Snook in the days prior to 12 February 2024. That application was made on the basis of both Ms Snook not being ready for the hearing (for various non-medical reasons) and Ms Snook needing to have surgery of a private nature on 20 February 2024, and therefore needing to fast for 24 hours prior to the surgery (being the date of the hearing on 19 February 2024). That application was not supported by any independent medical evidence detailing the surgery or the requirements for fasting. That application was refused, subject to Ms Snook being given until 15 February 2024 to provide that independent medical evidence. Counsel for the Housing Authority accepted that if the medical evidence was provided, and fasting was required, that would be grounds to adjourn the final review order hearing. Due to the length of time it took to hear all of Ms Snook's interlocutory applications, the final review order hearing itself did not start on 12 February 2024. Fresh programming orders were made providing additional time for Ms Snook to file affidavit evidence and submissions.
For completeness, Ms Snook did provide some email correspondence after the hearing on 12 February 2024. That correspondence indicated that the surgery would take place one day later on 21 February 2024, and there was no independent medical evidence that Ms Snook would be fasting on 19 February 2024. Accordingly, no adjournment was granted;
(d)on 19 February 2024, Ms Snook did not attend court. The Housing Authority sought to proceed in Ms Snook's absence. Although no adjournment application was made, I adjourned the matter to 19, 21 and 22 March 2024, for the oral reasons given on that day. I made orders that if Ms Snook did not attend, the final review order would proceed in her absence. I explained the meaning of these orders for the purposes of the transcript. Both the orders and transcript were provided to Ms Snook by email. I also made orders granting Ms Snook further time to file affidavit evidence and submissions; and
(e)the application made on 18 March 2024 and heard on 19 March 2024, being the date the final review order hearing was listed to commence. The application was heard over the course of approximately two hours. Ms Snook was given leave to appear by way of video link. That application was refused for the oral reasons provided.
On 19 March 2024, at the conclusion of providing my reasons for refusing the adjournment application, I indicated that the court would adjourn for 10 minutes before the final review order hearing commenced, with the tendering of documents and the calling of evidence to take place.
Ms Snook appeared on 19 March 2024 via video link. Whilst both video and audio connection were initially established, the video connection disappeared towards the end of the submissions and prior to the delivery of my reasons. However, the audio connection was not lost and so the hearing continued via audio link.
Prior to adjourning, Ms Snook emailed my associate email address to advise that she had collapsed and had stepped away from the room where she had previously been located. During the adjournment the court attempted to ascertain Ms Snook's whereabouts.
Ms Snook then emailed my associate email address on a number of occasions over the period between 12.37 pm and 3.26 pm. The initial matter of significance to record from those emails is that Ms Snook indicated that she had left the location she had been at and was being driven by another person to Perth to attend the court. The emails indicated that Ms Snook was unlikely to arrive until after the court had concluded for the day, both in terms of the original finishing time of 2.00 pm, and also the usual court finishing time of 4.15 pm. Attempts to contact Ms Snook via telephone in open court were not successful.
In those circumstances, I heard submissions as to whether the substantive review order hearing should proceed in Ms Snook's absence, and I determined that it should in so far as documents would be tendered and the evidence of the second respondent's witness would be heard. The court would then adjourn until 21 March 2024 as planned, and the parties would have further opportunity to tender documents and Ms Snook, if she chose to rely on her affidavit evidence, could then be cross examined. I determined that once the evidence was finished, the parties and the amicus would have the opportunity to make oral submissions. I will not repeat here my reasons for making that decision.
For the remainder of the afternoon court session, an initial set of documents were tendered and the evidence of the witness for the Housing Authority was taken. The court then adjourned for the day.
Recusal application
The emails sent by Ms Snook to the court also raised a number of other matters. The relevant matter for present purposes is that the emails appeared to allege that I had predetermined the outcome of the adjournment application and there was both actual and apprehended bias on my part against Ms Snook. Ms Snook also sent two further emails on 20 March 2024 raising this issue. All the emails sent by Ms Snook were identified by me and tendered as exhibit 49.
When the hearing recommenced on 21 March 2024, I clarified with Ms Snook that she was making an application that I recuse myself. Ms Snook, the amicus and counsel for the Housing Authority were then heard on that application.
In her oral submissions Ms Snook relied predominantly on her email sent on 20 March 2024 at 4.02 pm. Ms Snook also read part of that email into the transcript. There was insufficient time for Ms Snook to read all of the email and make the rest of her oral submissions because I had, in the exercise of my case management powers, imposed time limits on the address by Ms Snook and counsel in order to ensure that all applications could be heard in the four hours of court time on 21 March 2024. I have not reproduced the email sent on 20 March 2024 due to its length. However, the email and Ms Snook's oral submissions raise matters potentially going to both actual and apprehended bias on my part. Whilst apprehended bias is expressly referred to, as Ms Snook is a self‑represented litigant, I have also considered the question of actual bias. In terms of actual bias, the matters raised by Ms Snook appear to allege that I predetermined the outcome of the adjournment application heard on 19 March 2024 as demonstrated by:
(a)my decisions made earlier in the proceedings in relation to other interlocutory applications made by Ms Snook;
(b)my conduct during the hearing which indicated that I was favouring the submissions made by counsel for the Housing Authority; and
(c)that I gave undue weight to the submissions made by counsel for the Housing Authority.
In terms of apprehended bias, the above matters raised by Ms Snook also underpin a submission that I recuse myself on the basis of apprehended bias. In addition to the matters raised by Ms Snook, I have also considered whether, in the course of determining the adjournment application, I have expressed any view or made any findings of fact on significant issues that arise in the final review order hearing or have expressed any views or made in any findings regarding the credit of any witness.
The amicus made oral submissions in relation to legal principles concerning applications for recusal, including providing a list of authorities.
Counsel for the second respondent also made brief oral submissions in relation to the question of bias to the effect that Ms Snook had not satisfied the onus of establishing actual or apprehended bias. Counsel also submitted that if a basis of the application was that the court had somehow been inappropriately swayed by his legal submissions, then all of his legal submissions over the course of this matter, and not merely on 19 March 2024, should be reviewed. In this regard, counsel submitted that he has not always been successful in relation to the submissions and points he had made before the court. Counsel also made some submissions regarding specific paragraphs of Ms Snook's email sent on 20 March 2024, which are discussed further below.
Legal Principles - bias
Actual bias
The legal principles regarding when a judge must disqualify themselves on the grounds of actual bias were helpfully summarised by Allanson J in Frigger v Kitay,[1] that summary being drawn from the decision of the New South Wales Court of Appeal in Reid v Commercial Club (Albury) Ltd:[2]
1A finding of actual bias is a grave matter. An allegation of actual bias must be distinctly made and clearly proved. Such a finding should not be made lightly, and cogent evidence is required.
2If there is an allegation of prejudgment, the party making that claim must establish that the judge is 'so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented'.
3There are distinct elements underlying an assertion of prejudgment: that the judge has an opinion on a relevant aspect of the matter in issue in the particular case; will apply that opinion to the matter in issue; and will do so without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the particular case.
4The test requires an assessment of the state of mind of the judge in question, although it is not confined to an intentional state of mind. Bias may be subconscious.
Apprehended bias
[1] Frigger v Kitay [No 8] [2015] WASC 104 [3]. See also Donaldson v Nolan [No 2] [2015] WASC 158 [22] (Beech J).
[2] Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 [68] ‑ [74] (Gleeson JA, Emmett & Tobias JA agreeing).
The legal principles regarding when a judge must disqualify themselves on the basis of apprehended basis were recently summarised by the Court of Appeal in the decision of Reynolds v Rayney[3] as follows:
[3] Reynolds v Rayney [2023] WASCA 144. Ms Snook also referred the court to Aloi v Bertola [No 2] [2013] WASC 214.
28The general principles applying to whether a judge should recuse himself or herself on the ground of reasonable apprehension of bias are well-established:
1.The neutrality of a judge is fundamental to the administration of justice - independence and impartiality are essential to the maintenance of public confidence in the judicial system.
2.The test for the disqualification of a judge on the ground of apprehended bias is whether or not 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.
3.Apprehended bias is concerned with whether there is a reasonable apprehension that the judge might not decide the case impartially or without prejudice and not with whether the judge might decide the case adversely to one party.
4.The test for apprehended bias is objective.
5.The test for apprehended bias is a test of possibility as distinct from probability. The possibility must be real and not remote.
6.The determination of whether a fair-minded lay observer might reasonably apprehend that the judge might not act impartially and without prejudice largely raises a factual issue - one which must be considered in the legal, statutory and factual contexts in which the judge is required to make the decision.
7.The hypothetical fair-minded lay observer is not taken to have a detailed knowledge of the law; but, even so, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice.
8.The hypothetical observer is reasonable, not unduly suspicious and is fair-minded and informed. The hypothetical observer is attributed with a broad knowledge of the material objective facts. The hypothetical observer is presumed:
(a) to be reasonable and not to make snap judgments;
(b)to know that the judge is required, by his or her training, tradition and oath or affirmation, to discard the irrelevant, the immaterial and the prejudicial; and
(c)to be aware of the nature of the decision which the judge is required to make, what is involved in making the decision and all the objective circumstances of the case.
9.However, the hypothetical observer is aware of the reality that the judge is human and is cognisant of human frailty. The hypothetical observer understands that 'information [as well as attitudes] consciously and conscientiously discarded might still sometimes have a subconscious effect on even the most professional of decision-making'.
10.The hypothetical observer is not so abstracted and dispassionate as to be insensitive to the impression that the circumstances in issue might reasonably create in the mind of the actual party who is asserting an apprehension of bias.
11.The hypothetical observer is not conceived of as a lawyer; but, rather, as a member of the public served by the courts. Accordingly, the hypothetical observer is not to be imbued with professional self-appreciation in a manner that aligns the fair-minded lay observer with the judiciary and the legal profession. It is the court's view of the public's view, not the court's own view, which is determinative. In this respect the hypothetical fair-minded lay observer is a deliberate and necessary construct which tethers the court's analysis to the ultimate purpose of maintaining public confidence in the impartiality of the judicial system.
12.A judicial officer should avoid any tendency to be over-ready to disqualify himself or herself from presiding over an appointed hearing. The case for disqualification must be 'firmly established' and a finding of apprehended bias is 'not to be reached lightly'. A judge should not disqualify himself or herself on the basis of a reasonable apprehension of bias unless 'substantial grounds' are established.
29The test for disqualification on the ground of apprehended bias is sometimes referred to as the 'double might' test. That description emphasises that the test is not demanding and reflects the importance that justice not only be done but also manifestly be seen to be done.
30Equally, however, it is the responsibility of a judge to sit and hear a case assigned to that judge. Judges do not select their cases and parties cannot select their judges. In Western Australia v Watson the Full Court of the Supreme Court of Western Australia referred to what was said by Mason J (as his Honour then was) in this regard in Re JRL; Ex parte CJL:
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.
31In Western Australia v Watson the Full Court observed that this passage made it clear that the duty of a judge to disqualify himself or herself for proper reasons is matched by an equally significant duty to hear any case for which there is no proper reason to disqualify himself or herself.
32In Ebner v Official Trustee in Bankruptcy the plurality (Gleeson CJ, McHugh, Gummow & Hayne JJ) identified that the application of the apprehension of bias test involves two steps. First, it requires an identification of what might lead the judicial officer to decide a case other than on its legal and factual merits. Second, there must be a 'logical connection' established between that matter and the 'feared deviation from the course of deciding the case on its merits'. Their Honours said that:
The bare assertion that a judge … has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision-making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
33The last sentence in that passage suggests that there is an additional third step. In Isbester v Knox City Council Gaegler J set out those three steps as follows:
Step one is identification of the factor which it is hypothesised might cause a question to be resolved otherwise than as the result of a neutral evaluation of the merits. Step two is articulation of how the identified factor might cause that deviation from a neutral evaluation of the merits. Step three is consideration of the reasonableness of the apprehension of that deviation being caused by that factor in that way.
34The assessment of the reasonableness of the apprehension is considered from the perspective of the fair-minded lay observer.
(footnotes and citations omitted)
Merely because a court has decided matters against a party and that party feels aggrieved does not provide a basis for a claim of reasonable apprehension of bias.[4] The making of error, including appealable error, does not demonstrate prejudgment.[5] The fact that a judge has ultimately rejected an appellant's case does not and cannot (on its own) demonstrate actual or apprehended bias.[6]
[4] MTI v SUL [No 2] [2012] WASCA 87 [14]; De Alwis v The State of Western Australia [No 4] [2015] WASCA 43 [8]; Donaldson v Nolan [No 2] [2015] WASC 158 [21].
[5] Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [67]; Donaldson v Nolan [No 2] [2015] WASC 158 [21].
[6] Mohareb v Kelso (No 2) [2018] NSWCA 246 [15]; Feldman v Nationwide News Pty Ltd [2020] NSWCA 260 [43] (Bell P, Macfarlan & Payne JJA agreeing); SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 668 [38].
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.
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)
Self-represented litigant
[8] Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, 300.
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).
Disposition - actual bias
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.
My reasons for reaching this conclusion are set out below. I first consider the broad bases of the application, before returning to specific matters raised in the email in so far as they are relevant to the application.
Previous interlocutory decisions
I first observe that, in accordance with the authorities referred to earlier in these reasons, the mere fact that I dismissed Ms Snook's adjournment application, or that I found against Ms Snook in relation to some earlier interlocutory applications, is insufficient to establish actual bias on my part.
I do not accept that my past decisions in relation to the various interlocutory applications demonstrate actual bias on my behalf. In this regard, I observe that when the matter first came before me on 28 September 2023, I heard Ms Snook's application for a review order, and granted a show cause order in relation to the four matters arising from that application. I also granted Ms Snook a stay of the learned Magistrate's decision and the enforcement decisions made by the relevant Registrar. That is, these were decisions which can be described as being in Ms Snook's favour, at least in part.
In relation to the first adjournment application, the decision I made on 28 November 2023 was that it was premature to adjourn the January 2024 hearing dates at that time. Rather, I ordered that the parties file their affidavit evidence and submissions by 19 December 2023, and that the matter be listed for a directions hearing to consider the future of the matter on 20 December 2023. That directions hearing never proceeded, as the parties instead filed a minute of consent orders extending the time for Ms Snook to file her affidavit evidence and submissions. At this point in time, Ms Snook was represented by lawyers. No further application was made for adjournment in December 2023.
The second adjournment application was made in January 2024, and I granted Ms Snook the adjournment for the period of time she sought.
The third adjournment application was heard on 12 February 2024, and I refused the application, but gave Ms Snook until 15 February 2024 to provide medical evidence to support her assertion that she was having surgery on 20 February 2024, and would be required to fast on 19 February 2024. Ms Snook did not provide that medical evidence. Rather, the documents provided indicated that the surgery would take place on 21 February 2024, and there was no information provided as to fasting.
On the next hearing date, being 19 February 2024, Ms Snook did not attend court, notwithstanding my refusal of her adjournment application. Counsel for the Housing Authority submitted that the hearing should go ahead in Ms Snook's absence. I did not order that the hearing go ahead, and instead I adjourned the hearing until 19, 21 and 22 March 2024, and made orders (and made it clear on the transcript) that the hearing would take place on these dates even if Ms Snook did not appear. The effect of my decision in this regard was that Ms Snook, by default, obtained the adjournment application she sought on 12 February 2024.
Ms Snook also made a series of interlocutory applications that were heard on 12 February 2024. These were:
(a)to issue two subpoenas: to Mr John Pynes from the Housing Authority and one to the Chief Executive Officer of the Department of Communities. These were refused for oral reasons delivered on 12 February 2024;
(b)for the court to appoint a computer expert to examine Ms Snook's computer for the purpose of determining whether she received the email containing the witness statements relevant to ground 4 of the review order hearing. That application was refused for the oral reasons delivered on 12 February 2024;
(c)for leave to cross examine the Housing Authority witness whose affidavit the Housing Authority had filed. This application was granted for the oral reasons delivered on 12 February 2024; and
(d)I granted Ms Snook leave to rely on an affidavit that had not been filed by the date specified in accordance with orders I had previously made. I also made an order permitting Ms Snook further time to file and serve any further affidavit evidence or submissions on which she wished to rely in the final review order hearing, after Ms Snook submitted that she did wish to file further affidavit evidence and submissions.
Finally, a directions hearing listed for 21 November 2023 was vacated and adjourned to 28 November 2023 at Ms Snook's request.
Each of the above decisions were made by me in course of my genuine attempts to discharge my judicial function in accordance with the merits of the applications and in the interests of justice. I do not accept that this history reveals that I prejudged the outcome of Ms Snook's adjournment application as submitted. Ms Snook has not been wholly unsuccessful on her interlocutory applications.
Conduct at the hearing on 19 March 2024
Ms Snook also submits that my conduct at the hearing on 19 March 2024 demonstrates actual bias on my part, even if that bias is unintentional. Ms Snook submits that actual bias could be inferred from my tone and body language during the hearing and differences in each depending on who was making submissions.
In terms of tone, Ms Snook submits that my tone when speaking to counsel for the Housing Authority indicated approval of his submissions, and my tone when speaking to Ms Snook indicated that I did not approve of her submissions. Ms Snook also submitted that my tone indicated that she had angered the court.
I have listened to the audio tapes of the hearing on 19 March 2024. I do not accept that my tone of voice when speaking to counsel for the Housing Authority, or Ms Snook, is as submitted by Ms Snook. Submissions from all parties were made over a period of approximately two hours. That is, half the time set aside for the final review order hearing on that day. I consider that the audio tapes reveal that I gave all parties the opportunity to make their legal submissions, without expressing a preference for any person or submission or position. At times I asked questions to the person making the submission. This is usual practice in a court hearing. I also did not express any final views on either the adjournment application or the final review order hearing.
It is important at this point to record that Ms Snook was appearing by video link and had indicated that she was having difficulty hearing counsel and myself. Accordingly, all persons, myself included, were requested to speak loudly during the hearing so that Ms Snook could hear. As I stated for the benefit of the transcript at the beginning of the hearing, that loud volume was so that Ms Snook could hear, and not because anyone was angry or yelling at Ms Snook. This has been the position on each day that Ms Snook has appeared by way of video or audio link in court.
I also observe that there were times during the hearing on 19 March 2024, where I had needed to interrupt Ms Snook when she was speaking. From my review of the audio tapes, I adopted this course of action for different reasons at different times, including: when I had not heard what Ms Snook had said; when I did not understand what Ms Snook had said (or I needed clarification); to ask Ms Snook a question before she moved on to another point; to remind Ms Snook that a time limit imposed was due to expire or had expired; or to ask Ms Snook to answer the question or return to the point that was raised. These interruptions, at times, involved a degree of Ms Snook speaking over me, and me needing to take several attempts to get Ms Snook's attention and alert Ms Snook to my question.
As the authorities referred to earlier in these reasons state, 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. This, of itself, does not demonstrate bias on the part of the judge.
I do not consider, when the audio is considered as a whole, that my conduct during the course of the hearing is as described by Ms Snook or that my conduct is an indication of actual bias on my part (even if unintentional).
Ms Snook has also submitted that I smiled at counsel for the Housing Authority and otherwise engaged in body language that indicated a preference for his submissions over Ms Snook's submissions, including smiling. There is no video recording of the hearing, so it is not possible for me to view my body language. However, I do not recall engaging in any body language of the type described, or engaging in body language that is different for any one person appearing before me. During the hearing I was listening to the submissions being made; making notes whilst Ms Snook and each counsel were talking; and reviewing (as required) individual documents or cases or authorities referred to. Having listened to the audio tapes, I do not consider that they reveal a preference for any one person's submissions through my oral language or tone.
Preference for submissions of the Housing Authority
Aside from the matters referred to above, it is not clear on what further basis it is submitted that I demonstrated a preference for the submissions of the Housing Authority. To the extent the submission is based on the fact that Ms Snook is self-represented and counsel for the Housing Authority is a legal practitioner, I do not accept that this fact, on its own or in combination with the other factors relied upon, demonstrates actual bias on my behalf, especially in light of the history of the outcome of interlocutory applications in this proceeding. To the extent the submission is based on counsel for the Housing Authority referring to legal authorities, this is entirely orthodox and does not reveal bias. To the extent the submission is based on the fact that I refused to grant the adjournment, merely deciding against a party does not indicate bias.
Other matters raised in the email sent on 20 March 2024 at 4.02 pm
In this section I have identified any additional matters raised in Ms Snook's email that I have not already addressed that are relevant to the question of actual bias.
First, Ms Snook submits that I ridiculed particular evidence put forward by Ms Snook in her affidavit in support of her adjournment application, or her inability to obtain any additional expert medical evidence. I do not accept that I did this at any point during the hearing. In my oral reasons for decision, I identified why the evidence was not sufficient, in my view, to grant the adjournment application or was not probative of the questions and issues I needed to consider. The mere fact that evidence is not accepted does not mean it has been ridiculed.
Secondly, Ms Snook submits that I engaged in behaviour which is bullying and triggered her complex post-traumatic stress disorder. The matter specified in the email in this regard is imposing time limits on Ms Snook's submissions and reminding her of those time limits. The court has taken steps to accommodate Ms Snook's needs in this matter. For example, by sitting for only four hours per day (and including a break during that time and any other comfort breaks requested) and waiving the fee for the transcript. Whilst Ms Snook may find the imposition of time limits and their enforcement triggering, it is within the case management powers of a judge to impose time limits on oral submissions (see O 4A r 2(2) and O 34 r 5A(1) RSC) and time limits are often required to ensure the orderly management of a hearing in accordance with the principle of case management. Given the limited time set aside for the final review order hearing (being three days with only four hours of hearing time each day); the need to ensure all parties had an opportunity to be heard; and the length of time over which all the submissions were made (approximately two hours), I do not consider the imposition of time limits and their enforcement on Ms Snook and all counsel appearing (including reminding Ms Snook of the time remaining to ensure she was able to use her time to make all the submissions she wished and not be surprised when her time ended), no matter how difficult for Ms Snook, to be bullying behaviour or evidence of actual bias on my part.
Thirdly, Ms Snook submits that I have presumed to know what her words will be and then dismiss those words. I do not accept this occurred during the hearing. Ms Snook was given an opportunity to explain her submissions. To the extent I sought to clarify what was being said, and then was corrected if I had misunderstood, then the importance of and purpose of seeking my clarification was served. Seeking clarification is a normal part of the procedure during a hearing.
Fourthly, Ms Snook has made submissions, which I will not repeat in detail here, which suggest that I did not control counsel for the defence (which I understand to be a reference to counsel for the Housing Authority) in what Ms Snook describes as its 'outrageous claims and assertions' and 'triggering' behaviour. At no stage during the hearing on 19 March 2024 did counsel for the Housing Authority make any form of inappropriate or outrageous submission or engage in any form of inappropriate or unprofessional conduct. At all times counsel made submissions in a professional and appropriate manner. It is for the court to decide what to make of the submissions made by any person or counsel appearing.
Finally, some of the matters raised in Ms Snook's email are a misunderstanding or misconstruction of the reasons I gave for refusing the adjournment application or of the submissions made by counsel for the Housing Authority. This may have been as a result of the transcript, whilst ordered, not being available at the time the email was drafted. Those matters include:
(a)the reference to there being no need for Ms Snook to 'start again'. In my oral reasons this was a reference to Ms Snook having already filed documents and written submissions for the ex parte hearing, and therefore her affidavit evidence and submissions needed only to add any additional material not already before the court on which Ms Snook wished to rely, and to respond to matters raised by the Housing Authority;
(b)the reference to Ms Snook indicating that she would 'work over Christmas' was an explanation of the history of why Ms Snook's request for the original January 2024 dates was granted, and not a matter I relied upon in considering why Ms Snook was not ready to proceed on 19 March 2024; and
(c)Ms Snook's understanding of the Housing Authority's submissions regarding her operation.
Conclusion
For the above reasons, I did not accept Ms Snook's submission that I am 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.
For completeness, I observe that in reaching this conclusion, I was also satisfied that the fact that Ms Snook made a recusal application (and the nature of it) is not a matter which of itself would divert me from my judicial function. In this regard, I refer to and adopt the following observations of Mitchell JA in Ogbonna v CTI Logistics Ltd:[10]
… The experience of the courts is that sometimes a litigant feels so strongly about the merits of his or her own case that he or she is unable to accept that failure might be attributable to deficiencies in the litigant's own arguments. The appellant is not the only litigant to find that the only explanation he can accept for the court's past rejection of his arguments is that the judge or judges who ruled against those arguments must be acting corruptly. Judges are expected to be able to ensure that complaints of this nature do not divert them from the proper administration of justice, and the fair and impartial determination of later cases on their objective legal merits …
[10] Ogbonna v CTI Logistics Ltd [2021] WASCA 24 [9].
Disposition - apprehended bias
The basis of Ms Snook's submission, as I apprehend it, is that a fair‑minded lay person might reasonably apprehend that I might not bring an impartial mind to the final review order hearing based on my past history of decisions in relation to interlocutory applications in this matter and based on my conduct on 19 March 2024. There is a considerable degree of overlap in this regard between the actual and apprehended bias submissions. I also considered whether, in refusing the adjournment application on 19 March 2024, I have expressed a view or made findings of fact going to an essential issue in the final review order hearing, or whether I have expressed a view or made a finding as to the credit of a witness whose evidence is of significance in relation to a question of fact in the final review hearing.
For the reasons which follow, I did not (and do not) consider that a fair‑minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the final review order hearing, and the matters I am required to consider and decide in that context.
In considering the apprehended bias application I proceeded on the basis that the fair-minded lay observer, whilst not being a lawyer, would be familiar with the nature of the review order application made by Ms Snook, the facts associated with it and the issues arising for consideration when hearing that application. I also proceeded on the basis that the fair-minded lay observer would be aware of ordinary judicial practice and the history of this matter before this court. The fair‑minded lay observer is also taken to know that a judge is required by his or her training, tradition and oath or affirmation to discard the irrelevant, the immaterial and the prejudicial.
Past history of interlocutory applications
Details of the past history of interlocutory applications in this matter are detailed earlier in these reasons.
I was (and remain) of the view that the fair-minded lay observer, whilst not being a lawyer, would be aware that during the course of any matter before a judge, interlocutory applications may arise for consideration by the judge prior to the final hearing and determination of the proceeding. I was (and am) of the view that a fair-minded lay observer would not reasonably apprehend that merely because I have been required to consider and decide such interlocutory applications that I might not bring an impartial mind to the resolution of the questions that I am required to decide in the final review order hearing.
I was (and remain) satisfied that a fair-minded lay observer, with knowledge of the history of the interlocutory applications arising in this matter (including that Ms Snook has been successful in relation to some, but not all of those applications) would not reasonably apprehend that because of this history I might not bring an impartial mind to the resolution of the questions that I am required to decide in the final review order hearing.
Conduct on 19 March 204
Details of Ms Snook's submissions regarding my conduct during the hearing on 19 March 2024 are detailed earlier in these reasons.
I was (and am) of the view that the fair-minded lay observer, who has reviewed the entirety of the appearance on 19 March 2024 in the context of the history of the proceeding and the matters that were required to be determined on 19, 21 and 22 March 2024, would not reasonably apprehend that my conduct suggested that I might not bring an impartial mind to the resolution of the questions that I am required to decide in the final review order hearing.
In reaching this conclusion I had regard to the authorities referred to earlier in these reasons which state 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. I have proceeded on the basis that this is something that a fair-minded lay observer would be familiar with.
Refusing the adjournment application on 19 March 2024
In relation to this basis of the recusal application, it is first necessary to outline the issues requiring determination in both the final review hearing and the adjournment application.
The four matters which are to be considered in the final review proceedings are set out earlier in these reasons.
Considering question 1 will involve construing s 71(3)(b)(i) of the RT Act, and then considering the approach adopted by the learned Magistrate during the trial and in his reasons, in order to reach a conclusion as to whether the learned Magistrate misdirected himself as to the requirements of s 71(3)(b)(i) of the RT Act.
Considering question 2 will involve construing s 71(3)(b)(i) of the RT Act, and then considering the approach adopted by the learned Magistrate in his reasons for decision, in order to reach a conclusion as to whether the learned Magistrate took into account an irrelevant consideration by having regard to the question of the 'utility' of the residential tenancy agreement, and therefore was under a misapprehension as to the nature of his functions or powers.
Question 3 is linked to question 2, and involves a review of the transcript of the hearing so as to reach a conclusion as to whether the learned Magistrate denied the applicant natural justice by failing to inform the applicant that he would, in the exercise of his discretion, consider the question of the utility of the residential tenancy agreement and provide the applicant with an opportunity to make submissions on this issue.
Considering question 4 will potentially involve hearing from Ms Snook and any witness for the Housing Authority and forming a view as to whether Ms Snook received a copy of the two witness statements prior to the trial before the learned Magistrate. It will also involve considering all of the factual circumstances surrounding the witness statements and the trial, and forming a view as to whether, in those circumstances, Ms Snook was denied procedural fairness, in the form of the opportunity to be provided with a copy of the statements such that she was able to be afforded a reasonable opportunity to cross examine and/or make submissions in relation to the matters raised in those statements in the context and course of the trial. In the course of considering question 4, the credit of Ms Snook (or any other witness called on this issue) may be in issue.
In considering the adjournment application made by Ms Snook on 19 March 2024, I was required to exercise a discretionary power of the court to control its own processes. That power must be exercised in the context of the RSC and the legislative framework of the Act. This includes considerations of the ordinary principles of case management. I was also required to consider the reasons put forward by Ms Snook for the requested adjournment and the evidence filed in support of that application.
In considering the adjournment application I was not required to, and did not, make any findings of fact or express any views in relation to a live and significant issue in the final review order proceedings. There was no overlap of issues. I was not required to, and did not, make any findings or express any views as to the appropriate construction of sections of the RT Act, whether the learned Magistrate misunderstood the nature of the power, or whether Ms Snook was denied procedural fairness.
Turning to the question of credit, I accept that in the course of considering the fourth question in the final review proceedings, it may be necessary to make a finding in relation to Ms Snook's credit or the credit of the witness called by the Housing Authority. I observe that it 'may' be necessary to make such a finding. At this stage in the proceeding, it is not possible to determine whether such a finding 'will' need to be made. However, the question for the purposes of a recusal application is concerned with possibilities.
The question then becomes whether, in the course of the adjournment application, I have made any findings or expressed a view as to the credit of Ms Snook (or any other relevant witness). Ms Snook submitted in both her email and her oral submissions that I did not believe her. However, this is to misconstrue my reasons for refusing the adjournment application. During the course of the hearing on 19 March 2024, I did not make any findings regarding the credit of Ms Snook or any other person. I did not express any views as to the credit of Ms Snook or any other witness. No submissions as to credit were made.
To the extent that, in my oral reasons for refusing the adjournment application on 19 March 2024, one of the reasons I gave was that there was no independent medical evidence corroborating the medical matters referred to in Ms Snook's affidavit sworn 19 March 2024, I do not consider this finding to be a finding regarding Ms Snook's credit. The relevant question for consideration in relation to this aspect of the adjournment application was whether Ms Snook had received a medical diagnosis for the condition referred to in her affidavit and the extent to which Ms Snook's illness impacted upon her capacity to participate in the final review hearing and if so how. That necessarily involved admissible expert medical opinion evidence as to Ms Snook's condition, the impact of that condition on her ability to conduct activities/tasks, what that impact was and for how long that impact would be present. Whilst Ms Snook was able to give evidence as to her symptoms and events which had occurred, Ms Snook, not being a qualified medical practitioner, was unable to provide that expert medical opinion evidence. A finding that the assertions made in Ms Snook's affidavit were not corroborated by the required expert medical opinion is not therefore a finding as to Ms Snook's credit, but rather is a finding that the required expert medical opinion evidence was not put before the court.
In these circumstances I did not (and do not) consider that the fair‑minded lay observer with knowledge of the matters I am required to decide in the final review order hearing; the matters I was required to consider and the findings I made in the adjournment application on 19 March 2024; and the fact that interlocutory applications are often made in the course of proceeding before the court, might reasonably apprehend that I might not bring an impartial mind to the resolution of the questions that I am required to decide in the final review order hearing.
Conclusion
In light of all the above matters, I was not (and am not) satisfied that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the questions that I am required to decide in the final review order hearing.
Again, for completeness, I was also of the view that the fact that Ms Snook made the recusal application (and also a complaint to the Chief Justice) did not give rise to a reasonable apprehension of bias. The fair-minded lay observer is also taken to know that a judge is required by his or her training, tradition and oath or affirmation to discard the irrelevant, the immaterial and the prejudicial, and in these circumstances I did not (and do not) consider that the fact that an application for recusal is made or a complaint is made would be sufficient for the fair-minded lay observer to reasonably apprehend that I might not bring an impartial mind to the resolution of the questions that I am required to decide in the final review order hearing.
Appointment of clinical psychologist
Background
Ms Snook's email sent on 20 March 2024 at 4.02 pm also included the following paragraph:
I submit that the corollary of these above submissions leads to a clear conclusion that, in order for justice to be done and be seen to be done, a specialist, for example, a clinical psychologist, be immediately appointed to examine and report on my degree of cognitive and executive impairment, and necessity of being represented, and fitness for cross examination with no preparation by working on any of the papers, I so apply.
In court on 21 March 2024, I clarified with Ms Snook whether she was seeking the appointment of a clinical psychologist to determine whether she should be represented by a guardian or a litigation next friend (eg The Public Trustee) or a solicitor. Ms Snook's clear position was that she was seeking the assessment to determine whether she should be represented by a solicitor. Ms Snook was clear that she was not seeking to be represented by a guardian of any sort.
Notwithstanding Ms Snook's clear position, I nonetheless also heard from the parties and considered whether there was material before me which raised a question as to whether, by reason of mental illness, defect or infirmity, however occasioned, Ms Snook was incapable of managing her affairs in respect of these proceedings and whether it was necessary for me to consider whether to declare Ms Snook a represented person in accordance with O 70 of the RSC. I clarified with Ms Snook that she was not currently the subject of any guardianship order.
Legal principles - represented person / assessment
I was not referred to any authorities which provided me with a power to order the appointment of a medical professional to assess a party in order to determine whether they should be represented by a solicitor. Order 28 r 1 of the RSC is concerned with the medical examination of a party, but it only applies in the following circumstances:
(1)Where it becomes material in any cause or matter before the Court to consider the question of the physical or mental condition of any party, any opposing party may serve on such first‑mentioned party a notice to submit himself for examination at a specified time and place by a medical practitioner provided and paid by the party requiring the examination. At any such examination a medical adviser chosen by the party to be examined shall be entitled to be present if the party so desires.
No notice has been served by any other party in this matter.
Turning to the question of the capacity of a party, the court has jurisdiction to require a person to be presented by a next friend or guardian ad litem. This jurisdiction derives from the inherent obligation of the court as parens patriae, to care for those who are unable to care for themselves (eg infants and persons under a disability). The court's powers in this regard were considered by Murphy JA in A v City of Swan.[11] I adopt, with respect, his Honour's summary of the legal principles relevant to the exercise of this jurisdiction at [62] ‑ [76] of that decision. I have not reproduced those paragraphs in full in these reasons. See also in this regard Allregal Enterprises v Carpaolo Nominees[12] and Goddard Elliott (A Firm) v Fritsch.[13] By way of summary, as outlined in these decisions:
[11] A v City of Swan [No 5] [2010] WASC 204 [62] ‑ [76].
[12] Allregal Enterprises v Carpaolo Nominees Pty Ltd [2009] WASCA 33.
[13] Goddard Elliott (A Firm) v Fritsch [2012] VSC 87 [545] ‑ [565].
(a)the power of the court to appoint a representative to act on behalf of a person under a disability is aimed at ensuring that all parties to the action are afforded the protection of the court's processes and those processes are themselves protected;
(b)it is well-established that there is a presumption that a person of full age is capable of handling their own affairs. The burden of proof rests upon the party asserting present incapacity;
(c)clear evidence that a person has suffered from some form of mental incapacity for a considerable period in the past is not itself determinative, although such evidence may mean that the burden of proof is more easily discharged;
(d)the court, when asked to make an order of this nature, must be mindful of the impact the order will have on the civil rights of the individual concerned;
(e)conscious of the necessary impact on the person's civil rights, the court will be reluctant to order the appointment of a representative without medical evidence of incapacity, although there will be instances where the court will be limited to its own observations, for example, where medical evidence is not forthcoming, or where the person's incapacity is so obvious to the court that the judge is of the view that medical evidence is not required;
(f)when put on notice that a person may lack the capacity to manage their own affairs in the litigation, the court will be bound to consider and decide whether the person has the requisite capacity based upon the available evidence;
(g)Order 70 requires the court to consider whether the relevant person is, by reason of mental illness, defect or infirmity, however occasioned, incapable of managing their affairs in respect of the proceedings. There is no fixed standard of the mental capacity required at law for a person to be deemed 'capable' of managing their own affairs. It will fluctuate according to the legal character, complexity and significance of the relevant transaction (also known as an 'issue-specific' approach);
(h)the expression 'incapable of managing her own affairs' must be construed in a common-sense way as a whole. It does not call for proof of complete incapacity or (for example) proof that the party should be subjected to involuntary medical treatment under mental health legislation. A person can lack the mental capacity to participate in legal proceedings yet still be capable of performing the usual activities of daily life. The expression involves a consideration of whether the person has sufficient mental capacity to understand the case and the legal issues involved, to make decisions in relation to the case and (if instructing a solicitor) to give instructions. It has been described as:[14]
The level of understanding of legal proceedings must, I think, be greater than the mental competence to understand in broad terms what is involved in the decision to prosecute, defend or compromise those proceedings. The person must be able to understand the nature of the litigation, its purpose, its possible outcomes, and the risks in costs which of course is but one of the possible outcomes …
(i)in circumstances where a litigant is self-represented, the standard has been described as follows:[15]
[T]he level of mental capacity required to be a 'competent' litigant in person ... cannot be less than that required to instruct a solicitor. It should be greater because a litigant in person has to manage court proceedings in an unfamiliar and stressful situation.
[14] Dalle-Molle v Manos [2004] SASC 102; (2004) 88 SASR 193 [23], [26] as quoted in A v City of Swan [No 5] [2010] WASC 204 [73].
[15] Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51[35] (Handley JA, Tobias JA agreeing); A v City of Swan [No 5] [2010] WASC 204 [76].
Parties' submissions
By way of summary, I understand Ms Snook's submissions to be that she did not have the capacity to represent herself at the final review hearing because due to her recent surgery she was unfit to prepare and to proceed. Ms Snook submitted that she had successfully represented herself in court proceedings in the past, but lately she had been unsuccessful when self-represented and was alienating the court with her submissions. Ms Snook also submitted that due to the physical and mental effects of her surgery she did not have sufficient time to prepare (including reviewing all materials so as to be properly prepared). Ms Snook submitted that as a matter of fairness and in the interests of justice, a neutral specialist/person should be appointed and the onus should not be on Ms Snook in this regard. Ms Snook also submitted that the fact that she had been able to make some submissions in support of her adjournment application (and respond to the submissions of the Housing Authority) and identify some case law was not sufficient to be properly prepared in all the circumstances given the potentially extreme consequences for her if her review order application was ultimately unsuccessful.
The amicus made submissions on the legal principles relevant to the consideration of the mental capacity of a party.
Counsel for the Housing Authority submitted that two separate questions arose. One is whether Ms Snook was fit to proceed with the final review hearing on the dates listed. Counsel submitted that the onus lay on Ms Snook to establish she was not fit in these circumstances, and no evidence had been provided. The second question was whether the material before the court was sufficient to raise a question as to whether Ms Snook had the necessary mental capacity. Counsel submitted that there was no evidence meeting the level necessary to engage the duty of the court in this regard. Counsel gave three examples of Ms Snook demonstrating the sufficient mental capacity, insight and understanding of the proceedings: being able to articulate the nature of the additional expert evidence she may wish to call at the final review hearing (evidence from a computer expert and Australia Post); being able to refer the court to particular aspects of Hansard in relation to the current bill before the Parliament to amend the Act; and being able to research and refer the court to four legal authorities relevant to the recusal application.
Disposition - appointment of clinical psychologist
I first considered whether there was any information before the court which could lead me to question whether, by reason of mental illness, defect or infirmity, however occasioned, Ms Snook might be incapable of managing her affairs in respect of the final review order proceedings. In all the circumstances I concluded that there was no such information before me. I reached this conclusion for the following reasons:
(1)There is no expert medical evidence before the court which might suggest a level of concern in relation to Ms Snook's mental capacity. Whilst Ms Snook has referred to previous reports, including psychiatric reports, they are not before the court and insufficient details were provided for me to reach a sufficient level of concern, in light of all other factors I will go on to refer to. The reference to the medical reports also indicated that they were some time ago. Ms Snook has also made reference to previously having the Public Trustee appointed as a limited litigation guardian, but that the Public Trustee determined that she did not require their appointment and ceased that appointment. I accept that I do not necessarily require expert medical reports in order to reach a level of concern regarding Ms Snook's capacity, or to make an order that a representative be appointed. I accept that the level of concern may be manifested by other conduct and matters. However, the lack of any medical evidence is nonetheless a relevant factor. This case is therefore different to both A v City of Swan[16] and Allregal Enterprises v Carpaolo Nominees,[17] where there was some medical evidence before the court which lead to a concern on the part of the judge hearing the matter, such that further enquiries were made.
(2)During Ms Snook's appearances on 19 and 21 March 2024 (and on all other appearances) I have observed that Ms Snook has been capable of understanding the nature of the review order application as well as the interlocutory applications being made, in terms of their respective purposes and possible outcomes. I have observed that Ms Snook also appears to have understood the issues before the court, as well as what is being said by the court, the amicus and counsel for the Housing Authority.
(3)During Ms Snook's appearances before me on 19 and 21 March 2024 (and on all other appearances), I have observed that Ms Snook has been capable of both putting her positive case and responding to what is being said by the court, the amicus and counsel for the Housing Authority. For example, in putting her case as to why a review order should be granted; in being able to respond to the various factors raised by counsel for the Housing Authority in opposition to the adjournment application on 19 March 2024; to identify the various reasons why she was seeking the adjournment application (including additional expert evidence she may wish to call); to formulate her submissions in relation to her recusal application; and by researching and identifying cases and documents concerning matters in Parliament.
(4)I accept that Ms Snook's oral submissions sometimes stray from answering the particular question, and/or or Ms Snook sometimes loses her train of thought. However, that does not mean that Ms Snook does not have capacity. I observe that Ms Snook will often go on to raise other relevant points.
(5)I also accept that Ms Snook has been disappointed in the decisions I have reached on the interlocutory applications that I have considered on 19 and 21 March 2024. Ms Snook has indicated she has disagreed with my decisions and has outlined her reasons for that conclusion in oral submissions and in emails to my associate email address and orally in court. Ms Snook is entitled to disagree with my decisions, and express that view (including strongly), and to appeal if she wishes. The fact that Ms Snook has expressed those matters in oral submissions and in emails to my associate email address does not mean that Ms Snook does not have capacity, even if it may (on one view) not be a prudent course of conduct to do so immediately after receiving a disappointing decision.
(6)The fact that Ms Snook is self-represented does not mean she does not have capacity. I accept Ms Snook's submission that it takes her time to consider and work through what she wishes to say and that she is not as fast as she once was in this regard. This does not mean Ms Snook does not have capacity. I accept that the authorities indicate that a person may have capacity to instruct, but not to represent themselves. I have taken this into account when considering the question before me.
(7)The fact that Ms Snook may find the litigation process stressful, does not mean that she does not have capacity. Litigation is stressful for many persons, including professionals and counsel and solicitors.
(8)I am also satisfied that when considered as a whole, the central basis of Ms Snook's submission is not that she does not have capacity in the sense referred to in O 70 of the RSC, but rather that Ms Snook is in fact not sufficiently prepared for the final review order hearing. In in this respect, the majority of Ms Snook's submissions are a repeat of, or further development of her submissions made in support of the adjournment application, which I have already heard and refused. That is, Ms Snook's position is that she does not have the capacity to present her case on 21 and 22 March 2024 because she has not been able to properly prepare (for a variety of reasons which I will not repeat here). This does not, in my view, rise to the level of having a sufficient level of concern for the purposes of O 70 of the RSC.
[16] A v City of Swan [No 5] [2010] WASC 204.
[17] Allregal Enterprises v Carpaolo Nominees [2009] WASCA 33.
For completeness, I observe that Ms Snook has also submitted that other judges of this court have indicated that she should not be self‑represented. I am required to consider this case on the basis of what I have before me, what I have observed and what has been submitted. I have taken into account that Ms Snook has been legally represented in some other proceedings before this court. There is a difference between it being desirable that a person be represented by lawyer and the question of whether a person has the sufficient mental capacity as required by O 70 of the RSC. I also observe that Ms Snook did, for a short period, obtain a lawyer to represent her through Law Access. However, for the reasons given orally on 17 January 2024, I made orders (on the application of the lawyers) for them to come off the court's record. Ms Snook has not obtained another lawyer since that time. Whilst Ms Snook has made reference in her oral submissions to this court of hopefully being able to obtain a lawyer in three weeks, I have no affidavit evidence to that effect, or of the precise steps that have taken place in this regard, and it does not appear (in any event) that a lawyer has yet been secured or any reason behind the three week time estimate.
Finally, in circumstances where I was satisfied that no question arose as to Ms Snook's mental capacity to manage her affairs in respect of the final review order proceedings, I was not referred to any power I might have to appoint an expert such as a clinical psychologist to assess Ms Snook for the purposes of determining whether she should be represented by a solicitor, and therefore I dismissed Ms Snook's application.
Conclusion
For the above reasons I therefore dismissed Ms Snook's application that I recuse myself from the final review order hearing on the grounds of actual or apprehended bias and I dismissed Ms Snook's application that the court order the appointment of a clinical psychologist.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AA
Associate to the Honourable Justice Seaward
25 MARCH 2024
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