Ugur v Attorney General for New South Wales

[2019] NSWCA 86

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Ugur v Attorney General for New South Wales [2019] NSWCA 86
Hearing dates:	19 February 2019
Decision date:	26 April 2019
Before:	Meagher JA at [1]; White JA at [2]; Brereton JA at [129]
Decision:	(1)   Dismiss the appellant’s notice of motion filed on 20 December 2018. (2)   Appeal dismissed. (3)   Appellant pay the respondent’s costs of his notice of motion filed on 20 December 2018 and of the appeal.
Catchwords:	CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — No reasonable cause of action disclosed — Self-represented litigant — Appeal against decision to dismiss summarily application for issue of writ of habeas corpus — Whether appellant denied procedural fairness — Whether primary judge’s remarks on earlier occasion regarding merits of application gave rise to reasonable apprehension of bias — Whether primary judge acted under dictation — Whether primary judge erred in admitting hearsay evidence — Whether primary judge bound to accept as true appellant’s allegation that appellant is subject to surveillance and monitoring by way of electronic microchip implanted in appellant’s body
Legislation Cited:	Evidence Act 1995 (NSW), s 75 Civil Procedure Act 2005 (NSW), s 73 Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 Antunovic v Dawson (2010) 30 VR 355; [2010] VSC 377 Ashby v Slipper [2014] FCAFC 15; (2014) 312 ALR 551 Barakat v Goritsas (No. 2) [2012] NSWCA 36 Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 Burton v Shire of Bairnsdale (1908) 7 CLR 76 Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 Galea v Galea (1990) 19 NSWLR 263 General Steel Industries Inc v Commissioner For Railways (NSW) (1964) 112 CLR 125 GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser HealthCare (UK) Ltd [2013] FCAFC 150 Goodwin v Commissioner of Police [2012] NSWCA 379 Hall v Nominal Defendant (1966) 117 CLR 423 Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71; 16 BPR 31,705 Re JRL; Ex parte CJL (1986) 161 CLR 342 Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128 Ruddock v Vadarlis (2001) 110 FCR 491 Scott MacRae Investments Pty Ltd v Baylily Pty Ltd [2011] NSWCA 82 Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 Three Rivers District Council v Bank of England [No. 3] [2003] 2 AC 1; [2001] UKHL 16 Toth v Director of Public Prosecutions (NSW) [2017] NSWCA 344
Category:	Principal judgment
Parties:	Haci Emin Orhan Ugur (Applicant/Appellant) Attorney General for New South Wales (Respondent)
Representation:	Counsel: Self-represented (Applicant/Appellant) S Free SC with A Bhasin (Respondent)   Solicitors: Crown Solicitor’s Office (Respondent)
File Number(s):	2018/202804;2018/316936
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: n/a Date of Decision: 6 June 2018 Before: Fagan J File Number(s): 2018/89981

Judgment

1. MEAGHER JA: I agree with White JA.

2. WHITE JA:   This is an appeal from orders of the Common Law Division (Fagan J) summarily dismissing the appellant’s proceedings and ordering him to pay the respondent’s costs. The primary judge also dismissed a notice of motion in which the appellant had sought an order for discovery. His Honour did so on the ground that as the proceedings were to be summarily dismissed, that notice of motion was redundant (Ugur v Attorney General of New South Wales, 6 June 2018 (no medium neutral citation).

The application for habeas corpus

3. The appellant, Mr Haci Emin Orhan Ugur, had filed a summons on 21 March 2018 seeking the issue of a writ of habeas corpus. The Attorney General of New South Wales was named as defendant. The primary judge recorded that Mr Ugur sought that the writ should be directed to the “respondents” (sic) to have the body of Mr Ugur produced before the Court within 24 hours. Although not claimed in the summons, in another document headed “Orders sought” Mr Ugur sought:

“... an order by way of relief in the nature of writ of habeas corpus, that the respondents [sic] release the applicant from their unlawful custody and remove the electronic tag device inserted [in] the body of the applicant.”

4. On 1 May 2018 the Attorney General filed a notice of motion seeking summary dismissal of the proceeding pursuant to r 13.4(1)(a) and (b) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).

5. On 30 May 2018 Mr Ugur filed a notice of motion seeking an order that the defendant give discovery of all documents:

“... in relation to the Public Guardian and the operations of Monitoring with Advocacy and activities since 2007 and that attention of the applicant in the [XX] [XXX Avenue], Homebush West [premises] since 2008 [sic].”

6. On 20 March 2018, Mr Ugur had appeared before the primary judge sitting as duty judge prior to having filed his summons. In his reasons for judgment of 6 June 2018 the primary judge recorded that on 20 March 2018, Mr Ugur had sought ex parte relief in the nature of the writ of habeas corpus, but that the application was refused. The primary judge said (at [7]):

“I pointed out to Mr Ugur on that occasion that he was not in custody, that he was free to come and go from the Court and that there could not be any basis for the issue of such a writ or any similar relief. Undeterred, he proceeded to the registry and filed his summons seeking precisely the type of relief that I had pointed out to him he was demonstrably ineligible to recover.”

7. The primary judge said that Mr Ugur’s summons as filed incorporated 17 pages of reasons and grounds for his application. Of these the primary judge said:

“8   ... he contends that he is ‘held at a [sic] detention by respondents’ and that he has been ‘monitored 24/7 with an electronic tagging device inserted [in] his body’. There are ancillary claims that he has been denied access to legal advice. No particulars are provided of when and how this latter denial occurred or what right he claims has been infringed by any action of the Attorney General with respect to him obtaining advice. Any cause of action in this regard is entirely unspecified in his summons, including in the grounds set out in it, in the copious written submissions he has provided and in his affidavits and their extensive annexures.

9   There is nothing in any of the material he has tendered which suggests that he has been actively prevented from engaging the services of any lawyer of his choosing in private practice.”

8. The primary judge summarised what can be gleaned from three affidavits read by Mr Ugur, being affidavits made on 2 February, 4 May and 5 June 2018. That evidence is reviewed below. The primary judge drew the following conclusion (at [40]):

“The upshot of all this is that insofar as the plaintiff seeks an order in the nature of habeas corpus, he has, by his own conduct in coming to and from court, demonstrated that he is not under any form of restraint which would warrant any such relief. By the evidence he has provided he has not shown any particulars of such restraint which could ever be substantiated. With respect to the allegation that he is subject to monitoring by the installation of an electronic chip, the evidence merely shows that the plaintiff is suffering from imaginings concerning this matter, and he is not able to identify any piece of evidence with the slightest cogency capable of particularising, let alone substantiating, the proposition.”

9. His Honour concluded that even having regard to the exacting standards applicable to the summary dismissal of proceedings, Mr Ugur’s claims were obviously untenable and “foredoomed to fail” (at [41]). His Honour concluded:

“The lack of any intelligible particulars of restraint upon his liberty or of when or how or by whom a chip was inserted in his body is particularly significant. It means that he has not identified any serious contention of fact from which the Court might conclude that he should have the opportunity to obtain evidence in support of it.” (at [41])

10. The primary judge dismissed the proceedings.

Mr Ugur’s allegations

11. On 25 July 2003, Mr Ugur was sentenced to five months and 30 days’ imprisonment, apparently for offences of assaulting a police officer in the execution of duty and resisting police. He was discharged from Silverwater Correctional Centre on 23 January 2004 and taken to Villawood Immigration Detention Centre pending deportation.

12. Mr Ugur is of Turkish background. English is not his first language. In his affidavit of 4 May 2018, Mr Ugur deposed that on 14 February 2005, at the Villawood Detention Centre, a New South Wales police constable told him “they use to you as an experiment”. He deposed that “In 2005, I was told by medical officer, I have been experiencing pain caused by a chip inserted in my body. This chip is not from the detention centre and this was occurring (inserted) out the detention [sic]”.

13. Mr Ugur deposed that on 29 June 2005 when in immigration detention he was escorted by security officers to see a general practitioner to whom he refused to speak. Attempts were then made by the security officers to have him “scheduled”. He says that he was taken to the Bankstown Hospital. He then deposed:

“23   I was advised in the hospital; the chip inserted in my body has trespassed (on my body). I was in the immigration detention centre. Therefore, the certain areas of government did not accept the chip inserted on my body. Interviewers advised me to do not speak and write again related the chip inserted on your body, because; they will bring me back to the hospital often. I was escorted back to the detention centre less than an hour by the security officers. Later, the medical officer who provided information related chip to me disappear from work for the medical service of the detention centre.”

14. Mr Ugur did not identify either in the proceedings before the primary judge, nor on appeal, when it was that he contends that a procedure was carried out to insert a chip in his body, or how that might have been done. Apparently it was before 2005, but not in the Villawood Detention Centre. He gave no evidence of being admitted to hospital, or having been given an anaesthetic, or otherwise having been given medical treatment, or being assaulted or drugged, whereby the chip may have been inserted. The primary judge correctly observed:

“21   A great bulk of the material provided by the plaintiff in submission form, in annexures to affidavits and in the body of affidavits, is not directed to the matter of detention of which, as I have indicated, he apparently has no particulars or substantiation. Rather, it goes to the plaintiff’s attempt to prove that an electronic monitoring chip has been installed in his body and that he is, through this device and through other means, under constant surveillance by some unparticularised person or authority.

22   The plaintiff has adduced no medical evidence (for example, an x-ray image, a computed tomography scan or an MRI scan or any other form of radiological examination) to substantiate this. He has not adduced this evidence from a medical practitioner of any physical examination of him which would provide any hint of substantiation that he may have fixed in his body such a device.”

15. In a letter to the Legal Aid Commission dated 17 April 2009, Mr Ugur gave greater elaboration of what he said happened in relation to his admissions to Bankstown Hospital in 2005. His complaint was that attempts had been made to obtain psychiatric reports to suggest that he was not able to manage his affairs or was in need of a guardian. He said that on 29 June 2005 the Department of Immigration and Citizenship (“DIAC”) brought him to Bankstown Hospital as a result of a diagnosis of a doctor that was paid for by DIAC and was obtained in order to cover up abuse in the Detention Centre. He said that the hospital released him within an hour. He said that on 29 September 2005 DIAC used another doctor to schedule him to Bankstown Hospital. This was again paid for by the Department and the reason given was “You complained to the Commonwealth Ombudsman Office pages and pages.” He said that he was forced to see a psychiatrist.

16. Mr Ugur said that in August 2006 he consulted a psychiatrist, a Dr Smith, who did not give him any medication or treatment. He said that Dr Smith had no right to provide a report to the DIAC director about whether or not he was able to manage his affairs. He complained that the DIAC intentionally hired Dr Smith to commit him to a mental health facility without his consent. He complained that six months later the report was used in the Guardianship Tribunal to cover up the DIAC’s behaviour in the Detention Centre. He made no complaint then of a chip having been inserted in his body, nor having been advised about that in the hospital.

17. Mr Ugur deposed that he made a complaint to the Human Rights and Equal Opportunities Commission containing 4,457 pages of documents. The Commission declined to entertain the complaint. He was advised on 31 October 2006 by Legal Aid that the Commission had refused legal aid to him in respect of his application to the Human Rights and Equal Opportunities Commission. It invited him to make arrangements to collect several of the bundles of documents that Legal Aid held. His complaint as to the whereabouts of documents, and his accusation against Legal Aid that it destroyed documents are unsubstantiated and irrelevant.

18. Mr Ugur deposed that an officer of the New South Wales Ombudsman Office recommended that he complain to the New South Wales police in relation to the chip and he later sent that information to the officer making that recommendation. He deposed that on 17 August 2006 he spoke about mistreatment in the Detention Centre by New South Wales police officers there, but did not receive any direct response.

19. At some time in 2006, and there is no evidence as to when, an application was made to the Guardianship Tribunal for a guardianship order for Mr Ugur. Such an application could be made by Mr Ugur himself, but he certainly did not do so, or by the Public Guardian, or by any other person who, in the opinion of the Tribunal, had a genuine concern for his welfare (Guardianship Act, s 9). A guardianship order could be made in respect of a person whom the Tribunal was satisfied was a “person in need of a guardian” (s 14(1)). That expression meant a person who, because of a disability, was totally or partially incapable of managing his or her person (definition s 3(1)).

20. On 18 December 2006, the Tribunal determined that it was satisfied that Mr Ugur ought to be separately represented. It appointed a Ms Nihal Danis, solicitor, to be Mr Ugur’s separate representative.

21. Mr Ugur objected to this order. He complained that he did not receive notice of the order until 7 January 2007. It appears from the terms of his complaint that the application for a guardianship order may have been made by DIMA (Department of Immigration and Multicultural Affairs).

22. On 25 January 2007 the Guardianship Tribunal advised Mr Ugur that it had decided to appoint a separate legal representative for him so that:

“... you may be able to call on a legal person to assist in the Guardianship Tribunal process who is separate from and outside of the Department of Immigration and Multicultural Affairs ... The Guardianship Tribunal in these matters calls on the assistance of the Mental Health Advocacy Service from which Ms Danis was appointed.”

23. The Tribunal made a guardianship order on 16 February 2007. The Tribunal made the following orders:

“1.   Mr Haci Emin Orhan Ugur be placed under guardianship.

2.   His guardian shall be the Public Guardian.

3.   This is an order for continuing guardianship for a period of 12 months from the date of this order or until the Tribunal varies, suspends or revokes the order at an earlier date on request or at its own initiative.

4.   This order is an order for limited guardianship giving the guardian custody of Mr Haci Emin Orhan Ugur to the extent necessary to carry out the functions referred to below.

5.   The guardian shall have the following functions in relation to Mr Haci Emin Orhan Ugur:

a)   Accommodation

To determine where Mr Haci Emin may reside.

b)   Health Care

To determine what health care and major and minor medical and dental treatment Mr Haci Emin Orhan Ugur may receive.

c)   Medical and Dental Consent

Where Mr Haci Emin Orhan Ugur is not capable of giving a valid consent to his own treatment, to make substituted decisions on his behalf about medical or dental treatment proposed for him by others under the provisions of Part 5 of the Guardianship Act.

d)   Services

To make decisions on his behalf concerning major services to which he should have access.

e)   Legal Advocacy

To make decisions and take action including,

(i)   Obtain all legal documents in relation to Mr Haci Emin Orhan Ugur.

(ii)   Arrange legal representation.

(iii)   Advocate generally in relation to legal matters.

6.   This order is subject to the following standard condition:

The guardian, in the exercise of the above powers and functions, shall take all reasonable steps to bring Mr Haci Emin Orhan Ugur to an understanding of the issues affecting him and shall obtain and take into consideration, but not be bound by, his views when significant decisions are to be made.”

24. The reasons for that decision were not before the primary judge, nor this Court.

25. On 8 November 2007, Ms Oxenham for the Public Guardian advised Mr Truswell of the Legal Aid Commission that the Public Guardian consented to the Legal Aid Commission processing an application for legal services for Mr Ugur.

26. The initial guardianship order made on 16 February 2007 was made for a period of one year. Section 25 of the Guardianship Act required the Tribunal to review the guardianship order. The review was taken to have commenced on the issue of a notice specifying the date on which the review would be carried out (Guardianship Act, s 25(2) and (4)).

27. The hearing of the review of the guardianship order took place on 18 February 2008. On that day the Tribunal decided that the guardianship order made on 16 February 2007 should be permitted to lapse. In doing so, it accepted the recommendation of the Public Guardian. The Office of the Public Guardian stated that guardianship had not achieved a positive outcome for Mr Ugur. He was very distressed about being subject to a guardianship order and much of his time had been taken up with appealing the decision and refuting evidence presented to the Tribunal. The Public Guardian stated that because Mr Ugur was not willing to communicate with the Public Guardian or engage with any service providers, it was very difficult to implement any decisions. The Public Guardian recommended that the order be allowed to lapse.

28. The Tribunal’s report of its reasons for its decision of 18 February 2008 nonetheless describes the advocacy that the Public Guardian provided in Mr Ugur’s interests. The Tribunal’s reasons include the following:

“A decision was made on 15 January 2008 to accept ACL Integrated Humanitarian Settlement Services as service provider to assist Mr Ugur within the community. This decision was made following advice by DIAC that Mr Ugur had been granted a special humanitarian visa on 10 January 2008. On 16 January 2008 a decision was made by the Public Guardian to release information to Richmond Fellowship for referral for ongoing support and case management programs. An accommodation decision was made on 11 January 2008 to accept accommodation for Mr Ugur in a serviced apartment for a period of four weeks. There were no decisions made as to health care or consent for medical and dental treatment under the existing order.

... The Public Guardian states that the Public Guardian was involved in ongoing discussions with DIAC staff regarding possible resolution to Mr Ugur’s residency status. The Public Guardian supported efforts by DIAC to make representations to the Minister for Immigration and Citizenship on behalf of Mr Ugur seeking permanent residence and the process was eventually successful with the granting of a permanent visa. Once Mr Ugur was granted a visa, it is said by the Public Guardian that DIAC developed a transition plan for resettlement in consultation with the Public Guardian. Mr Ugur initially declined to leave Villawood on the basis he wanted to have the guardianship order revoked before moving to the community but eventually did agree to move to the serviced apartment.”

29. In short, the Public Guardian advocated for Mr Ugur to obtain a visa to become a permanent resident, assisted with the development of a transition plan for his resettlement and assisted in arranging accommodation for him following his release from the Villawood Detention Centre.

30. This provides the context for a “client audit” document upon which Mr Ugur relies for his contention that he is the subject of continuing monitoring by unidentified government officials.

31. Mr Ugur was released from the Villawood Detention Centre on 11 January 2008. He complains that:

“41   On 20 February 2008 the Department of the Attorney General NSW applies ‘Monitoring with Advocacy’ an administrative decision against me without any notification. Please see the Client Audit of The Office of the Public Guardian dated 20 February 2008 as an evidence appointing Monitoring Advocacy is concerning me without his jurisdiction annexed and marked ‘O6’.

42   This order appears like a Control Order restraining me from listen (or watching) ABC News at my home or set up Security Officer prevented me from getting in Computer Lab for preparing my assignment, opening (monitoring) my correspondence, etc.”

32. The “client audit” document referred to is dated 20 February 2008. It states that the reason for the order is “discharge”. It is evidently a standard form document with fields to be filled in. It noted that the date of “current order” was 16 February 2007. The length of the current order was “12”, evidently meaning 12 months. It describes the functions under the order of 16 February 2007 as being “Accommodation; Health Care; Medical/Dental Consents; Objection to treatment; Services”.

33. Under the heading “Status of Client and Contact Data, Plans and Decisions (Complete for all Audit types)”, there are completed responses. The first question to be answered was whether there was an approved “Dplan” (presumably discharge plan). This was answered “yes”. The second question was “Has a DPlansUpdate been approved recently? (4 months for active, 6 for monitoring)”. The answer was “Yes”. Against the heading “Current File Category” the response was “Monitoring with Advocacy”.

34. Mr Ugur submits that it can be inferred from this pro forma “client audit” document that notwithstanding that the guardianship order of 16 February 2007 was permitted to lapse, the Office of the Public Guardian continued to apply to him a category of “Monitoring with Advocacy”. That is a possible interpretation of the form for a period of 10 months. That is, a possible interpretation of the form is that, notwithstanding the lapse of the guardianship order and Mr Ugur’s being discharged as a “client” of the Office of the Public Guardian, the Office of the Public Guardian would for a period of up to 10 months monitor his position with a view to providing advocacy for him if required.

35. On 4 April 2018 a solicitor employed in the Crown Solicitor’s Office, Mr Loosley, wrote to the Office of the Public Guardian enquiring as to whether any guardianship order or any other order was in place in respect of Mr Ugur. The enquiry was made for the purposes of these proceedings. Mr Loosley enclosed a copy of the “client audit” that Mr Ugur had attached to his affidavit. He requested an explanation of what the designation “Monitoring with Advocacy” meant in relation to Mr Ugur’s file. On 6 April 2018 a Mr or Ms Phil Kearton, Acting Assistant Public Guardian, replied to Mr Loosley as follows:

“Thank you for your inquiry (Letter, 4 April 2018) regarding Mr Uger [sic]. I understand Mr Uger believes he is being electronically monitored by government agencies, including by the Office of the Public Guardian (OPG). I am writing to inform you Mr Uger is no longer under guardianship and is not being monitored by the Office of the Public Guardian. I have provided more detail below.

Mr Uger is no longer under guardianship

The Guardianship Division of the NSW Civil and Administrative Tribunal appointed the Public Guardian as Mr Ugur’s guardian on 20 February 2007, for 12 months. Mr Ugur’s guardianship included the functions (i.e. decision making areas) of accommodation, health care, medical and dental consents, objection to treatment, services and legal advocacy (TAB 1).

Mr Uger’s guardianship order lapsed on 18 February 2008 (TAB 2). He is, therefore, no longer under guardianship and the Office of the Public Guardian (OPG) has no authority to make decisions or advocate for him.

Mr Uger is not electronically monitored by the Office of the Public Guardian

Mr Uger submitted an OPG ‘client audit’ document as evidence he is being electronically monitored by the OPG. He drew attention to his file category being listed as ‘monitoring with advocacy’. Mr Uger interpreted this as meaning he is subject to ongoing monitoring by the OPG. I can inform you the Public Guardian has not in any way monitored Mr Uger since he was discharged from guardianship on 18 February 2018 [sic].

The Public Guardian has no authority to make decisions or advocate for a person when they are discharged from guardianship. The OPG routinely undertakes audits of those we represent. One reason for undertaking an audit is when a represented person is discharged from guardianship and was the reason for Mr Uger’s audit. This is indicated in the left hand corner of the audit that Mr Uger submitted as evidence for his case.

The ‘monitoring with advocacy’ category in the audit indicates there are no active decisions that can be made for a person but that the person may need some advocacy in their life. When the discharge audit is completed the file category should have been changed to ‘discharged’. This was an administrative error. Our electronic records do record the correct file category for Mr Uger, which is ‘discharged’ (TAB 3).

Mr Uger can be assured he is not the subject of any form of surveillance by the OPG.”

36. The reference in the fourth paragraph that Mr “Uger” was discharged from guardianship on 18 February 2018 is a clear typographical mistake for 18 February 2008. The misspelling of Mr Ugur’s name is of no consequence.

37. One of Mr Ugur’s grounds of appeal is that the letter from Mr or Ms Kearton ought not to have been admitted.

38. Mr Ugur said that the so-called “order” “monitoring with advocacy” appeared like a control order restraining him from listening or watching ABC News, or as a security officer preventing him from getting into a computer lab or preparing his assignment and opening his correspondence. The primary judge described this as disconnected speculative assertions incapable of supporting Mr Ugur’s contentions that he had been impregnated with an electronic chip (Judgment [28]).

39. Mr Ugur deposed that as evidence of the conduct of “the section of the Operations of the Monitoring with Advocacy” he was having coffee with a lawyer when the lawyer received a telephone call from “the Separate Representative Legal Aid lawyer, Ms Danis”. He was later told by the lawyer that she was starting a new job in the Legal Aid office in the section in which Ms Danis worked. He interpreted that as Legal Aid providing a job to the lawyer as a bribe to prevent his receiving legal advice. The primary judge described this as a “typical example of the disconnected, rambling, speculative, baseless assertions of which these affidavits are composed” (Judgment [29]).

40. As further purported corroboration of his assertion that he was being monitored, Mr Ugur attached correspondence in which he had made complaints to the Post Office that mail had been opened or packaging had been broken. He also complained that the University of New South Wales and DIAC were using him as an experiment to protect DIAC’s interests. He relied upon a letter of complaint to the Office of the Legal Services Commissioner dated 18 August 2017 asserting that after he had provided two earlier complaint letters of 10 August 2017 he had been told on 17 August that there was no record of his complaints. He asserted that “this shows certain areas of government how used monitoring function and cover up their abuse and misconduct”.

41. Mr Ugur complained about the conduct of the Public Guardian, or the legal representative retained by it, in connection with proceedings in the Federal Court in February 2008 in which an appointment to settle an appeal book index for some unspecified proceedings in that Court was cancelled. His complaint appears to be that he was not able to have the 4,457 pages of evidence included in appeal books and the case was summarily dismissed. This evidence has no apparent relevance.

42. In paragraph 57 of his affidavit of 4 May 2018 Mr Ugur complained that “monitoring government officers have used monitoring function and influence to the teacher as an officer of the government”. He annexed correspondence with a lecturer in a TAFE course that he was taking and with the New South Wales Ombudsman’s Office from which it appears his complaint was that he failed the course because the teacher taking it asserted (wrongly according to Mr Ugur) that he had not delivered an assignment. This was said to be corroboration of his complaint that he was being monitored through an electronic chip.

43. A further complaint was that he had been “experimented and abused with excessive pain during his education, public space and at home”. As corroboration of that complaint he said that in 2011 when he was attending a TAFE course in marketing, one of the students in the class asked him how he was. He said that “during this time I felt the monitoring government officer administrative pain on me”. A later search, Mr Ugur contended, disclosed that the student in question was the daughter of a police officer. He understood that she collected incorrect information on purpose to keep him under control by the monitoring government officers. In support of that contention he attached emails from the student in question to a number of individuals in a “team” in which she stated:

“Here is our marketing plan. I am still awaiting on appendices which will be entered tonight, however I wanted you all to be able to read through it asap to prepare for the presentation tomorrow. ...”

44. Mr Ugur sent a response complaining that he had not been given access to certain information, which concluded with the following remark:

“I did not commit any crime against the Commonwealth and any others. This is unfair for me. There is no evidence for me to reply or answer. I refer to the case Police Entrapment – the High Court’s decision in Ridgeway v The Queen”.

The reply and the entirety of his complaint is bizarre.

45. The primary judge said that the manner in which Mr Ugur sought to link these matters to monitoring of himself was not articulated, nor demonstrated, and is inconceivable. He described Mr Ugur’s assertion that he had been in some way deprived of his education rights and subjected to ill-treatment as speculative and paranoid assertions that in any event could not be linked to anything done by or on the authority or within the responsibility of the Attorney General (Judgment [32]).

46. Mr Ugur deposed that he was visited by police officers on 26 July 2011 and 25 July 2012 without good reason. In his complaint to the NSW Ombudsman Office he recorded in respect of the visit on 25 July 2012 that the police officers gave as a reason for questioning him that they were seeking information about a tenant of a garage in Homebush Road, Homebush. He told the Ombudsman that he felt that they visited him in order to fabricate a record or evidence against him. It appears from his letter of complaint that an earlier complaint to the NSW Ombudsman of his being monitored had been rejected by that office.

47. Mr Ugur deposed that on 26 or 27 April 2018 he had been stalked by an individual who might have been a plain-clothes policeman. He said that the previous night he had been deprived of sleep and the next day he saw a person staring at him as he was talking on his phone next to a police vehicle parked on the opposite side of the road. When he started to cross the road the man on the phone moved on his way. He referred to “other persons likely were watching such police officers”. The primary judge observed that “the plaintiff interprets these photographs, as explaining his written submissions, as evidence that these young men were receiving messages connected with surveillance of him. This is demonstrably delusional and unsubstantiated” (Judgment [33]).

48. Mr Ugur deposed that in 2012 he was attending a TAFE course when a man whose name he subsequently searched on the internet and identified as a lawyer working for Legal Aid NSW, sat next to him. He said he saw this man open his computer to a page relating to forecasting international markets which was not a subject related to the course. He deposed that:

“During this time, I felt to turn my penis stick (erected) used by Medical (or Criminal) software and electronic tag inserted my body without my consent ... during the course duration, I felt that [the man] experimented me with others without my consent ... I believe the Legal Aid solicitor collects incorrect information and to use the other students, teachers ... fabricate records and evidence against me.”

49. In similar vein, Mr Ugur complains that on the night of 18 April 2018 he suffered tooth pain that he attributes to officers of the government inflicting pain through their monitoring of him, apparently through the chip inserted in his body. He deposed that from the early morning of 19 April (from 1.26am to 10.02am) he experienced an erection on five occasions which he regarded as unusual in a 59-year-old man. The primary judge concluded in respect of this evidence:

“How this could prove or even particularise that he has an electronic monitoring tag in his body is beyond human reason. There is no medical evidence to suggest any connection. The material is of no evidentiary value and, consistently with the rest of the affidavit, provides no substantiation of the allegations.” (Judgment [35])

50. Mr Ugur deposed that he lives in a community house in Homebush West which contains ten units. His complaint appears to be that other tenants of the building are government spies, selected in order to abuse or punish him, or fabricate records or evidence against him. As proof of this allegation he says that a former tenant of one unit was likely an “insurance company legal officer” with a private vehicle. Another tenant was said to have a later model car costing around $40,000 and carried a stick. Mr Ugur said:

“In my view that is tenancy set up by monitoring government officer involved in he had experimented me a while, now he not stayed anymore but he is keeping his belongings still in [the] unit.”

51. Similar allegations are made in respect of other tenants of units without any material capable of reasonably supporting the allegation. The primary judge described these as “... wide-ranging speculative assertions [that] are not rationally related to the allegation the plaintiff makes of being monitored” (Judgment [39]).

52. Mr Ugur complained that when he visited Turkey in 2013 he was the subject of an unwarranted psychiatric investigation. As the primary judge found, the matters complained of were unrelated to the facts in issue. The primary judge said that they demonstrated “the florid state of the plaintiff’s imagination”. (Judgment [38])

53. Mr Ugur made a further affidavit on 5 June 2018. In that affidavit he raised two matters. The first was that on 4 April 2018 the Crown Solicitor’s Office wrote to Housing NSW in relation to Mr Ugur’s summons filed on 21 March 2018. The Crown Solicitor referred to Mr Ugur’s allegation that he is being monitored at his residence which he refers to as a community house facility. The Crown Solicitor inquired whether Mr Ugur’s residence in Telopea Avenue, Homebush West was managed by Housing NSW. The Crown Solicitor sought a response by 24 April 2018.

54. On 24 April 2018, Bridge Housing Limited advised Mr Ugur that it would be carrying out a property inspection at his home on 8 May 2018 to check on the general condition of the property and discuss any tenancy issues or repairs he wanted to report. Mr Ugur deposed that he was unable to be at the property at the times specified, but proposed an inspection on 29 May. The inspection did not take place. On 23 May 2018 Bridge Housing Limited, which is said to be the landlord, served a notice of termination requiring delivery up of the unit by 7 June 2018. The ground for the notice of termination was irrelevant to the condition of the property. The landlord asserted a breach of the tenancy agreement by the non-payment of a charge for water usage.

55. This correspondence does not substantiate in any way Mr Ugur’s contention that he is being monitored through a chip inserted in his body.

56. The second matter raised in Mr Ugur’s affidavit of 5 June 2018 was that he looked for a lawyer to represent him in this case. He contacted the Law Society and a community legal centre and knocked on doors. He deposed that he tried to obtain legal representation, but was prevented from receiving legal advice because he was being monitored. He deposed that he received a referral from the Law Society of a lawyer with offices in York Street. When walking through Martin Place to York Street he observed a person talking on his phone who was staring at him. As Mr Ugur passed this individual the man started to walk behind him. As Mr Ugur suddenly stopped the man walked past him, but then stopped for a while talking on his phone before moving away. At this time Mr Ugur deposed that he felt “adjusted pain on my teeth”. Of this evidence the primary judge said:

“There are a series of photographs of this individual, which apparently Mr Ugur wishes to rely upon as in some way demonstrating monitoring of his activities. They demonstrate nothing of the kind. They demonstrate that he has paranoid delusions concerning the activities of ordinary citizens carrying out ordinary activities on the public streets of this city.” (Judgment [39])

57. Having reviewed the evidence the primary judge reached the conclusions set out at paragraphs [8] and [9] above.

Grounds of appeal

58. Although the primary judge’s orders were interlocutory, because Mr Ugur sought and was refused the issue of a writ of habeas corpus, an appeal lies as of right (Supreme Court Act 1970 (NSW), s 101(1)(a) and (3)). By his amended notice of appeal Mr Ugur sought the following orders:

“1   Appeal allowed

2   The judgment (orders number 1, 2 and 3) of Supreme Court Judge, Justice Fagan be set aside.

3   That an order for the appellant be granted access to documents produced by James [Loosley] for Solicitor Crown under 10 subpoenas issued on 23 May 2018.

4   That an order by way of relief in the nature of a writ of habeas corpus, that the respondents release the applicant from their unlawful custody and remove the electronic tag device inserted in the body of the applicant

5   Writs of prohibition or injunctions, which compel or forbid actions;

6   The respondents to provide their reasons and evidence and witnesses against the applicant.

7   The respondents provide a written statement to allow the applicant receiving legal advice from independent bodies. (Failure or delay in providing legal rights.)

8   The applicant to be granted a fair trial and the applicant allowed to cross-examine the respondents’ evidence and the witnesses against him.

9   The respondent pay the appellant’s costs that (includes legal cost claimed by respondent of $12,000 for last proceeding and the court application fees and printing)”

59. Mr Ugur’s amended notice of appeal contains 35 grounds under each of which he made submissions. The amended notice of appeal extends to 56 closely typed pages. I will endeavour to distil my understanding of the grounds of appeal. What follows must be read with a caveat that the amended notice of appeal contains submissions under each ground of appeal that often do not relate to the ground of appeal, but to other grounds. For example, the first ground of appeal is that the primary judge erred in law by deciding that evidence tendered by the Attorney General was admissible. Under that ground Mr Ugur raises issues not only as to the admissibility of the evidence adduced by the Attorney, but submissions to the effect that he had sufficient evidence to prove his case that he sought to demonstrate. He also included under this ground of appeal material in support of his contention raised in later grounds that the primary judge exhibited apprehended bias.

60. With that caveat the grounds of appeal may be distilled as follows:

1. Ground 1 – the primary judge erred in law by deciding that evidence tendered by the Attorney General was admissible;

2. Ground 2 – the representatives of the Attorney General (i.e. counsel and solicitor for the Attorney) have engaged in conduct which perverts the course of justice;

3. Ground 3(a) – the primary judge failed to give adequate reasons in support of his conclusion at paragraph [6] of the primary judgment, namely that ‘the plaintiff in this proceeding cannot possibly make out a case for relief of this nature. He is demonstrably not in any form of custody’;

4. Ground 3(b) – the primary judge set aside 10 subpoenas without an application and wrongly set aside Mr Ugur’s notice of motion seeking discovery;

5. Ground 4 – the primary judge erred by not finding that Mr Ugur is under continuous supervision and control;

6. Ground 5 – the primary judge exceeded his jurisdiction by ruling against Mr Ugur whose true case “was that the trial judge knowingly exceeded his jurisdiction and exercised powers that he did not have”. The submission in support of this ground was that the primary judge erred by relying on evidence of information and belief given by the Attorney General’s solicitor and failing to draw adverse inferences against the Attorney by his failure to adduce evidence of persons having personal knowledge of the contested facts;

7. Ground 6 – the primary judge erred by:

1. not considering Mr Ugur’s evidence;

2. allowing the Attorney General to speak first in court;

3. concluding that Mr Ugur’s claim disclosed no reasonable cause of action when the Attorney General did not tender evidence to this effect;

4. dismissing Mr Ugur’s application, submissions, and affidavits in part because of a finding that Mr Ugur held a ‘delusional perception’ when he was required to take Mr Ugur’s sworn statements and submissions as true;

5. failing to give Mr Ugur a genuine hearing and to properly consider all the issues before him;

6. failing to hold inadmissible so much of the Attorney General’s evidence that consisted of affidavits sworn by the Attorney General’s solicitors.

7. Submissions in support of this ground included elements of alleged denial of procedural fairness (grounds 6(a), (b) and (e)) and apprehended bias, bad faith, acting under dictation and lack of jurisdiction (ground (6)(d)).

8. Ground 7 – the primary judge erred because if he had held that the Attorney General’s evidence was inadmissible, there would be no evidence to support the primary judge’s findings. Mr Ugur contends that:

1. the letter of Mr or Ms Kearton dated 6 April 2018 and “TAB 3” were inadmissible because they were not given in affidavit form;

2. “TAB 3” ought to have been held inadmissible in non-affidavit format, or ought to have been given as a certified copy;

3. “TAB 3” was inadmissible under the hearsay rule.

“TAB 3” was an attachment to the letter of Mr or Ms Kearton of 6 April 2018 referred to at [35] above.

9. Grounds 8 and 9 – that certain of the primary judge’s remarks during or before the hearing and in the judgment suggest apprehended bias and denial of procedural fairness;

10. Ground 10 – the primary judge acted irrationally or failed to have regard to relevant circumstances in that he read the material of the respondent first and then left the bench to read the material of the appellant;

11. Ground 11 – the primary judge was incorrect in saying that the material tendered by Mr Ugur did not show that he was prevented from engaging the services of a lawyer, because Mr Ugur was “not allowed to obtain legal advice under continuous surveillance”;

12. Ground 12 – at the beginning of the hearing, the primary judge was incorrect in saying that “monitoring with advocacy” is not a state of restricted liberty;

13. Ground 13 – appears to be a restatement of ground 7, but it adds that the following evidence was also irrelevant:

1. the letter of Mr Keaton dated 6 April 2018;

2. the fact of Mr Ugur’s 2003 conviction;

3. the fact that the case is related to Mr Ugur being in the custody of the Attorney General,

14. and also asserts that the primary judge did not take into account the evidence contained in Mr Ugur’s three affidavits;

15. Ground 14 – that the primary judge, despite purporting to have done so, had not read Mr Ugur’s three affidavits. This is said to be the case because the primary judge asked Mr Ugur whether he had received legal advice, and Mr Ugur claims that he had stated in his affidavit that he hadn’t obtained legal advice because he was unable to do so for the reasons he gave.

16. Ground 15 – the primary judge erred in saying that Mr Ugur was unable to answer how he was being detained when Mr Ugur had told the primary judge that he was being detained by the Attorney General for NSW, that his place of detention was at Mr Ugur’s home address in Homebush West, and that his deprivation was not a total restraint on his liberty but it amounts to unlawful detention in any event;

17. Ground 16 – this ground appears to be a challenge to the evidence led by the Attorney General that the designation of the appellant’s category as “monitoring with advocacy” was an administrative error. Mr Ugur claims it was not an administrative error, and that the evidence to this effect should have been given by affidavit (the remainder of this ground appears to be in substance very similar to Ground 7);

18. Ground 17 – the primary judge erred in setting aside Mr Ugur’s application for discovery;

19. Ground 18 – the primary judge erred or did not have jurisdiction to set aside the subpoenas issued by Mr Ugur because there was no motion before the court to have them so set aside;

20. Ground 19 – the primary judge erred in dismissing the proceedings summarily and in dismissing Mr Ugur’s notice of motion seeking discovery;

21. Ground 20 – the primary judge erred in failing to allow Mr Ugur to adduce additional evidence;

22. Ground 21 – the primary judge, at the hearing, was wrong to say that surveillance and supervision is a “different thing” from a restriction of Mr Ugur’s liberty;

23. Ground 22 – this ground is in substance the same as Ground 10;

24. Ground 23 – the primary judge acted under dictation in that he was influenced by a representative of Mr Ugur’s former employer. This was said to be substantiated by his Honour’s conduct in allegedly accepting submissions of the Attorney General’s (to the effect that there was no evidence showing Mr Ugur’s monitoring) before leaving the bench to read through Mr Ugur’s materials, but allegedly making no effort to do so;

25. Ground 24 – the primary judge was a “former officer (or associated)” of the respondent. The remainder of this ground appears to raise the same contentions as Ground 23;

26. Ground 25 – the primary judge erred in not asking for additional evidence before concluding that Mr Ugur’s submissions were “delusional” and before dismissing Mr Ugur’s application;

27. Ground 26 – the primary judge erred in concluding that Mr Ugur’s submissions were “delusional” because the primary judge ought to have had regard to Mr Ugur’s evidence and not taken into consideration the Attorney General’s evidence (this is essentially a re-worded version of many of the other grounds);

28. Ground 27 – the primary judge erred in “excluding” Mr Ugur’s evidence. This ground relates to Grounds 10 and 11 in that Mr Ugur says that the primary judge could not have read all 500 pages of the tendered material in the adjournment;

29. Ground 28 – the primary judge was incorrect in describing “monitoring with advocacy” as meaning merely that “no active decisions would be taken on behalf of the person affected but that he may need advocacy by way of assistance”;

30. Ground 29 – the primary judge erred in dismissing Mr Ugur’s evidence as “disconnected, rambling, speculative and baseless”;

31. Ground 30 – the Attorney General did not have “probable cause” to bring the summary dismissal application and their evidence for this application was insufficient to support it. This is a restatement of the prior grounds;

32. Ground 31 – the primary judge’s factual findings are not supported by evidence or the judge’s decision was irrational, illogical and not based on findings. Again, this is a restatement of other grounds;

33. Ground 32 – the primary judge erred in dismissing the proceedings summarily (this is the same Ground as 19 above). Mr Ugur contends that there is a genuine issue as to whether his designation as “monitoring with advocacy” amounted to deprivation of liberty;

34. Ground 33 – the primary judge erred in allegedly finding that there was no evidence that Mr Ugur’s designation as “monitoring with advocacy” was an administrative error. In fact the primary judge held the opposite. Mr Ugur also contends that the Attorney General’s evidence that this designation was an administrative error is incorrect;

35. Ground 34 – this ground challenges the conclusion in paragraph [41] of the primary judgment. Mr Ugur contends that the primary judge should have found that although the guardianship order lapsed in 2008, the Attorney General should have advised him that the Attorney had made an executive decision to “apply monitoring with advocacy” after 20 February 2008 and to keep his file open;

36. Ground 35 – this ground asserts that the primary judge acted with actual or apprehended bias.

61. The notice of appeal did not comply with the requirements of UCPR, r 51.18(1) that it state briefly, but specifically, the grounds relied on in support of the appeal. The grounds of appeal are prolix, repetitive and confused. Mr Ugur does not have legal representation and the court must do the best it can to understand the grounds relied upon.

62. The grounds of appeal can be grouped into the following categories:

1. contentions of apprehended bias, bad faith, acting under dictation and lack of jurisdiction on the part of the primary judge;

2. contentions of denial of procedural fairness;

3. a challenge to the conduct of the solicitor and counsel acting for the Attorney General;

4. a challenge to the admissibility of the Attorney General’s evidence;

5. a contention that on an application for summary dismissal the primary judge was bound to accept Mr Ugur’s evidence; and

6. a challenge to the primary judge’s findings of fact.

Mr Ugur’s application for leave to issue subpoenas and for an adjournment

63. On 20 December 2018, Mr Ugur filed a notice of motion in the appeal proceeding seeking leave to issue subpoenas to the NSW Police Force, NSW Ambulance, the Public Guardian, South Western Sydney Local Health District, the Guardianship Division of the NSW Civil and Administrative Tribunal, Australian Federal Police, Legal Aid NSW and NRMA. He contended that the subpoenas were issued for a legitimate forensic purpose as the documents sought contained personal information relating to him which he had good reason to believe would materially assist his case. He contended that he had established a prima facie case that his liberty had been restricted by his being placed in a “monitoring with advocacy” category as shown by the client audit of the Office of Public Guardian dated 20 February 2008, and by his evidence that some of his documents had been sent by Legal Aid NSW to a section headed “Children and Family Advocacy Service”.

64. Although not clearly articulated, the purpose of issuing the subpoenas must be with the view to his seeking to adduce fresh evidence on appeal under s 75A(7) of the Supreme Court Act.

65. Prior to the hearing before the primary judge on 6 June 2018, the Attorney General had issued ten subpoenas. It appears from the JusticeLink record of the Court that the subpoenaed parties were:

1. The Proper Officer - NSW Ambulance;

2. Commissioner Michael Fuller APM of the NSW Police Force;

3. The South Western Sydney Local Health District;

4. Andrew Gabriel of the Public Guardian;

5. Rodney Brabin, a Registrar of the Mental Health Review Tribunal;

6. Jane Pritchard of the NCAT Guardianship Division;

7. The Proper Officer - Australian Federal Police;

8. The Proper Officer - Serco Australia Pty Limited;

9. Commissioner Peter Severin of Corrective Services NSW; and

10. The Proper Officer - Department of Home Affairs.

66. At the commencement of the hearing before the primary judge, Ms Rose, who appeared for the Attorney General, advised the primary judge that those subpoenas were returnable on 4 June 2018 and access to the documents produced was sought the following day before the Registrar. Ms Rose said that she understood that Mr Ugur objected to any of the parties having access. She submitted that the reasons for that were unclear. The primary judge noted that Mr Ugur had filed a notice of motion on 30 May 2018 seeking discovery. Ms Rose submitted that that was redundant in light of the fact that a subpoena had been issued to the Public Guardian and the Attorney General was not the correct agency to ask for discovery of the particular documents Mr Ugur was seeking.

67. Mr Ugur confirmed that he objected to the subpoenas. He submitted:

“Respondent action is inconsistent with his subpoena because the reason for this, he’s asking, he is putting notice of motion to summary dismiss and has insufficient evidence, insufficient. There is no evidence to prove that case, and then I put my – this document, three days later they are asking the subpoenas. This is inconsistent to prove the case, the respondent now has insufficient evidence to prove, and they do not provide any testimony evidence from the Public Guardian, and they did not ask to--".

68. In other words, it was Mr Ugur’s contention on the hearing before the primary judge that the Attorney General had insufficient evidence to support an application for summary dismissal. He did not ask to inspect the documents that had been produced and objected to the Attorney’s having access to those documents.

69. Ms Rose for the Attorney accepted that the application could be determined without referring to the documents sought on subpoena and the judge proceeded on that basis.

70. One of the purposes of the power in r 13.4 of the UCPR to dismiss a proceeding summarily as frivolous or vexatious or as disclosing no reasonable cause of action or as being an abuse of the process of the court, is to save the defendant from the cost, delay and vexation in having to defend clearly untenable proceedings which raise no real question of fact or law. Another purpose is the protection of the interests of the public in not having scarce judicial resources wasted in dealing with frivolous applications.

71. The lack of a tenable cause of action must be clearly demonstrated. Various formulations have been used to describe the clarity that must exist before a claim can be summarily dismissed (see for example, Burton v Shire of Bairnsdale (1908) 7 CLR 76 at 92; Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 (“Dey”); General Steel Industries Inc v Commissioner For Railways (NSW) (1964) 112 CLR 125 at 128–129; Fancourt v Mercantile Credits Limited (1983) 154 CLR 87 at 99; Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552; [2000] HCA 41 at [57]; Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 at [24] (“Spencer v Commonwealth”); and O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71; 16 BPR 31,705 at [67].) If there is a real question either of fact or of law, then the application for summary dismissal must fail (Dey v Victorian Railways Commissioners at 91).

72. If the primary judge were correct in concluding that Mr Ugur’s claim should be summarily dismissed, it follows that the Attorney General should not be vexed and the court’s time should not be wasted with the continuation of the proceeding whilst subpoenas are issued and documents are inspected with a view to a further hearing of the appeal. To allow that course against the possibility that some fresh evidence might emerge from the documents supportive of Mr Ugur’s case would be inconsistent with a finding that there was no real question of fact to be decided because the factual basis of the plaintiff’s claim was fanciful and entirely without substance (Three Rivers District Council v Bank of England [No. 3] [2003] 2 AC 1; [2001] UKHL 16 per Lord Hope of Craighead at 260, [95]; Spencer v Commonwealth per French CJ and Gummow J at [21]).

73. As Mr Ugur took the tactical position before the primary judge that the court should not give the parties access to the documents that the Attorney General had subpoenaed, it would be wrong now to adjourn the further hearing of the appeal to allow him leave to issue subpoenas, which the court was told were in substantially the same terms as the subpoenas issued by the Attorney General. So far as appears, neither party has sought access after the delivery of the judgment below to the documents produced to the Court in response to the subpoenas issued by the Attorney General. Mr Ugur did not seek to demonstrate what additional or different documents might be expected to be produced from the subpoenas he seeks leave to issue. He did not demonstrate that it was “on the cards” that the parties from whom he sought documents would produce documents that would probably be of assistance to his case. If that had been his belief he would not have objected to the parties having access to the documents produced to the Court by 5 June 2018.

74. For these reasons I would refuse Mr Ugur’s application for leave to issue subpoenas and his application for an adjournment of the hearing of the appeal pending the production of documents by the parties sought to be subpoenaed.

Grounds of appeal: actual or apprehended bias and denial of procedural fairness

75. In Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55, the High Court held that where a complaint is made to an intermediate appellate court of apprehended (or actual) bias on the part of the primary judge, along with other discrete grounds of appeal, the issue of bias should be dealt with first. This is because, if the complaint is established, it would strike at the validity of the trial and result in an order for retrial (per Gummow ACJ at [2]; Kirby and Crennan JJ at [117]; cf Callinan J at [172]). In Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128 (“Nguyen”) Basten JA observed (at [9]) that by extension the same must be true of other alleged grounds of denial of procedural fairness which, if established, would affect the validity of the trial and require a retrial.

76. It is unnecessary to decide whether the same principle should apply to an interlocutory application such as the application for summary dismissal in the present case which is determined on affidavit and documentary evidence, but without oral evidence, and where the intermediate appellate court is in as good a position as the primary judge to determine the application (see Goodwin v Commissioner of Police [2012] NSWCA 379 per Basten JA at [17] and Toth v Director of Public Prosecutions (NSW) [2017] NSWCA 344 at [60] (“Toth”)).

75. Issues of denial of procedural fairness and apprehended bias said to be evidenced by excessive judicial intervention are distinct, although the grounds may overlap (Toth at [61] and cases cited). Because Mr Ugur relies upon substantially the same matters for both grounds of appeal, it is convenient to deal with these matters chronologically.

76. Mr Ugur first appeared before the primary judge on 21 March 2018 when he applied ex parte for orders in terms of the summons later filed on that day. The primary judge refused to make the orders sought. Although the transcript of the hearing on 21 March 2018 was not before this court it is evident from the primary judge’s later reasons that on 21 March he told Mr Ugur that his claim for a writ of habeas corpus was untenable because he was not under any form of detention.

77. On 6 June 2018, the primary judge was again sitting as duty judge. On the matter being called, Ms Rose announced her appearance for the Attorney General. Mr Ugur did not then appear. In his absence Ms Rose explained that the application before the primary judge was that the Attorney had a motion for summary dismissal and that Mr Ugur had an application or a summons for a writ of habeas corpus. The primary judge said:

“HIS HONOUR: I think that’s what brought Mr Ugur before me on a previous occasion. He sought from me, when I was duty judge some time ago, a writ of habeas corpus. I pointed out to him that it is a remedy to have him brought before the Court if he has been imprisoned by some authority and that as he was standing before me with no restraint there was no basis to make the order.

ROSE: Yes, your Honour.

HIS HONOUR: He apparently has not understood that.

ROSE: No. This is the third time it will be before the duty judge in the last three months.

HIS HONOUR: It might be time for a vexatious litigant order perhaps.”

80. The matter was stood in the list. On Mr Ugur’s appearing Ms Rose identified the affidavits of Mr Loosley upon which the Attorney General relied. She suggested that if the primary judge were minded to read Mr Loosley’s affidavits first it might provide some clarity. The primary judge indicated that he would leave the bench and read the material to “try to get up to date”. The primary judge noted that a transcript of the proceedings when they were before Button J (in fact, before R A Hulme J) was on the file.

81. The primary judge said to Mr Ugur that he would take the material and read it. His Honour asked whether Mr Ugur understood that what the Attorney General was seeking to do was to have his summons dismissed on the basis of the material that was in the papers provided. Mr Ugur asked if he could be allowed to say something. The primary judge said “I certainly will. I will read their material first. What I am going to do is, I am going to go off the bench and read all this.” He then said that if Mr Ugur had material that he would like him to read Mr Ugur should tell him and he would take that material and read it. Mr Ugur then identified the affidavits upon which he wished to rely. These were the affidavits of 2 February, 4 May and 5 June 2018. He also provided submissions. The primary judge then adjourned to read the material.

82. On his return the primary judge asked Ms Rose to summarise the high point of the case advanced against the Attorney General. There were the following exchanges:

“HIS HONOUR: ... He is seeking by his summons an order for the issue of a writ of habeas corpus. He says that he wants to be released, which is complete and utter nonsense because he is not in custody.

The habeas corpus can issue, orders can be made where the custody or detention is less than complete, if there is a restriction on his liberty. It is not apparent to me that there is the slightest restraint on his liberty; he comes and goes from this Court. Is there, within the material that he has filed, anything that you can identify that purports to be evidence or assertion of some manner of constraint upon his liberty?

ROSE:    No. There are no orders that we can find from a Court or Tribunal restricting his liberty. I understand from oral evidence Mr Ugur has given before that he says that he was told by somebody who worked in Villawood, potentially back in 2006, that somebody may have put a device in him when he was taken to a hospital at some point.

HIS HONOUR: That’s the second phase of the application, which I will come to.

PLAINTIFF: I object to that one.

HIS HONOUR: Please be quiet, I am speaking to Miss Rose. The first aspect is restraint on his liberty. There is no order, there is no-one in authority in the Attorney General who purports to exert any control over his movements. I am not aware that he gives any evidence of any restrictions on his movements. He does not say in any of this material, does he, that he--

ROSE: Not to restrictions, although I understand from his evidence is [sic] that because people monitor him, that he feels restricted.

HIS HONOUR: Yes, that’s a different thing.

ROSE: That’s just the highest point that I can take it at that level.

HIS HONOUR: Okay. What is the evidence, sworn evidence, if there is any, of this monitoring? What is the high point in his evidence concerning that, as far as you can see?

ROSE: I cannot find any evidence of it because there isn’t any suggestion that a government agent from any department is following him. I think the confusion stems from the client audit document which I have outlined in my submissions. He thinks because of the tick box under ‘monitoring and advocacy’, that somebody is continuing to monitor him from the Office of the Public Guardian. That, we say, is not true. There is [sic] letters from the Office of the Public Guardian which states [sic] that the guardianship order that was in place for him in 2007--

PLAINTIFF: I object.

ROSE: --2007 and 2008. If there was an error in that client audit document from 2008, it is not consistent with the current electronic records of the Public Guardian. The database indicates that he has been discharged from any orders.

PLAINTIFF: I object.

HIS HONOUR: Be quiet. I am listening to submissions.

ROSE: Mr Ugur also suggests, has asked on many occasions for us or the Court to order discovery in relation to the New South Wales Ambulance Service; it is not clear to me why. As I said, the best that I understand his submission is that at some point in 2006 somebody put a device in him, but he doesn’t know who, he doesn’t know when, he doesn’t know where in his body it is. We have made all the requisite inquiries of the various agencies that might be able to order electronic monitoring and they have all returned letters which we have provided to Mr Ugur saying that is not the case. They have not.

HIS HONOUR: In this proceeding you are really being put upon proof of the negative--

ROSE: Yes.

HIS HONOUR: --of a completely absurd suggestion.

ROSE: Even if it were the case that such an order or device, orders were placed with regards to a device, I do not think that it would be caught by the writ of habeas corpus. It would be a very novel application in any sense.

HIS HONOUR: But there might be some cause of action for assault--

ROSE: Yes.

HIS HONOUR: --if something was done to him physically without his authority.

ROSE: It seems to me that Mr Ugur is using this application to air a number of grievances he has with various Government departments whether it is Housing New South Wales, the Office of the Public Guardian or Legal Aid which have nothing to do with detention or custody, which is why we say this summons--

PLAINTIFF: Objection.

ROSE: --is bound to fail and it should be summarily dismissed.

HIS HONOUR: Thank you. Right, Mr Ugur, where do you say you are being detained? Here you are, live in Court, I don’t see any police officers restraining you or interfering with your movements?

PLAINTIFF: No, your Honour. First I have to put to the Court I am the applicant, I believe that I should get first to introduce this case but--

HIS HONOUR: No, Mr Ugur, you will do things in the order that I say.

PLAINTIFF: Okay, your Honour.

HIS HONOUR: I have heard from the defendant, Ms Rose’s submissions in support of dismissing your claim. Now it is your turn to respond. Now don’t try to tell me what order the proceedings will be done in. Just respond to the things that I ask you.

How is it that you say you are restrained? You appear here without any police officer holding you and with no constraint upon your liberty. What is it that you are complaining about?”

83. Mr Ugur referred to his affidavits and said that:

“PLAINTIFF: I am in detention which is intolerable. This detention is a private detention, that I am subjected to restriction, which is not fair, from the Attorney General, I refer to the case of Ruddock v Vadarlis [2001].

HIS HONOUR: Mr Ugur, you say that you are in detention and it is intolerable. Now please answer me, what detention? Who is detaining you? Where are you being detained? How is your liberty being restricted? What are you talking about?

PLAINTIFF: I am in detained in the [XX], Homebush West, 2140 New South Wales, usually that community house, it’s part of the New South Wales Housing.

HIS HONOUR: Who is detaining you there?

PLAINTIFF: This is, I believe, to, comes from the Attorney General Department. I provided that document to you, your Honour. I will provide it again. I was in detention 2006 and appointed a Public Guardian in 2007. I took that matter to the Supreme Court and during this time this case is lapse and I provided that evidence to the Office of the Public Guardian Client Audit. Can I provide one more document, your Honour?

HIS HONOUR: I have got that document. It was previously received by Justice RA Hulme. It was marked mfi 2 on the previous occasion. Go on.

PLAINTIFF: Your Honour, I provided that document to the Public Guardian in 20 May – 20 February 2008. I was taken 18 February 2008 to the Guardianship Tribunal--

HIS HONOUR: Sorry?

PLAINTIFF: Guardianship Tribunal.

HIS HONOUR: Mr Ugur, have you sought legal advice about this?

PLAINTIFF: Your Honour, I sought representative--

HIS HONOUR: Have you sought legal advice about this case; just answer that, please, have you?

...

HIS HONOUR: ... I will ask the question again. Did you get legal advice?

PLAINTIFF: I couldn’t get legal advice because the reason, your Honour, I provided those documents, if you read in my affidavit and my submission, very clear that that showed in my submission, I attach it, P, annexure P in my submission today. I made it to the Court.

HIS HONOUR: That’s another document you gave to Justice Hulme which he found meaningless and which I also find meaningless.

PLAINTIFF: Not Justice Hulme. Today I provided to the Court 15 page, my submission. This I handed to you this morning.

HIS HONOUR: What’s the date on it?

PLAINTIFF: Today’s date, 6 June.

HIS HONOUR: You have provided so many documents that are just so completely confusing, I have no idea what you are talking about.”

84. The reference to annexure “P” to the submission provided to the primary judge on 6 June was intended to be a reference to annexure B to that submission.

85. After the primary judge complained that Mr Ugur had provided so many documents that were completely confusing, and that he had no idea what he was talking about, Mr Ugur handed up a further 15-page submission. The judge declined to receive it and told Mr Ugur that he should explain to him orally what he wanted to say. Mr Ugur then referred to a submission that had been filed in court on 6 June entitled “the applicant’s submission” that started by speaking about the burden of proof in the applicant’s case, paragraph 1 of which referred to a client audit. His Honour said that he had read that submission.

86. Mr Ugur then addressed the primary judge by reference to that submission. It relied upon the “client audit” document of the Office of the Public Guardian that stated that there was a current file category of “monitoring with advocacy” and provided reasons for rejecting the statements by Mr Kearton in his correspondence annexed to Mr Loosley’s affidavit that there was an administrative error and that the file should have been recorded as that the orders had been discharged.

87. The primary judge then heard submissions from Mr Ugur as to how he observed a gentleman staring at him in Martin Place as he was going to see a lawyer in York Street, and how the gentleman moved behind him and then passed him as he stopped before he also stopped whilst he was on his phone. Mr Ugur referred to his evidence of how a gentleman standing next to what he said was a police car had stared at him and moved in front of him. The judge questioned Mr Ugur about the photographic images contained in his affidavits of his penis and asked him what that had to do with his contention that he was being wrongfully detained. Mr Ugur explained that he was being mistreated by the electronic chip that had been inserted in him and said that the evidence of having repeated erections was corroborative of that assertion. He then made oral submissions as to how he said the chip had been inserted in him by referring to his evidence that he had been told in 2005 by a medical officer that an electronic chip had been so inserted from outside the detention centre. The judge asked whether he had been examined medically to ascertain whether there was a chip in his body. He did not get a responsive answer to that question. Mr Ugur ultimately said that “... the evidence is the officer telling me this. The information to the immigration department. He lost his job. I couldn’t see him after that”. When asked whether he had been x-rayed Mr Ugur said that he had not been x-rayed to find a chip in his body but he had carried out studies and searches of that kind of thing and “now this kind of thing they can inject in your blood, and that one in your blood just move around”.

88. Mr Ugur made extensive oral submissions by reference to his affidavit of 4 May 2018 interspersed by occasional questions from the primary judge. When referring to his attendance at a TAFE course in 2012 (referred to at [48] above) the primary judge asked:

“HIS HONOUR: And you are saying that your penis became erect because there was medical or criminal software and an electronic tag inserted in you; is that what you say?

PLAINTIFF: Yeah.

HIS HONOUR: Have you got any medical evidence to support that?

PLAINTIFF: Pardon?

HIS HONOUR: Have you got any medical evidence to support that?

PLAINTIFF: I’m not medical person, your Honour.

...

HIS HONOUR: That’s why I asked you have you got any medical evidence.

PLAINTIFF: But I search that kind of thing. I did IT. I search that kind of thing. They use software for monitoring and is similar to – for criminal purpose too. I’m not sure what kind of purpose they are using against me. If they have any evidence provided in the courtroom, I can answer, and if guilty, guilty, not guilty, not guilty. Start me a fresh life.”

89. Mr Ugur’s submissions continued at length. By the time Mr Ugur addressed his third affidavit and took the primary judge to correspondence from Bridge Housing Limited wishing to carry out an inspection of the unit in which Mr Ugur lived, there was the following exchange:

“HIS HONOUR: So what? You’re living in housing accommodation property, they wish to inspect it to see that it’s kept in order. What’s that got to do with the case?

PLAINTIFF: Nothing, nothing.

HIS HONOUR: Okay, don’t waste my time with it.

PLAINTIFF: No, the idea of time is related to hearing, this, to 8 May, I have a hearing in here, 7 May, 7 May I have a hearing in this Court, they argue – 8 May. I put to that application that for that reason, I don’t care the inspection for this, just--

HIS HONOUR: If you don’t care, don’t waste my time with it. Go on to something else.

PLAINTIFF: But your Honour, they argue time a day later, a day later to this Court hearing. I have a hearing 7 May, and the idea to come inspect at my house 7 – 8 May.

HIS HONOUR: So what?

PLAINTIFF: Second one, your Honour, the notice of termination, notice of termination, I provided that document in my affidavit to D, Annexure D.

HIS HONOUR: Yes.

PLAINTIFF: And notice of termination date, again tomorrow, this is today, today 6 June, tomorrow 7 June.

HIS HONOUR: So what?

PLAINTIFF: Just for that reason, just – I’m not sure how to say, you can say but this is--

HIS HONOUR: Go on to your next argument, you’ve got to finish this up, Mr Ugur. It’s 20 to 4 and you’ve had a long opportunity to make your case and I’ve heard it.

PLAINTIFF: Your Honour--

HIS HONOUR: And you’ve given me hundreds of pages of material and I’ve read them.”

90. Mr Ugur then referred to the Attorney General’s subpoenas and the primary judge said that he was not looking at the subpoenaed documents on the summary dismissal application. His Honour also declined to deal with Mr Ugur’s notice of motion seeking discovery. At the conclusion of Mr Ugur’s submissions the primary judge told Ms Rose, counsel for the Attorney General, that it was inappropriate for the notice of motion seeking summary dismissal to be dealt with in a duty list which, as on that day, involved a series of a half a dozen or so short matters requiring attention on an urgent basis and that it was highly disruptive to occupy the court for a day in a case involving a litigant in person who was delusional. His Honour characterised Mr Ugur’s application as involving a mental health problem, a statement to which Mr Ugur took objection.

91. The primary judge then delivered oral reasons in the course of which his Honour concluded that Mr Ugur had a “delusional perception” that his actions and movements were being monitored by some authority (Judgment [13]) and that his assertions that he was deprived of “[his] education rights and subjected ill treatment” was a speculative and paranoid assertion, and that his evidence of being monitored by young men on mobile phones in public places was “demonstrably delusional and unsubstantiated” (Judgment [31] and [33]). Of Mr Ugur’s assertion that he was prevented from obtaining legal representation because he was being monitored when walking through Martin Place (see [56] above), the primary judge said that all Mr Ugur’s evidence demonstrated was that:

“... he has paranoid delusions concerning the activities of ordinary citizens carrying out ordinary activities on the public streets of this city. Without any other evidence, they are incapable of substantiating anything he asserts.” (Judgment [39]).

Apprehended bias

92. Mr Ugur did not apply to the judge that he should disqualify himself on the ground of apprehended bias. Because one of the grounds upon which he relies is a statement made by the primary judge referred to at [79] above that “it might be time for a vexatious litigant order perhaps”, which statement was made in his absence, there is no question of Mr Ugur’s waiving an objection to the judge’s continuing to hear his application.

93. The test as to whether a judge is disqualified by reason of appearance of bias, including bias by pre-judgment, is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge has to decide (Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]; Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [31]). Application of the test requires articulation of why the statements of the judge relied on as showing pre-judgment or partiality give rise to the apprehension of bias through pre-judgment or departure from impartial decision-making (Michael Wilson & Partners Limited v Nicholls at [63]). Disparaging comments by the judge are unlikely to lead the hypothetical fair-minded lay observer to apprehend that the judge might be biased unless the observer might consider the comments not only to be inapt but to be so unreasonable as to indicate an inability to bring an impartial mind to the questions to be decided (Barakat v Goritsas (No. 2) [2012] NSWCA 36 at [13]).

92. In Re JRL; Ex parte CJL (1986) 161 CLR 342 (“Re JRL; Ex parte CJL”) at 352 Mason J said:

“It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be ‘firmly established’.”

95. The hypothetical fair-minded lay observer will recognise that a professional judge is capable of departing from an earlier expressed opinion. Disqualification flows from a reasonable apprehension that the judge might not decide the case impartially, rather than that he would decide the case adversely to a party (GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser HealthCare (UK) Ltd [2013] FCAFC 150 at [39]-[40]).

96. In Johnson v Johnson the plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said (at [13]):

“Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.”

97. Although greater reticence is often observed by judges when dealing with self-represented litigants, that is not necessarily to the advantage of those litigants. Nor is there any principle that a judge should be more reticent in dealing with a self-represented litigant than with the litigant who is represented by counsel or a solicitor lest an apprehension of bias arise. The question is not whether the litigant apprehends that the judge might be biased, but whether a fair-minded lay observer might apprehend that the judge might not bring an impartial mind to the issues. In Johnson v Johnson Kirby J gave separate reasons. His Honour said (at [53]):

“Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers [Galea v Galea (1990) 19 NSWLR 263 at 282]. The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted [Wentworth v Rogers (No 12) (1987) 9 NSWLR 400 at 422]. The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality [R v S (RD) [1997] 3 SCR 484 at 533; President of the Republic of South Africa v South African Rugby Football Union 1999 (4) SA 147 at 177]. Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context [R v S (RD) [1997] 3 SCR 484 at 505; Galea v Galea (1990) 19 NSWLR 263 at 282]. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious [cf R v S (RD) [1997] 3 SCR 484 at 505].”

98. The hypothetical fair-minded lay observer might well conclude that on the basis of what had been put to the primary judge by Mr Ugur on 21 March 2018 the primary judge had formed the view that Mr Ugur had not pointed to any form of detention that could justify granting the writ of habeas corpus. The hypothetical observer might apprehend that the primary judge might approach the Attorney General’s application for summary dismissal of Mr Ugur’s proceeding with a predilection to granting it unless Mr Ugur could point to some matter of fact, or some argument of law, that could cause him to change his view. That would not be sufficient to disqualify the judge from hearing the matter on the ground of apprehended bias (Re JRL; Ex parte CJL). It would not raise an apprehension that the primary judge would not approach the application with an impartial and unprejudiced mind.

99. The exchanges between Mr Ugur and the primary judge reveal the primary judge’s incredulity with Mr Ugur’s contentions. A fair-minded lay observer would not consider this to bespeak a partial or a prejudiced mind. The primary judge’s incredulity was natural and justified and would be so regarded by a hypothetical fair-minded lay observer.

100. The primary judge’s statement that “it might be time for a vexatious litigant order perhaps” was made when the application was called and in Mr Ugur’s absence. It must be understood in the context that his Honour was told that the application was before a duty judge for a third time. It had been once before the primary judge himself on 21 March 2018. The hypothetical observer would reasonably apprehend that the primary judge could have thought that Mr Ugur’s application for a writ of habeas corpus had been before a duty judge on a second occasion and had then been dealt with and dismissed on the merits. That would provide a reasonable basis for the statement. In any event, the hypothetical observer would appreciate that judges sometimes say things that they might later wish they had not said without necessarily disqualifying themselves from continuing to exercise their functions (Johnson v Johnson per Kirby J at [53]; Galea v Galea (1990) 19 NSWLR 263 at 282, 283). A fair-minded or reasonable lay observer would not have concluded that the primary judge might not bring an impartial mind to bear on the issues Mr Ugur sought to raise.

Bad faith; acting under dictation; and lack of jurisdiction

101. Apart from asserting that the primary judge acted in bad faith, acted under dictation (apparently from the Attorney General) and lacked jurisdiction, Mr Ugur did not refer to any matter that could even arguably justify these grounds of appeal. Ground 5 of the notice of appeal which asserted that the primary judge acted in excess of his jurisdiction and exercised powers he did not have involved a challenge to the primary judge’s admission of evidence and fact-finding. The submissions in support of ground 6 included that the primary judge’s findings that parts of Mr Ugur’s evidence exhibited a delusional perception were erroneous and the primary judge should not have “excluded” his evidence on this ground. He submitted that on an application for summary dismissal the primary judge was required to accept his statements and submissions as true (a ground addressed below at paras [117]-[119]). He then submitted that by rejecting his evidence and admitting and relying upon the evidence of the solicitor for the Attorney General the primary judge exhibited apprehended bias, bad faith, and showed that he was acting under dictation as well as lacking jurisdiction. This is a non sequitur. Ground 23 asserted that the primary judge acted under dictation in that his decision was influenced by a representative of his former employer.

102. There was no evidence that the primary judge ever was employed by the Attorney General. If he had been, that would not provide a ground for Mr Ugur to assert, as he did in Ground 23 of his proposed appeal, that the primary judge’s decision was influenced by a “representative of his former employer”. The only matters relied upon to support that scandalous allegation were that the primary judge said that he would read the Attorney General’s material first. There was nothing improper in that approach, given that the primary judge was dealing with the Attorney General’s application for summary dismissal. He also said that he would read Mr Ugur’s material and it is clear from the primary judge’s detailed reasons (given ex tempore) that he did so. The assertion that the primary judge acted under dictation was based upon a question the primary judge asked of counsel for the Attorney. The primary judge asked counsel “What is the evidence, sworn evidence, if there is any, of this monitoring? What is the high point in his evidence concerning that, as far as you can see?”.

103. Counsel’s response was, “I cannot find any evidence of it because there isn’t any suggestion that a government agent from any department is following him.”

104. Mr Ugur submitted that this showed that the primary judge acted under the dictation of counsel for the Attorney. That is absurd. The primary judge recognised and dealt at length with Mr Ugur’s evidence that he was being monitored, but said that that evidence was irrational and delusional.

105. Ground 24 of the notice of appeal asserted that the primary judge was a former officer of the Attorney General, or was associated with the Attorney General. There was no evidence of either contention. It may well be the case that the primary judge was briefed by the Attorney General from time to time during his long career at the Bar. In Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 Gageler J said (at [59]) that it is not simply necessary to identify a factor which, it can be hypothesised, might cause a question to be resolved other than on its merits, but is also necessary for a party seeking to assert that the judge should have disqualified himself or herself on the ground of apprehended bias, to articulate how that identified factor might cause the deviation from a neutral evaluation of the merits. A third consideration is the reasonableness of that apprehension.

106. No reasonable lay observer could apprehend that merely because the primary judge might at one time have been employed by the Attorney General (and there was no evidence of that), and might have been briefed by the Attorney General when counsel (and again there was no evidence of that) the judge might be untrue to his judicial oath and decide the case with “affection”.

Denial of procedural fairness

107. The primary judge did not deny Mr Ugur procedural fairness by first dealing with the Attorney’s application for summary dismissal and then, when that application was upheld, dismissing Mr Ugur’s application for discovery. Having concluded that there was no real question of fact or law to be decided, the primary judge was correct in refusing to deal with any outstanding interlocutory application.

108. There was nothing in the way in which the primary judge considered Mr Ugur’s oral submissions that denied him procedural fairness. Mr Ugur’s contention that the primary judge did not read his material is answered by the detail with which the primary judge addressed his evidence and submissions.

109. The primary judge clearly had jurisdiction to determine the Attorney’s application for summary dismissal. No reason to the contrary was advanced.

Alleged improper conduct of Attorney General’s legal representatives

110. Mr Ugur complained that counsel and the solicitors for the Attorney General told the primary judge that inquiries had been made of, amongst others, the NSW Police Force and the Australian Federal Police, who confirmed that Mr Ugur was not in custody or being monitored in any way. In fact, no such confirmation had been received.

111. The primary judge did not rely on this evidence. He did not refer to it. His Honour’s judgment was based on the absence of any plausible complaint, not on whether the NSW Police Force or the Australian Federal Police had denied the complaint (as distinct from failing to respond to the Crown Solicitor’s enquiry). If there were a plausible complaint, a denial would only raise a triable issue. The presence or absence of a denial (as distinct from an admission) was neither here nor there.

Admissibility of the Attorney General’s evidence

112. At no time during the application before the primary judge did Mr Ugur object to the admissibility of Mr or Ms Kearton’s letter of 6 April 2018 that was an annexure to an affidavit sworn by Mr James Loosley, solicitor, and to a document attached to that letter at “TAB 3” recording that the Public Guardian’s electronic records now record the correct file category for Mr Ugur as his having been “discharged”. The material parts of the letter are quoted at [35] above. He now contends that these documents are inadmissible as hearsay evidence.

113. There are a number of problems with this contention, not least of which is that the application for summary dismissal was an interlocutory application. It did not finally determine the rights of the parties. Accordingly, s 75 of the Evidence Act 1995 (NSW) was applicable. It provides:

“75   Exception: interlocutory proceedings

In an interlocutory proceeding, the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source.”

114. The evidence contained in the letter from Mr or Ms Kearton was hearsay evidence. It was not on that account inadmissible if the application before the primary judge was an application in an “interlocutory proceeding” within the meaning of s 75.

115. It has been held that where summary judgment is obtained by a plaintiff under r 13.1 of the UCPR or its predecessor, the order obtained is a final order and the proceedings in which it is obtained cannot be considered to be an interlocutory proceeding (Scott MacRae Investments Pty Ltd v Baylily Pty Ltd & Anor [2011] NSWCA 82 per Hodgson JA at [135]). However, an order for summary dismissal of proceedings, such as the order made by the primary judge in this case, is not a final order and the proceeding in which it was made was an interlocutory proceeding and not a final proceeding (Hall v Nominal Defendant (1966) 117 CLR 423 at 440; Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225).

116. The reason that the primary judge’s order has not finally determined the rights of the parties inter se is that it would be open to Mr Ugur to make a fresh application, if not for a writ of habeas corpus, at least to complain of a tort to restrain a continuous assault if he had some evidence that the Attorney General, or an entity for whose conduct the Attorney General is liable, was monitoring him and triggering physical sensations in his body through a chip implanted in him. Without such evidence a fresh proceeding would be liable to be dismissed as an abuse of process. Nonetheless, the primary judge’s orders were not orders that finally determined the rights of the parties. The proceeding in which the orders were made was an interlocutory proceeding. The evidence given by Mr or Ms Kearton, if given on oath or affirmation at a final hearing, would have been admissible. It was not inadmissible in the proceeding for summary dismissal. Even if that evidence were rejected, it would not lead to a conclusion that the “client audit” document showed there was a triable case that the Attorney General or someone for whose actions he was responsible, or anyone at all, was monitoring Mr Ugur through a chip inserted in his body. At the highest, the inference that could be drawn from the “client audit” document is that for a further 10 months from 20 February 2008 the Office of the Public Guardian would monitor Mr Ugur’s position to provide further advocacy for him as it had done during his guardianship.

Was the primary judge required to accept Mr Ugur’s evidence?

117. In most cases in which an order for summary dismissal is sought the applicant contends either that the case pleaded by the plaintiff, or the evidence adduced or that could be adduced by the plaintiff, taken at its highest, could not arguably give rise to the relief claimed. That is not the only circumstance in which a proceeding can be summarily dismissed. In Three Rivers District Council v Bank of England [No 3] Lord Hope of Craighead said (at 260, [95]) in a passage cited with approval by French CJ and Gummow J in Spencer v Commonwealth:

“[95]   ... The method by which issues of fact are tried in our courts is well settled. After the normal processes of discovery and interrogatories have been completed, the parties are allowed to lead their evidence so that the trial judge can determine where the truth lies in the light of that evidence. To that rule there are some well-recognised exceptions. For example, it may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks. In that event a trial of the facts would be a waste of time and money, and it is proper that the action should be taken out of court as soon as possible. In other cases it may be possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance. It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be take that view and resort to what is properly called summary judgment.” (Emphasis added.)

118. The basis upon which the primary judge summarily dismissed the application was that “... it was possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance.”

119. Obviously, where dismissal is sought on that ground, the court is not bound to accept the plaintiff’s assertions as true.

Challenge to the primary judge’s findings of fact

120. Mr Ugur referred to the judgment of the Full Court of the Federal Court in Ashby v Slipper [2014] FCAFC 15; (2014) 312 ALR 551 where the decision of the primary judge summarily to dismiss the applicant’s claim was overturned. That case turned on a different question, namely whether the respondent had established to the requisite standard that the applicant’s proceedings were an abuse of process because they were brought for an improper collateral purpose.

121. In Ashby v Slipper the majority considered the evidence that proceedings were brought for an improper collateral purpose was not sufficient to discharge the heavy onus that could only be exercised in the most exceptional circumstances to establish that the proceedings were an abuse of process (at [59]). The Full Court applied the principle in Dey at 91 to the facts of that case.

122. Ashby v Slipper has nothing to say as to the application of established principle for the summary dismissal of cases to the facts of this case.

123. It appears that the primary judge considered that Mr Ugur’s claim for an order in the nature of a writ of habeas corpus could not be maintained if he was under no form of detention, even if a chip had been inserted in his body by which he was monitored and which was used to trigger physical sensations, such as tooth pain or erection of his penis. That may well be right, but the limits of the writ of habeas corpus is a triable question of law. Mr Ugur submits that habeas corpus lies if he is restrained in any ways that are not shared by the general public (citing Ruddock v Vadarlis (2001) 110 FCR 491 at 509). In any event, if the claim that Mr Ugur is being monitored in this way by the Attorney General, or a person for whose conduct the Attorney General is liable, is not fanciful, the result should not have been the dismissal of the proceeding, but an order that Mr Ugur plead a case; perhaps to plead assault and battery.

120. As the primary judge said, and as Mr Ugur, despite his voluminous submissions, did not contradict, he is not physically restrained from moving where he pleases, except to the extent that he feels himself to be so constrained because he feels that people are watching him and monitoring him.

121. Mr Ugur’s assertions that he is being so monitored are fanciful. Primarily, he points to the “client audit” document dated 20 February 2008 referred to at [32] and [33] above. I accept that there is a triable issue that notwithstanding the letter from Mr or Ms Kearton referred to at [35] above, it might be inferred from the document that the Office of the Public Guardian considered that Mr Ugur was a client who, for 10 months, could be put in the category of “monitoring with advocacy”. What “monitoring with advocacy” means can be readily identified from what happened when Mr Ugur was the subject of the guardianship order made on 16 February 2007. The Public Guardian advocated for him so that he obtained a permanent residency visa, was released from detention at Villawood, and was resettled in accommodation arranged for him. It is a possible interpretation of the “client audit” document dated 20 February 2008 that such “monitoring with advocacy” might continue for a further 10 months.

122. It is fanciful, however, to suggest that it can be inferred from these documents that the Public Guardian, or the Attorney General, or anyone else, was monitoring Mr Ugur through a chip inserted in his body.

123. Mr Ugur provides no evidence from which it could be inferred that there was any occasion on which such a chip might have been inserted in his body, nor does he point to any motive that any government authority might have had to do so. The matters upon which he relies as corroboration of that assertion have been addressed above. They were correctly rejected by the primary judge as delusional.

Conclusion and orders

128. For these reasons I conclude that the primary judge was correct to dismiss Mr Ugur’s proceeding summarily. I propose the following orders:

1. Dismiss the appellant’s notice of motion filed on 20 December 2018 with costs.

2. Appeal dismissed with costs.

129. BRERETON JA: I have had the considerable benefit of reading in draft the judgment to be delivered by White JA, with which I agree.

130. In circumstances where the subpoenas which Mr Ugur seeks leave to have issued – presumably with a view to adducing further evidence in the appeal – substantially (though not entirely) replicate subpoenas issued at first instance at the request of the Attorney-General, and it was Mr Ugur’s opposition to their use in connection with the summary dismissal application that resulted in access to the documents produced being refused, he ought not be permitted himself to issue subpoenas to substantially the same effect. It was as a result of his objection that the application was heard and determined without recourse to such material, and in the light of that forensic decision it would be quite inappropriate to allow the appeal to be conducted on a different evidentiary basis.

131. I agree that, for the reasons given by White JA, the complaints in respect of bias and procedural fairness, however put, fail. There is, to adapt the words used by Meagher JA in Galea v Galea in connection with a judge who expressed some exasperation at evidence that was viewed with a measure of incredulity,[1] no principle that a judge confronted by submissions that are divorced from reality must endure the ordeal with serenity. 

     1. (1990) 19 NSWLR 263 at 283.

132. I also agree that Mr Ugur’s application for a writ of habeas corpus was rightly summarily dismissed. Mr Ugur is manifestly under no physical confinement or restraint. Though that is significant, it is not necessarily decisive; in Antunovic v Dawson,[2] Bell J explained – in summarising what the primary judge rightly described as including a comprehensive survey of the applicable legal principles[3] – that there may be a restraint on personal liberty not only by imprisonment or detention, but also by imposition of restrictions on liberty or freedom of movement which are not shared by the public generally:

[113] On the basis of this analysis, close custody, imprisonment, detention or something analogous is not a necessary element of the right to habeas corpus, although restraints of that kind are clearly covered [R v Secretary of State for Home Affairs; Ex parte O’Brien [1923] 2 KB 361 at 391 per Scrutton LJ and 398 per Atkin LJ; Ruddock v Vadarlis (2001) 110 FCR 491 at 509, [69] per Black CJ and 547, [209] per French J]. The purpose of the writ is to give a remedy against unlawful restraints on personal liberty, which is not to be narrowly defined [Jones v Cunningham (1963) 371 US 236 at 243; Re C (Mental Patient: Contact) [1993] 1 Fam Law R 940 at 944 per Eastham J; Victorian Council for Civil Liberties v Minister for Immigration and Multicultural Affairs (2001) 110 FCR 452 at 474, [86] per North J; Ruddock v Vadarlis (2001) 110 FCR 491 at 509, [69] per Black CJ, 547, [209] per French J]. The restraint may be imposed directly or indirectly. It may be partial or total. The question is whether the person imposing the restraint has the lawful custody, power or control of the person being restrained [Barnardo v Ford [1892] AC 326 at 338 per Lord Herschell; R v Secretary of State for Home Affairs; Ex parte O’Brien [1923] 2 KB 361 at 391 per Scrutton LJ and 398 per Atkin LJ]. The liberty protected by common law habeas corpus is broader than the liberty protected by the human right to personal liberty and security in s 21(1) of the Charter. For the purposes of habeas corpus, it is a restraint on personal liberty to imprison or detain somebody [See, for example, R v Jackson [1891] 1 QB 671 at 680 per Lord Halsbury LC, 682 per Lord Esher] and also to impose restrictions on their liberty or freedom of movement which are not shared by the public generally [Jones v Cunningham (1963) 371 US 236 at 240; Re C (Mental Patient: Contact) [1993] 1 Fam Law R 940 at 944; Victorian Council for Civil Liberties v Minister for Immigration and Multicultural Affairs (2001) 110 FCR 452 at 474, [86] per North J; Ruddock v Vadarlis (2001) 110 FCR 491 at 509, [69] per Black CJ, 547, [211] per French J]. That freedom is a human right specified in s 12 of the Charter.

2. (2010) 30 VR 355 at 376-380; [2010] VSC 377 at [99]-[113].

3. Judgment at [5].

133. If Mr Ugur were, as he asserts, subject to some kind of electronic monitoring by means of the insertion into his body of some chip, then it is conceivable though by no means clear that the writ of habeas corpus might be available. In any event, and as White JA points out, the appropriate outcome in that event would have been an order that he replead his case, rather than for its summary dismissal. However, the notion that he is subject to such monitoring is fanciful. [4] Save for inferences that he has drawn, but are not reasonably open, from his own observations of events that are either entirely innocuous or uncorroborated and inherently incredible, the only evidence that remotely supports his claim is the “client audit” document dated 20 February 2008, in which it appears his “Current File Category” has been entered as “Monitoring with Advocacy”. Evidence admissible on an application for summary dismissal convincingly shows that there was no guardianship order of any kind in place after 16 February 2008, and that the entry “Monitoring with Advocacy” was erroneous; and even if the entry were interpreted as evidencing that he was placed in a category of “Monitoring with Advocacy” for a further ten months, that period has long since expired. Moreover, Mr Ugur’s case is founded on a misconception of what is meant by “monitoring with advocacy”: it is plain that in the context in which it appears – including the services that had been provided to him while a Guardianship Order remained on foot prior to February 2008 – that it did not refer to any form of surveillance or restraint, but simply to keeping his situation under review, so that an appropriate intervention might be made on his behalf if it appeared warranted. Finally, there is nothing to suggest that the Attorney-General, against whom alone the application was made, was in any way responsible.

     4. Cf Three Rivers District Council v Bank of England [No 3] [2003] 2 AC 1; [2001] UKHL 16 at 260, [95] (Lord Hope of Craighead).

134. I agree with the orders which White JA proposes.

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Endnotes

Decision last updated: 26 April 2019