Attorney General in and for the State of New South Wales v Mahmoud

Supreme Court of NSW|2014-09-24|Before: Schmidt J

Judgment 1An application made by the defendant, Mr Mahmoud, for case management orders vacating orders made by Registrar Kenna on 5 September 2014 was referred to me on Wednesday, 24 September 2014 while sitting as duty judge. The application was opposed by the plaintiff, the Attorney General. On commencement Mr Mahmoud immediately made a disqualification application, which was also opposed, the Attorney General submitting that on the applicable principles which govern such applications, discussed in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337, the application had to be refused. 2Mr Mahmoud was appearing unrepresented. In order that he could understand the principles which he needed to address, I provided him with a copy of the judgment and adjourned the hearing to 2pm, so that he could respond. On resumption he addressed those principles, but also sought another adjournment, so that he could further research the applicable law and its application to his disqualification application. 3I declined both the adjournment application and the disqualification application and heard Mr Mahmoud's application. 4Mr Galbraith, appearing for the Attorney General, relied on written submissions which he had prepared during the adjournment on that application. When it became apparent that those submissions had not been provided to Mr Mahmoud, I adjourned, in order that he could have an opportunity to read them. I then came to the view that given the remaining time that afternoon, it was not just to require Mr Mahmoud to respond to the Attorney General's submissions, without a further opportunity to consider what was advanced against him. Accordingly, I directed that he file any written submissions in reply by 9am on Monday, 30 September. 5That day Mr Mahmoud provided his submissions. They included a further application that I disqualify myself for actual bias, evidenced by my having received the written submissions on which the Attorney General wished to rely, without them having first been served upon him. Mr Mahmoud later forwarded other documents on which he wished to rely.

The proceedings 6These proceedings concern an application brought by the Attorney General in September 2013 under the Vexatious Proceedings Act 2008 (NSW). Mr Mahmoud resists the orders sought. 7In April 2014, in Attorney General in and for the State of New South Wales v Mahmoud [2014] NSWSC 392, Fullerton J dismissed Mr Mahmoud's application for a stay of the proceedings. In July, Hoeben CJ at CL dismissed Mr Mahmoud's application to have the proceedings dismissed, Mr Mahmoud having failed to establish his challenge to the Crown Solicitor's retainer by the Attorney General. His Honour also refused an application to stay the proceedings on account of Mr Mahmoud's ill health (see Attorney General in and for the State of New South Wales v Mahmoud [2014] NSWSC 970). 8Directions for the preparation of the matter for hearing have been given on a number of occasions by Registrars, but the timetables imposed have not been adhered to. The matter is now listed for hearing in March 2015. On his application Mr Mahmoud sought to have the hearing date vacated and the other orders made by Registrar Kenna on 5 September set aside, because he was not in a position to put on his evidence, as he had been directed, by 26 September 2014. In his view the matter was not ready to be listed for hearing. 9The orders made by Registrar Kenna were: "I. Orders 1-8 of SMO: 1. Plaintiff to file all affidavit evidence upon which he proposes to rely by 4.00pm on Friday 26 September 2014. 2. Plaintiff to file and serve any evidence-in-reply by 4.00pm on Friday 10 October 2014. 3. Proceeding fixed for hearing on 9/3/15. 4. Subject to any express order by the Trial Judge to the contrary, at the hearing referred to in 3 above the defendant not to be entitled to rely upon any affidavit evidence not filed and served prior to 4.00pm on Friday 26 September 2014. 5. Plaintiff to file and serve written submissions by 4.00pm on 12/1/15. 6. Defendant to file and serve written submissions on 9/2/15 7. Plaintiff to file and serve submissions-in-reply by 4.00pm on 23/2/15 8. Liberty to apply on two days' notice. II. Plaintiff to provide a joint tender bundle to the Court by 2/3/15. III. List for hearing on 9/3/15, estimate 1 days plus. IV. Plaintiff is to notify defendant of these orders." 10By his application Mr Mahmoud sought to have those orders vacated; for the proceedings to be adjourned to 28 November for directions, in order to enable him to examine information on his file at Government Information Public Access under the Government Information (Public Access) Act 2009 (NSW); an indemnity costs order in the sum of $53,021.80, for his costs and disbursements; and an order for security of costs of $50,000. 11Those orders were opposed.

The apprehended bias application 12Mr Mahmoud led no evidence to support this application. He did not rely on any of the affidavits which he had filed, in which he stated that he was a retired senior secondary teacher of French, a social reformer and active in politics for 19 years, or the documents annexed to them. 13The application was pressed on the basis that Mr Mahmoud suspected that as a female judge, I was a feminist with leftist leanings, who would not give him a fair hearing, given that he was a well-known community leader and founder of the ideology of "genderism", who had plenty of women enemies. He accordingly sought that I disqualify myself and that his application be allocated to be heard by a male judge, who was not a duty judge, after 28 November. 14When the hearing resumed at 2pm on 23 September, Mr Mahmoud submitted, amongst other things, that his application had to be granted because it was fair to conclude that there would be a reasonable apprehension of bias by a female judge, given his status as the head of the conservative movement in Australia for 20 years, his successful policies and the large section of society which supported him. He also claimed to be the founder of an international institute of genderism, a term he claims to have coined. 15Mr Mahmoud relied on Gleeson CJ's observations in Ebner at [6] that "a judge is disqualified if 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 is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done". He submitted that a fair minded observer had to be a neutral person, not Anglo Saxon or Australian. 16He also relied on what was observed at [7]: "The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror." 17Mr Mahmoud submitted that: "There is a very high risk of bias and prejudice by a woman duty judge stems basically among the many other things, from the fact that there is a fundamental, natural and scientific principle of genderism and what I am calling for and which are publically published on the internet, in particular on my blog about genderism, the bar of feminism, and that woman must not be in any senior position anywhere across the board, could cause considerable damage to the fabric of society and, above all, it is again a law of nature which we must all obey and respect, to be able to live with no problems or with far less problems. Obviously that's enough to influence women across the board to cause or to risk of causing women judges to retaliate against me for directly threatening their jobs, income, material benefit and their status in the society given that I have the support of the politicians at the highest level in the country, the media and a larger section of the country and we have succeeded in getting our messages through to the people of Australia and as a result we won the last election and that's "we", the conservative movement of Australia. This Federal Government is known to be the conservative Liberal Party." 18Mr Mahmoud also relied on Gaudron J's remarks at [83] and [84] where her Honour said: "83 It is not in doubt that the requirement that courts be and appear to be impartial dictates the result that a judge is disqualified by actual bias and, also, by the appearance of bias. The test in this country with respect to the appearance of bias is "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question [he or she] is required to decide" [Johnson v Johnson (2000) 174 ALR 655 at 658 [11]; 74 ALJR 1380 at 1382 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ citing R v Lusink; Ex parte Shaw (1980) 32 ALR 47; 55 ALJR 12; Livesey v New South Wales Bar Association (1983) 151 CLR 288 ; 47 ALR 45; Vakauta v Kelly (1989) 167 CLR 568 ; 87 ALR 633; Webb v R (1994) 181 CLR 41 ; 122 ALR 41; cf R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 262 ; 9 ALR 551 at 564 per Barwick CJ, Gibbs, Stephen and Mason JJ, and also in Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-4 ; 47 ALR 45 at 47-8, where the test was also expressed as whether "the parties or the public" might entertain a reasonable apprehension of bias on the part of the judge]. 84 The test for the appearance of bias was formulated in a series of cases decided by reference to common law principles and without regard to the role of Ch III of the Constitution. However, in my view, that test properly reflects the requirement of Ch III. What is in issue is not bias, but the appearance of bias. And as a practical matter, that can only be determined by reference to considerations of reasonableness and fair-mindedness. And because the ultimate rationale for the requirement that courts appear to be impartial is the maintenance of public confidence in the administration of justice, it is appropriate that the test be formulated by reference to the reasonable apprehension of the hypothetical fair-minded lay observer." 19I was satisfied that the adjournment application had to be dismissed because Mr Mahmoud had been given a fair opportunity to advance his bias application, having had an adjournment until 2pm to consider the principles which governed that application. He had not only addressed his application before the adjournment, but had made submissions for almost an hour on resumption as to how the applicable principles applied to his application. There could be no question that in the circumstances, he had been given a fair opportunity to be heard on his bias application and that a further adjournment so that he could research the law which applied to his application, could not justly be granted. 20I was also satisfied that Mr Mahmoud's disqualification application had to be dismissed because the matters relied on, his suspicion that I, as a female judge, might have feminist or leftist views and would accordingly not give him a fair hearing, given his own well known views and position in the community, were not a basis upon which such an application could be acceded to, given the principles discussed in Ebner, which binds its determination. 21Nothing which Mr Mahmoud advanced provided a proper basis for the conclusion that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of his application, notwithstanding his strongly held personal views as to the proper role of women in society. 22Mr Mahmoud's application rested on at least three assumptions. The first, that as a female judge, I was a feminist with leftist leanings. The second, that any male judge to whom the matter might be referred, would not hold views of the kind that he suspected female judges such as I held. The third, that his personal circumstances were so notorious, that there was a real possibility that they could so influence any female judge against him, with the result that she might not bring an impartial and unprejudiced mind to the resolution of what lay between the parties. 23Such assumptions are not a proper basis on which a disqualification application such as that advanced by Mr Mahmoud can be made out. 24Nothing on which Mr Mahmoud relied, other than his submissions, established his personal circumstances, or the notoriety which he claimed. That Mr Mahmoud held the beliefs which he explained at length must be accepted, of course. They, however, were also not a proper basis for granting his application. 25As human beings all judges hold personal views on a wide range of matters. By their oath of office they are obliged to determine issues lying between parties who come before them in a myriad of cases impartially, even when their personal views do not accord with those expressed by one, or other, or even all parties. In our system of justice, it cannot be presumed that a fair-minded lay observer might reasonably apprehend that a judge would not abide by that oath, particularly in circumstances such as this, where the basis for the application advanced was nothing other than suspicion as to views which female judges in general might hold and an assumption that male judges would not hold similar views on matters not connected with those which arise for determination in this case. Even if any judge held such views, that he or she would not determine what was in issue between the parties in the proceedings fairly and impartially, does not follow. 26Also necessary to be considered was what was in fact in issue between the parties. At that stage it was whether case management orders made by a Registrar in the absence of Mr Mahmoud on 5 September should be vacated; the hearing date fixed vacated; the matter relisted for further directions; and whether costs orders should be made in favour of Mr Mahmoud. 27That application was supported by affidavits sworn by Mr Mahmoud, as well as various documents. Amongst other things, there he complained that the Registrar had been careless and negligent and had treated him with contempt, rubber stamping orders sought by the Attorney General, who he described to be a "ghost plaintiff". The Registrar's failure to telephone him, when he did not appear at the directions hearing, as evidencing discrimination and bias, with the result that he had been subjected to persecution, prejudice and severe injustice. He also there explained the reasons for his non-appearance and why fairness required the vacation of the orders made, submitting that the matter was not ready to be listed for hearing, because he was not in a position to defend himself, requiring time in September and October to gather further materials and evidence. He also required, he said, the opportunity to obtain specialist medical reports given various serious conditions from which he suffers, as well as information held about the authorisation given to commence these proceedings, held by Justice Legal, to advance his case. 28I was satisfied that matters relied on by Mr Mahmoud to support his disqualification application were not capable of supporting the conclusion that a fair-minded lay observer might reasonably apprehend that a female judge of this Court would not bring an impartial and unprejudiced mind to the resolution of the issues then lying between the parties. 29Mr Mahmoud's application is governed by applicable provisions of the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW). Discretionary considerations arise to be exercised in relation to the resolution of those issues, but that a fair-minded lay observer would apprehend that a female judge would not resolve those issues impartially between Mr Mahmoud and the Attorney General, whilst a male judge would, as his arguments necessarily comprehended, was simply not established.

The actual bias application 30This application was made on the basis of racism and conflict of interest. It was based on a complaint that I had received the written submission from Mr Galbraith on 23 September before it was provided to Mr Mahmoud, this involved collusion, as well as actual bias. Mr Mahmoud's case was that he had been subjected to an unfair trial, severe injustice and persecution by a corrupt racist establishment, which persecuted his race, relying on judges who rubber stamp whatever the establishment wants. He also submitted that if he had not been alert to his rights, he would have been swallowed by the sharks of the Anglo Saxon legal system. 31I am satisfied that this application must also be refused. 32Whether there has been actual bias in any case is a question of fact. The test is stringent, set at a higher level than that of apprehended bias (see McGovern v Ku-ring-gai Council [2008] NSWCA 209; 72 NSWLR 504 at [73]). 33When Mr Galbraith handed up the four page written submission which he shortly addressed, Mr Mahmoud did not object. It was when Mr Mahmoud replied that he advised that he had not received a copy of those submissions. He was immediately provided with a copy and I adjourned to allow him to read them. I then gave him the opportunity to respond in writing during the adjournment, an opportunity which he has availed himself of. 34While it was regrettable that Mr Galbraith did not provide Mr Mahmoud a copy of these submissions, as he ought to have, before he addressed them, in the result Mr Mahmoud has not been prejudiced. He has had a fair opportunity to respond to them. 35In the circumstances, what transpired when Mr Galbraith handed up his written submissions, is simply incapable of establishing actual bias on my part. 36Mr Mahmoud also relied on my earlier refusal to disqualify myself on the basis of apprehended bias as evidencing actual bias. That submission may also not be accepted, nor submissions such as that Mr Mahmoud creates a threat to my job, promotion, income, working future and status. These submissions reveal a complete misunderstanding of the Australian legal system and are incapable of establishing either actual or apprehended bias. 37Nor was the application made out by Mr Mahmoud's allegations as to the existence of a corrupt racist gang involving the NSW Parliament, the NSW Government, the Judiciary and the Courts and the commission of various serious criminal offences, including, murder. Such wild, unsupported allegations are also incapable of establishing the case he sought to make. 38In the result this application, too, must be dismissed.

The timetable 39Mr Mahmoud explained that he did not appear before Registrar Kenna on 5 September because he was having a problem with a printer. He said that he had four pages of an affidavit and short minutes left to print and had to return home, because documents he thought he had saved to a CD were not there and the problem could not be fixed. 40That explanation reveals that Mr Mahmoud was aware of the listing and elected to attend to his printing problems, rather than appear before the Registrar in order to explain the difficulty with which he had been confronted. There is no suggestion that he notified either the Court or the Attorney General of his difficulties. In the result the matter proceeded in his absence. There was no injustice in that, nor any carelessness or negligence on the Registrar's part. 41It is not a matter for Registrars to pursue parties who fail to appear before them. If they do not, they risk the obvious, that the matter will be dealt with in their absence. As recently discussed in Roskott v Commonwealth Bank of Australia [2014] NSWCA 341 at [14], even an email communication by an unrepresented litigant seeking an adjournment on short notice will not necessarily result in a listing being vacated. 42Mr Mahmoud has not put on his evidence. In the circumstances I accept that he needs to have some further time to do so, given his medical condition, his appointment with a medical specialist on 10 October 2014 and his desire to obtain a report from him. He also wants to pursue information from Justice Legal, which has recently made a decision on an application he had made to it, for access to documents concerning him. 43As I raised at the hearing, in those circumstances the timetable which had been fixed in Mr Mahmoud's absence could readily be amended to accommodate his position, without doing any injustice to the Attorney General. I am satisfied in the circumstances Mr Mahmoud explained that he should be given the opportunity to file and serve any evidence on which he wishes to rely by 28 November. That will require some consequential adjustments to the timetable. 44Mr Mahmoud also submitted that it was premature to list the matter for hearing. Given what the proceedings concern, its background and the amended orders which I propose to make, that submission cannot be accepted. In my view the timetable I will now fix provides the parties with a fair opportunity to prepare the matter for hearing in March 2015. 45Mr Mahmoud also complained that it defied natural justice to permit the Attorney General to file written submissions responding to his submissions, leaving the plaintiff the last word. That submission may also not be accepted. In the ordinary course a plaintiff has a right to reply to a defendant. In any event, Mr Mahmoud will have an opportunity to deal with the written submissions in reply, at the hearing in March. 46As to the order for the filing of a joint tender bundle, if Mr Mahmoud considers that any relevant document is not there contained, he will have the opportunity to file an additional tender bundle.

Costs 47Mr Mahmoud sought an order for $53,021.80 for costs and disbursements in his favour. He has not established any basis on which such an order can be made. 48The usual order under r 42 of the Uniform Civil Procedure Rules 2005 (NSW) is that costs follow the event; that is costs are usually ordered in favour of the successful party. The time that the question of costs is usually determined, is after judgment has been given. 49Mr Mahmoud has not established any event which would warrant the costs order now sought being made in his favour, nor any circumstance which could warrant the exercise of the Court's discretion to depart from the usual order. Further, while if he succeeds Mr Mahmoud is likely to recover disbursements, he has not as yet established that as a litigant in person he would be entitled to payment for the time he claims to have spent in pursuit of his defence of these proceedings, if he succeeds in resisting the case brought against him. 50The usual rule is that discussed in Preston v Commissioner for Fair Trading [2011] NSWCA 40; 80 NSWLR 359; 80 NSWLR 359 at [183]-[185]: "183 It has been held, under a previous statutory regime authorising the making of costs orders, that a litigant in person who is not a lawyer is not entitled to receive an order for costs to compensate him for time spent in preparing and conducting his case: Cachia v Hanes (1994) 179 CLR 403. However a selfrepresented litigant who is not a lawyer can recover an indemnity for at least some out-of-pocket expenses actually and reasonably incurred: Secretary, Department of Foreign Affairs v Boswell (No 2) (1992) 39 FCR 288; Lawrence v M D Nikolaidis & Co [2003] NSWCA 129; (2003) 57 NSWLR 355 at [37]. It appears from Cachia at 417 that those out-of-pocket expenses were ones of the type which would have been recoverable as disbursements if the appellant had been legally represented. Thus such expenses include filing fees: Deva v University of Western Sydney [2008] NSWCA 137; (2008) 175 IR 89 at [82]. Though there are some English cases, and some previous Australian authority (including Boswell) that say that under the heading of out of pocket expenses a litigant in person can get compensation for the opportunity cost of spending time on his litigation rather than on other paying work, since Cachia those cases have not been followed in Australia: Lawrence at [37]. 184 The power of this Court to make orders for costs is now governed by the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005. Now, s 3 of the Civil Procedure Act defines "costs" in relation to proceedings, as meaning "costs payable in or in relation to the proceedings, and includes fees, disbursements, expenses and remuneration." Section 98(1) of the Civil Procedure Act provides: "98 Courts powers as to costs (1) Subject to rules of court and to this or any other Act: (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid ..." 185 There does not appear to be any relevant difference between the present statutory framework for costs orders, and the provisions that the High Court referred to in Cachia. Thus the costs order should be the sort of order that the cases cited in [183] above held was permissible." 51In the event that he succeeds, Mr Mahmoud will have to address this rule in any further costs application which he presses.

Security for costs 52Security for costs applications are governed by the provision of r 42.21. It provides: "(1) If, in any proceedings, it appears to the court on the application of a defendant: (a) that a plaintiff is ordinarily resident outside Australia, or (b) that the address of a plaintiff is not stated or is mis-stated in his or her originating process, and there is reason to believe that the failure to state an address or the mis-statement of the address was made with intention to deceive, or (c) that, after the commencement of the proceedings, a plaintiff has changed his or her address, and there is reason to believe that the change was made by the plaintiff with a view to avoiding the consequences of the proceedings, or (d) that there is reason to believe that a plaintiff, being a corporation, will be unable to pay the costs of the defendant if ordered to do so, or (e) that a plaintiff is suing, not for his or her own benefit, but for the benefit of some other person and there is reason to believe that the plaintiff will be unable to pay the costs of the defendant if ordered to do so, or (f) that there is reason to believe that the plaintiff has divested assets with the intention of avoiding the consequences of the proceedings, the court may order the plaintiff to give such security as the court thinks fit, in such manner as the court directs, for the defendant's costs of the proceedings and that the proceedings be stayed until the security is given." 53Mr Mahmoud did not address the Rule or seek to establish that the Attorney General fell within any of the circumstances in which a security order may be made against a plaintiff. 54The plaintiff is the Attorney General. Mr Mahmoud has unsuccessfully challenged the Crown Solicitor's retainer and believes that the proceedings brought against him were not properly authorised or instituted in accordance with internal Departmental rules, as he has explained. Those suspicions cannot, however, provide a basis upon which the discretion to make a security for costs order may be exercised under the Rules. 55It follows that this order also cannot be made.

Orders against Justice Legal 56In the written submissions Mr Mahmoud filed, he complained about a response which he had received to the application which he had made to Justice Legal. He sought orders requiring it to provide him with certain information. Such an order cannot be made on this application. 57Such an application must be pursued by Mr Mahmoud in accordance with the provisions of the statutory scheme which governs the request he has made. It cannot be pursued, as Mr Mahmoud sought to do, without notice, in written submissions filed in support of this application.

Orders 58For the reasons given, I vacate the orders made on 5 September and order that: (1)Mr Mahmoud is to file all affidavit evidence upon which he proposes to rely by 4.00pm on Friday 28 November 2014. (2)Plaintiff to file and serve any evidence-in-reply by 4.00pm on Friday 12 December 2014. (3)Proceedings fixed for hearing on 9 March 2015. (4)Subject to any express order by the Trial Judge to the contrary, at the hearing referred to in (3) above Mr Mahmoud is not to be entitled to rely upon any affidavit evidence not filed and served prior to 4.00pm on Friday 28 November 2014. (5)Plaintiff to file and serve written submissions by 4.00pm on 12 January 2015. (6)Mr Mahmoud is to file and serve written submissions on 9 February 2015. (7)Plaintiff to file and serve submissions-in-reply by 4.00pm on 23 February 2015 (8)Liberty to apply on two days' notice. (9)Plaintiff to provide a joint tender bundle to the Court by 27 February 2015. (10)Mr Mahmoud is to provide a tender bundle of any other documents he considers have been incorrectly omitted from the tender bundle by 6 March 2015.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 October 2014

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