Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : LASHANSKY -v- THE LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA [2012] WASC 16

Practice and procedure - Application for appeal to be heard by interstate judges - Claim of actual and apprehended bias - Application dismissed - Turns on own facts

Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225

British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 273 ALR 429

Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488

Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507

Re JRL; Ex parte CJL [1986] HCA 39

1 JUDGMENT OF THE COURT: This is an application for interim orders in the appeal. On 23 March 2012, we dismissed the application with costs. We said we would provide reasons for our decision. These are the reasons.

2 The appeal arises out of an action by the appellant against the respondent alleging deceit, conspiracy with intent to injure by unlawful means and conversion. In the action, the appellant claimed, in substance, first, that in December 1999 the respondent had misled him into distributing to his clients money over which he held a lien for outstanding legal fees; and secondly, that between December 2000 and November 2002 the supervising solicitor who had been appointed to the appellant's former legal practice had, on behalf of the respondent, removed property from the appellant's premises without authority. (The appellant was suspended from practice on 27 November 2000 and his name was struck off the role of legal practitioners on 5 September 2007.)

3 On 19 January 2012, Acting Master Chapman entered judgment for the respondent on its application for summary judgment under O 16 of the Rules of the Supreme Court 1971 (WA).

4 The appellant filed an appeal notice on 2 February 2012.

5 On 7 March 2012, the appellant filed this application. In it the appellant seeks the following orders:

1. A relief seeking a Direction that the Registrar of the Court of Appeal, Registrar Eldred is to have no further part in this appeal;
2. Other ancillary relief relating to the progression of this Appeal to determination including a Direction that the matter of the Applicant's appeal is to be progressed and determined by Justices other than current or past members of the Supreme Court of Western Australia;
3. Costs of suit; and
4. Further and/or other relief.

6 The application was accompanied by a substantial affidavit sworn by the appellant. The affidavit ranges, incoherently it must be said, over a number of topics, most of which are of no apparent relevance to the subject-matter of the application. To the extent the appellant touches upon the grounds for the orders he seeks, he asserts that the members of the court are actively assisting the respondent to 'destroy' him and that there is 'a climate of bias that exists against [the appellant] in the Supreme Court of Western Australia'. The appellant appears to contend that that is apparent from his lack of success in other proceedings before the court. However, because of the rambling nature of his affidavit it is difficult to be sure what the appellant contends. Unfortunately, the appellant's oral submissions exacerbated, rather than ameliorated, that problem.

7 So far as the application relates to the Court of Appeal Registrar, the appellant's complaint appears to be that in addition to being a participant in aiding the respondent to destroy the appellant, the registrar has set matters down for hearing without requesting his available dates.

8 As we understand the appellant's application, it relies upon either actual or apprehended bias on the part of the existing and past members of the court and the Court of Appeal Registrar. There is, however, nothing which is capable of establishing either.

9 While it is important that justice must be seen to be done, a judge should not disqualify himself or herself on the basis of bias or a reasonable apprehension of bias unless substantial grounds are established: Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 352; Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 [36].

10 The test to be applied in determining whether a judge is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to determine: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, 492; British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 273 ALR 429 [78] - [84], [132] and [139].

11 Where a party contends that actual bias in the form of pre-judgment exists, the applicant must show that the mind of the decision-maker is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: see Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507, 532 [72].

12 The appellant's affidavit provides no basis for a finding of actual or apprehended bias. The affidavit is replete with general assertions of bias and conspiracy but is devoid of any evidence that might be capable of making out those allegations. As we have said, the appellant's contention appears to be that it can be inferred from his lack of success in other proceedings before the court that the court has set out to assist the respondent by denying the appellant a fair hearing. The appellant simply ignores entirely the obvious explanation that his lack of success is due to a lack of merit in those earlier proceedings.

13 The inference the appellant seeks to draw is simply not open. There is nothing else which is capable of establishing a case of actual or apprehended bias.

14 The application was entirely without foundation. Accordingly, we dismissed it.