IBRAHIM -v- THE HONOURABLE JUSTICE CAROLYN MARTIN [2012] WASC 338 (17 September 2012)

3 By chamber summons dated 10 August 2011, the defendant applied to strike out Mr Ibrahim's originating motion and for an order dismissing the action. In response, Mr Ibrahim filed a chamber summons dated 9 January 2012 amending the orders that he seeks, and seeking other orders. By this chamber summons, Mr Ibrahim applies to:

(2) amend the orders sought in the originating motion as follows:

(a) the defendant to stand trial for judicial corruption under s 121(1) of the Criminal Code (WA);

(b) the defendant to stand trial for committing perjury under s 124 of the Criminal Code (WA);

(c) alternatively, the Attorney General be ordered by the court to make an investigation under s 121 against the first defendant;

(d) the case be heard before an interstate judge; and

(3) Justice Martin be disqualified for perceived bias.

4 The defendant's application was listed for 16 January 2012. Mr Ibrahim did not serve his chamber summons dated 9 January 2012 on the defendant's solicitor prior to the hearing of 16 January 2012. Consequently, the hearing of 16 January 2012 was adjourned.

5 The defendant's application was relisted for 24 May 2012. The parties were advised of this by letter dated 2 May 2012 from the listings supervisor of the court.

6 The defendant filed submissions on 10 May 2012 in support of the application to strike out Mr Ibrahim's amended originating motion.

7 On 22 May 2012, Mr Ibrahim filed and served a further amended chamber summons seeking leave to amend the originating motion. By the amended chamber summons dated 22 May 2012, Mr Ibrahim sought orders amending the originating motion to:

(1) add Moncrieff J of the Family Court as a second defendant;

(2) add Pullin JA and Newnes JA as third and fourth defendants;

(4) change the orders sought in the originating summons to the following:

(a) the defendants stand trial for judicial corruption under s 121(1) of the Criminal Code (WA);

(b) the first defendant stand trial for committing perjury under s 124 of the Criminal Code (WA);

(c) alternatively, the Attorney General be ordered to make an investigation under s 121 against the first to fourth defendants; and

(5) Justice Martin be disqualified for perceived bias.

8 On 24 May 2012, the defendant's application to strike out the originating motion and for an order dismissing the action came on for hearing.

9 In the course of that hearing, Mr Ibrahim indicated a desire to put on more evidence and submissions in response to the defendant's application (ts 29 30). In response, the court identified, as a possible approach, that Mr Ibrahim be permitted to put on further affidavits and written submissions, to which the defendant would respond, following which the application would be heard on the papers, unless the court otherwise determined. Mr Ibrahim expressed opposition to the application being heard on the papers. He stated that he would or may wish to call witnesses who would not be willing to provide an affidavit (ts 31 32, 37).

10 I then indicated the course I would adopt, giving the following reasons:

There may well be room for the view that Mr Ibrahim has had a sufficient opportunity to put on his evidence and submissions. Nevertheless, in circumstances where Mr Ibrahim is selfrepresented and in order to ensure that he has a full reasonable opportunity to present his case, I consider it appropriate not to hear and determine the application today but rather to give Mr Ibrahim an opportunity to put on in written form the material that he wishes to rely upon. There will then be necessarily the opportunity for the defendant to respond, and I propose that the matter would be then determined either on the papers or after a further hearing as I decide.

Mr Ibrahim has submitted that he opposes any prospect of the matter being heard on the papers. One of the reasons for that, he submits, is that he wishes to be able to subpoena documents and potential witnesses. In relation to the witnesses, Mr Ibrahim has explained that he expects that they will not be prepared to provide an affidavit but he says they can give evidence which is capable of supporting his case.

In my view, those are matters which Mr Ibrahim can address in the submissions which he files. I understand from the submissions already made by the defendant that the defendant says that evidence of the kind which could be given by the persons referred to or of the class referred to by Mr Ibrahim would be incapable of supporting any arguable case on Mr Ibrahim's behalf.

In those circumstances the appropriate course seems to me to be as follows: that Mr Ibrahim put on his written material, that the [defendant responds], and that I then determine whether the application should be determined on the papers or should be heard after a hearing. In coming to that decision, I can take into account and will take into account the submissions made by Mr Ibrahim and any response that I receive from the defendant (ts 37 38).

11 In the course of the hearing on 24 May 2012, Mr Ibrahim raised his application that the matter be dealt with by an interstate judge. I indicated that, at that stage, what was occurring was the management of the proceedings by the making of directions. I indicated that I was not satisfied that a reasonable, wellinformed bystander would have any apprehension that I, as a Western Australian judge, would bring a biased mind to deciding the procedural steps to be taken in the proceedings (ts 33 34). I stated that Mr Ibrahim could make submissions in support of his application in the course of the submissions to be filed by him in writing.

(1) By 2 July 2012, the plaintiff file and serve any further affidavits on which he relies, and his written submissions.

(2) By 16 July 2012, the defendant file and serve any further affidavits and submissions on which she relies.

(3) Thereafter, the application be heard on the papers, unless the court otherwise determines.

(4) The costs of today be costs in the application.

13 Mr Ibrahim did not file and serve any affidavits or submissions by 2 July 2012.

14 By letter of 3 July 2012, my associate enquired as to what Mr Ibrahim proposed to do in relation to complying with the orders of 24 May 2012.

15 Mr Ibrahim did not respond to that letter, or file or serve any affidavits, submissions or other materials.

16 By letter of 9 August 2012, my associate stated that if no further affidavits or submissions were filed by Mr Ibrahim by 22 August 2012 then, subject to any further submissions from the defendant, to be received by 29 August 2012, the court would proceed to determine Mr Ibrahim's application without receiving any further material.

17 Mr Ibrahim has not filed or served any further affidavits, submissions or other material.

18 In the absence of submissions from Mr Ibrahim on what oral evidence could be given by what witnesses that would be relevant to this application, I proceed to determine the application on the papers.

19 The defendant contends that the originating motion should be dismissed, whether in its original form or in any amended form. The nature of the defendant's application engages wellestablished principles concerning the caution with which the power to order summary dismissal of an action is exercised.

20 The caution with which the power to grant summary disposal is to be exercised is well known. In an application by a defendant, the defendant bears the onus of showing that there is no serious question to be tried on any cause of action raised by the plaintiff: Anderson v Effexseven (1998) 10 ANZ Ins Cas 61424, 74, 757. The power to order summary disposal should never be exercised unless it is clear there is no real question to be tried: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99. It is only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceeding if it went to trial, that summary disposal ought be ordered: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57]; Batistatos v Roads and Traffic Authority of NSW [2006] HCA 27; (2006) 226 CLR 256 [46].

21 Mr Ibrahim is selfrepresented. In the case of litigants in person, on an application for summary disposal, the court must be astute to ensure that, in a poorly expressed or unstructured document setting out the claim, there is no viable cause of action which, with appropriate amendment or permissible assistance from the court, could be put into proper form: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536 537; Tobin v Dodd [2004] WASCA 288 [15]. A court should be careful to see that the rights of an unrepresented litigant have not been 'obfuscated by their own advocacy': Neil v Nott [1994] HCA 23; (1994) 121 ALR 148, 150; Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10].

The grounds and evidence in support of the originating motion

22 The grounds in support of the originating motion are set out in Annexure 1 to these reasons. Mr Ibrahim's affidavit dated 14 February 2011 in support of the originating motion is substantially to the same effect. In summary, Mr Ibrahim's grounds:

(a) complain about various procedural decisions made by the defendant in family law proceedings to which Mr Ibrahim was a party;

(b) complain that the defendant has not correctly applied the Family Law Act 1975 (Cth) or relevant rules;

(d) assert that the defendant acted corruptly in the decisions, not by receiving money, but by 'gains [in] benefit for herself in defeating [Mr Ibrahim] who complained about her to the [Corruption and Crime Commission] which means she has an ill will towards [Mr Ibrahim] contrary to the oath she took to be in office';

(e) assert that Mr Ibrahim wrote to the Attorney General asking for an investigation into the defendant's conduct but got a negative response; and

(f) complain that there has been judicial corruption in breach of s 121 of the Criminal Code (WA).

Application for case to be heard by an interstate judge

23 The orders of 24 May 2012 gave Mr Ibrahim liberty to put on affidavits and make submissions in support of this application. Since then Mr Ibrahim has not filed any affidavits or any submissions.

24 It is apparent from what Mr Ibrahim said in court on 24 May 2012 that he considers that his application does not involve asking me (or any particular judge) to disqualify myself (ts 34). However, in my view, the substance of this application is that I, like all members of the court, should disqualify myself. The Court of Appeal appeared to take a corresponding view of a like application (for the appointment of interstate judges) in Re The State of Western Australia; Ex parte Vella [2012] WASCA 179 [11].

25 The test to be applied is whether in the circumstances a fairminded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question in issue: see Ex parte Vella [11] and cases there cited; Ibrahim v Herring [No 3] [2011] WASCA 265 [13].

26 Mr Ibrahim has made no submissions to articulate how or why that test is satisfied in this case. In the circumstances of this case I am not persuaded that the test is satisfied.

27 That brings me to the defendant's application that these proceedings be dismissed.

28 I will deal with the orders originally sought by Mr Ibrahim, and then with the amended form of orders.

29 In substance, in his originating motion, Mr Ibrahim seeks orders that the defendant be investigated by the police for judicial corruption and perjury.

30 I am satisfied that an action to seek orders to that effect is doomed and should be dismissed. My reasons are as follows.

31 First, the court does not dictate that the police force, or any particular branch or member of it, should conduct a particular investigation. Enforcement of the law is invested in the Commissioner of Police. The Commissioner has a broad discretion as to the way in which that duty is to be fulfilled. It is for the Commissioner to decide whether, and in what way, an investigation should be pursued. There are suggestions in some cases that there may be room for some limited judicial supervision of that broad discretion. However, on no view of things could the court direct that the Commissioner of Police conduct or cause to be conducted a particular investigation: see Hinchcliffe v Commissioner of Police of the Australian Federal Police [2001] FCA 1747; (2001) 118 FCR 308 [31] [36]; O'Malley v Keelty, Australian Federal Police Commissioner [2004] FCA 1688 [6] [7]; O'Malley v Keelty, Commissioner of the Australian Federal Police [2005] FCA 861 [31] [36].

32 Secondly, there is nothing in the grounds of the originating motion, or its supporting affidavit (or in anything said by Mr Ibrahim in his oral submissions) which reveals any material facts that are even remotely capable of establishing the elements of the offences of judicial corruption or perjury. Bald assertions of corruption or lying do not reveal any arguable case. In essence, the matters raised in Mr Ibrahim's grounds, and his affidavit, reveal that he is dissatisfied with steps taken in the Family Court, or with things said or done by the defendant in the course of proceedings there. Any complaints of that character are properly the subject of an appeal from the Family Court. The grounds and affidavit fall well short of revealing any arguable basis for perjury or corruption on the part of the defendant.

33 I take it that Mr Ibrahim's application to amend dated 9 January 2012 is overtaken by his application dated 22 May 2012. In any event, my reasons in relation to the application of 22 May 2012 would apply equally to the application of 9 January 2012.

34 By his amended orders, Mr Ibrahim seeks, in substance, that it be ordered that the defendant and proposed second to fourth defendants stand trial for judicial corruption and perjury, or the Attorney General be ordered to investigate an offence of judicial corruption by the defendant and the proposed second to fourth defendants.

35 For the reasons that follow, I am satisfied that any claim for orders to this effect is doomed and should be summarily dismissed.

36 The court cannot order a person to stand trial for offences with which he or she has not been charged. It is for the Director of Public Prosecutions (DPP), or in some cases the Attorney General, to decide whether to commence a prosecution. The court cannot commence a prosecution. That, in substance, is what is involved in seeking an order that the defendant stand trial for particular offences.

37 The discretion of the DPP or the Attorney General to decide whether to commence or not commence a prosecution is not subject to review or direction by a court: Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75, 94 95, 110 111; Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501, 512, 534; Hanna v Director of Public Prosecutions (NSW) [2005] NSWSC 134; (2005) 62 NSWLR 373 [39] [56]; Likiardopoulos v The Queen [2012] HCA 37 [37]. The position was explained by Gaudron and Gummow JJ in Maxwell (534) as follows:

It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute, to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted. The integrity of the judicial process - particularly, its independence and impartiality and the public perception thereof - would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what. (footnotes omitted)

38 The notion that in civil proceedings the court make an order that persons stand trial for criminal charges is antithetical to the integrity of the judicial process under our system of law, as explained by Gaudron and Gummow JJ in Maxwell. The courts are not concerned with who is to be prosecuted and for what: Likiardopoulos [37].

39 Further, as I have said, there is nothing in Mr Ibrahim's grounds or supporting affidavit that is even remotely capable of supporting an allegation of perjury or corruption on the part of the defendant. The same is true in respect of the proposed additional defendants.

40 For these reasons, in my view, Mr Ibrahim's case in its original form and in its proposed amended form is doomed to inevitable failure, and should be summarily dismissed.

41 Accordingly, I would order that the plaintiff's applications to amend be dismissed; the proceedings be dismissed; and that the plaintiff pay the defendant's costs of the proceedings.