Citation : NINAN and VALUER GENERAL [2016] WASAT 38

Practice and procedure - Whether any of the grounds of appeal has reasonable prospect of succeeding - Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i) - Whether members of court should recuse themselves - Turns on own facts

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

Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427

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

Ninan v Valuer General (WA) [2016] WASCA 120

Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568

1 JUDGMENT OF THE COURT: On 13 September 2016, we made the following orders in this appeal:

1. The appellant's oral application made today that the judges of the court sitting today recuse themselves or be removed be dismissed;
2. The appellant's application dated 9 June 2016 for review of Registrar Bush's decision dated 3 June 2016 be dismissed;
3. The appellant's application dated 23 May 2016 be dismissed;
4. The appeal be dismissed;
5. The appellant is to pay the respondent's costs of the appeal, including any reserved costs, to be taxed if not agreed.

2 We said we would give reasons for our decision. These are the reasons.

3 Shortly stated, the appeal arises from a decision of Curthoys J in the State Administrative Tribunal in which his Honour dismissed, as an abuse of process, two applications by the appellant and his wife seeking to review decisions of the respondent. An appeal notice was filed in this court, by the appellant alone, on 19 April 2016. The appellant requires leave to appeal: State Administrative Tribunal Act 2004 (WA), s 105(1).

4 The appellant subsequently filed an interim application, dated 23 May 2016, seeking, in effect, an order prohibiting any registrar from taking any steps to have the appeal dismissed 'prematurely'.

5 On 3 June 2016, the Court of Appeal Registrar issued a notice for the appellant to show cause why the appeal should not be dismissed pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (the Court of Appeal Rules) on the basis that none of the grounds of appeal had a reasonable prospect of succeeding.

6 The appellant responded with an interim application, dated 9 June 2016, for the review of the decision of the registrar to issue the notice to attend to show cause.

7 Those three matters were listed for hearing on 23 June 2016. Arrangements were made for the appellant, who lives in Thailand, to attend by telephone. On the first occasion, the court received an email from the appellant on the morning of the hearing saying that he was too ill to participate in the hearing. The matters were adjourned and subsequently relisted for hearing on 4 July 2016. Again arrangements were made for the appellant to attend by telephone. On that occasion, the appellant again sent an email to the court on the morning of the hearing saying that he was too ill to participate in the hearing. Attempts to contact the appellant on the telephone number he had provided for the hearing were unsuccessful.

8 In the circumstances, we considered that the appellant's claim to be too ill to make oral submissions by telephone had all the hallmarks of a delaying tactic. We were also of the preliminary view that on the material then before us none of the grounds of appeal appeared to have a reasonable prospect of success. We concluded that a springing order should be made, giving the appellant a further opportunity to be heard if his claim of incapacity was well founded. The following orders were made:

Unless by 4.00 pm on 14 July 2016 the appellant files and serves an affidavit sworn or affirmed by a registered medical practitioner which explains and confirms in detail:

(a) the existence, nature and symptoms of the appellant's alleged illness as specified in his email of 4 July 2016; and

(b) the impact of the alleged illness on the appellant's capacity to make submissions to the court by telephone,

1. The appellant's application dated 9 June 2016 for review of Registrar Bush's decision dated 3 June 2016 is dismissed;
2. The appellant's application dated 23 May 2016 is dismissed;
3. The appeal is dismissed;
4. The appellant is to pay the respondent's costs of the appeal to be taxed.

9 On 11 July 2016, we published written reasons for making those orders: Ninan v Valuer General (WA) [2016] WASCA 120.

10 On 13 July 2016, the appellant sent to the court by email an affidavit, dated 7 July 2016, in which, among other things, he described a medical history of an intermittent vision problem since about 1994 that had defied medical diagnosis. He said the problem had occurred on both 23 June '2014' [sic 2016] and 4 July 2016. The appellant said that no doctor was aware of his difficulties on either day as he had no reason or money to consult a doctor. At the foot of the affidavit, after the jurat, there was a notation by a 'Clinical Professor Somchai Pholeamek MD LLB' confirming occurrences of the vision problem between 30 January 2016 and 10 February 2016. The relevance of that is not apparent. Moreover, whilst in the affidavit the appellant refers to having consulted two other doctors in the period 30 January 2016 to 10 February 2016, he makes no reference to having consulted Clinical Professor Somchai Pholeamek then or at any other time.

11 Be that as it may, on 15 August 2016 the appellant was informed that the affidavit would be treated as if the requirements of the order of 4 July 2016 had been complied with and that he would be given another opportunity to make written and oral submissions. The appellant was required to make any written submissions by 25 August 2016. Submissions were filed on 24 August 2016. Before turning to those submissions it is convenient to summarise briefly the proceedings below and the grounds of appeal to this court. They are described in more detail in our reasons of 11 July 2016.

12 The appellant and his wife objected to the unimproved value determined by the respondent for two properties for the 2014 - 2015 assessment year. The appellant asked the respondent to refer the valuations to the Tribunal for review under s 33 of the Valuation of Land Act 1978 (WA), and that was done. Pursuant to s 27 of the State Administrative Tribunal Act, a review is to be by way of a hearing de novo.

13 The appellant's case before the Tribunal on the reviews was based substantially on serious and wide-ranging allegations of fraud by the respondent, various banks, the Tribunal and others. It did not extend to substantive issues of valuation.

14 The Tribunal found that the review proceedings had been instituted by the appellant and his wife for the primary purpose of bringing allegations of fraud and misconduct against the respondent and others, and dismissed them as an abuse of process under s 47 of the State Administrative Tribunal Act [29].

15 An appeal notice was filed by the appellant on 19 April 2016.

16 The appellant's nine grounds of appeal are framed as a series of questions and are replete with allegations of fraud and impropriety on the part of the respondent and the Tribunal. None of the grounds of appeal alleges error by the Tribunal in any comprehensible form and their tenor sufficiently appears from the penultimate paragraph of the appellant's written submissions, which is as follows:

All these nine grounds are entrenched in one singular fact totally in my favour & inseparable to this proceeding; [the respondent] is one who confessed directly to me in three letters to the biggest valuation fraud in KalbarriVision; biggest land valuation fraud in the entire world; serious confessions in plain sight of judges after judges: [there are then set out a total of 22 judges of this court, the Federal Court, the District Court, and magistrates and members of the Tribunal]; a fact of admission of guilt everybody, every judge, every court, every official, every bank, every licensee in Australia want to hide from.

17 At the outset of the hearing on 13 September 2016, the appellant sought to have both of us recuse ourselves on the ground of actual bias. The grounds, so far as we could discern them, were twofold. First, the appellant alleged that our decision of 4 July 2016 reflected a pre-determination to decide the matter adversely to the appellant in order to cover up the frauds alleged by the appellant.

18 Secondly, the appellant alleged that in previous decisions of this court, Newnes JA had covered up fraud committed against the appellant by National Australia Bank and Westpac. That, at least in part, was alleged to have involved collusion with the Court of Appeal Registrar. The appellant referred in support of his contentions to an affidavit he had sworn on 23 May 2016. It is unnecessary to canvass that affidavit. In substance, it simply repeats the same wide-ranging, bald assertions of fraud and conspiracy on the part of the respondent, a number of banks, various members of the Tribunal, and of this and other courts.

19 Where a party alleges that actual bias exists, the party 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: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 [72]. As Gleeson CJ and Gummow J observed in that case (at [71]), the question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. An allegation of actual bias must be 'distinctly made and clearly proved': Jia Legeng [69].

20 The written reasons for our decision of 4 July 2016 made it clear that our view of the appellant's case was a preliminary view based on the written material filed to that date by the appellant. The appellant was provided with a further opportunity to address the court orally to persuade us otherwise. It is entirely proper for a court to express preliminary views so that the litigant can address the issues and problems thereby identified: Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568, 571. We had not formed any final view on the matter and there is nothing in the reasons for our decision of 4 July 2016 or otherwise that might reasonably suggest we had.

21 The assertions of a cover up of fraud were unsupported, groundless and absurd, and we will not dignify them with any comment beyond those we make below.

22 While it is not clear that the appellant sought to rely upon a reasonable apprehension of bias, for completeness it is appropriate to deal with it. 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 [11]. That requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that a judge might not bring an impartial mind to bear upon the issues that are to be decided: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [67]. The onus of establishing the facts upon which an allegation of a reasonable apprehension of bias is made lies on the party making it.

23 There is nothing that could cause a fair-minded lay observer reasonably to apprehend that we might not bring an impartial and unprejudiced mind to the resolution of the matters in question.

24 It was for those reasons that we refused to recuse ourselves.

25 So far as the appellant's oral submissions were directed to the substantive issues before the court they went no further than a reiteration of the same sort of allegations of fraud that had been made before the Tribunal. The written submissions filed on 24 August 2016 made similar allegations and alleged that the course we took on 4 July 2016 was a 'false' and 'devious' procedure that evidenced collusion with the respondent.

26 In our earlier reasons, we said that the appellant's primary objective in the appeal appeared to be not the allegation of error by the Tribunal but rather, having been thwarted by the dismissal of the Tribunal proceedings, to use this court as a vehicle to ventilate the same sort of serious allegations of fraud and impropriety on the part of the respondent and various other people or organisations against whom he apparently feels he has some grievance.

27 The appellant's written and oral submissions at this hearing have done nothing to cause us to change our preliminary view. If or to the extent there may be lurking in the grounds of appeal any allegation of error by the Tribunal, that allegation has not emerged, and no error otherwise appears from the papers before us. What is entirely clear is that none of the grounds of appeal has any reasonable prospect of succeeding and the appeal is an abuse of the process of the court.

28 The two interim applications are misconceived. In circumstances where none of the grounds of appeal appeared to have any reasonable prospect of succeeding, it was entirely appropriate for the Court of Appeal Registrar to issue the notice to attend to show cause why the appeal should not be dismissed.

29 It was for those reasons we dismissed both applications and the appeal.

30 On costs, the respondent was the successful party on the appeal and there was no reason to depart from the usual order that the successful party is entitled to an order for costs: O 66(1), Rules of the Supreme Court 1971 (WA), read with r 5 of the Court of Appeal Rules. We accordingly made such an order.