Liristis v Insurx Pty Ltd

Local Court of NSW|2021-10-14|Before: Evans Chambers P

Overview

This is a reserved interlocutory decision arising from circumstances in which the Plaintiff (self-represented) appeared in Court, in person, on 14 October 2021, seeking orders in the nature of summary judgment and a change of venue in accordance with a Notice of Motion dated 8 October 2021 (filed 12 October 2021) ("the Second Notice of Motion").

Application for Change of Venue

The Plaintiff's Second Affidavit in support of the Second Notice of Motion on this issue was entitled "Plaintiff filing this matter in the Wrong Court" [sic]. It referred to parties and representatives in other proceedings which the Plaintiff had on foot.
The salient features of the Plaintiff's Second Affidavit were as follows: - 1. The Plaintiff's solicitor [in other proceedings] contacted the Plaintiff to advise that the Plaintiff's ex-partner had published a post on her Facebook account that she wished to purchase a handgun. 2. A copy of the Facebook post would be tendered in Court in support of the Second Notice of Motion. 3. The Plaintiff alleged that his ex-partner had given false evidence under oath. 4. Criminal charges were pending against the Plaintiff's ex-partner. 5. Police advised the Plaintiff that there was an imminent threat against his life. 6. Police advised the Plaintiff to move to a safer area where his ex-partner did not know his address. 7. The Plaintiff intended to move to a place near Fairfield. 8. The Plaintiff filed the originating process in these proceedings at Fairfield Local Court, which he stated was the "wrong Court" as he did not live anywhere near Fairfield Local Court. 9. The Plaintiff filed the originating process in these proceedings at Fairfield Local Court because, at the time, he intended to move out of his home at [xxx] Street, Austral NSW 2179. 10. The Plaintiff decided not to move out of his home as security cameras and back-to-base monitoring had been installed and he felt safe to stay in his home. 11. The Plaintiff had an enforceable Apprehended Domestic Violence Order as against his ex-partner, which had been granted by the Court after evidence had been tendered and given under oath. 12. The Plaintiff asserted that he "was believed" and his ex-partner "was not believed." 13. The Plaintiff had made an application to the Director of Public Prosecutions for his ex-partner to be charged with "Perjury, Extortion and Blackmail" [sic]. 14. The Apprehended Domestic Violence Order which had been taken out by Police for her protection was dismissed after a lengthy hearing and evidence given under oath. 15. The Plaintiff did not cross-examine his ex-partner but, rather, "only the magistrate cross-examined the plaintiff's ex-partner where the magistrate found that the plaintiff's ex-partner was not telling the truth and that she did not need any protection from the Plaintiff." 16. The only person the Plaintiff's ex-partner needed protection from, "everyone agreed", was "herself." 17. These were the only reasons for which the Plaintiff's originating process was filed at Fairfield Local Court and "which was in error and not needed." 18. The Plaintiff "cannot travel over 25 kilometres and over 45 minutes from his home to Fairfield Local Court." 19. The Plaintiff "cannot travel on public transport due to the heavy prescribed medication" he is taking. 20. The Plaintiff "cannot drive due to the heavy prescribed medication" he is taking. 21. These were "only a few of the many reason the Plaintiff's pleading with the Honourable Court and your Honour to transfer these proceedings from the Fairfield Local Court to the Campbelltown Local Court which is much Closer to the Plaintiff and the Closest Court to the Plaintiff" [sic]. 22. Fairfield Local Court was not in the Plaintiff's local government area. 23. Campbelltown Local Court was within the Plaintiff's local government area.
The salient features of the Plaintiff's oral submissions were as follows: - 1. The Court should accept his evidence, unchallenged, because he had a reasonable basis to change the venue. 2. He was supposed to move out of his home because he had some "real serious issues" with his ex-partner. 3. He had an Apprehended Violence Order against his ex-partner. 4. His ex-partner knew where he resided. 5. That despite these matters, this was something which, he stated, had "been cured" by the installation of back-to-base security cameras and alarms. 6. These matters, he stated, meant that he could not travel and that he had to be driven to Court because he was not allowed to drive under the medication he was taking. 7. He stated that he had a fractured vertebra. 8. He had a medical certificate, which was tendered, to assert that he was "telling the truth." 9. He submitted that if I acceded to his request for a change of venue, then he would withdraw his application to disqualify myself, with respect to the ultimate hearing. He did indicate that "interlocutory hearings are very important" and it was on this basis that I understood that his application to disqualify myself extended to both the interlocutory case management phase of the proceedings and the ultimate hearing. He also stated that he "reserve[d] [his] right to reinstate point two if point one is not accepted." I understood this to mean that if the Court declined his application for a change of venue, he might still pursue an application to disqualify myself or an application for summary judgment.

Application for disqualification on the grounds of actual, or apprehended, bias

The Plaintiff's application for disqualification on the grounds of actual, or apprehended, bias was made orally on the morning of the hearing of the Second Notice of Motion. Neither the First Defendant, nor the Second Defendant, nor indeed the Court, was provided with any notice of the application, the duration of which spanned over 45 minutes, in a busy list court. The Plaintiff appeared to be reading from a pre-prepared document on his laptop.
The salient features of the Plaintiff's oral submissions were as follows: - 1. The Plaintiff asked that "Magistrate Tsavdaridis … allow me the right as law allows me the right to make an application without rudely interrupting me, as Magistrate Tsavdaridis has done before." 2. The Plaintiff relied on a judgment "from the very experienced, very Honourable, very knowledgeable and very senior Supreme Court judge [sic], being Justice Kirby, when his Honour said in Allesch v Maunz [(2000) 203 CLR 172 at 184; [2000] HCA 40 at [35]] that 'it is a principle of justice that a decision can make at least one exercise in public power must orderly afford a person who is interested may be adversely affected by a decision an opportunity to present material/information and submissions relevant to such a decision' [sic] before it is made." 3. The Plaintiff's "application today is that Magistrate Tsavdaridis must disqualify himself for both apprehended bias and actual bias" on the basis that "Magistrate Tsavdaridis has shown racism and bullying" and "abuse of his position of power to inflict pain and suffering upon people of New South Wales." 4. The Plaintiff relied on a blog article he read on the internet entitled "NSW Magistrate Theo Tsavdaridis racist?", dated 28 January 2021, which he initially refused to tender, but later reluctantly agreed to do so, and which appeared to have been written by a dissatisfied litigant in entirely unrelated proceedings, whose Notice of Motion to set aside a registered judgment had been refused. The Plaintiff stated that in both his matters before Fairfield Local Court, "Magistrate Tsavdaridis display[ed] … the same actions and conduct." 5. The Plaintiff asserted that "you know me quite well, Mr Tsavdaridis. We can't play games. We are in court at the moment." 6. When informed that I had no personal knowledge of the Plaintiff whatsoever, the Plaintiff stated, "Yes, you do" and that he would lose his train of thought if interrupted. 7. When informed that I was permitted to interrupt if I needed to ask questions and when pressed to more specifically articulate his assertion that I knew him personally, the Plaintiff continued to quote from the blog article and that he could not "skip and jump. I would like to make my application, like I said in the start, that I just want to be heard on my application without being rudely interrupted." 8. When pressed again on this issue, the Plaintiff stated that, "You know me when you had your failed law practice in [xxx]. My business was down the road." 9. When asked which business he operated in [xxx], the Plaintiff, refused to join issue, and stated, "Look. I'm not here to discuss what my business was … I'm not going to discuss my business … So, what? You can cause more problems for me?" 10. Although there was no written application before me, or the First and Second Defendants, the Plaintiff pointed to his laptop at the bar table and stated, "It's in my application. I need to make my application. If you are denying me to make my application, it's a separate matter." Some moments later, the Plaintiff stated, "I'm sure you're aware of the Judicial Commission." 11. When informed that, in order to understand the nature of the application and the relevant grounds on which it was based, it was part of the Court's duty not to merely sit in stony silence but to engage with the application and to ask him to elaborate on how it was that he believed I knew him personally, the Plaintiff stated, "I'm trying but you keep on rudely interrupting me" and that if I persisted, he stated, "Okay well. You keep doing [that]. We are going to be here all day." The Plaintiff formed the opinion that I should "keep your questions to the end." 12. When informed that I would manage the Court in the way I saw fit, not in the way the Plaintiff would have preferred, he stated, "that's your tactic, but that's not appropriate." 13. When again informed that if he wanted his application to be dealt with properly on its merits, he would need to elaborate on how it was that he believed I knew him personally and that I could not recall ever having met him or ever having had him as a client in my former law practice, he stated, "Oh you would never have me as a client", that this was "a matter for the Judicial Commission, not for today's proceedings" and that he had already "articulated it crystal clearly." He went on to state that he had emailed his submissions to a number of "Senior Counsel, barristers and solicitors and they have said I'm allowed to read it." 14. The Plaintiff would not elaborate further, stating that, "I can't disclose that information at this point in time. The matter is with the Judicial Commission and is being investigated so I don't want to jeopardise an investigation and my application is here which I would like to read, then your Honour can make a decision will or will not base on the application I have made or I'm trying to make" [sic]. 15. The Plaintiff continued to quote from the blog article to the effect that, "it's not unusual to feel racial discrimination when the Court rejects an application" and that if I wanted to know more about the matter, "maybe you should Google yourself and you might see it come up first." 16. When asked whether he was relying on the blog article, the Plaintiff confirmed that he was. 17. When requested to tender a copy of the article, given that he was placing reliance on it to support his application for recusal, the Plaintiff stated, "How's that going to achieve my application? How is that going to assist my application?" 18. The Plaintiff, quoting from the blog article, submitted that "Magistrate Tsavdaridis even denied an opportunity for the defendant to file a Defence in which the matter was decided ex parte." 19. When informed that the author of the internet blog (a defendant in those proceedings) was complaining of an inability to file a Defence in a matter in which a certificate of judgment or order obtained elsewhere, became a judgment registered in the Local Court of NSW upon filing of such judgment or order, in circumstances where the rules did not allow for a Defence to be filed [s 133 of the Civil Procedure Act 2005 (NSW), rr. 36.11, 36.10 and Form 45 of the Uniform Civil Procedure Rules 2005 (NSW)], the Plaintiff stated, "I'm not questioning the merits or whether it had merit or whatever the case is. What I am saying is I'm reading from there because of the circumstances, your bullying, your inappropriate comments that you made in judgments about trying to protect the how would you say the honour of another person." 20. When asked to clarify which "judgments" he was referring to, the Plaintiff stated, "Ohhh and now you're playing dumb saying you don't know who I am, you say you don't know the judgment you made. You're familiar with the judgment that you made last week or two weeks ago." 21. In reference to another set of civil proceedings being case managed at this Court and in which the Plaintiff is a litigant, the Plaintiff stated, "you spoke to me and hung up in my ear. Do you recall that?" 22. In order to dispel any suggestion that there had been a telephone communication with him, the Plaintiff, when informed that the phone call to which he was referring was not of a personal nature but related to an appearance at Court for which he had been granted leave to appear via speaker phone in the Civil List, in entirely different proceedings. The Plaintiff levelled an allegation to the effect that "You're bullying, you're rude, you you hang up on people without even giving them a right to speak, you make orders, you make cost orders without even giving the person the opportunity to be heard." 23. The Plaintiff then levelled an additional allegation, although he emphasised that "No, I'm not alleging, I'm saying the facts, these are facts", to the effect that, "magistrates from this Court ring the solicitors on the other side and say 'file a Defence because he is filing a judgment.' Both the Attorney General's office and the Judicial Commission says this is, that's inappropriate and now we have it in writing." 24. He went on to elaborate that, "a Magistrate ordered or instructed and or order or instructed [sic] the staff to contact I can say a staff because someone to contact the solicitors to tell them to file a Defence after 56 days of not filing a Defence and you handed a judgment after the solicitor filed a Defence. That is inappropriate and is classified as professional misconduct by the Judicial Commission by a number of barristers and by the Attorney General's office." 25. The Plaintiff submitted that after reading the blog article, "it was like hearing my case. I felt this article was about me and they were talking about." 26. The Plaintiff submitted that, "we all came to the conclusion that Magistrate Tsavdaridis is racist, disgraceful, bullying and conduct of magistrates that can only be described as 'pathetic' and after discussions with the Judicial Commission, the words 'professional misconduct' was discussed and it was clear that Magistrate Tsavdaridis done this too many people before." 27. The Plaintiff further submitted that "Magistrate Tsavdaridis knows who I am. I knew him then, Mr Theo Tsavdaridis, when he had a failed law practice at [xxx], well it's actually [xxx] it's not [xxx], a few metres down from the road from my business I had for many years." 28. The Plaintiff continued, uninterrupted, by making a number of personal attacks, submitting that "Magistrate Tsavdaridis had major issues, clients trying to sue him, a failed law practice, a failed lawyer and a disgrace to the Greek community. But then Theo Tsavdaridis was a man of straw, in serious financial ruin. If I knew then … I would have paid anything to put the then failed and disgraced solicitor Tsavdaridis in bankruptcy for the rest of his life and I would have been renewing the bankruptcy every time he tried to get out of bankruptcy." 29. The Plaintiff further submitted, "So, what does Magistrate Tsavdaridis do now? He is using his position as a magistrate to try and hurt me to try and get back to me to try and ruin my matters all because he thinks he can. Well, Magistrate Tsavdaridis can think again because that will not happen. Sure, Magistrate Tsavdaridis can order stupid cost orders against me to hurt me, which I have filed an appeal against and sure, Magistrate Tsavdaridis can dismiss my Notice of Motion, but all that's doing is sealing his fate with the Judicial Commission. No judicial officer should abuse his position of power to inflict pain and suffering as this is not only professional misconduct but also a criminal." 30. The Plaintiff stated that "after I have appointed a senior investigator who was a Senior Detective Sergeant of the NSW Police Service for over 40 years, now a very competent investigator to investigate this matter within two weeks, we have located two other people that have had issues with Magistrate Tsavdaridis and will be filing a class complaint to the Judicial Commission. As Magistrate Tsavdaridis' destructive and vindictive nature that must cease immediately as people will be hurt by Magistrate Tsavdaridis. Magistrate Tsavdaridis should have disqualified himself from hearing any of my matters especially my Notice of Motion as he was the judicial officer who made stupid cost orders against me and was rude enough to hang up in my ear when I was being driven to Liverpool Hospital and witnessed by three other people in the car. It also seems by reading that article on how Magistrate Tsavdaridis tries to show a man by taking on females' honours as Magistrate Tsavdaridis inappropriately … commented on his judgment in which the Judicial Commission found his comments were inappropriate." 31. The Plaintiff was asked to clarify whether what he was submitting was that "the Judicial Commission [had] found comments I have made inappropriate." The Plaintiff responded "Yes." This was despite the Plaintiff having been informed that there had never been such a complaint or determination by the Judicial Commission, to which the Plaintiff responded, "the complaint hasn't been finalised and we are still continuing as we are trying to get more people." 32. In what appeared to be a reference to the First Judgment, in which I dismissed the Plaintiff's First Notice of Motion, the Plaintiff submitted that, "the comments that you made about the Deputy Registrar were inappropriate." The Plaintiff submitted that "in Magistrate Tsavdaridis' judgment, he says - informing her [the Deputy Registrar] that he's proud to be a wog and that he is surrounded by wogs and that Aristotle, another wog was the first to articulate the rule of law." 33. In order to dispel any impropriety the Plaintiff sought to sheet home to the Bench, the Plaintiff was informed that the comments to which he was referring were comments made by him in emails to the Deputy Registrar and registry staff, which were included in my First Judgment in quotation marks. 34. The Plaintiff submitted that his emails to the Deputy Registrar, with respect to these proceedings, were "private emails … because they were not addressed to you." This was despite the Plaintiff having been reminded that the Court file, which contained the email correspondence between the Plaintiff (and others) and the Court, had been referred to me by the Registrar pursuant to r. 49.16 of the Uniform Civil Procedure Rules 2005, for consideration of the Plaintiff's Notice of Motion for Default Judgment. 35. In this regard, the Plaintiff stated that, "if someone has an issue with me, they can address the issue with me. It's not, it's not Magistrate Tsavdaridis to fight for another woman's honour. It is both inappropriate and very wrong to do so especially if both parties are married, you surrounded and have their own partners as someone would question Magistrate Tsavdaridis' motive in doing so." 36. Upon enquiring what the reference to marriage was, the Plaintiff responded, "I can't answer your questions" and "I don't have to do anything; you can't force me to answer your questions" because "investigations are taking place and I don't want to jeopardise or hinder an investigation." 37. The Plaintiff submitted that my inclusion in the First Judgment, of the offensive and vitriolic comments directed by the Plaintiff to the Deputy Registrar in his email correspondence, were regarded by "everyone that has seen [the First Judgment]" as appalling. 38. He asserted that "I've got it in writing that a magistrate ordered to contact the solicitors and after they did, the day, the day that you made your judgment is when they put up a Defence. Is that a coincidence? But it's not, because I got it in writing now and no one can come back from that." 39. The Plaintiff further submitted "let me tell Magistrate Tsavdaridis what I told the senior judicial officer of the Family Court. In Court, I will not discount my heritage or my culture for anyone. Unlike Magistrate Tsavdaridis, I'm proud to be Greek. We have a past, present and future. We have many, we have had many people take us on with wars and we always fight back so we don't go back into slavery. We fight to the death we have never taken anyone's land or raped their mothers or killed their men and stole the children. That is a fact Magistrate Tsavdaridis needs to accept and if Magistrate Tsavdaridis or the Deputy Registrars have a problem with that, they can build a bridge together" and that "if someone doesn't accept that I'm a wog, they need to build a bridge and get over it." 40. The Plaintiff appeared to again take issue with the content of my First Judgment by asking whether I found it appropriate to include comments directed by the Plaintiff to the Deputy Registrar in his email correspondence. When informed that a judicial officer was not required to seek a party's views about what to include in his or her reasons for decision, the Plaintiff stated, "Well, you do" and "the Court of Appeal doesn't agree. Anyways we won't go there." 41. The Plaintiff's submissions continued to deviate from the nucleus of the application for recusal, when he stated, in something reminiscent of a soliloquy, that "my mother and I, we are all immigrants to this country. Just because my sons were born here does not make them Australian. They come from a Greek heritage, from Greek roots and Greeks before they are Australian and I say that with the greatest respect. We are foreigners, I have been in this country working hard for over 52 years and again if Mr Tsavdaridis has an issue with that he can take it up with the Judicial Commission not attack me with his beliefs. The apprehended bias and actual bias displayed by Magistrate Tsavdaridis came even more clearer in which Magistrate Tsavdaridis' comments have disturbed Senior Counsel, solicitors, barristers and the Judicial Commission and me. This is evidence where a Magistrate from Fairfield Local Court asked the staff to contact the solicitors for the defence and advise them that if they don't file a Defence, a Plaintiff will seek default judgment centrally after the Plaintiff filed a Notice of Motion, because the defendants failed to file a Defence within 28 days not even after 56 days, so if Magistrate Tsavdaridis wants to commit, comment on the unrelated judgment and doesn't believe something is wrong with ordering that then Magistrate Tsavdaridis needs to explain that to the Judicial Commission. Then something more disturbing is when Magistrate Tsavdaridis states in a judgment, which is described as a joke and bizarre, well they are polite words used. Other more appropriate words were used by people in the legal fraternity and departments." 42. The Plaintiff's submissions continued to further deviate when he stated, "my 12-year-old daughter can read the facts and there is no possible chance that Magistrate Tsavdaridis read any defence in the First Defendant's Defence. Especially, especially when the First Defendant's solicitors conceded defeat and clearly displayed that the First Defendant has no Defence when the First Defendant's solicitor wrote in their Defence on or around the 5th of August 2021." 43. Despite having abandoned his application for summary judgment, the Plaintiff continued to labour issues surrounding the Court's First Judgment in which his application for default judgment had been refused. The Plaintiff submitted, "no one can understand how you have come to that assumption" that there was "an arguable defence … The Second Defendant advised the First Defendant that it agreed to waive the excess applicable to the insurance and otherwise proceed with settlement of the insurance claim. So here you have an admission by the First Defendant's solicitor that cannot possibly be used as a Defence they may not want to write the Plaintiff filed Liquidated Statement of Claim provided a copy of the Unliquidated Statement of Claim via email to the First Defendant before it could, before it could inform the Plaintiff of the matter set out in paragraph 9.1. Are these solicitors serious? I filed my claim and it was accepted by the insurance and the underwriter of the claim and then these idiots being the First Defendants never returned my calls, never returned my emails, just dropped off the earth surfaces thinking that I will go away and the Courts entertained such a pathetic defence. They go on to say in light of the above the Plaintiff has commenced proceedings prematurely in circumstances where the insurance claim was being evaluated by the First Defendant and a request for the waiver of the excess applicable to the insurance being sought from the Second Defendant causing the First Defendant to insurer avoided cost and again are these solicitors stupid or just illiterate. They are accusing me of wrongdoing, prematurely asking the Court for help when they, when their client, would not even tell me why they are not paying their claim, and now we have it in writing that the insurance company who is the Third Defendant agreed. I apologise, the insurance company is the Second Defendant, agreed to proceed with the settlement of the insurance claim yet the First Defendant has never advised me and even whilst the unliquidated claim was being filed in the last two months never once did they say 'Hey Mr Plaintiff, we are here to pay your claim' and Magistrate Tsavdaridis states that the First Defendant has an arguable defence. Now who is joking and who should be wearing the clown's red nose? I, I, I, I'm confused. Even at the time of judgment of Magistrate Tsavdaridis, the judgment of Magistrate Tsavdaridis, the Second Defendant did not even have a filed Defence yet. Yet Magistrate Tsavdaridis ignored the fact that the Second Defendant did not file a Defence, when Magistrate Tsavdaridis denied my Notice of Motion for default judgment. Now the above is a matter that cannot be mentioned as apprehended bias or actual bias in normal circumstances for even the above Magistrate Tsavdaridis' decision to deny my Notice of Motion is not a case for the Judicial Commission. But when you clearly look at it, look at it deeper, and investigate the facts on how Magistrate Tsavdaridis, who knows me personally and tried to use his position as a judicial officer to get back at me, then that does fall into the category of professional misconduct and criminal conduct which is found, which if found is grounds to be removed as a Magistrate and not be able to practise in Australia again." 44. By far the most troubling aspect of the Plaintiff's submission was his attempt to draw some nefarious connection between me and a former magistrate and colleague, when he submitted, "see, Magistrate Tsavdaridis has issues with me. Another issue Magistrate Tsavdaridis has with me is when I called his friend, [a former Magistrate], a paedophile. Well, the Court of Appeal agreed with me and even the High Court agreed with me. When the High Court refused to allow him to appeal against his convictions for indecent assault of a teenage boy, the appeal Court found there was no reasonable doubt about [the former Magistrate's] guilt on all the remaining five charges which related to a Saturday morning ritual at [the former Magistrate's] home where he ran his hands over the boy's naked body and other incidents." 45. When asked what he meant by this submission and what it had to do with his application for recusal, the Plaintiff brusquely stated, "well, you're pissed that I called your mate a paedophile", "he is much more of a former colleague to you" and "I just said what I'm suggesting to you. He's your friend. You're upset because I called him a paedophile because he is." 46. When he was pointedly asked, "when have I indicated in any forum that he was a mate, as you put it, or that I was upset that you called him a paedophile?" and that "none of this makes any sense to me", the Plaintiff replied, "oh well, it will become a lot clearer, it came a lot clearer to you when, when you started to remember the judgments and the article that you knew crystal clearly but you made out, that you knew nothing about. So, as time goes on you will see it." 47. The Plaintiff continued his submissions uninterrupted and stated, "another issue that Magistrate Tsavdaridis was advised that I had a senior judge sacked, well let me tell you that Magistrate Tsavdaridis gives me way too much credit. I cannot sack anyone I don't have that power. If a member of the public lodges a complaint with the Judicial Commission and the Judicial Commission finds conduct with that judicial officer and recommends the judicial officer to be sacked or that is a, that is a matter of, that is the Judicial Commission's right to investigate and take action. Not mine, and no member of the public or I should be bullied and or be inflicted with pain and suffering by any judicial officer especially Magistrate Tsavdaridis because it's everyone's right to lodge complaints to be investigated if they feel wrongdoing. This is everyone's right in Australia. I can go on about Magistrate Tsavdaridis all day. But I think it's right if I leave that to the Judicial Commission to investigate, interview the other complaints and … the other complaints of Magistrate Tsavdaridis. That is my application, Magistrate Tsavdaridis, it is, in my opinion, that you should have never been appointed as a Magistrate." 48. The Plaintiff further submitted that "people in the Greek community say you are a disgrace to the Greek people and it's people like you that give us Greeks a bad name. So, to finalise my application I am seeking you to disqualify yourself from hearing this and any of my matters for apprehended bias and actual bias, discrimination, racism and because we have had bad past, you and I, and you should have never had proceeded on my matters. That is my application, now that is an issue finalised. But I just want to put one thing on the table. I had to be driven in, I have a Court of Appeal matter that you can check on Courts Online before Justice … [sic], so I couldn't attend to that one because you made an order that I attend in Court, the parties or their legal representatives are to appear in Court on the next occasion."

Change of venue

The provisions governing applications for a change of venue are outlined in Part 8 of the Uniform Civil Procedure Rules 2005 and clause 10 of the Local Court Practice Note Civ 1.
The Court's power under Part 8 of the Uniform Civil Procedure Rules 2005 is of wide berth and provides, relevantly, as follows: - 8.1 Venue at which proceedings to be heard (1) Unless the court orders otherwise, the venue at which proceedings are to be heard is the venue specified by the plaintiff in the originating process. (2) The venue so specified must be a venue at which the court sits. 8.2 Change of venue generally (1) If it appears to the court - (a) that a fair or unprejudiced trial of a question arising or likely to arise in or in connection with any proceedings cannot otherwise be had, or (b) for any other reason it is appropriate for the venue of any proceedings to be changed, the court may, subject to this Part, make an order changing the venue of the proceedings. (2) The judicial officer before whom proceedings are being heard by the court may direct that proceedings commenced at one location be continued at another location at which he or she is authorised to hear those proceedings.
Clause 10 of the Local Court Practice Note Civ 1 curtails the breadth of the power contained in r. 8.2 of the Uniform Civil Procedure Rules 2005 and provides, relevantly, as follows: - Change of Venue 10.1 … 10.2 The court will not change the venue to another venue that is less than 100 kilometres from the originating venue unless satisfied that there are exceptional circumstances. 10.3 The notice of motion must specify the venue to which the applicant seeks the proceedings to be changed. It must be supported by an affidavit that: • Addresses the matters contained in UCPR r 8.2 • Sets out the reasons why the party is seeking to change the venue • If relevant, includes material in support of any assertion of exceptional circumstances.
Notwithstanding the constraint, there is greater supremacy in a statutory enactment such as the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005 over a Practice Note. Practice Notes are made pursuant to s 15 of the Civil Procedure Act 2005.
As observed by Adamson J in Ada Evans Chambers P/L v Santisi [2014] NSWSC 538 at [19]: - A Practice Note applies, but only subject to the orders of the Court. It does not have a higher status than the Civil Procedure Act or the Uniform Civil Procedure Rules.
Similarly, in Halpin & Ors v Lumley Insurance Ltd (2009) 78 NSWLR 265; [2009] NSWCA 372, Basten JA, at [14], stated that: - As a matter of principle, a practice note is subservient to the Civil Procedure Act and cannot be inconsistent with it.
In Leighton International v Hodges; Thiess v Reinforced Earth [2012] NSWSC 458, McDougall J, at [7], held that: - …Practice notes are made pursuant to s 15 of the Civil Procedure Act 2005 (NSW). They are, and for many years have been, a well recognised way of regulating, at least in the ordinary case, specific aspects of the court's procedures. It is clear, and uncontroversial, that one of the principal functions of practice notes is to assist in the achievement of the overriding objective of the Civil Procedure Act and of the Uniform Civil Procedure Rules, as set out in s 56 of the Act: to facilitate the just, quick and cheap resolution of the real issues in dispute in any proceedings before the court.
This was reinforced in Thiess v Parsons Brinckerhoff Australia [2015] NSWSC 326, where McDougall J, at [8], observed that: - … a Practice Note cannot limit or circumscribe a general discretion given by the Uniform Civil Procedure Rules 2005 (NSW). Nonetheless, in the ordinary case at least, it may be expected that a Practice Note will provide a guide to the exercise of the discretion in circumstances covered by the Practice Note.
To avoid any doubt as to the test applied by this Court in determining the Plaintiff's application for a change of venue, cognisant of the guidance provided by the above principles, the issue has been approached with greater deference to the statutory enactments than the Practice Note.
Whatever the case, it seems clear that the relevant provisions seek to advance the overriding purpose and objects of case management outlined in ss 56 and 57 of the Civil Procedure Act 2005. This is to ensure that the decision as to whether there is a genuine need for a redistribution of cases between different locations at which the Local Court sits is left to a judicial officer sufficiently apprised of all the relevant factors and then, only when the circumstances warrant same. This also enables the Court to best utilise its resources and deal with its caseload with due dispatch.
The premise from which all applications for a change of venue emanate is that the venue at which proceedings are to be heard is the venue specified by the Plaintiff in the originating process. It was the Plaintiff who chose, for reasons specific to him, to file his Unliquidated Statement of Claim in the Local Court at Fairfield. It was not immediately clear on the pleadings why this was the case. In my First Judgment, I noted as follows: - [18] The Plaintiff's Unliquidated Statement of Claim appears to be principally founded upon an action in a contract of motor vehicle insurance, where the Plaintiff asserts that the Third Defendant (now in external administration) was the insurer, the Second Defendant was the underwriter and the First Defendant, as far as I could understand, was the claims manager on behalf of the First and/or Second Defendant(s). [19] Succinctly put, the Plaintiff asserts that a motor vehicle accident took place on 6 July 2021, for which he was insured, but was not at fault, and was initially advised that his vehicle was a total loss (write-off). This determination, however, was said to have become superseded by a report prepared by the First Defendant which concluded that the Plaintiff's vehicle was, in fact, repairable.
Neither in the Unliquidated Statement of Claim, nor in the Second Notice of Motion and Second Affidavit, nor in the oral submissions of the Plaintiff, was there any reference to the location at which the alleged motor vehicle collision took place and, therefore, this was not a matter in which an applicant for a change of venue sought to have the proceedings heard, for example, for the convenience of himself and the majority of witnesses germane to the cause of action, at a courthouse closest to their place of residence or work.
In much the same vein, there appeared to be no reason why one of the two resident and experienced magistrates presiding at the Local Court at Fairfield could not bring a fair or unprejudiced mind to a dispute involving a fairly modest sum of money and well-established legal principles of insurance, contract and agency. Moreover, there was no suggestion that the dictates of justice might be better achieved by the matter being heard at the Local Court at Campbelltown before one of its three resident and equally experienced magistrates.
The Plaintiff's application was directed to an initial intention to move from his residence at [xxx] Street, Austral (within the Campbelltown local government area) to a place in Fairfield, due to issues with his former partner, in which it was said that he had, for his protection, an Apprehended Violence Order as against her. This was not a case where the Plaintiff was unable to move freely around the Sydney metropolitan area due to some legal or geographical restriction on him and, therefore, he would be precluded from attending the Local Court at Fairfield. On the contrary, this was a matter where the Plaintiff, on his account, was the beneficiary of an Apprehended Violence Order in force for his protection.
In any event, it was the Plaintiff's own submission that he abandoned the decision to move from his Austral home following the installation of security cameras and back-to-base monitoring, which assuaged his fears. Further, his explanations were at odds with his submission that his originating process was filed at Fairfield Local Court "in error." The domestic violence related submissions had no bearing whatsoever on either the outcome of the Plaintiff's applications or, more generally, the proceedings proper.
Notwithstanding this, he submitted that the Court ought accede to his application because he had a "reasonable basis" for a change of venue from the Local Court at Fairfield to the Local Court at Campbelltown. Even if there were some merit to that submission, something which I am not inclined to accept, cl.10.2 of the Local Court Practice Note Civ 1 requires exceptional circumstances where the proposed venue is less than 100 km from the originating venue at which the proceedings were commenced. Having travelled to and presided at both locations during the course of discharging my duties as a Magistrate, I took judicial notice of the fact that the respective courthouses at Fairfield and Campbelltown are some 30 km apart and involve about 35 - 40 mins in travel time.
The other aspect to the Plaintiff's application was medical based and that, purportedly, he could not drive or travel to Fairfield Local Court using public transport due to the heavy prescribed medication he was taking. In aid of this submission, the Plaintiff tendered a one-page Centrelink Medical Certificate (Form SU415) under the hand of Dr M Hamad (General Practitioner) dated 16 September 2021. Given that it was a somewhat blurred photograph of the original, the salient features of the medical certificate, as best I could make out, were as follows: - 1. The primary diagnosis was that of anxiety, depression and post-traumatic stress disorder, the date of onset of which was said to be 10 August 2018, the condition of which was said to be an exacerbation of an existing ailment, with a prognosis of 3 - 12 months, with symptoms of depressed mood, anxiety, insomnia, poor concentration and back pain, for which he was being conservatively treated with anti-depressants and counselling, and with a planned operation. 2. The secondary condition was that of a fractured vertebra, the date of onset of which was said to be 22 March 2020, the condition of which was said to be temporary, with a prognosis of 3 - 12 months, with symptoms of lower back pain and poor mobility, for which he was being conservatively treated with analgesics and non-steroidal anti-inflammatory medication, and with a planned operation. 3. He was assessed as unfit for work or study from 18 September 2021 to 18 December 2021.
Without being unduly critical, the medical certificate appears to be directed to an entirely different purpose. It is not evident that the Plaintiff is so incapacitated or unfit to attend Court for the ultimate hearing of the matter on one single occasion in the future, even if it be that the remaining short case management directions and mentions are conducted via audio visual link or other technological means, which have become even more prevalent throughout the past 18 months of pandemic related restrictions.
Whilst the medical certificate makes reference to the ailments for which he is being treated, it lacks any specificity, in the context described by Barrett J in Magjarraj v Asteron Life Limited [2009] NSWSC 1433, with respect to what form and when any planned operation might take place and what steps might be able to be taken to ameliorate any somatic symptoms, for example, more frequent breaks during the hearing or standing or sitting during the proceedings. To the extent that there might be a non-somatic affectation to the Plaintiff's concentration due to medication, to my mind, it would not matter then whether the Plaintiff was required to attend the Local Court at Fairfield as opposed to the Local Court at Campbelltown to prosecute his claim at the ultimate hearing of the proceedings.
The Plaintiff conceded that he had to be driven to Court because of the medication he was taking. On this view, this did not preclude him from attending Fairfield, rather, it simply meant that he would need to arrange for someone to bring him to Court.
More broadly, I cannot see that the Plaintiff's circumstances in pursuit of a change of venue fall within the catch-all provision "any other reason it is appropriate".
I was left with the distinct impression that much of the Plaintiff's drive and submissions with respect to his application for a change of venue coincided with what was an apparent dissatisfaction with the refusal of the orders sought in his First Notice of Motion as to default judgment, from which the Plaintiff, in my view, sought to use as buoyancy for the application to disqualify myself. Unlike matters where a defendant is summoned, in answer to a lawsuit, to attend a Court and location at which a Plaintiff's originating process is filed, this was the Plaintiff's chosen forum. It was his informed decision to commence proceedings at this Court. In such circumstances, and absent more cogent reasons in compliance with the rules governing a change of venue, a Court ought treat with circumspection a party's application seeking to change the venue chosen merely because of a dissatisfaction with an earlier interlocutory decision from which rights of appeal, in the ordinary course, emanate. To my knowledge, the Court has not been informed of any steps taken by the Plaintiff to pursue any avenues of appeal from the earlier interlocutory decision sought to be impugned.
It follows that the Plaintiff's application for a change of venue must fail.

Actual or apprehended bias

The principles to be applied in the determination of a question of actual or apprehended bias are well-established, although the categories or instances in which an application may be made, and in which a recusal may follow, are not closed and continue to expand with the ever-changing tides of criminal and civil litigation.
The test with respect to actual bias brings into focus the question of whether a judicial officer is "so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented". The principles were helpfully summarised by Gleeson JA in Collier v Country Women's Association of NSW [2018] NSWCA 36 at [27] - [46], particularly at [27], in which his Honour observed as follows: - Actual bias - relevant principles 27 In Reid v Commercial Club (Albury) Ltd [[2014] NSWCA 98 at [68] - [73] (Gleeson JA, Emmett JA and Tobias AJA agreeing)], the following summary of principles was stated: [68] A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) (Sun v Minister) 81 FCR 71 at 127 per Burchett J. Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97] and the authorities there cited. [69] Where the issue is actual bias in the form of prejudgment, the appellant had to establish that the primary judge was "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; 205 CLR 507 at [72] per Gleeson CJ and Gummow J (Hayne J agreeing at [176]). See also Kirby J at [127]. [70] 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." [71] In the same case, Hayne J noted at [185] the several distinct elements underlying the assertion that a decision-maker has prejudged or will prejudge an issue, or the assertion that there is a real likelihood that a reasonable observer might reach that conclusion. The first is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. The second is the contention that the decision-maker will apply that opinion to the matter in issue. The third is the contention that a decision-maker will do so without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the particular case. [72] His Honour observed at [186] that allegations of actual bias through prejudgment often fail at the third step he had identified. This was because notwithstanding whatever expression of preconceived opinions by the decision-maker, it does not follow that the evidence will be disregarded. [73] The test of actual bias in the form of prejudgment requires an assessment of the state of mind of the judge in question: Michael Wilson & Partners Limited v Nicholls & Others [2011] HCA 48; 244 CLR 427 at 437 [33]. However, actual bias need not be confined to an intentional state of mind. Bias may be subconscious, provided it is real: Bilgin v Minister for Immigration and Multicultural Affairs (Bilgin v Minister) (1997) 149 ALR 281 at 289-290 per Finkelstein J; Sun v Minister at 127 per Burchett J and 135 per North J. As Finkelstein J said in Bilgin v Minister at 290: "The wrong involved is the failure to decide a case impartially. Whether that failure was deliberate or not should be beside the point insofar as the validity of the decision is concerned."
The test with respect to apprehended bias is contrasted and brings into focus the question of 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 decide". The test has its strongest roots in a number of High Court decisions: see Johnson v Johnson (2000) 201 CLR 488 at 492; (2000) HCA 48 at [11]; affirmed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; applied in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; distinguished in British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283.
The principles were also succinctly summarised by Gleeson JA in Collier v Country Women's Association of NSW [2018] NSWCA 36 at [23] - [26], in which his Honour observed as follows: - Apprehended bias - relevant principles 23 The test for recusal is whether a fair-minded lay person, with knowledge of the matters relied upon by Mrs Collier, might reasonably consider that the judicial officer might not carry out his judicial functions with an impartial and unprejudiced mind: Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11]-[13]; Ebner v The 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]. 24 The test for apprehension of bias is objective. It does not require an assessment of the state of mind of the judicial officer in question, as is necessary on an inquiry about actual bias: Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [33]. 25 The application of the apprehension of bias principle involves two steps. The first is to identify what it is said might lead the judicial officer to decide a case other than on its legal and factual merits. The second is to articulate the logical connection between the circumstances identified in that matter and the apprehension that the case might not be decided on its merits: Ebner v Official Trustee in Bankruptcy at [8]; Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [32]-[33]; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 at [139] (Heydon, Kiefel and Bell JJ). 26 Accordingly, an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judicial officer might not bring an impartial mind to bear upon the issues that are to be decided. The question is not whether the judicial officer had in fact prejudged an issue: Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [33].
Not that oral reasons for decision bear lesser significance in the due delivery of justice, however in both the First Judgment and this judgment, the Court's decisions were curia advisari vult, that is, reserved and delivered as published, written judgments, exposing in significant detail the submissions and reasons through which the Court arrived at a concluded view on the Plaintiff's applications.
To this end, one struggles to make much sense of the submissions made with respect to the application for recusal. The Plaintiff's contentions were a steady stream of consciousness, in respect of which he either declined to give any specificity or, worse, given the gravity of the allegations, declined to support with any evidence.
I was initially of the view that the Plaintiff may have had me confused with someone else, although as he continued, I formed the view that the Plaintiff submissions were calculated.
Ever mindful of the two different tests, respectively, outlined above for actual and apprehended bias, the Plaintiff's assertion that I might have been so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented, was devoid of all merit whatsoever. Similarly, there was a total exiguousness of evidence to support the identification of what might be said to lead me to decide the proceedings, or any interlocutory issues, on a basis other than their legal and factual merits. By extension, to say that there might be any logical connection between the unfounded and self-serving assertions articulated in his submissions and the apprehension that the case might not be decided on its merits stretched the limits of credulity to intolerable bounds.
The Plaintiff was neither a former client of the law practice of which I was the principal prior to my appointment, nor an acquaintance, nor a person ever known to me, other than in the course of my duties as a judicial officer, having presided over one earlier interlocutory Notice of Motion in these proceedings and a mention in unrelated civil proceedings filed by him also in this Court. His submissions were no more than an attempt to besmirch the Bench so as to advance a particular cause. Indeed, nor have I ever heard oral evidence from him in any matter in respect of which adverse findings as to credit might have been made, a matter which can, not will, on occasion, raise the spectre of apprehended bias.
Even then, in a busy Court such as this, where daily lists before a single judicial officer can often range between 80 and 120 matters and where interlocutory decisions are routinely made, whether on bail in a criminal matter or summary judgment in a civil matter, a single judicial officer is invariably required to make preliminary assessments and findings of fact on procedural applications early in the proceedings. It is often the case that the same judicial officer, bringing a fresh, impartial mind to the same proceedings, hears and makes conclusive findings of fact, the determination of which is aided by his or her earlier knowledge of the proceedings, a matter which facilitates the efficient dispensation of justice.
To my knowledge, none of the Plaintiff's claims as to any alleged improper conduct were ever the subject of a disciplinary complaint, let alone an adverse finding by the Judicial Commission. His submissions in this regard were persecutory in nature, presumably in the hope that they would either frustrate the Bench or instil an apprehension in the judicial officer that the repercussions which would likely follow for not acceding to his requests would cause irreparable reputational harm. To recuse oneself on such basis would be to drive an appreciable wedge in the oath of office a judicial officer has sworn to uphold.
His contumelious and vituperative attacks of the Bench, under the veil of submissions in support of his interlocutory applications, lacked any real substance, but equally importantly, any truth. Most of the matters raised were an exercise in obfuscation and the decision to permit him to continue his submissions, with little interruption, was intended to afford him a reasonable opportunity to ventilate his grievances and to accord him natural justice, even if it be that the Plaintiff descended into slanderous and defamatory rhetoric.
Fortuitously, on 22 October 2021, the Supreme Court delivered its decision in Antonio Di Liristi v NSW Public Trustee and Anor [2021] NSWSC 1347, a matter in which the appellant (one and the same person as the Plaintiff in these proceedings) unsuccessfully appealed various decisions of the Guardianship Division of the NSW Civil and Administrative Tribunal (the Tribunal) concerning guardianship orders made in respect of his parents. In those proceedings, Sackar J made findings with respect to the Plaintiff and the techniques he used in the Tribunal below. The methodology and the parallels are striking. His Honour observed: - 127 … The material the plaintiff sought to deploy … included … a letter to the court accusing it of containing "wannabe judges" amongst other things. What the plaintiff had in mind was to make the most serious accusations. He had not proposed any expert evidence in support of his assertions and he made no attempt to prove for example when and in precisely what circumstances the photos were taken. … 131 The plaintiff has accumulated an enviable history of litigious outings. He would I am quite certain have understood precisely what his obligations were in terms of timing in relation to any proposed evidence. 132 It is clear that the plaintiff as a serial litigant well understood the procedure, because he specifically acknowledged the rules of evidence (in his words) did not apply in "NCAT", T.90/45. … 135 The plaintiff then proceeded to read from a document he had sent and which contained scandalous and insulting material about the member conducting the hearing and other persons associated with the Tribunal, including its President. The allegations were extremely serious alleging, amongst other things, some form of conspiracy to defeat the plaintiff's claim, T.126/5-40. 136 The plaintiff then foreshadowed an appeal to the Supreme Court for several reasons, including an alleged prejudgment of his case, T.126/40-45. But his insults did not stop there. He proceeded to accuse the member of unfairness, T.128/10-15 and claimed that NCAT was known as a "kangaroo court" and was a "disgrace to the administration of justice", T.128/20-25. 137 He continued at some length about the fact that he just wanted the Tribunal to "get on with your job so we can appeal", T.130/15-18. 138 It is true that some litigants in person need assistance. In this case however the plaintiff as an experienced litigant was giving every indication that he believed he was wasting his time before a Tribunal which was biased and that the exercise he was involved in was token in the extreme as the exercise was "pointless", T.132/35. Rather than wanting a hearing and hence an adjournment to facilitate it, the plaintiff's intemperate language and attitude displayed anything but a desire to be heard by a Tribunal that might be persuaded to appoint him guardian. He stated in terms that it and its members were biased and were not capable or sufficiently qualified to determine the matter. Indeed at one point the plaintiff indicated he did not want any adjournment because he did not want to give NCAT an opportunity to "prepare their case", T.132/1-4. His attitude was belligerent and confrontational and he made no secret of the fact that an unfavourable outcome would be challenged elsewhere, T.143/45. 139 … He knew at all times all he was doing was making allegations which apart from his assertions were not capable of being tested and he also knew full well the proceedings were to be informally conducted. When given an opportunity all he wanted to do is to denigrate and traduce the member and the Tribunal more generally … 140 He was not in my view denied ample opportunity to say what he wanted and make whatever points he chose. Instead he attacked the Tribunal, the member hearing the matter … and in doing deliberately chose to waste time on abuse, promising in any event to take the matter to the Supreme Court. … 143 In fact although the member purported to impose a time limit of 30 minutes it is clear that no doubt in recognition of the plaintiff's irrational and time wasting assertions she from time to time suspended the time running, see, e.g. T.94/39). 144 The Tribunal was entitled to obtain answers to reasonable questions. It was not obliged endlessly even from a litigant in person to entertain abusive and irrelevant submissions. The Tribunal's allocation of time was a matter for it. In my view on the whole of the evidence I am not satisfied the plaintiff's complaints in this regard has any merit. … 151 In somewhat typical fashion the plaintiff was again quite obnoxious at the directions hearing and made a number of disparaging remarks to and about the presiding member to the effect that he was "pathetic", NCAT 23SEP20 T.28/28, and calling the Tribunal member "a disgrace to the legal fraternity", NCAT 23SEP20 T.30/18. He then threatened to take legal action against the Tribunal member personally. His behaviour was totally unacceptable and he must have appreciated he was being deliberately provocative. Apparently a charm offensive is an unknown phenomenon to the plaintiff. … 154 Not content with those remarks he then accused the separate representative for his parents and the Public Trustee of "criminal conduct", T.248/45-50 and his parents' representative as being guilty of professional misconduct and professional negligence, T.250/45-50. 155 What this conduct betrays is the utter lack of any respect the plaintiff had for everyone and anyone at the hearing of 16 October. And it also displays, deliberately or otherwise, a capacity to waste time on vendettas of one sort or another as opposed to addressing the crucial question of his fitness to be a guardian or a financial manager. His behaviour was in those respects breathtakingly self-destructive. … 159 Culminating in telling the Tribunal member "you just keep your mouth shut…", T.116/1-5, … the plaintiff accused the member of unfairness in the conduct of the hearing, T.117/25-30. 160 The plaintiff again accused the Tribunal of acting like a "kangaroo court" and announced he was tendering his 27 page submissions as evidence of the incompetency of the "Public Trustee" and that it would be an exhibit in the Supreme Court, T.118/40-45. … 164 As a general comment I would wish to state that both Tribunal members acted with consummate professionalism. The plaintiff, even though a litigant in person, made it abundantly clear in both hearings when he was not arguing belligerently with someone or other that the Tribunal was in effect an obstacle in his way to the Supreme Court. Apart from the obvious disrespect clearly intended by the exchanges only some of which I have made reference to, it ill behoves any person, litigant in person or otherwise claiming a denial of procedural fairness to so blatantly insult and obstruct the very body attempting to conduct a hearing so as to render almost futile the very right he now asserts he was denied. The plaintiff in both hearings displayed a clear contempt for the Tribunal and its workings. When he was not insulting the Tribunal he was insulting his brother, the Trustee and Guardian and/or his parents' representative. His attitude showed a complete disregard for any genuine desire to be accorded a right simply to be heard. Rather he promised in both Tribunal hearings an appeal to the Supreme Court would be pursued so the Tribunal could be put in its place. A hearing before the Tribunal was it seems in fact the last thing he wanted.
In Collier v Country Women's Association of NSW [2018] NSWCA 36 at [45], Gleeson JA aptly concluded: - 45 I am also mindful that it is my duty to determine matters which come before me as a member of this Court and also that it is my duty not to withdraw unless there are reasons which require me to do so. As Mason J said in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352; [1986] HCA 39: Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.
I formed the view that the Plaintiff's submissions were dominated by his desire to cause as much outrage as was possible, on one side of the divide, or inconvenience and discomfort on the other, and were designed to achieve an end which would permit him to select the forum or judicial officer partial to his cause.
It follows that the Plaintiff's application to disqualify myself must also fail.

The "copied and pasted" Affidavit jurat clause

When reviewing the pleadings filed by the Plaintiff and attached to the Court file, in readiness for the hearing of the Second Notice of Motion, it became apparent, at least prima facie, that there were troubling irregularities.
In a Court where almost all civil Small Claims Division matters proceed on the basis of signed statements and most General Division matters proceed on the basis of duly sworn affidavits with additional oral evidence, there is a sanctity which attaches to the jurat clause of an affidavit.
The prescriptive nature of the jurat clause requires that the deponent swear or affirm the affidavit by signing in the presence of a Justice of the Peace, or other person before whom affidavits may be sworn ("JP"); the deponent physically attend upon the JP (absent COVID-19 related legislation such as the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW)); the JP sign as witness; and the JP certify matters with respect to the identity of the deponent, religious based face coverings, knowledge of the deponent or the sighting of photo identification.
The Second Notice of Motion and the Second Affidavit were filed by the Plaintiff via online means, whereby the Plaintiff emailed the Registry attaching copies of the documents, rather than over-the-counter in the Registry. This was, in part, due to the limited face-to-face Registry services during the COVID-19 pandemic, when the Court was operating under various public health restrictions. Due to this, any irregularities arising from what would likely have involved original documents being filed in the Registry (absent online portal filings for which law firms are often approved) were not immediately identified by Registry staff merely printing and attaching to the Court file scanned PDF versions of pleadings. That was, however, until the Plaintiff's Second Notice of Motion and Second Affidavit were more closely reviewed by me prior to the hearing of the Motion on 14 October 2021.
Put simply, the obvious irregularities on the face of the Plaintiff's Second Affidavit suggest that the Plaintiff might have engaged in fraudulent conduct in making, using and filing the First Affidavit and Second Affidavit, some four weeks apart, in which the Plaintiff, or someone on his behalf, appears to have copied the jurat at the end of the First Affidavit, from an earlier Affidavit in these or other proceedings, and pasted that jurat clause at the end of the Second Affidavit in support of the Second Notice of Motion. This had the effect of misleading the Court, in circumstances where the Plaintiff had, most likely, not attended upon the JP whose signature and rubber stamp were affixed on each Affidavit, probably without her knowledge. The two identical jurat clauses appear as slightly blurred images rather than crisp, printed typeface.
To his surprise, once this was raised by the Bench towards the end of his submissions, the Plaintiff sought to tender, when the matter was re-mentioned after the morning adjournment, a "re-sworn" copy of the Second Affidavit, which appeared to have been signed in the presence of a local solicitor. This may have cured what would otherwise have been a lack of affidavit evidence in support of the Second Notice of Motion. It did not explain nor exonerate those who might have been involved in the making and use of what appeared to be a false document, a criminal offence in its own right.
It was on this basis that I formed the view that this matter ought be referred to the relevant authorities for investigation.

Orders

For these reasons, I make the following orders and notations: - 1. The Plaintiff's Notice of Motion dated 8 October 2021 (filed 12 October 2021) (the Second Notice of Motion) is dismissed. 2. The Plaintiff's oral application to disqualify myself is refused. 3. I direct the Registrar, Fairfield Local Court, to forward to NSW Police Force, for investigation and consideration as to whether any criminal charge should be laid for any alleged making or using a false document, a copy of the following: - 1. This judgment. 2. The First Affidavit apparently affirmed by the Plaintiff, in the presence of Ms Elizabeth Faith Dobe, a Justice of the Peace, on 10 September 2021. 3. The Second Affidavit apparently affirmed by the Plaintiff, in the presence of Ms Elizabeth Faith Dobe, Justice of the Peace, on 8 October 2021.
I will hear the parties as to costs.

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: 16 December 2022

Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020(NSW)

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