Mahmoud v Attorney General of New South Wales

Should the directions given on 1 August and 29 August 2016 be vacated?

1. The applicant seeks in par (3) of the amended notice of motion to vacate orders 1, 2 and 4 made by the Registrar on 1 August 2016. However, that relief has been rendered otiose by the subsequent events referred to above. Since the respondent has agreed to all of the proposed amendments to the relevant transcripts, there is no utility in setting aside orders 1 and 2 made by the Registrar on 1 August 2016. The applicant did not press his complaint in relation to order 4 made on 1 August 2016.
2. As to relief sought in par (4) of the amended notice of motion (that the respondent not comply with the direction of 29 August 2016 that she file and serve the Blue and Black Appeal Books by 12 September 2016), the basis of the applicant's objection to this direction seems to be that the parties have not yet filed and served their written submissions in accordance with par (1) - (4) of the earlier directions made on 8 March 2016. In addition the applicant asserted that the direction for the service of the appeal books was induced by fraud, was induced by error, was inconsistent with the Court's order of 8 March 2016 and was completely unreasonable. The applicant says that he has been unable to comply with the earlier directions for the filing and service of a draft notice of appeal and his written submissions by 10 August 2016, because of the "many weeks" spent dealing with exposing "falsifications" in the transcripts.
3. The applicant failed to explain why no steps seem to have been taken towards preparation of a draft notice of appeal and his written submissions, either between 8 March 2016 and 1 August 2016, or since 22 August 2016 (when the respondent agreed to the transcript corrections proposed by the applicant), or since 13 September 2016, when notice was given that the appeal books were available for collection from the Crown Solicitor's Office.
4. That the applicant now seeks an extension of time until 4 November 2016 to file and serve a draft notice of appeal and his written submissions does not provide a sound basis for vacating the direction made on 29 August 2016 concerning the service of the Blue and Black Appeal Books. In any event, since the relevant appeal books have now been filed (and served in Court today), no purpose would be served in ordering the respondent not to comply with the direction made on 29 August 2016.

Application to adduce further evidence on appeal

1. The application to adduce further evidence on appeal is directed to the applicant's contention that there are "falsifications" in the transcripts of various hearings before Registrar Bradford and Rothman J. The applicant identified the further evidence that the Court should receive under s 75A(7) and (9) of the Supreme Court Act 1970 (NSW) (Supreme Court Act), as that comprised in annexures E, F and G to his affidavit of 26 August 2016. As explained above, without any admission as to the alleged falsifications, the respondent has agreed to all of the amendments to the transcripts proposed by the applicant.
2. The appropriate course is to stand over paragraph 5 of the amended notice of motion to the concurrent hearing on 4 November 2016.

Use of the applicant's own audio equipment in Court

1. The applicant seeks authorisation to bring his own audio equipment into the Court for all hearings by this Court. Hearings before this Court are transcribed by the Recording Services Branch of the Department of Justice either by Court shorthand reporters, or as now more frequently is the case, audio recording. It is unnecessary for the applicant to bring his own audio equipment into the Court for that purpose. There is no reason to doubt the reliability of sound recordings of proceedings in this Court.
2. The fact that the applicant is aggrieved by asserted errors in the transcripts of earlier hearings is, in my view, insufficient reason to permit the course sought by the applicant.

Application for summary determination of the application for leave and the appeal should be refused

1. Paragraphs 7 to 11 of the amended notice of motion seek, in effect, a summary determination of the application for leave and appeal itself, including granting substantive relief, in advance of the concurrent hearing fixed for 4 November 2016. The stated ground for this relief is that in view of the asserted falsifications of the transcripts of the hearings before Rothman J and Registrar Bradford (on the dates referred to above), this Court should "abort the case in favour of the applicant without the need to proceed any further in the case and without the filing of a draft notice of appeal, the submissions and the books of appeal". That relief should be refused.
2. First, a single Judge of Appeal does not have power to determine either the application for leave to appeal, or the appeal if leave is granted: Supreme Court Act, s 46.
3. Secondly, the course proposed by the applicant seeks, in effect, to vacate the orders of this Court on 8 March 2016 requiring the applicant to file and serve a draft notice of appeal and his written submissions by 10 August 2016. As indicated, those orders have not been complied with. The requirement for a draft notice of appeal is not merely a matter of form. It is a necessary step for the applicant to articulate with specificity both the grounds of the appeal and the relief sought, if leave to appeal is granted. No basis has been shown for why that requirement, or the direction for the filing and service of the applicant's written submissions should be dispensed with.
4. One further matter should be mentioned. It is neither appropriate nor necessary for the disposition of the present application, to express any view on the applicant's reliance on Viavattene v Attorney General (NSW) [2015] NSWCA 44 as support for setting aside orders made against the applicant under the Vexatious Proceedings Act. That contention is best dealt with at the concurrent hearing.

Application to disqualify the Registrar

1. The application to disqualify Registrar Riznyczok is advanced on the grounds of both actual bias and apprehended bias.
2. In his second affidavit sworn 13 September 2016, the applicant makes various assertions including, that the Registrar "contradicted himself" in relation to the directions he gave on 29 August 2016 and the orders of the Court on 8 March 2016; that the Registrar "completely lost sight of the fact" that the applicant has different deadlines to those of the Attorney General and this is an "unjust" mindset; that the directions will cause him hardship because has spent time finding transcript errors and is acting on his own while the Crown Solicitor's Office for the Attorney General has a "huge number" of staff; that the Registrar insisted on making directions for the service of the Blue and Black Appeal Books on the pretext that he wanted the Judge hearing the applicant's notice of motion to know everything about the case; that the Registrar did not accept that there was ground supporting the applicant's case to have the concurrent hearing aborted and continued "belittling those crimes of the falsifications"; and the Registrar has previously caused confusion by sending an automated letter on 10 March 2016 which was inconsistent with the orders of the Court made on 8 March 2016.
3. No purpose would be served in summarising the applicant's allegations in his first affidavit of 26 August 2016. They are essentially to the same effect as that in his second affidavit.

(a) Actual bias

1. 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."
2. Insofar as the applicant asserted actual bias in the form of prejudice or hatred, based on the applicant's nationality or race (the applicant stating that he belongs to the "Egyptian and the Arab Muslim's race"), no foundation for this complaint appears in the applicant's affidavits. No point would be served in addressing the many inappropriate and offensive statements directed towards the Registrar in the applicant's affidavits in support of this contention.
3. Insofar as the applicant asserted actual bias in the form of prejudgment, I am not satisfied on the materials before the Court that the Registrar's mind was not open to persuasion when giving case management directions. The directions which the applicant seeks to impugn were consistent with the overriding purpose stated in s 56 of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act) namely, to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
4. Insofar as the applicant asserted that the Registrar did not take seriously the errors in the transcripts of the earlier hearings, the directions made by the Registrar for the identification of those errors and response by the respondent were entirely appropriate.
5. Insofar as the applicant complained about the directions given relating to the filing and service of the Blue and Black Appeal Books, again it was entirely appropriate, in circumstances where the applicant had not complied with the timetable for preparation of the matter for hearing and the applicant had also applied to vacate the hearing, that the time for the filing and service of those appeal books be brought forward so that a full understanding of the background to the applicant's complaints would be available to the Court when dealing with his notice of motion. Further, the variation in the earlier directions made on 8 March 2016 would also be of assistance to the applicant when preparing his submissions.
6. Insofar as the applicant complained that the Registrar did not have any, or sufficient regard to his position as a self-represented litigant compared to the greater resources available to the respondent, none of the case management directions in respect of which the applicant complains demonstrate any form of prejudice let alone, imposition of unreasonable deadlines without regard to the applicant's position.
7. Insofar as the applicant asserts that the Registrar has approached the case management directions with either an "unjust" mindset, or animosity towards the applicant, there is no basis in the evidence for these unfounded assertions to be made.
8. Next the applicant complained that the notice of listing dated 10 March 2016 contained different directions to those given by the Court on 8 March 2016. The Registrar explained in his email to the parties dated 16 March 2016, that the notice of listing is an automated letter produced by the Registry when a matter is listed for hearing. Unfortunately in this case the Registry did not take into account that the respondent was preparing the appeal books and the other directions made by this Court on 8 March 2016. The Registrar explained that the notice of listing had been incorrectly issued and apologised for this confusion. I reject the applicant's contention that the explanation given by the Registrar was untruthful because there is "no such thing as an automated letter". That contention is incorrect.
9. Next, the applicant complained that the Registrar had failed to comply with Uniform Civil Procedure Rules 2005 (NSW), r 51.21(1)(b)(i) and (ii), (2) and (3). These rules provide that the Registrar is to obtain from the proper officer of the court below the exhibits and list of exhibits (if available) and to allow the party required to prepare the appeal books to have custody of the documents. The Registrar must also make the documents available to other interested parties for the purpose of preparing written submissions and chronologies.
10. In this case, the respondent, not the applicant, was the party required to prepare the appeal books. The applicant acknowledged that he had been given copies of the exhibits by the respondent in September 2013 but says that they are "very badly binded in loose papers", that many papers in those exhibits are turned upside down and that it would be "very exhausted for me to put them in order". The applicant contended that the Registrar has obstructed the course of justice. I do not agree. The applicant has had possession of the exhibits since September 2013, and has refused service of the appeal books since 13 September 2016.
11. I am not persuaded that the applicant has made out his claim of actual bias on the part of the Registrar.

(b) Apprehended bias

1. The test to be applied in determining whether a judge is to be 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 questions the judge is required to determine: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [31]. The same principle applies to registrars including the Registrar of the Court of Appeal.
2. In Mio Amico Pty Ltd v Australian and New Zealand Banking Group [2013] NSWCA 353 at [27] - [29] (Gleeson JA) the following summary of principles was stated: [27] The test of apprehension of bias is objective. It does not require an assessment of the state of mind of the judge in question, as is necessary on an inquiry about actual bias: Michael Wilson & Partners at [33]. [28] The application of the apprehension of bias principle requires two steps. The first is the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits. The second is that there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits: Ebner v Official Trustee in Bankruptcy at 345 [8]; Michael Wilson & Partners at 445 [63]. [29] 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 judge might not bring an impartial mind to bear upon the issues that are to be decided. The question is not whether the judge had in fact prejudged an issue: Michael Wilson & Partners at 446 [67].
3. Having considered the assertions in the applicant's affidavits, I am not persuaded that there is any merit in the applicant's claim of apprehended bias by the Registrar when dealing with the case management directions. The applicant failed to identify what it is said might lead the Registrar to decide matters of case management other than on their legal and factual merits and in accordance with the "just, quick and cheap resolution of the real issues in the proceedings": s 56(1) of the Civil Procedure Act. Nor has the applicant articulated any logical connection between the conduct of the Registrar with the possibility of departure from impartial decision making: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [8].

Orders

1. For reasons given above, the orders of the Court are: 1. Stand over paragraph 5 of the applicant's amended notice of motion filed 13 September 2016 to the concurrent hearing of the application for leave and the appeal on 4 November 2016. 2. Otherwise the applicant's amended notice of motion filed 13 September 2016 is dismissed with costs. 3. Extend the time for the filing and service of a draft notice of appeal relating to the judgments of Rothman J and Schmidt J and Registrar Bradford by 10 October 2016. 4. Extend the time for the filing and service of the applicant's written submissions, not more than 20 pages, by 10 October 2016. 5. Extend the time for the filing and service of the respondent's written submissions, not more than 20 pages, by 17 October 2016. 6. The applicant to file and serve any written submissions in reply, not more than 10 pages, by 28 October 2016. 7. Note that the respondent has delivered to the applicant in Court today the 6 volumes of the Blue and Black Appeal Books. 8. Direct the respondent to file and serve the Orange Book by 2 November 2016.

Amendments 20 September 2016 - typographical error in paragraph 28. 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: 20 September 2016