Markan v Bar Association of Queensland [2014] QCA 34

SUPREME COURT OF QUEENSLAND

CITATION: Markan v Bar Association of Queensland [2014] QCA 34

PARTIES: PETER MARKAN (appellant) v BAR ASSOCIATION OF QUEENSLAND (respondent)

FILE NO/S: Appeal No 7082 of 2013 / SC No 6041 of 2013

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 28 February 2014

DELIVERED AT: Brisbane

HEARING DATE: 18 February 2014

JUDGES: Margaret McMurdo P and Muir JA and Mullins J / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Appeal dismissed with costs.

CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FOR BIAS IN JUDICIAL PROCEEDINGS – where the appellant brought a claim against the respondent – where the respondent brought an application to have the claim struck out – where at the hearing of the application the appellant applied for the primary judge to recuse himself – where the appellant appeals the primary judge’s refusal to recuse himself – where there was professional contact between the primary judge and the respondent – whether the primary judge was an impartial and independent judge – whether the primary judge erred in declining to recuse himself from hearing the strike out application / APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – where the appellant contends that the primary judge did not duly consider the appellant’s application to strike out the respondent’s strike out application or material in support of the appellant’s application – where the appellant complains that the primary judge proceeded with the hearing in the appellant’s absence after the appellant refused to participate – where the appellant’s claims and allegations were frivolous, vexatious and scandalous – whether the primary judge failed to duly consider the appellant’s application to strike out the respondent’s strike out application / Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, considered / Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48, followed

COUNSEL: The appellant appeared on his own behalf / D G Clothier, with P J McCafferty for the respondent

SOLICITORS: The appellant appeared on his own behalf / Bartley Cohen for the respondent

1. MARGARET McMURDO P: I agree with Muir JA’s reasons for dismissing this appeal. The self-represented appellant’s principal concern was with the primary judge’s refusal to recuse himself from hearing the matter. Neither the judge’s son’s membership of the respondent nor the unsurprising and desirable professional contact between the judge and the respondent was such as to cause a fair minded lay observer to reasonably apprehend that his Honour might not bring an impartial mind to the resolution of the case. The appellant’s claim and statement of claim and his application to strike out the respondent’s application to strike out his claim and statement of claim were manifestly without merit and doomed to fail. The only orders open to the judge were those made, namely, to strike out the appellant’s claim and statement of claim and to dismiss his application. In light of the patently ridiculous nature of his claim, it was entirely appropriate to order the appellant to pay the respondent’s costs on the indemnity basis. It follows that this appeal must also be dismissed with costs.

2. MUIR JA: Introduction On 26 July 2013, the primary judge ordered that the appellant’s claim and statement of claim in proceedings commenced by him against the respondent be struck out. The orders made by the primary judge on 26 July 2013 also included: an order for indemnity costs; an order striking out an application filed on 22 July 2013 by the appellant seeking an order that the respondent’s application to strike out his claim and statement of claim be struck out; and an order dismissing the appellant’s application for the primary judge to recuse himself.

3. In his claim, apart from a demand that the respondent make a public apology and a request for the Court to consider recommending “that the people associated with [the respondent to] be sent to re-education facilities”, the appellant sought payment of $11,000,000.13. That was the amount claimed by him in an invoice rendered by him to the respondent.

4. The invoice, dated 12 June 2013, purported to be for services rendered by the appellant to the respondent in respect of proceedings instituted by the appellant against the respondent by a claim filed on 4 February 2013. Those proceedings were ordered on 7 June 2013 by Atkinson J to be struck out. An appeal from Atkinson J’s orders was dismissed by this Court on 13 December 2013.

5. The invoice itemised matters seemingly done by the appellant in respect of the proceedings: e.g. “Lodging documents”, “Court attendance” and “Preparation of hearing documents”. There were 16 such items listed in the invoice which stated for each item a rate of charge per minute (which ranged from $100 to $2,000) and an amount claimed (which ranged from $15,000 to $3,000,000). One million dollars was claimed for each of a court attendance on 14 March 2013 and the preparation of court documents from 1 February 2013 to 3 February 2013. A court attendance on 24 April 2013 gave rise to a claim for $3,000,000 to be calculated at a rate per minute of $2,000.

The grounds of appeal

7. The appellant appeals against the primary judge’s orders. I do not propose to set out the grounds of appeal. Something of their flavour can be gauged from the first of the eight stated grounds:

“a.The subject of my application to this Court relates to the issues of:

➢ the lack of respect for the human rights in Queensland;

➢ racist attitude, discrimination and vilification of people who are not lawyers and not of anglo origin and who represent themselves in courts;

➢ denial of the protection by law to those people;

➢ treatment of those people by ‘public institutions’ and courts as SECOND CLASS CITIZENS.”

8. Ground (g) is that the primary judge conducted the hearing at first instance without the appellant’s consent. Other grounds are abusive, argumentative or scandalous. None contains a legally recognisable basis for challenging the orders under consideration.

9. The appellant’s arguments on appeal were mainly concerned with the primary judge’s failure to recuse himself and the primary judge’s continuing with the hearing at first instance after the appellant declined “to participate in [the] shamble”.

The recusal ground

10. I will now address the recusal ground.

11. At first instance, the appellant questioned the primary judge on his involvement with the respondent. The primary judge stated and/or accepted that: he had taught leading evidence for many years in the Bar Practice Course; he had participated in a teaching session at a recent Bar Association Annual Conference, at which his overnight accommodation had been provided by the respondent; and that his son was “most likely” a member of the Bar Association. In answer to a question by the appellant, the primary judge said, in effect, that he had not otherwise participated in Bar Association programs or monetary schemes within the last three years and that he had no membership in the respondent, honorary or otherwise.

12. Although there was no evidence on the point, the Bar Practice Course, until the end of last year and thus for almost all of the primary judge’s involvement in it, was conducted by the Bar Practice Centre, a joint venture between Queensland University of Technology and the respondent. However, even if the Bar Practice Course had been conducted by the respondent itself, there would have been no grounds warranting the recusal of the primary judge.

13. I am not persuaded that:

“a fair-minded lay observer might reasonably [have] apprehend[ed] that [the primary judge] might not bring an impartial mind to the resolution of the question [he was] required to decide”.²

14. Such a person is taken to be reasonable.³ The reasonableness of any suggested apprehension of bias must be considered in the context of ordinary judicial practice and “take account of the exigencies of modern litigation”.⁴

15. The fair-minded lay observer would be taken to know or understand “the strong professional pressures on [judges] (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality” and would not be “unduly sensitive or suspicious”.⁵

16. The connection between the primary judge’s role of instructor in Bar Practice Centre courses and his attending and speaking at a Bar Association conference on the one hand and a fear of his being influenced in determining the case on the other is singularly slight.⁶ No possibility of financial gain or loss is involved apart from the paltry benefit, if it be that, obtained from meals and accommodation on one occasion when the primary judge provided his services gratuitously.

17. It is necessary also to bear in mind the nature of the judiciary and its traditional links with the Bar. Since well before federation the overwhelming majority of Supreme Court judges have been appointed from the ranks of the Bar, normally the senior Bar. Typically, such appointees have been members of the Bar associations of their respective states; often past Presidents, Vice Presidents or committee members. Friendships with colleagues at the Bar are not extinguished by appointment to the bench although diminution in social and workplace contact as well as constraints on intercourse between judges and barristers, where matters in which both are involved are being heard or remain undecided, impinge on such relationships.

18. The existence of a competent Bar on whose integrity the judiciary can depend is integral to the Court’s ability to hear and determine matters efficiently and justly. Speaking on his retirement as Chief Justice of Australia, Sir John Latham spoke of “the essential and intimate connection between the courts and a strong and independent legal profession”.⁷

19. In his speech at his swearing in as Chief Justice of Australia, Sir Owen Dixon expressed the opinion that:⁸

“Counsel, who brings his learning, ability, character and firmness of mind to the conduct of causes and maintains the very high tradition of honour and independence of English advocacy, in my opinion makes a greater contribution to justice than the judge himself.”

20. The foregoing considerations make it inevitable that there will be links between barristers and their association on the one hand and judges on the other. It has never been considered, however, that such links, including friendships, stand in the way of the impartial determination by judges.

21. The high ethical traditions of the Bar and the judiciary are relevant also. Barristers and their association would not desire or contemplate that they or their association would receive any favours from a judge hearing a case in which the association was a party. Any judge seen to exhibit a lack of impartiality in such circumstances would incur condemnation rather than approbation. The links between a judge and a barrister’s association are thus singularly unlikely to cause a judge to fail to act impartially. In this case the links are tenuous. There is no substance in this ground of appeal.

22. Nor is there substance in any other ground. The complaint that the primary judge proceeded with the hearing in the appellant’s absence has no merit. After the primary judge, correctly, declined to recuse himself, the appellant said, “In this application I want to exercise my common-law rights and human rights and I’m refusing to participate in this proceeding”. His Honour said, “Well, that’s your right. I don’t mind”. He then proceeded with the hearing as he was entitled to do.

23. Perusal of the claim and statement of claim no doubt revealed to the primary judge that the appellant’s claims and allegations were frivolous, vexatious and scandalous.

24. Another complaint made in the course of the hearing of the appeal was that the primary judge did not duly consider the appellant’s application to strike out the respondent’s strike out application or material in support of the appellant’s application. Success of the respondent’s strike out application necessarily entailed the failure of the appellant’s application and the fate of the former stood to be determined by reference to the content of the claim and, perhaps, the statement of claim. In any event, the appellant’s application advanced no rational basis for any refusal to strike out his fatally flawed proceedings.

Conclusion

25. For the above reasons I would order that the appeal be dismissed with costs.

26. MULLINS J: I agree with Muir JA. The appellant also sought unsuccessfully the recusal of each of the members of this Court on the basis of connections with the respondent. The appellant’s claim and statement of claim in this proceeding were plainly frivolous and vexatious and could never proceed to a hearing on the merits. The appellant is misguided in his quest for a “truly mutual, independent and impartial arbiter, conforming to internationally recognised standards” to preside over the court hearing against the respondent, when it was so obvious that his claim could not justify a hearing on the merits.

Footnotes

1. The amount claimed for 24 April equalled 25 times the appellant’s stated hourly rate. ↩

2. Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344. ↩

3. Johnson v Johnson (2000) 201 CLR 488 at 508. ↩

4. Johnson v Johnson (2000) 201 CLR 488 at 493. ↩

5. Johnson v Johnson (2000) 201 CLR 488 at 508, 509. ↩

6. C.f. Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345. ↩

7. Retirement of the Chief Justice (1952) 85 CLR vii at x. ↩

8. Swearing in of Sir Owen Dixon as Chief Justice (1952) 85 CLR xi at xii. ↩