OGBONNA -v- CTI LOGISTICS LTD [2021] WASCA 21 (8 February 2021)

(b) on the ground of actual bias, as a consequence of my having been a member of the coram in this Court in a previous appeal brought by the appellant (CACV 123 of 2018). That appeal was dismissed: see Ogbonna v Qantas Airways Ltd [2019] WASCA 146 (Ogbonna v Qantas Airways Ltd).

1. As will be apparent, the appellant invoked both apprehended bias and actual bias in support of his application that I should recuse myself.
2. In relation to the former, the test to be applied in determining whether I should recuse myself by reason of a reasonable apprehension of bias is well established. A judge is disqualified if a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.[2]
3. In applying this principle, it is necessary to identify what is said might lead a judge to decide a case other than on its legal or factual merits, and to articulate a logical connection between the matter and the feared deviation from the course of deciding the case on its merits.[3] The test is objective and the fair‑minded observer taken to be reasonable and to remember that the person being observed is a professional judge whose training, tradition and oath or affirmation require him or her to discard the irrelevant, the immaterial and the prejudicial.[4]
4. A determination as to actual bias in the form of prejudgment requires assessment of the state of mind of the judge in question, ordinarily on the basis of what the judge had said and done.[5] The onus of demonstrating actual bias lies upon the party asserting the actual bias and it is a heavy onus.[6]
5. I turn, then, to the matters raised by the appellant.

1. The appellant relied upon the fact that he made a complaint to me in relation to, inter alia, Murphy JA and Mitchell JA. The complaint in question was attached to an email forwarded to my chambers on 30 January 2021. The email was copied to a large number of government and media entities throughout Australia and internationally. The complaint is said to relate to an earlier hearing in which the appellant appeared before Murphy and Mitchell JJA.
2. The complaint was said to be made in accordance with the Protocol for Complaints Against Judicial Officers in Western Australian Courts issued by Martin CJ on 27 August 2007 (the Protocol). The Protocol sets out a process for complaints to be made to the head of jurisdiction of each court and tribunal in Western Australia in relation to allegations of non‑criminal misconduct by judicial officers. The Protocol has no particular statutory force, but has been agreed by the heads of jurisdiction to facilitate their respective responsibilities for the administration of the courts and tribunals of the State.
3. As a consequence of the Protocol it is to be expected that each head of jurisdiction, including the Chief Justice of Western Australia, will, from time to time, receive complaints in relation to judicial officers from litigants conducting litigation in their respective courts. A fair‑minded observer would appreciate that it forms part of the very nature of the office of Chief Justice to deal with such complaints in a fair and impartial way as part of the administration of the court, without that preventing the Chief Justice from discharging his or her responsibility to determine issues in judicial proceedings (including appeals from, or involving, members of the court against whom complaints have been made).
4. In the present case, the determination of the appeal requires consideration of whether Stavrianou DCJ made an error of law or fact in dismissing the appellant's appeal against the Deputy Registrar's decision to grant summary judgment to the respondents. In that regard, either an error on the part of Stavrianou DCJ can be established or it cannot. Nothing in the complaint made by the appellant against Murphy JA and Mitchell JA could affect the resolution of that question.
5. In any event, as the appellant was advised by my chambers on 1 February 2021, his complaint will be dealt with in due course and is to be assessed quite separately from the issues in his appeal. Even if it later transpired (and I do not suggest that it would) that there was some justification for the complaint under the Protocol to be considered by a judicial officer other than myself, that does not give rise to a reasonable apprehension that I might not bring an impartial mind to the resolution of the appeal. It would simply mean that I would refer the complaint to another judicial officer.
6. In that context, it would be quite inimical to the interests of justice for a litigant to be able influence the constitution of the court before whom he or she has brought proceedings by simply making a complaint to, or about, a judicial officer listed to determine those proceedings.
7. In all of the circumstances I do not consider that a fair‑minded observer might reasonably apprehend that, having received a complaint in relation to the other members of the court hearing the appeal, I might not might not bring an impartial mind to the legal issues raised in the appellant's appeal from the decision of Stavrianou DCJ.

1. The claim of actual bias was made on the basis that I previously sat in an appeal brought by the appellant in CACV 123 of 2018. That appeal concerned any entirely separate set of proceedings brought by the appellant against Qantas Airways Ltd, Qantas Ground Services Pty Ltd and Dr Dawn Barker. The appellant sought to appeal from a decision of Le Miere J granting summary judgment in favour of Dr Barker.
2. The appeal was dismissed in Ogbonna v Qantas Airways Ltd. An application for special leave to the High Court of Australia from that decision was also dismissed.[7]
3. The appellant appeared to be under the impression that the reasons for the decision in Ogbonna v Qantas Airways Ltd were the reasons of Murphy JA only. They were not. The reasons were a Judgment of the Court, in which I joined.
4. Notwithstanding that the application for special leave to appeal was dismissed, the appellant maintains that the decision in Ogbonna v Qantas Airways Ltd was wrong and for that reason demonstrates actual bias on the part of the members of the court who decided it. Disagreement, even strenuous disagreement, by a litigant with the outcome of their litigation does not provide a sound foundation for inferring that the court in question is biased against the litigant.
5. For completeness, I note that the appeal in in CACV 123 of 2018 did not raise any issue in relation to evidence given by the appellant or the appellant's credibility. Other than the appellant, none of the parties in CACV 123 of 2018 were common to the present appeal. Nor is there any issue of law or fact that is common to the two appeals.
6. There could be no basis to contend that, by reason of my having joined in the reasons dismissing the appeal in Ogbonna v Qantas Airways Ltd, that I have a bias against the appellant that would prevent me from bringing an impartial mind to the resolution of this appeal.

1. For these reasons I dismissed the appellant's application that I should recuse myself from further hearing of the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

Research Associate to the Honourable Chief Justice Quinlan

[1] Ogbonna v CTI Logistics Ltd [2019] WADC 111.

[2] See Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (Ebner) [6] (Gleeson CJ, McHugh, Gummow & Hayne JJ).

[3] See Ebner [8] (Gleeson CJ, McHugh, Gummow & Hayne JJ).

[4] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [12] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ).

[5] Michael Wislon & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [33] ] (Gummow A-CJ, Hayne, Crennan & Bell JJ).

[6] Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87, 106 (French J) and Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 [72], [82] (Gleeson CJ and Gummow J).

[7] Ogbonna v Qantas Airways Ltd [2020] HCASL 26.