Attorney-General of Fiji v Charan [1995] FJHC 12; Hbm0016.1995 (6 October 1995)

Fiji Islands - Attorney-General of Fiji v Charan - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

ACTION NO. HBM 16 OF 1995

BETWEEN:

ATTORNEY-GENERAL OF FIJI
Applicant

AND:

SURESH SUSHIL CHANDRA CHARAN and
ANURADHA CHARAN
both of 4 Evelyn Place, Nasese, Suva
Respondents

D. Singh for the Applicant
G.P. ar for the Respondents

Date of Hearing: 2nd October 1995
Date of Ruling: 6th October 1995

RULING

By Originating Summons dated 28th April 1995 the Applicant applies to have the Respondents declared vexatious litigants. The Summons is supported by an affidavit of Rajesh Gopal a solicitor employed as a Legal Officer with the Suva City Council.

After hearing brief argument in which I suggested it was apparent that the principal thrust of the Applicant's argument would be that the First-named Respondent was at all times to my knowledge the most active litigant of the two and that in all previous proceedings before me and before Scott J. the Second-named Respondent had either withdrawn from the hearing before evidence was taken or did not appear at all, counsel for the Applicant conceded this to be so. I therefore ordered that the name of the Second-named Respondent be struck out from the Court record as Respondent to this application.

Counsel for the Respondent then moved that I should disqualify myself from hearing the Originating Summons any further on the ground that on page 4 of the affidavit of Rajesh Gopal in Civil Action No. 510 of 1986 in the High Court of Fiji I had said the following in my judgment:

"The numerous pleadings and affidavits and submissions filed on behalf of the Defendants by the second-named Defendant are typical of such pleadings filed by him in other actions before this court and consist of a curious mixture of pseudo-legalese, frequently incomprehensible submissions on the law and irrelevant citations of cases." (P2).

AND

"I venture to suggest that the time is now more than ripe for serious consideration to be given to having the second Defendant declared a vexatious litigant." (P3).

Counsel for the Respondent submits that these comments would create in the mind of a reasonable observer that the Respondent might not get a fair hearing before me or, as counsel put it, my remarks would create a reasonable apprehension of that in the mind of the reasonable observer.

Counsel pointed out that if I were not to disqualify myself and then proceeded to declare the First-named Respondent a vexatious litigant it would have serious consequences for him in that his right of access to the courts would be severely restricted. I accept that submission.

The question of whether a judge should disqualify himself has been considered in numerous cases. For example in The Queen v. Watson ex-parte: Armstrong [1976] HCA 39; (1976) 136 CLR 248 a 4 - 1 majority of the High Court of Australia stated at page 263:

"It is of fundamental importance that the public should have confidence in the administration of justice. If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision. To repeat the words of Lord Denning M.R. which have already been cited, "Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: 'The judge was biased.'"

Similar views were stated in the unanimous judgment of the High Court of Australia in Livesey v. The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 299 where the Court said:

"What is in issue in the present case is the appearance and not the actuality of bias by reason of prejudgment. The reasonable observer is to be presumed to approach the matter on the basis that ordinarily a judge will so act as to ensure both the appearance and the substance of fairness and impartiality. But the reasonable observer is not presumed to reject the possibility of prejudgment or bias; nor is the reasonable observer presumed to have any personal knowledge of the character or ability of the members of the relevant court."

It must be said at once that the facts in Livesey's case were very different from those in the instant in as much as two judges of the Court of Appeal of New South Wales before which there was an application to strike a Barrister off the roll of counsel for previous misconduct had expressed adverse opinions about the credibility of a witness who might be called on behalf of the Barrister, Mr. Livesey.

The High Court held that a fair minded observer might entertain apprehension of bias by reason of the prejudgment of the issues or the credibility of a witness. The Court therefore upheld the appeal and remitted the matter to the Court of Appeal to be heard de novo.

In Australian National Industries Ltd v. Spedley Securities Ltd (1992) 26 NSWLR 411 by a majority the New South Wales Court of Appeal held that in earlier proceedings where a judge had made findings in which he was critical of the recollection, of the credit and the commercial conduct of the parties he should have disqualified himself from further hearing the matter.

At page 419 Kirby P. said as to the test on whether a judge should disqualify himself:

"By repeated decisions of the High Court the test is now expressed in terms of possibilities, that is, whether the parties or the public "might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the question involved......."

In reply counsel for the Applicant Attorney-General referred me to R. v. Mulvihill (1990) 1 ALL E.R. 436 where the Divisional Court held that the mere fact that a judge held a number of shares in one of the banks which the Appellant was said to have robbed did not mean that a hypothetical, reasonable and fair-minded person would have entertained a suspicion that the judge was biased.

Counsel also referred me to a South Australian decision of Queen v. Judge Russell; Ex parte: Reid (1984) SASR 417 in which the Full Court of South Australia held that no fair-minded person would apprehend that a judge who had previously acted as counsel for one of the parties should disqualify himself some years later when he was appointed a judge from hearing a case involving his former client. The Court said however that it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of prejudgment or bias, regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court.

I accept that with respect as a correct statement of the law but each case has to be considered on its own facts. Whilst it may be said that particularly in the second quotation from my judgment in Civil Action No. 510 of 1986 I was merely expressing the opinion that serious consideration should be given to setting in motion the procedures to have the Respondent declared a vexatious litigant and not expressing any pre-conceived opinion as to the outcome of such proceedings, on the other hand I cannot say with 100% confidence that a reasonable observer might not consider that at least unconsciously I entertained a certain bias against the Respondent.

Accordingly in all the circumstances I have come to the conclusion that the better course will be for me to disqualify myself from hearing this matter any further. I therefore order that it be referred in the Deputy Registrar's list at the earliest opportunity for a date of hearing to be fixed before another judge.

JOHN E. BYRNE
JUDGE

Cases cited in judgment:

Australian National Industries Ltd. v. Spedley Securities Ltd (1992) 26 NSWLR 411.

Livesey v. The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288.

R. v. Mulvihill (1990) 1 ALL E.R. 436.

Queen v. Judge Russell; Ex parte: Reid (1984) SASR 417.

The Queen v. Watson ex-parte: Armstrong [1976] HCA 39; (1976) 136 CLR 248.

The following additional cases were cited in argument:

Re Boaler (1915) 1 K.B. 21.

Hadjicosta v. Anastassiades (1982) 1 CLR 296.

Civil Appeal No. 67/90 Reddys Enterprises Limited v. The Governor of the Reserve Bank of Fiji, unreported ruling of Tikaram RJA of 21st November 1991.

R. v. Gough [1993] UKHL 1; (1993) A.C. 646.

Article 11(8) Fiji Constitution 1990.

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