FEDERAL COURT OF AUSTRALIA Ibrahim v Carroll [2009] FCA 1082 TAREK IBRAHIM v WILLIAM MACEWAN CARROLL WAD 97 of 2009 SIOPIS J 24 SEPTEMBER 2009 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY general division WAD 97 of 2009 BETWEEN: TAREK IBRAHIM Applicant AND: WILLIAM MACEWAN CARROLL Respondent JUDGE: SIOPIS J DATE OF ORDER: 24 SEPTEMBER 2009 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The applicant's notice of motion filed on 3 August 2009 is dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY general division WAD 97 of 2009 BETWEEN: TAREK IBRAHIM Applicant AND: WILLIAM MACEWAN CARROLL Respondent JUDGE: SIOPIS J DATE: 24 SEPTEMBER 2009 PLACE: PERTH REASONS FOR JUDGMENT 1 On 17 June 2009, the applicant commenced a proceeding against the respondent, who is a medical practitioner. 2 The originating application contains a reference to the "Privacy Act 1988". The originating application states: On the grounds stated in the accompanying statement of claim the applicant claims: 1- The respondent kept against the well [sic] of the applicant a consent form to obtain medical record of the applicant to use it for a research purpose. 2- The respondent refused after several requested to return the signed form. 3- The applicant withdrew his consent to the respondent but the respondent refused to return the consent form. 4- The respondent has an interest privately and with the SCGH in researching topics in the MS. The respondent has a private company for research and is the head of the Department of Neurology in the SCGH where research on MS is conducted. 5- The applicant applies for respondent to stop any research on material relating to the applicant and return the original form. 6- The respondent pays a compensation of $50,000 to the applicant for invading his privacy. 7- Any research material relating to the applicant and any benefit or gain out of that to be destroyed. 3 The applicant also claimed the following relief by way of interlocutory relief in the originating application: 1. The immediate return of the original consent form signed by the applicant on 31st of March. 2. The respondent provides details where about the form was sent. 3. The respondent provides details about what medical records of the applicant was collected. 4 In fact, no statement of claim accompanied the application. However, there was an affidavit dated 17 June 2009, sworn by the applicant. In general terms, the applicant states in his affidavit that whilst he was in the respondent's surgery he signed a form consenting to the use of his blood for research purposes. He said that he did not fully comprehend the import of signing the form because he had just been told by the respondent that he had the condition, multiple sclerosis and he was confused and disorientated. He said that he subsequently advised the respondent that he withdrew his consent to the use of his blood for research purposes, and requested that the respondent return the original consent form he had signed. The respondent, said the applicant, had failed to do so. 5 On 17 June 2009, the applicant also commenced a related proceeding (WAD 101 of 2009) against three respondents, Ms Jingshan Wu, the University of Western Australia and the Minister for Health in his body corporate capacity as the board of the Metropolitan Health Services (who was a party at the time). 6 The first directions hearing for each of the two related proceedings was listed for hearing at 10.15 am on 30 June 2009. 7 On that day, I dealt with the directions in this matter, WAD 97 of 2009, first. The respondent was represented by Mr Dominic Bourke on the instructions of Clayton Utz. 8 I raised with the applicant, and with counsel representing the respondent, the question of whether the Court had jurisdiction to deal with the applicant's application. 9 Further, counsel for the respondent indicated that the respondent may be able to provide the applicant with the information and documentation which he sought in his interlocutory application. I adjourned the directions hearing to 4 August 2009 to permit the respondent to deal directly with the applicant in this matter. 10 On 3 August 2009, the applicant filed a notice of motion in which he sought relief that the judge "disqualify him self from the case". The applicant also filed a notice of motion seeking the same relief in WAD 101 of 2009. Both motions were heard at the same time on 18 September 2009. 11 At the hearing of the two motions, the applicant made oral submissions. The applicant contended that I had given the respondents legal advice on the question of the Court's jurisdiction. It was this conduct on my part, said the applicant, which gave rise to the apprehension of bias. The applicant went on to state that the respondents were all legally represented and did not require the Court's assistance. The applicant said he was the only one in the case that was not represented and that it was he who needed the Court's assistance. The applicant also said that he was concerned that I was racially prejudiced against him. In this regard, the applicant said that he had not appeared before me before, and that he had concluded that the only explanation for my conduct in assisting the respondents was because I was racially prejudiced against him. 12 The applicant also filed an affidavit which contained contentions to similar effect. 13 The transcript of the directions hearing of 30 June 2009 reveals the following exchanges which are relevant to the applicant's complaint of apprehended bias: MR IBRAHIM: The dilemma here, your Honour, is that I'm not well and I needed to make some blood tests and the delay of the returning of that form put my health in jeopardy because--- HIS HONOUR: Yes. No, I've read your case. I understand what your case is. The one thing that I'm concerned about is whether this court has got jurisdiction to hear your claim but I will hear from the other side about that, in other words, whether you're in the right court. MR IBRAHIM: Yes, your Honour. HIS HONOUR: But, yes, Mr Bourke, what do you say in relation to that? MR BOURKE: To the application, your Honour? HIS HONOUR: Yes, and are you intending to bring any application in relation to the question of jurisdiction? MR BOURKE: I frankly haven't considered that because I simply haven't had the time to give that issue consideration. What I can say to your Honour – and I don't know if it will assist you in any way – but the applicant has been advised by the respondent and his staff that so far as they are aware the document which he seeks to be returned is not in their possession. HIS HONOUR: Yes. MR BOURKE: There is doubt that it ever was. The applicant seems concerned by his application that some research may be done with respect to him. The issue is plainly, your Honour, that no research can be undertaken because no blood has been given by the applicant. There is no consent forms and the applicant does not appear upon the particular register upon which he must appear for research to be conducted. HIS HONOUR: Yes. MR BOURKE: So for the purposes of today, your Honour, the respondent would be prepared to give an undertaking to the applicant that even though so far as it is concerned there is nothing upon which research can be conducted he will give an undertaking that the applicant is not on the particular relevant registrar [sic], that so far as the respondent is concerned he does not have possession of any document signed by the applicant and that no research will be conducted, even if the document turns up it is impossible for research to be conducted, your Honour. If the matter must proceed then obviously, your Honour, the respondent is incurring costs and there is a time at which the respondent will have to make a decision that he can no longer forego costs which are being incurred in respect of this application. But in due course, if the matter must proceed, we will give consideration not only to jurisdiction and if we consider that this court does have a jurisdiction then we will make a decision either to apply to strike the claim out or for summary judgment on behalf of the respondent. … HIS HONOUR: But, Mr Ibrahim, what I'm going to do now, you heard what counsel has said: What I will do is I will make orders that the respondent respond to your claim by way of an affidavit. MR IBRAHIM: But, your Honour, if you said that the court can't deal with this application what is the point of proceeding further? HIS HONOUR: Well, I will leave it to the respondent to make a decision whether he wishes to bring an application to have your claim struck out on the basis that you're in the wrong court. Alternatively, if you think you're in the wrong court and you would like to discontinue and take it to the Supreme Court, well, then you could easily do that. It's probably best though if you want to do that to have a discussion with Mr Bourke about the way that you want to proceed. But I will leave that to discuss with Mr Bourke and also in relation to what Mr Bourke has said today about giving an undertaking to you in respect of the form. But I notice that you're claiming compensation of $50,000. MR IBRAHIM: That is if research was conducted on me. If there is any information that was collected then I will want the compensation. If there is no research conducted on me I don't need money. HIS HONOUR: Right. MR IBRAHIM: I just want the form back and I want an undertaking that there is no medical record of mine will be ever collected again because he could have made copies of it. HIS HONOUR: Yes. All right. MR IBRAHIM: Before we go further, your Honour, I have approached the state court first to file for this application and my application was rejected and there was a big argument of the staff and they refused it. They actually – the one told me that it's in the Federal jurisdiction. Now, I come to this court and I file it and it's not in this court either so which court is it? HIS HONOUR: No, and I'm not saying that it's not in this court. I need to consider the application. But normally if there is a privacy issue there is a procedure which you have to go through before you can bring it straight into the court. In other words, you've got to go to the Privacy Commissioner. But, look, what I will do in light of what Mr Bourke has said and in light of what you are saying in respect of getting the form back and I will adjourn this matter for 14 days – no, it will have to be longer than 14 days – so that you can discuss with Mr Bourke the undertaking that his client will give you. Then you can also perhaps get some advice or do your own research as to whether you have complied with the provisions of the Privacy Act in bringing this claim here. But whatever it is, I will just simply adjourn this application so you can have discussions with Mr Bourke about what Mr Bourke has said that might be of assistance to you. 14 In relation to the question of disqualification of a judge on grounds of apprehension of bias, Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344, at [6] observed: …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. (Footnote omitted.) 15 As I understand it, the applicant contends that I might not bring a fair and impartial mind to the resolution of any issue arising in his application and that I should disqualify myself forthwith from further managing any aspect of this application. 16 In the case of Johnson v Johnson (2000) 201 CLR 488 (Johnson), Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ observed at 493, at [12]-[13]: The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial". Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. (Footnotes omitted.) 17 At the heart of the applicant's contention that my conduct gave rise to an apprehension of bias, is the fact that it was, me, rather than any of the respondents, who raised the question of whether the Court had jurisdiction to entertain the applicant's application. The applicant, as I understand him, says that by me raising this question with the respondents and inquiring whether they intended to make any application based on absence of jurisdiction, I was giving the respondents legal advice contrary to the applicant's interest – it appeared, therefore, that I was taking sides. 18 It is incumbent upon a court to be satisfied that it has jurisdiction to deal with the matter in question, whether or not this question is raised by the parties. In the case of Hamzy v Tricon International Restaurants (2001) 115 FCR 78, the Full Court observed at 87, at [29]: At the hearing of 15 and 16 October, there was discussion about the Court's jurisdiction to determine whether or not to make the declarations sought in the application filed on 25 June 2001. No party contended the Court lacked jurisdiction to do this. Nonetheless, it is necessary for the Court to satisfy itself about jurisdiction. 19 In my view, the principle that a court should be satisfied that it has jurisdiction to deal with the matter before it and to grant the relief sought, is a principle which would readily be understood by a reasonable and fair-minded observer with the characteristics described in the observations of the High Court in Johnson referred to at [16] above. 20 It follows that, in my view, a reasonable and fair-minded observer would not have come to the view that by reason of me having raised the question of jurisdiction and inquired whether any challenge would be made to the jurisdiction of the Court, I might not bring a fair and impartial mind to the resolution of matters arising in the applicant's application. 21 Further, the contention of the applicant that I might appear to be racially prejudiced against the applicant appears to be an inference also drawn from the applicant's perception that by raising the question of jurisdiction with the respondents I was favouring the respondents. 22 In my view, for the reasons given above, a reasonable and fair-minded observer would not have come to the view that I might not bring a fair and impartial mind to the resolution of the issues arising in the applicant's application, whether on grounds of racial prejudice or otherwise. 23 The applicant's notice of motion filed on 3 August 2009 is dismissed. I certify that the preceding twenty‑three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate: Dated: 24 September 2009 Counsel for the Applicant: The Applicant appeared in person. Counsel for the Respondent: The Respondent did not appear. Date of Hearing: 18 September 2009 Date of Judgment: 24 September 2009