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[2017] NSWSC 763

Mahmoud v Australian Broadcasting Corporation (No 2)

Plaintiff’s recusal application refused

Catchwords

PRACTICE AND PROCEDURE – application to have judge recuse herself on the grounds of actual bias – where judge had previously refused an application by the plaintiff – plaintiff alleging that earlier judgment discloses actual bias

Cases cited

  • Mahmoud v Australian Broadcasting Corporation[2017] NSWSC 85

Judgment

  1. [1]

    HER HONOUR: This is an action for defamation brought by Mr Tosson Mahmoud. The proceedings are in the Defamation List, which is ordinarily conducted by me. Earlier in the proceedings, Mr Mahmoud brought an application by notice of motion filed 31 January 2017 seeking injunctive relief. I determined that application on 3 February 2017, publishing my reasons that date: see Mahmoud v Australian Broadcasting Corporation [2017] NSWSC 85.

  2. [2]

    The application for injunctive relief was refused. On the same date, I struck out the statement of claim with leave to re-plead. Mr Mahmoud has since filed an amended statement of claim as directed by me. The proceedings are before the Court today for further argument or directions following the filing of the amended pleading.

  3. [3]

    When the matter was called today, Mr Mahmoud indicated that he wished to make an application requesting me to disqualify myself on the grounds of actual bias. It is appropriate to determine that application first.

  4. [4]

    The material relied upon in support of the application is identified in a letter dated 2 June 2017 sent by Mr Mahmoud to my chambers. The basis for the application is set out in a detailed written document headed "Main Annexure A" attached to that letter. The letter and annexure will be marked for identification “MFI1” and placed on the file.

  5. [5]

    “Main Annexure A” is headed:

  6. [6]

    In the body of the document, the appearance of which suggests that it has been copied to the email addresses of a large number of world leaders (with some notable exceptions), Mr Mahmoud has addressed paragraph by paragraph the reasons given in my earlier judgment. Without descending to the detail of the argument, in short, Mr Mahmoud asserts that parts of the judgment reveal my alleged bias and corruption. I have had regard to all of the assertions set out in Main Annexure A. I am not persuaded that a basis has been established for me to recuse myself in the proceedings.

  7. [7]

    As I informed Mr Mahmoud during argument, I do not hold any bias against him. For completeness, I might also observe that, contrary to an assumption expressed in Mr Mahmoud’s written submissions, I am not a Christian.

  8. [8]

    The application is refused.

Unofficial copy. Source: NSW Caselaw. Refer to the official version for authoritative text.