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Abbott v Burns

Abbott v Burns

Case [2020] NSWSC 491 5 May 2020

Judicial Review

Apprehended Bias

Civil and Administrative Tribunal Act 2013 (NSW)

Administrative Law

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Supreme Court

New South Wales

Medium Neutral Citation: Abbott v Burns [2020] NSWSC 491
Hearing dates: 21 November 2019
Date of orders: 05 May 2020
Decision date: 05 May 2020
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
THE COURT ORDERS THAT:

(1) The further amended summons filed 21 November 2019 is dismissed.
(2) The plaintiff is to pay the first defendant’s costs on an ordinary basis.
Catchwords: ADMINISTRATIVE LAW – Judicial review – Review of the decisions of a Local Court Magistrate and District Court Registrar – Civil and Administrative Tribunal Act 2013 (NSW) s 34B – Whether the Magistrate improperly granted leave to bring substituted proceedings in the Local Court – Whether the Registrar improperly dismissed a request that he disqualify himself for apprehended bias
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 34A, 34B
Civil Procedure Act 2005 (NSW), s 56
Commonwealth Constitution, s 75
District Court Act 1973 (NSW), s 8
Judiciary Act 1903 (Cth), s 39(2)
Local Court Act 2007 (NSW), ss 7, 30(1)(b2), 39, 40
Supreme Court Act 1970 (NSW), ss 22, 69
Cases Cited: Burns v Corbett; Burns v Gaynor; Attorney General for NSW v Burns; Attorney General for NSW v Burns; NSW v Burns (2018) 353 ALR 386; [2018] HCA 15
Burns v Corbett; Gaynor v Burns (2017) 96 NSWLR 247; [2017] NSWCA 3
Craig v South Australia (1995) 184 CLR 163
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
Martin v Kelly [2008] NSWSC 577
Martin v Kelly [2009] NSWCA 105
Category: Principal judgment
Parties: John Murray Abbott (Plaintiff)
Garry Burns (First Defendant)
District Court of New South Wales (Second Defendant)
Local Court of New South Wales (Second Defendant)
Representation:
Counsel:
Self-Represented (Plaintiff)
Self-Represented (First Defendant)
Crown Solicitor’s Office – Submitting Appearances (Second and Third Defendants)
Solicitors:
Self-Represented (Plaintiff)
Self-Represented (First Defendant)
Crown Solicitor’s Office - Submitting Appearances (Second and Third Defendants)

File Number(s): 2019/199940
Publication restriction: Nil

Judgment

HER HONOUR: There are two judicial reviews before the Court. The first is in respect of the determination of his Honour Magistrate Barko of the Local Court of New South Wales dated 2 February 2018. The second is in respect of the determination of Judicial Registrar Howard of the District Court of New South Wales (“the Registrar”) dated 7 March 2019.
At the hearing of these proceedings, I granted leave to the plaintiff to rely on a further amended summons filed 21 November 2019. By it, the plaintiff seeks the following orders (as uncorrected):

“1.   Orders of 2 February 2018 AND 7 March 2019 be set aside
2.   Application by the Plaintiff Abbott for the Judicial Registrar - James Howard to disqualify himself of the 7 March 2019- upheld
3.   In the alternative to item 1: leave is granted to the Plaintiff leave is granted to the Plaintiff to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abbott v Burns

Details

AGLC: Abbott v Burns [2020] NSWSC 491
Case: [2020] NSWSC 491
Decision Date: 05 May 2020

CaseChat Overview and Summary

The case of Abbott v Burns involved a dispute between two parties, Abbott and Burns, seeking judicial review of decisions made by a Local Court Magistrate and a District Court Registrar. The applicants sought to challenge the legal validity of these decisions, which were made under the Civil and Administrative Tribunal Act 2013 (NSW). The key issues in this case were whether the Local Court Magistrate improperly granted leave to bring substituted proceedings and whether the District Court Registrar improperly dismissed a request that he disqualify himself due to apprehended bias.

The applicants argued that the Magistrate's decision to grant leave for substituted proceedings was flawed as it did not adequately consider the merits of the case and failed to provide sufficient reasons for the decision. Additionally, the applicants contended that the Registrar's refusal to recuse himself due to apprehended bias was incorrect, as the circumstances presented a real likelihood of bias, thereby affecting the fairness of the proceedings. The court was required to determine whether these decisions were made in accordance with the law and whether they were procedurally fair.

The court examined the relevant statutory provisions and the principles of judicial review. It concluded that the Magistrate's decision to grant leave for substituted proceedings was not unlawful as it was supported by the evidence and the considerations made were appropriate. The court found that the Magistrate had not erred in the exercise of his discretion. Regarding the Registrar's decision, the court determined that there was no apprehended bias as the circumstances did not give rise to a real likelihood of bias that would undermine the perceived or actual impartiality of the proceedings. Consequently, the court dismissed the applications for judicial review.

The final orders of the court were that the applications for judicial review were dismissed, and the decisions of the Local Court Magistrate and the District Court Registrar were upheld. The court found that both decisions were lawful and that there was no basis for the applicants' claims of bias or procedural unfairness.

Orders