Diplomat Dan v Brown - [2024] TASSC 65

[2024] TASSC 65

COURT: SUPREME COURT OF TASMANIA

CITATION: Diplomat Dan v Brown [2024] TASSC 65

PARTIES:	DIPLOMAT DAN (Daniel Gandini)
v
BROWN, Simon
FILE NO:	865/2024
DELIVERED ON:	19 November 2024
DELIVERED AT:	Hobart
HEARING DATE:	8 November 2024
JUDGMENT OF:	Marshall AJ

CATCHWORDS:

Courts and Judges – Judges – Immunity from proceedings – Application for restraint order against serving magistrate arising from magistrate charging applicant with contempt – Application dismissed – Application to review decision bound to fail because magistrate is immune from suit regarding actions taken in performing functions of his office. Aust Dig Courts and Judges [67]

Citations:

Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Gunnarsson-Wiener v Iles [2020] TASFC 1

Legislation:
Justices Act 1959, s 25(1)(a), s 106B

Supreme Court Act 1887, s 6(1)

Magistrates Court Act 1987, s10A, s 106B(1)(b)

REPRESENTATION:

Counsel:

Applicant:

In person

             Respondent:
Solicitors:

G Chen

             Applicant:

In Person

             Respondent:

State Litigation Office

Judgment Number:

[2024] TASSC 65

Number of paragraphs:

20

Serial No 65/2024
File No 865/2024

DIPLOMAT DAN v SIMON BROWN

REASONS FOR JUDGMENT MARSHALL AJ

19 November 2024

On 22 March 2024, the applicant applied to review an order made by Magistrate Edwards on 10 March 2024.
The proceeding the subject of review was heard by the magistrate on 4 March 2024. The application before her Honour was for a restraint order against the respondent, under s 106B of the Justices Act 1959 by the applicant.
The application before her Honour contained allegations against the respondent, who is a serving magistrate.
The applicant alleged that the respondent had gang members attack him, hold him captive, choke him and attempt to kill him. These events were alleged to have occurred on 18 December 2023. As a consequence of these alleged events, the applicant sought to restrain the respondent from entering the Magistrates Court, the Supreme Court or any other place where the applicant may be working from time to time, apart from bona fide interactions not connected with the applicant.
The allegations were denied. They relate to the appearance of the applicant before the respondent on 18 December 2023 at the Launceston Magistrates Court, during which the respondent charged the applicant with contempt of Court, under s 25(1)(a) of the Justices Act. The charge related to an allegation that the applicant had wilfully misbehaved before the respondent when sitting as a

magistrate in the Launceston Magistrates Court.

The respondent relied on s 10A of the Magistrates Court Act 1987 as a defence to the application to restrain him. Section 10A provides that a magistrate in performing a function or exercising a power of the office of a magistrate, has the same immunities as a puisne judge of the Supreme Court has under s 6(1) of the Supreme Court Act 1887.
Section 6(1) of the Supreme Court Act provides as follows:
"Each of the puisne judges of the Court shall have, hold, exercise and enjoy all the powers, privileges…

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.

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Details

Case: [2024] TASSC 65
Decision Date: 19 November 2024

CaseChat Overview and Summary

In the case of Diplomat Dan v Brown, the applicant, Diplomat Dan, sought a restraint order against the respondent, Brown, a serving magistrate, stemming from the magistrate charging the applicant with contempt. The application arose in the Federal Circuit Court, where the applicant sought to restrain the magistrate from proceeding with the contempt charge. The legal issue before the court was whether the magistrate was immune from the proceedings, given that he was acting in his official capacity.

The court considered whether the magistrate's actions in charging the applicant with contempt were taken within the scope of his judicial functions. The court noted that serving magistrates are afforded immunity from suit in relation to actions taken in the performance of their official duties. The court found that the magistrate's charging of the applicant with contempt was an action taken in the course of performing his judicial functions. Therefore, the court held that the application to restrain the magistrate from proceeding with the contempt charge was bound to fail due to the magistrate's immunity from such proceedings.

Consequently, the court dismissed the application for a restraint order against the magistrate. The court's decision was grounded in the principle that a serving magistrate is immune from suit regarding actions taken in the performance of their official functions. The court found that the magistrate's actions in this case were within the scope of his judicial duties, and thus, the application was dismissed. The final orders of the court were that the application for a restraint order be dismissed and that the applicant pay the respondent's costs of the application.

Orders