Diplomat Dan v Brown
[2024] TASSC 65
•19 November 2024
[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 and immunities which, by the Charter of Justice and any law, statute, or usage, are conferred upon or made exercisable by the puisne judge of the Supreme Court of Tasmania or any judge of the said Court to and for all intents and purposes whatsoever as fully and effectually as if each of the said puisne judges had been respectively mentioned or referred to in the said Charter and every law or statute relating to the said Court or the practice or procedure thereof in any jurisdiction whatsoever."
Counsel for the respondent submitted that the magistrate was immune from action purportedly taken against him by the applicant because of his immunity from litigation on account of the performance of his functions as a magistrate.
Counsel contended that the Magistrates Court has no jurisdiction to hear an application against an immune person, and that in any event, the application by the applicant is scandalous, vexatious and an abuse of process.
2 No 65/2024
The applicant contended that the respondent did not have immunity from the application before the Magistrates Court. The thrust of his submissions challenged the view that he was in contempt of Court before the respondent. The applicant also asserted that the respondent arranged for him to be viciously attacked. There was no evidence to support that submission.
The magistrate dismissed the applicant's application on its merits based on the lack of proof that the allegations made against the respondent had been made out. The magistrate said that she was not satisfied that the conditions necessary to impose a restraint order had been established. Essentially, those elements are that a person has threatened to cause personal injury, or damage to property, and second, unless restrained, will carry out such a threat; see s 106B(1)(b) of the Magistrates Court Act.
On the review application, the applicant challenged the costs order made by the magistrate with reference to the concept of slavery. He raised other matters unrelated to the proceeding before Magistrate Edwards.
The respondent filed an interlocutory application to strike out the notice of review in the inherent jurisdiction of the Court, on the grounds that it is scandalous, does not disclose a reasonable cause of action, is frivolous, vexatious and an abuse of process. See Gunnarsson-Wiener v Iles [2020] TASFC 1 at [9] per Blow CJ, with whom Brett and Geason JJ agreed.
I am content to consider the matter on the basis that the application for review has no reasonable prospect of success. In other words, that it is bad beyond argument and bound to fail. See Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 84-85 and 90-91.
The respondent contends that the application is bound to fail because he has immunity as submitted before Magistrate Edwards. Her Honour did not deal with that argument.
There is much force in the submission of the respondent that the respondent not only had immunity in the action before Magistrate Edwards, but also has immunity from this notice to review. The respondent sat on 18 December 2023 in his capacity as a permanent full time magistrate, under the Magistrates Court Act.
The combined effect of s 10A of the Magistrates Court Act and s 6(1) of the Supreme Court Act is that the respondent is immune from suit in respect of actions taken by him in carrying out the functions of his office as a magistrate. That is what he was doing on 18 December 2023 when he charged the applicant with contempt. Therefore, the Court has no jurisdiction to deal with the application for review because it concerns a matter for which the magistrate had complete immunity in the proceeding before Magistrate Edwards. The same applies to the notice of review.
In any event, the grounds of review do not disclose any arguable basis for disturbing the decision of the magistrate. They are:
"(i) Magistrate used hearsay evidence with no supporting affidavit;
(ii)Mr Brown was not competent to deal with own matter;
(iii)Mistake in law and breach of court rule as detailed in supporting documents."
None of those grounds raise any arguable basis for disturbing the decision of the magistrate, or for contending that her decision on the merits was not one that a reasonable magistrate would have made.
3 No 65/2024
It is unnecessary to determine if the review application is an abuse of process having regard to the foregoing.
The order of the Court is as follows:
(1) The notice of review filed on 22 March 2024 is dismissed.
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