Gunnarsson-Wiener v Iles - [2020] TASFC 1

[2020] TASFC 1

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: Gunnarsson-Wiener v Iles [2020] TASFC 1

PARTIES:  GUNNARSSON-WIENER, Sven Olaf
  v
  ILES, Lyndon

FILE NO:  3318/2019
DELIVERED ON:  1 May 2020
DELIVERED AT:  Hobart
HEARING DATE:  24 April 2020
JUDGMENT OF:  Blow CJ, Brett J and Geason J

CATCHWORDS:

Appeal and New Trial – Procedure – Tasmania – Powers of Court – Other matters – Application made to strike out notice of appeal – Appeal from refusal of magistrate to disqualify himself – Where primary judge dismissed the appeal – Where appeal brought against that decision – Whether appeal has any merit – Whether notice of appeal should be struck out as frivolous and an abuse of process.

Aust Dig Appeal and New Trial [392]

REPRESENTATION:

Counsel:
             Appellant:  In person
             Respondent:  J Rudolf
Solicitors:
             Respondent:  Solicitor-General

Judgment Number: [2020] TASFC 1
Number of paragraphs: 33

Serial No 1/2020
File No 3318/2019

SVEN OLAF GUNNARSSON-WIENER v LYNDON ILES

REASONS FOR JUDGMENT FULL COURT

BLOW CJ
BRETT J
GEASON J
1 May 2020

Orders of the Court

Notice of appeal struck out.

Appeal dismissed.

Serial No 1/2020
File No 3318/2019

SVEN OLAF GUNNARSSON-WIENER v LYNDON ILES

REASONS FOR JUDGMENT FULL COURT

BLOW CJ
1 May 2020

In Launceston on 16 November 2018 a magistrate asked an unrepresented litigant whether he had children. The litigant replied, "Not that I know of, no." The magistrate laughed. Once. Briefly. The proceedings now before the Full Court relate to that laugh.
The learned magistrate, Mr K Stanton, was hearing an adjournment application in relation to a case about eight goats. The goats belonged to Sven Gunnarsson-Wiener, the appellant in the Full Court proceedings. The respondent in the Full Court proceedings is Lyndon Iles, an officer of the Department of Primary Industries, Parks, Water and Environment. In August 2017, acting as an officer appointed by the relevant Minister for the purposes of the Animal Welfare Act 1993, he issued several instructions to the appellant in relation to the goats pursuant to s 14 of that Act. On 30 August 2017 the appellant applied to the Administrative Appeals Division of the Magistrates Court under s 26B of that Act for a review of the respondent's decision to issue those instructions. On the day that he laughed, the learned magistrate was dealing with an application for an adjournment of the hearing of that review application. After the completion of submissions about the adjournment, the learned magistrate refused the adjournment application and the hearing proceeded. That was the second day of the hearing. It did not finish that day.
The hearing resumed on 20 March 2019. On that day the appellant made an application to the learned magistrate for him to disqualify himself on the ground of apprehended bias. That application was based solely on the fact that the learned magistrate had laughed during the adjournment application on 16 November. The appellant asserted that Ms Brooks, who was appearing as counsel for Mr Iles in the proceedings, had laughed first, and that the magistrate had laughed immediately after she did. He argued that, as a result, a fair-minded lay observer might reasonably apprehend that the magistrate might not bring an impartial mind to the resolution of the case before him. The disqualification application was refused.
The appellant appealed against that refusal. That appeal was heard by Wood J on 22 November 2019. Her Honour dismissed the appeal. The appellant appealed to the Full Court. The respondent has made an interlocutory application seeking orders for his notice of appeal to be struck out, and for the Full Court appeal to be summarily dismissed. The Full Court heard that interlocutory application on 24 April 2020. For the reasons stated below, I think that application should succeed.
The interlocutory application was filed on 21 January 2020. It listed four grounds upon which the respondent sought orders setting aside the notice of appeal and dismissing the appeal. At the hearing of the interlocutory application, counsel for the respondent abandoned one of those grounds, ground D, and sought leave to amend the interlocutory application in several respects. The appellant did not consent to the amendments. He said that he did not understand the implications of them, and was not in a position to get legal advice about them because of the COVID-19 pandemic. However the Full Court granted leave to amend as sought, reserving its reasons for granting leave for publication when the interlocutory application was determined. My reasons for joining in the decision to grant leave appear below.
The first amendment was to one of the orders sought by the interlocutory application. Initially the respondent sought an order for the notice of appeal to be "set aside". The order sought was amended by deleting "set aside" and substituting "struck out". Those two terms are practically synonymous. The appellant was therefore not prejudiced by that amendment.
The respondent provided a marked up copy of the amended interlocutory application, showing the amendments that were sought. Words were added to ground A and deleted from ground C, and a ground E was added. The grounds of appeal, showing the amendments, and omitting ground D which was abandoned, were as follows:
"AThe Notice of Appeal is without merit and is incompetent because the grounds listed therein do not allege an error of law or fact.
BThe Notice of Appeal fails to comply with rule 657(4)(b) of the Supreme Court Rules 2000 (in that it fails to state specifically and concisely the grounds of appeal)
CThe grounds of the Notice of Appeal are scandalous (rule 258(1) of the Supreme Court Rules 2000) and/or show that the appeal is frivolous or vexatious (rule 259 of the Supreme Court Rules 2000).
Particulars
i Each of the grounds of appeal are almost entirely made up of opinion, comment, argument, suggestion or speculation which is irrelevant and do not allege an error of fact or law.
ii Each of the grounds of appeal make unfounded suggestions of mala fides on the part of various persons, and/or unnecessarily impugns the character of various persons.
D...
EFor the reasons stated in Grounds A – C, the Notice of Appeal is an abuse of process."
Ground A was amended to assert that the notice of appeal was without merit. Before the amendment, ground C already alleged that the grounds of the notice of appeal showed that the appeal was frivolous. When the word "frivolous" is used to describe a court proceeding, it means that the claim made in that proceeding is so obviously untenable that it cannot possibly succeed: Burton v Shire of Bairnsdale (1908) 7 CLR 76 at 92; Pridmore v Magenta Nominees Pty Ltd [1999] FCA 152, 161 ALR 458 at [24]; Von Stalheim v Anti Discrimination Tribunal [2009] TASSC 6 at [9]. By amending the interlocutory application to assert that the notice of appeal was "without merit", the respondent was therefore not making a new assertion. The appellant was therefore not prejudiced by that amendment.
Ground C was amended by deleting references to rr 258(1) and 259 of the Supreme Court Rules 2000. Those rules apply only to pleadings. A notice of appeal is not a pleading. A pleading, as referred to in those two rules, is a document filed in an action commenced by writ, in which a party sets out the grounds of its claim or its defence. A notice of appeal is something different. It was therefore appropriate to delete the references to the two rules. Although rr 258 and 259 do not apply to a notice of appeal, this Court has power under its inherent jurisdiction to strike out a notice of appeal on the ground that it is frivolous, vexatious, scandalous, or an abuse of the process of the Court, and its powers are exercised on precisely the same basis as if those rules applied to notices of appeal: Burgess v Stafford Hotel Ltd [1990] 3 All ER 222; von Risefer v Permanent Trustee Co Pty Ltd [2005] QCA 109. The deletion of the references to the inapplicable rules did not disadvantage the appellant since he had been on notice for some three months that the respondent contended that his notice of appeal was scandalous, frivolous and vexatious.
The addition of ground E did not disadvantage the appellant since he had been on notice for some three months of the respondent's application to have his appeal summarily dismissed on grounds that remained substantially unchanged since the filing of the interlocutory application.
The amendments did not change the respondent's contentions in any substantial way. There was nothing inappropriate about any of the amendments. The appellant had reasonable notice of them. He was not disadvantaged in his opposition to the interlocutory application by any of them. Having regard to those circumstances, I considered that the only appropriate course was to grant leave to amend the interlocutory application as sought.
The appellant's so-called grounds of appeal are five in number. They extend over several pages of his notice of appeal. They touch on all sorts of subjects, including the following:
·     Alleged bias on the part of administrative officers of the Supreme Court.
·     Alleged bias on the part of Holt AsJ.
·     Counsel for Mr Iles wanting to leave the Magistrates Court early on the first day of the hearing.
·     The fact that Wood J once worked in the office of the Director of Public Prosecutions.
·     An allegation that Wood J was trying to protect Ms Brooks.
·     An assertion that serious questions might arise regarding the fitness of Ms Brooks.
·     The chances of Wood J becoming Tasmania's next Chief Justice and Lieutenant Governor.
·     A comment by Wood J to the effect that she was not interested in the appellant's assertion that he had instituted a private prosecution against the magistrate.
·     The logistics of such a private prosecution.
·     Speculation that the magistrate could one day support his children by providing information to the media about what he had seen during his legal career.
·     A grievance about Wood J not having published her decision.
·     The appellant's standing as a political figure.
·     The appellant's implied right to freedom of political communication.
·     The absence of evidence as to the authenticity of an audio CD from the Magistrates Court that was played during the hearing before Wood J.
·     The fact that Wood J did not allow the appellant to give oral evidence before her.
·     An alleged improper political motive on the part of the Department of Primary Industries, Parks, Water and Environment.
Rule 657(4) of the Supreme Court Rules applies to appeals from a single judge to the Full Court. That subrule reads as follows:
"(4) The notice of appeal is to state ¾
(a) the part of the judgment that is being appealed; and
(b) specifically and concisely the grounds of appeal; and
(c) what judgment is sought."
The appellant's notice of appeal does not comply with r 657(4)(b) as it does not specifically and concisely state the grounds of appeal. Under r 14(1)(a), this Court has the power to order that any proceedings that do not comply with the Supreme Court Rules be set aside, either wholly or in part. Because of the non-compliance with r 657(4)(b), the Court therefore has a discretion to order that the notice of appeal be wholly set aside.
If any contention in the grounds of appeal had any merit, that fact would weigh against the setting aside of the notice of appeal. However, for the reasons stated below, it is clear that none of the appellant's contentions have any merit.
Ground 1 of the grounds of appeal contains assertions that Wood J "showed bias towards protecting Ms Louise Brooks", and that "a perception of apprehended bias would arise in the mind of a fair-minded lay observer". The appellant is relying on both actual bias and apprehended bias. As to apprehended bias, a judge is disqualified if a fair-minded lay observer might reasonably apprehend that he or she might not bring an impartial mind to the resolution of a question that he or she is required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63, 205 CLR 337, per Gleeson CJ, McHugh, Gummow and Hayne JJ at [6].
The appellant contends that Ms Brooks laughed after he told the magistrate that he had no children that he knew of. For present purposes I will assume, without deciding, that she did. The appellant contends that the proceedings before the learned magistrate in relation to his goats were so serious that it was unprofessional of Ms Brooks to laugh when she did. He contends that Wood J dismissed his appeal because she wanted to protect Ms Brooks' reputation, or at least that a fair-minded lay observer might think that that might have been a motive for dismissing that appeal. He contends that Wood J had a reason to be biased because Ms Brooks is employed by the Crown, and her Honour once worked in the Office of the Director of Public Prosecutions. Because judges are appointed from the legal profession, it is very common for counsel to be well acquainted with a judge before whom he or she appears, or once to have worked in the same chambers or office as the judge. Such matters are not sufficient, without more, to give rise to a reasonable apprehension that the judge might not bring an impartial mind to the case that he or she has to decide: Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (1996) 65 FCR 215; Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272; Saxmere Company Ltd v Wood Board Disestablishment Company Ltd [2009] NZSC 72, [2010] 1 NZLR 35; Saxmere Company Ltd v Wood Board Disestablishment Company Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76. In the proceedings before Wood J, Ms Brooks was not appearing as counsel. There is nothing in the material before the Full Court to suggest that her Honour and Ms Brooks were friends, or even acquaintances. At worst, Ms Brooks has been accused of forgetting her good manners for a second or less. The idea that in such a situation a judge would or might decide a case otherwise than in accordance with her conscience, her duty, and her judicial oath is preposterous. Ground 1 has no merit at all.
Ground 2 concerns an assertion made by the appellant to Wood J that he had commenced a private criminal prosecution against the magistrate in relation to his conduct on the day of the laughter. Her Honour responded to that assertion by saying, "I am sorry. I am going to interrupt you. What I am concerned with here is an assertion of reasonable apprehension of bias in the laugh. Now, what steps you've taken in relation to that are completely beside the point." The appellant contends that her Honour should not have stopped him from talking about the asserted private prosecution, and that her conduct in stopping him would give rise to a reasonable apprehension of bias on the part of a fair-minded lay observer. I reject that. If the appellant has commenced a prosecution against the magistrate, and I am not saying that he has, that is irrelevant to the question whether the magistrate ever conducted himself in such a way that he should subsequently have disqualified himself. Her Honour was right to stop the appellant from telling her about the asserted private prosecution. Ground 2 has no merit.
Ground 3 concerns a grievance that, after dismissing the appeal from the magistrate, her Honour did not publish her reasons for that judgment. Apparently the appellant has stood for election to public office on past occasions and proposes to do so again. He contends that his prospective constituents should have been informed about the appeal that her Honour dismissed. Ground 3 must fail because the legislation that confers a right of appeal to the Full Court does not apply to decisions relating to the publication of a judgment.
The right to appeal to the Full Court from a decision of a single judge is conferred by s 40(1) of the Supreme Court Civil Procedure Act 1932. That subsection reads as follows:
"(1) Subject to the provisions of this Act, a Full Court shall have jurisdiction to hear and determine appeals from all judgments, orders, and other determinations (whether final or otherwise) given or made by a judge, whether sitting in court or in chambers, and if in court whether with or without a jury or an assessor or assessors, and if in chambers whether with or without an assessor or assessors, in any cause or matter (including any proceedings for or on, or in connection with an order of review under the Judicial Review Act 2000 or a writ of habeas corpus)."
In that subsection, the word "determination" relates to a judicial determination deciding a question that has been the subject of litigation between parties – a determination "in a cause or matter". If a judge decides not to publish on the internet the reasons given for a particular judgment, order or determination, as Wood J did, s 40(1) does not confer a right of appeal upon a litigant who would like the reasons published.
Ground 4 concerns a recording of the proceedings in the Magistrates Court that was played during the hearing before Wood J. Her Honour had a transcript of the proceedings in the lower court, but the transcribers recorded only words, not laughs or other noises. The appellant contended that Ms Brooks had laughed, but the respondent did not concede that. An audio recording of the proceedings had been provided with the transcript. Wood J had it played. Laughter from Ms Brooks was not heard. The appellant contends that the audio recording that was sent from the Magistrates Court to the Supreme Court had been corrupted. By ground 4, he contends that an audio CD should have been presented to the hearing before Wood J by a suitable officer of the Magistrates Court in order that "the veracity of the audio on the CD" might be questioned by him.
Ground 5 also relates to the audio recording. By ground 5, the appellant contends that Wood J should have permitted him to give oral evidence regarding the context of the laughter.
The appeal that came before Wood J was an appeal pursuant to s 47(2) of the Magistrates Court (Administrative Appeals Division) Act 2001. By virtue of that subsection, the appellant was entitled to appeal only on a question of law. Her Honour was required to determine whether, as a matter of law, the learned magistrate was required to disqualify himself. It is unusual, but not unheard of, for evidence to be given in appeals from magistrates. If it is appropriate for evidence to be given in such cases, the practice of the Court is to require it to be given by affidavit.
In her reasons for dismissing the appeal from the Magistrates Court, Wood J said the following:
"It is said by Mr Wiener that the recording has been altered and that the recording does not accurately reflect what could be heard and what he heard in the courtroom and that Ms Brooks laughed before the learned magistrate for three-quarters of a second. I observe that the disk of the recording is signed as a true copy of the court recording. There is no basis at all for Mr Wiener's allegation of alteration of the recording.
I have decided that there is no point allowing Mr Wiener the opportunity to go into evidence as to the accuracy of the recording or, as he alleges, the alteration of the recording. Even if Ms Brooks did laugh in that way I do not regard that as material. Her laugh could not be attributed to the magistrate. The magistrate's laugh, even if followed – even if it followed Ms Brooks' laugh, if that occurred, remained as I have described it; that is, the laugh of someone who is taken by surprise by a mildly humorous remark or a surprising, unexpected remark and seemingly in response to the appellant's attempt at humour regarding a matter extraneous to the evidence. Mr Wiener's perception that a fair-minded lay observer might reasonably apprehend that the magistrate might not bring an impartial mind to the resolution of the case is without any foundation. There was no error by the learned magistrate in not disqualifying himself, let alone an error of law. As I have said, the appeal is devoid of merit and I make an order dismissing the appeal."

If the appellant had been permitted to give oral evidence, or if steps had been taken to check on the reliability of the audio recording that was provided to the Court, the appellant's case could not have been any stronger. Wood J dismissed the appeal on the basis that, even if the facts about the laughter were as asserted by the appellant, that would not have led a fair-minded lay observer to apprehend that the magistrate might not bring an impartial mind to the resolution of the case that he was hearing. Proof that the facts were as asserted by the appellant could not have resulted in a more favourable outcome for him. It follows that grounds 4 and 5 have no merit.
None of the grounds of appeal have any merit. The appellant's contentions are so untenable that there is absolutely no prospect of his appeal succeeding. It can properly be characterised as frivolous. It should therefore be dismissed.
It is also significant that the notice of appeal contains scandalous material. There is an unfounded allegation of actual bias on the part of Wood J, and of an attempt by her to exonerate a legal practitioner of any wrongdoing. Ms Brooks' alleged laughter is described as "symptomatic of a state public service gone mad". There is an implicit suggestion that the learned magistrate committed a criminal offence, the details of which are unclear. There is speculation that the learned magistrate might cease to hold office as a result of a private prosecution. There is the unfounded allegation that somebody tampered with the audio recording from the Magistrates Court. There is an allegation that the stifling of the appellant's political communication seemed to have been an underlying motive of the Department of Primary Industries, Parks, Water and Environment. That scandalous material alone warrants the striking out of the notice of appeal. It provides a second reason for the appeal to be dismissed.
I need not reach a conclusion as to whether the appeal is vexatious, but I observe that the connection between the appellant's contentions and the primary dispute about the quality of his care for his goats in 2017 is tenuous at best. This appeal is a totally unmeritorious piece of "satellite litigation" that should never have been instituted.
For these reasons, I would strike out the notice of appeal and dismiss the appeal.

File No 3318/2019

SVEN OLAF GUNNARSSON-WIENER v LYNDON ILES

REASONS FOR JUDGMENT FULL COURT

BRETT J
1 May 2020

I agree with the Chief Justice that the notice of appeal should be struck out and the appeal dismissed. I agree with the reasons expressed by his Honour for that outcome. Further, his Honour's reasons for granting leave to the respondent to amend the application accurately reflect my reasons for joining in that order.

File No 3318/2019

SVEN OLAF GUNNARSSON-WIENER v LYNDON ILES

REASONS FOR JUDGMENT FULL COURT

GEASON J
1 May 2020

For the reasons given by the Chief Justice, I joined in the order granting the respondent leave to amend the interlocutory application to strike out the appeal.
I agree that the notice of appeal should be struck out and the appeal dismissed. I gratefully adopt his Honour's reasons for making those orders.