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…

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: [2020] TASFC 1
Decision Date: 1 May 2020

CaseChat Overview and Summary

An appeal was brought before the Full Court of the Supreme Court of Tasmania by the applicant, Gunnarsson-Wiener, against a decision of a primary judge who had dismissed an appeal from a magistrate's refusal to disqualify himself. The respondent was Iles. The application before the Full Court was to strike out the notice of appeal.

The central legal issues before the Full Court were whether the appeal had any merit and, consequently, whether the notice of appeal should be struck out as frivolous and an abuse of process. This required the Court to consider the nature of the appeal from the magistrate's refusal and the subsequent dismissal by the primary judge, and to assess whether there were any arguable grounds for further appeal.

The Court reasoned that the appeal from the magistrate's refusal to disqualify himself was, in essence, an appeal against a procedural decision made by the magistrate. The primary judge had already considered and dismissed the appeal against this procedural decision. The Full Court found that there was no arguable basis upon which the primary judge's decision could be overturned. The grounds of appeal raised by the applicant were considered to be without merit, and the appeal was deemed to be an abuse of process.

The Full Court ordered that the notice of appeal be struck out.

Orders