Gunnarsson-Wiener v West Tamar Council

[2022] TASSC 56

[2022] TASSC 56

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Gunnarsson-Wiener v West Tamar Council [2022] TASSC 56
PARTIES:	GUNNARSSON-WIENER, Sven Olaf
v
WEST TAMAR COUNCIL
FILE NO:	3074/2021
DELIVERED ON:	5 July 2022
DELIVERED AT:	Hobart
HEARING DATE:	14 June, 5 July 2022
JUDGMENT OF:	Wood J
CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Refusal to recuse on the

basis of apprehended bias – No error made.

Casimaty v Hazell Bros Group Pty Ltd [2021] TASSC 50, referred to.

Aust Dig Magistrates [1345]

REPRESENTATION:

Counsel:

Appellant:	In person
Respondent:	N Readett

Solicitors:

Respondent:  Simmons Wolfhagen

Judgment Number:	[2022] TASSC 56
Number of paragraphs:	13

Serial No 56/2022 File No 3074/2021

SVEN OLAF GUNNARSSON-WIENER v WEST TAMAR COUNCIL

EDITED REASONS DELIVERED ORALLY WOOD J
5 July 2022

1            The appellant has appealed a decision made by Magistrate Brown on 25 November 2021 not to recuse himself on the basis of apprehended bias.

2 The respondent served on the appellant an abatement notice dated 16 August 2021 pursuant to s 200 of the Local Government Act 1993. The notice concerned the number of animals and the way in which they were being housed and the manner in which hay and rubbish were being stored on a property at Swan Point. The appellant applied to the Magistrates Court (Administrative Appeals Division) to review the decision to issue the notice pursuant to s 17 of the Magistrates Court (Administrative Appeals Division) Act 2001.

3             During those proceedings before Magistrate Brown, on 25 November 2021, the appellant applied for an order that the learned magistrate recuse himself on the basis of apprehended bias. The foundation for that application arose from previous court proceedings concerning a restraint order application brought against the appellant that was not pressed and in particular, an order made by the learned magistrate on 22 March 2019 refusing the appellant's application for costs.

4             The learned magistrate decided not to recuse himself. Then, he dismissed the substantive application to review the issue of the abatement notice for the reason that the appeal regarding the abatement notice was out of time, noting the appellant had been given an opportunity to file an application to extend time and had not done so. The learned magistrate made an order that he had no jurisdiction to hear the appeal.

5             In declining to recuse himself, the learned magistrate made the following observations: the appellant's application for costs in relation to a restraining order matter was some two and a half years ago and while his Honour had no memory of it, he accepted what the appellant said as to how he had ruled on his application. He characterised the matter as one where he had refused an application of the appellant in unrelated proceedings where there was no matter of his credit and no matter which in any way had a bearing on the present proceedings. The learned magistrate concluded that the application was entirely without merit and could in no way induce the imputed apprehension in the mind of a fair-minded observer having a basic understanding of the judicial system.

6            The notice of appeal seeks to overturn the decision of the learned magistrate that he not recuse himself. Relevantly, the notice of appeal states:

"A fair-minded lay observer, knowing of the learned magistrate having refused the Appellant's March 2019 application for costs (details of which were emailed to the Launceston Magistrates Court Registry for filing in relation to M/2021/1488, on 8 November 2021), might reasonably apprehend that the learned magistrate might not bring an impartial and unprejudiced mind to the resolution of the question the learned magistrate is required to decide namely how to exercised discretion when making orders in relation to M/2021/1488 [Ebner v Official Trustee in Bankruptcy [2000] HCA 63]."

7   The principle concerning apprehended bias that must be applied is conveniently set out in

Casimaty v Hazell Bros Group Pty Ltd [2021] TASSC 50 at [8]:

2   No 56/2022

"The relevant principle is that 'a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide': Ebner v Official Trustee [2000] HCA 63, 205 CLR 337 at [6]; Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55, 229 CLR 577 at [110]; Charisteas v Charisteas [2021] HCA 29 at [11]."

8             The respondent's counsel, Mr Readett, pointed out in his submissions on this appeal, in fairness to the appellant, that the learned magistrate may have erred in refusing the application for costs in that a self-represented litigant may, in the exercise of the court's discretion, be entitled to their disbursements or out of pocket expenses. Once that had been pointed out, the appellant relied upon that "error" as showing bias towards self-represented litigants. However, there was no suggestion that the learned magistrate was conscious that out of pocket expenses had been incurred. His decision in refusing costs was made on the basis that the appellant did not have a lawyer and therefore had not incurred legal costs. An error of this kind, if made, would not suggest bias or provide any basis for an apprehension of bias. As stated by Blow CJ in Casimaty at [12]: "blundering by a judge is not of itself an indication of possible bias."

9             There was no error in the decision of the learned magistrate that he should not recuse himself. I can see no justification or basis for why a fair-minded lay observer might apprehend that the learned magistrate might not bring an impartial mind to the resolution of the review with respect to the abatement notice.

10           I go further and conclude that given the circumstances of the case, the learned magistrate was correct to refuse the application made on the basis of apprehended bias. It was lacking in foundation. There are compelling reasons why an assertion or allegation of bias which is lacking in foundation should not hold sway. Apposite is a quote from Mason J (as he then was) in JRL, ex parte CJL (1986) 161 CLR 342 at 352 referred to by Blow CJ in Casimaty at [14]:

"Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour."

11           As noted, once the learned magistrate ruled on the application that he recuse himself he dismissed the application as it was out of time. The respondent submitted before me that even if there was error in the refusal to recuse himself, the application before the magistrate had to be dismissed for another reason, which meant there can have been no substantial miscarriage of justice. The argument was that the Magistrates Court (Administrative Appeals Division) had no jurisdiction to hear the proceedings because the decision to issue the abatement notice was not a "reviewable decision" under the Magistrates Court (Administrative Appeals Division) Act. It was contended that the result of ss 10 and 17 of that Act is that the Magistrates Court (Administrative Appeals Division) does not have jurisdiction unless some other Act provides that the decision may be reviewed by the Court. It was pointed out that there was no such provision. Further, there is a discrete appeal mechanism to a magistrate with respect to abatement notices under s 200(5) of the Local Government Act and this is the correct pathway to appeal decisions to issue those notices.

12          That question of jurisdiction does not arise given the conclusion I have reached that because the learned magistrate did not err in refusing the recusal application the appeal should be dismissed.

13           The magistrate's order dismissing the application to review the abatement notice is not subject to appeal and will have effect now that this appeal is resolved. An order is made dismissing the appeal.