Gunnarsson-Wiener v West Tamar Council
[2022] TASSC 42
•24 June 2022
[2022] TASSC 42
COURT: SUPREME COURT OF TASMANIA
CITATION: Gunnarsson-Wiener v West Tamar Council [2022] TASSC 42
PARTIES: GUNNARSSON-WIENER, Sven
v
WEST TAMAR COUNCIL
FILE NO: 1519/2021
DELIVERED ON: 24 June 2022
DELIVERED AT: Hobart
HEARING DATE/S: 1, 16 February 2022
JUDGMENT OF: Brett J
CATCHWORDS:
Magistrates – Appeal and Review – Tasmania – Motion to Review – When remedy available – Whether complainant was "a person aggrieved" – Applicant director and shareholder of company which was the subject of an infringement notice – Held the applicant had standing to seek review of dismissal order.
Justices Act 1959, s 107.
McCarthy v Xiong (1993) 2 Tas R 290, considered.
Aust Dig Magistrates [1345]
REPRESENTATION:
Counsel:
Applicant: In person
Respondent: N Readett
Solicitors:
Respondent: Simmons Wolfhagen
Judgment Number: [2022] TASSC 42
Number of paragraphs: 14
Serial No 42/2022
File No 1519/2021
SVEN GUNNARSSON-WIENER v WEST TAMAR COUNCIL
REASONS FOR JUDGMENT BRETT J
24 JUNE 2022
Part 3 of the Monetary Penalties Enforcement Act 2005 (the Act) prescribes a process for the determination of infringement notices which are authorised in respect of offences prescribed by other legislation. The statutory scheme permits a person who wishes to dispute the notice to elect within a specified time to have the allegation determined by a court. If a person does not so elect, then the person is taken to have been convicted of the offence, and the Director, Monetary Penalties Enforcement Service, (the Director) can take action to enforce payment of the prescribed penalty. Enforcement proceedings commence with the issue of an enforcement order under s 44 of the Act. By s 40, a person who is taken to have been convicted of the offence because the person has not elected to have the matter determined by a court, nor has sought if permitted, to have the infringement notice withdrawn or varied, may apply to the Magistrates Court to have the conviction set aside or the total penalty varied.
The applicant is a director and secretary of two companies, Svea Estates (Vic) Pty Ltd and Denver Glen Pty Ltd. The respondent, a municipal council, had issued an infringement notice against each company in respect of offences under the Land Use and Planning and Approvals Act 1993. It appears from the material before me that neither company elected a court determination in respect of the respective notices. On 22 February 2021, an enforcement order was issued by the Director against each company. On 23 April 2021, an application was filed in the Magistrates Court by each company seeking to have the infringement notice penalty relevant to it set aside. Each application was signed by the applicant nominating himself as the "sole director/sole secretary" of the company. The application contained a notice to the applicant and the respondent to appear at 11.30 am on 7 June 2021 for the hearing.
Both applications came before Magistrate Cure at the nominated time and date. The respondent appeared by a representative. The applicant did not appear but the magistrate was informed that he had contacted the court that morning to advise that he had "got a flat tyre and his car has broken down". The respondent's representative informed the magistrate that the applicant "had contacted council and informed them that he was not going to participate today but didn't provide any other explanation". The magistrate invited the respondent's representative to apply to strike-out the applications and when that invitation was accepted, proceeded to do so. Her Honour's reasons were stated as follows:
"Yes well I am of that view and I will strike out the applications. I consider these applications and he – considering them on the papers they are don't meet the standard. Thank you. The applications are dismissed."
The applicant has now filed a notice of review in respect of the dismissal of each application. There is only one ground, and it is identical in respect of each notice. It asserts apprehended bias on the part of the magistrate. I set the ground out as follows:
"Sven Olaf Gunnarsson-Wiener is the sole Director, sole Secretary and majority shareholder of Svea Estates (Vic) Pty Ltd (ACN 007 144 783). Sven Olaf Gunnarsson-Wiener has standing in relation to Magistrates Court of Tasmania matter, M/70291/2021 which was heard by the learned Magistrate on 7 June 2021 whereupon the learned Magistrate decided to dismiss theM/70291/2021-associated Application-to-Set-Aside-or-Vary-Infringement-Notice-Penalty of SveaEstates (Vic) Pty Ltd.
On 26 October 2016 the learned Magistrate heard in the Launceston Court of Petty Sessions a complaint alleging the offence of Common Assault, made against a defendant then named in that Common Assault complaint as Sven Olaf Wiener whose formal legal name is and was then also, Sven Olaf Gunnarsson-Wiener, and who is the Appellant for this Notice of Review before the Supreme Court of Tasmania. The Appellant's date of birth is 27 October 1967 and the Appellant represented themselves on 26 October 2016 in defending against the complaint of Common Assault before the learned Magistrate.
In 2021, the Appellant swore a statutory declaration which formed an integral part of the Application-to-Set-Aside-or-Vary-Infringement-Notice-Penalty of Svea Estates (Vic) Pty Ltd and which application was dismissed by the learned Magistrate on 7 June 2021. The Appellant asserts that a fairminded lay observer might reasonably apprehend that the learned Magistrate might not have brought an impartial and unprejudiced mind to the resolution of the question of deciding whether to dismiss that Application-to-Set-Aside-or-Vary-Infringement-Notice-Penalty on 7 June 2021."
The respondent challenges each review on the basis that the applicant lacks standing, in that he is not a person aggrieved by the dismissal of the applications within the meaning of s 107 of the Justices Act 1959. Further, the respondent submits that the ground of review is not made out.
Person aggrieved
In McCarthy v Xiong (1993) 2 Tas R 290, the Full Court considered the meaning and effect of the phrase "a person who is aggrieved by an order of justices" as it appears in s 107 of the Justices Act. Each member of the Court (Green CJ, Underwood and Wright JJ) in separate reasons for judgment, endorsed the proposition that the phrase is not confined to the parties to the proceedings in which the order was made and can extend to any person who is "really and directly interested in the proceedings" per Green CJ quoting Day v Hunter [1964] VR 845. The interest adversely affected is not necessarily confined to legal rights or interests, nor is it necessary to demonstrate financial impact. As Green CJ said:
"Whether a party has a sufficient interest to give him standing to sue involves a curial assessment of 'the importance of the concern' which that party has with or the 'closeness' of his relationship with all his 'proximity to' the subject matter of the litigation.
In order to qualify as a 'person who is aggrieved' a person must show that his grievance is greater than or different from that which any member of the general public could claim to have as a result of the decision or order".
Underwood J noted that the order in the case before the Court "had no pecuniary effect on the respondent nor did it impinge upon any of his propriety rights". His Honour then observed that:
"Each case will turn upon its own facts, in particular terms of the orders in respect of which the review is sought. Whether or not a person is aggrieved will depend not only on the nature and the extent of the interest relied upon, but also the effect the impugned order has on that interest".
In this case, the impugned order had the effect of putting to an end the capacity of each company to challenge the infringement notice penalty imposed on it. In each case, the enforcement order issued against the respective company arising from the infringement notice sought payment of the sum of $12,734.60. ASIC searches which were admitted into evidence in the hearing before me demonstrate that at the relevant time the applicant was the sole director and secretary of each company, and was the owner of the overwhelming majority of shares in Svea Estates (Vic) Pty Ltd, which in turn held the overwhelming majority of shares in Denver Glen Pty Ltd. The only other shareholder was a person who held one ordinary share in each company. Finally, a purported statutory declaration which the applicant had filed with the application to the Magistrates Court, which was contained in the material which was before the magistrate, supports a close relationship between the applicant and the companies.
Counsel for the respondent submits that I am unable to find that the applicant is a "person who is aggrieved by" the dismissals, without examining in further detail the financial relationship between the applicant and the companies, and the personal impact on him of the enforcement of the infringement notice penalties against each company. I reject this submission. It is true that I am unable to determine that the applicant would incur any personal liability in respect of these financial liabilities, but that is not conclusive of this determination. Even if I assume that he will not incur such liability, it is clear that his close relationship with each company both in terms of the offices he holds in respect of them and his shareholding, establish a real and direct interest in their liability to meet the infringement notice penalty. His interest is direct and specific and goes well beyond that "which any member of the general public could claim to have as a result of the decision or order". The sum in each case is significant and if the penalty was incorrectly imposed, then the applicant would clearly have an interest in contesting the imposition of that penalty. I am satisfied that the applicant has in each case established his standing to seek a review of the magistrate's dismissal of the application.
The ground of review – apprehended bias
The ground in each case specifically asserts apprehended bias on the part of the magistrate, which arises from a fair minded observer's assumed knowledge of a case on 26 October 2016, when the same magistrate dismissed a complaint of common assault against the applicant. When I indicated to the applicant during the hearing that it was difficult to understand how a fair minded observer could apprehend bias against him in circumstances in which the magistrate had ruled in his favour in the earlier case, he explained that after the complaint was dismissed, he had made an application for costs, which was adjourned sine die, and which he has never sought to have re-listed. He argued that a fair minded observer might reason that the magistrate might take the view that his failure to attend the hearing was because he had no intention of pursuing the applications, and conclude that it was therefore easier for her to decide that she should proceed in his absence and dismiss these applications. It was argued that the fair minded observer's observation of the proceedings before the magistrate would also contribute to this conclusion. The particular aspects of the hearing relied upon by the applicant include:
·The transcript reveals that when the magistrate is discussing with the court clerk, the applicant's failure to appear, her Honour said "And we know this defendant". This was an isolated comment, without any further discussion or elaboration.
·Her Honour was provided with a non-appearance advice slip which clearly indicated that the applicant had provided information that his car had broken down and had a flat tyre and also provided a contact phone number and confirmed that he was able to attend by phone. Notwithstanding this, the magistrate proceeded in the applicant's absence, without attempting to contact him by telephone. She did not explain the decision not to make telephone contact.
The applicant submits that having regard to the combined effect of these circumstances, a fair minded observer would conclude that the magistrate has utilised her knowledge of his failure to re-list the 2016 case, and accepted the respondent's representatives assertion that the applicant had contacted the respondent that morning and advised that he did not intend to participate in the hearing.
I agree with the respondent's counsel that the applicant has not made out the ground of apprehended bias in either case. The applicant provided a statutory declaration with each application and the magistrate purported to consider that document before dismissing the application on its merits. It should be noted that under s 40(4) of the Monetary Penalties Enforcement Act, the court may set aside the conviction if satisfied that the offender has provided valid and relevant reasons for not electing to have the matter heard by a court within the time allowed by the infringement notice and has established a prima facie defence to the offences. A fair reading of the statutory declaration fails to reveal material that would establish either of these requirements. To establish the ground, the fair minded observer would need to have apprehended that the magistrate would not bring an impartial mind to her consideration of this material and her decision to proceed on that material without giving the applicant a further opportunity to attend. It should also be taken into account that the non-appearance advice slip that was provided to the magistrate did not request an adjournment and in fact indicated that the applicant had been informed to call back for the outcome. The clerk who took the call from the applicant and prepared the non-appearance advice slip gave evidence on the hearing of the motions. It was not suggested to her by the applicant that he had requested an adjournment. The only suggestion seems to have been that he was able to attend by telephone and it was that box that was ticked on the advice slip.
In my view, it would be impossible for a fair minded lay observer to apprehend bias on the part of the magistrate having regard to her Honour's conduct of the proceedings on the relevant day and her conduct of the 2016 case. As I pointed out to the applicant, it is highly improbable that the magistrate would have taken any further interest in the costs application, as it was adjourned sine die and not re-listed before her. It simply would not have been brought to her Honour's attention and a fair minded observer should be taken to have been aware of this probability. Reasonable minds might differ on whether or not it would have been prudent for her Honour to have attempted to make contact with the applicant by telephone, but an error in the exercise of her Honour's discretion in that respect was not the subject of a ground of review. By s 108 of the Justices Act, the applicant is held to the grounds of review contained in the notice. In any event, there was no evidence or suggestion before me that even if he had spoken to the magistrate by telephone, there was anything more that he could have said which would add to what was contained in his statutory declaration. As I have already noted, this material did not support the application. Accordingly, the mere fact that her Honour has proceeded to deal with the matter in the absence of the applicant does not give rise to an apprehension of bias.
My conclusion is that the ground of review in each case has not been made out. The motions are dismissed.
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