Harradine v Srisakhorn - [2020] SADC 130

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
HARRADINE v SRISAKHORN
[2020] SADC 130
Reasons for Decision of His Honour Judge O'Sullivan
15 September 2020
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS - ACTIONS TO REVIEW OR SET ASIDE JUDGMENT OR ORDER - GENERALLY
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - GENERALLY - WHAT CONSTITUTES JUDGMENT OR ORDER
The applicant commenced a minor civil action against the respondent in the Magistrates Court for damages in the sum of $12,000 for psychological injury. At the end of the first directions hearing in the matter, the applicant made an oral application that the Magistrate recuse herself on the grounds of apprehended bias.
On 3 July 2020 the Magistrate dismissed the oral application and delivered reasons for declining to recuse herself.
The applicant seeks a review of that ruling pursuant to s 38(6) of the Magistrates Court Act 1991.
By interlocutory application, the applicant also seeks an order that this Court reserve a question of law for determination by the Full Court of the Supreme Court, namely ‘is the Magistrate’s refusal on 3 July 2020 to recuse herself a ‘judgment’ within the meaning of s 38(6) of the Magistrates Court Act 1991?’.
Held:
1. The bare ruling by the Magistrate declining to recuse herself is not a ‘judgment’ within the meaning of s38(6) of the Magistrates Court Act 1991 such that the application for review is not competent.
2. The application for review of the Magistrate’s refusal to recuse herself is dismissed.
3. The application to reserve a question of law for determination by the Full Court is dismissed.
Magistrates Court Act 1991 (SA) s 38(6), (7), (9); District Court Act 1991 (SA) s 3, s 43, referred to.
Stone v Moore [2015] SASC 46; R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Southern Equities Corporation Limited & Ors v Bond & Ors (2000) 78 SASR 339; Van Reesema v Police [2009] SASC 8; Harradine v District Court of South Australia [2012] SASC 96; Director of Public Prosecutions v Cassell & Anor [1995] NSWSC 113, [1995] NSWSC 81; Cassell v Director of Public Prosecutions [1995] HCATrans 392, considered.

HARRADINE v SRISAKHORN
[2020] SADC 130
Introduction

By notice of review filed 10 July 2020,[1] Brendan Conway Harradine (“the applicant”) seeks a review of a ruling by a Magistrate on 3 July 2020, in which her Honour declined to recuse herself from hearing a minor civil action on the ground of apprehended bias.
[1] FDN1.
The applicant brings the application on the grounds that in all the circumstances, the applicant or a fair-minded observer might entertain a reasonable apprehension that the Magistrate might not bring an impartial and unprejudiced mind to the resolution of the applicant’s minor civil action and/or the questions involved in it.
Three issues arise:
1Is the application for review against the Magistrate’s ruling competent?
2If so, was the Magistrate correct in refusing to recuse herself?
3Whether this Court should reserve a question of law for determination by the Full Court of the Supreme Court as to whether the Magistrate’s ruling whereby she refused to recuse herself is a “judgment” within the meaning of s 38(6) of the Magistrates Court Act 1991.
Background
The applicant and Jirada Srisakhorn (“the respondent”) were married in or about September 2009 and separated in May 2013. At the conclusion of a trial in the Family Court held last year, the Court made orders as to the living arrangements of their now 10-year-old son.
The applicant commenced a minor civil action against the respondent in the Magistrates Court on 7 May 2020, in which he claims damages in the sum of $12,000 for psychological injury. It is this minor civil action to which this review relates.
A first directions hearing was held before the learned Magistrate on 30 June 2020. At the end of that hearing, the applicant made an oral application that the Magistrate recuse herself on the ground of apprehended bias. The applicant relied on comments made by the Magistrate that applicant’s claim “smacks of a bit of a vendetta”. The respondent opposed the application.
On 3 July 2020, the Magistrate handed down her reasons, dismissing the oral application and declining to recuse herself.
The applicant now seeks a review of the Magistrate’s ruling pursuant to s 38(6) of the Magistrates Court Act 1991.
On 15 July 2020,[2] the applicant issued an interlocutory application seeking an order that this Court reserve a question of law for determination by the Full Court of the Supreme Court, namely ‘is the Magistrate’s refusal of 3 July 2020 to recuse herself a “judgment” within the meaning of s 38(6) of the Magistrates Court Act 1991?’. On 6 August 2020, a Judge of this Court dismissed the applicant’s interlocutory application.
[2] FDN3.
Application for review of Magistrate’s decision
The first issue is whether the learned Magistrate’s ruling is amenable to review pursuant to s 38(6) of the Magistrates Court Act 1991 (SA). The second issue is, in the event that the appeal is competent, whether the Magistrate was correct in refusing to recuse herself.
I informed the applicant at the hearing, that the second issue is contingent on the first and that the applicant would first have to satisfy me his application for review of the Magistrate’s decision was competent.
After hearing the applicant on the issue of whether the application was competent, I informed the applicant that I considered the application for review was not competent and would publish my reasons. These are those reasons.
Since I was of the view that the application for review was not competent, I did not hear submissions from the applicant on the second issue.
Legal Principles
Section 38(6) of the Magistrates Court Act 1991 provides:
The District Court (constituted of a single Judge) may, on the application of a party dissatisfied with a judgment given in a minor civil action, review the matter.
Section 3 of the Magistrates Court Act 1991 defines ‘judgment’ as ‘a judgment, order or decision and includes an interlocutory judgment’.
Section 3 of the District Court Act 1991 defines ‘judgment’ as ‘a judgment, order or decision and includes an interlocutory judgment or order’.
In Stone v Moore,[3] Nicholson J considered the question of whether a bare refusal to recuse is appellable. In that case, the appeal was against a District Court Judge’s refusal to recuse himself from continuing to hear a civil trial on the ground of apprehended bias. In considering the matter, Nicholson J referred to the definition of ‘judgment’ contained in the District Court Act 1991, which is in similar, but not identical terms to that in the Magistrates Court Act 1991.
[3] [2015] SASC 46.
Nicholson J’s judgment in Stone v Moore centres around s 43 of the District Court Act 1991 as opposed to a minor civil review, however the principles are equally applicable.
His Honour considered a number of authorities including R v Watson; Ex parte Armstrong[4] where the High Court held that in the case of a Family Court matter, a judge’s rejection of an application to recuse himself could not form the basis of an appeal.
[4] (1976) 136 CLR 248.
His Honour also referred to authorities where Watson; Ex parte Armstrong was considered including Southern Equities Corporation Limited & Ors v Bond & Ors.[5]In that matter, although no point was raised as to the competency of an appeal against the dismissal of separate applications that the trial judge disqualify himself from further hearing any proceedings in the matter, nonetheless Olsson J by way of obiter provided a summary of the relevant law:
…Had this been a purported appeal against a bare refusal by a trial judge to recuse himself, I would have been constrained to adhere to the reasoning expressed by me in Kapetanos & Anor v Selig & Ors (1984) 37 SASR 493, which was based on what fell from the High Court in R v Watson: Ex parte Armstrong (1976) 136 CLR 248 at 266 and derives support from Barton & Anor v Walker & Anor (1979) 2 NSWLR 740, Nicholson v Griffiths (1988) 143 LSJS 204 at 210 and a dictum of Doyle CJ in the recent case of IOOF Australia Trustees Ltd v Seas Sapfor Forests & Ors [1999] SASC 249 (“IOOF”). With the greatest respect, I perceive nothing in Brooks v The Upjohn Company & Ors (1998) 156 ALR 622 or Australian National Industries Ltd v Spedley Securities Ltd (In Liq) (1992) 26 NSWLR 411 (“Spedley”) which convincingly impugns that reasoning.
In Spedley (at 437) Mahoney JA expressed the view that Barton v Walker was properly decided. However, he was able to distinguish it by reason of the fact that, in the case then under consideration, the appeal was founded on a decision to refuse an application that the action not be listed before the judge in question and that the trial date be vacated. As Doyle CJ pointed out in IOOF, it is clear that, if some order is made by a Judge before an action is finally disposed of, a complaint of bias may properly be raised in connection with an appeal against the relevant order (Rajski v Wood & Ors (1989) 18 NSWLR 512 at 518, Gas & Fuel Corporation Superannuation Fund & Ors v Saunders & Anor (1994) 123 ALR 323 at 337).
To employ the words of the Chief Justice, the authorities establish the principle that, if there is an appeal properly before the Court, albeit before the final disposition of the case, it must be open to the appellant to argue, in support of that appeal, any ground that could be argued had the ground of appeal been taken at the conclusion of the case, rather than during it…
[5] (2000) 78 SASR 339.
In Van Reesema v Police[6] Bleby J said:[7]
[6] [2009] SASC 8.
[7] Ibid, [27].
“Section 42 of the Magistrates Court Act 1991(SA) creates a right of appeal against “any judgment” of a magistrate in a criminal action. “Judgment” is defined in s 3:
judgment means a judgment, order or decision and includes an interlocutory judgment or order.
Not all decisions made by a magistrate will fall within the definition of “judgment” for the purposes of s 42. It is necessary to distinguish between, on the one hand, interlocutory orders or judgments and, on the other hand, rulings made in the course of a trial. Rulings made in the course of a trial are not judgments and, thus, no appeal lies under s 42 of the Magistrates Court Act against such a ruling, even with leave. If a litigant is dissatisfied with a ruling made in the course of a trial and is dissatisfied with the judgment at the conclusion of a trial, the only redress is to appeal against the judgment, alleging as a ground of appeal, the error in the ruling.
The question of what constitutes a “judgment” or “order” was considered by the Full Court in Legal Practitioners Complaints Committee v A Practitioner. King CJ said:
A judgment or order is a judicial act which decides the question or one of the questions which is raised for decision in the particular proceedings then before the court or judge. The question decided may be the substantive question or one of the substantive questions raised in the action; or it may be the question or one of the questions raised in interlocutory proceedings taken in the course of the progress of the action. Judgments and orders on the one hand are to be distinguished from incidental rulings given in the course of hearing and determining such questions. Examples of such incidental rulings are those which relate to adjournments, the time and place of hearing, admissibility of evidence and the exclusion or otherwise of witnesses from the hearing, as well as decisions upon submissions as to matters of fact, law or procedure made during the course of a hearing.
Whether a decision is an incidental ruling or an order depends largely on the context in which the decision is made. It is therefore necessary to consider each of the decisions appealed against to determine whether each is an incidental ruling or an interlocutory judgment.
On 3 September 2007, the Magistrate disqualified himself from hearing the trial because he had heard the pre-trial matters. Neither the respondent nor the appellant requested the Magistrate to disqualify himself. The Magistrate elected to do so out of an abundance of caution. However, on the day the trial was to begin, no other magistrate was available to hear the matter. Rather than having the trial date lost, the Magistrate commenced to hear the matter. At no stage since then has either party applied for the Magistrate to disqualify himself from hearing the trial.
I therefore consider that there has been no decision at all from which it is possible to appeal. The appeal in relation to this issue is incompetent.
In any event, even if there had been a formal decision of the Magistrate not to disqualify himself, that would not constitute an interlocutory judgment or order. It would be an incidental ruling given in the course of the hearing and could not be appealable at that stage. In R v Watson; ex parte Armstrong a majority of the High Court held that a judge who continues to sit after having been asked to disqualify himself does not make a “decree, judgment or order”, and therefore no appeal lies until after final judgment. That does not mean to say that, in an appropriate case, judicial review proceedings could not be brought at any time.
Having considered the authorities, Nicholson J concluded:
To this point, I would be constrained by authority and, in my view principle, to find the appeal against the Judge’s bare refusal to recuse himself to be incompetent. I say as a matter of principle because in my view the terms of the right of appeal under section 43 of the District Court Act are in materially the same terms as those considered in the authorities referred to above. In this respect, I do not think that the presence of the word “decision” in the definition of “judgment” in section 3 of the District Court Act makes any difference.
Whether the application is competent
The authorities to which I have referred concern appeals, whereas this application concerns a review.
A review under s 38(6) of the Magistrates Court Act 1991, is not an appeal in the strict sense and s 38(7) makes it clear that the District Court conducts an inquiry in the same manner as that carried out by the Magistrates Court in accordance with s 38(1). Such a process is broadly inquisitorial and not adversarial.[8]
[8] Harradine v District Court of SA [2012] SASC 967.
In Harradine v District Court of South Australia[9] Blue J noted the intention of Parliament to develop a simple system whereby persons with small claims are given the opportunity to bring them to court using a method that is both less thorough and less expensive.[10] His Honour also emphasised the inquisitorial nature of trials of minor civil actions, stating that the Magistrate has an obligation to ‘inquire actively into the facts and issues’ of the trial, rather than the onus resting on the parties themselves.[11]
[9] [2012] SASC 96.
[10] Ibid, [44].
[11] Ibid, [49].
I do not consider that the difference between an appeal and a review under s 38(6) of the Magistrates Court Act 1991 makes the authorities to which I have referred distinguishable.
I note further that the authorities Nicholson J referred to in Stone v Moore generally deal with rulings during the course of trial. That is not the case here but once again in the circumstances I do not consider anything turns on that and it is still a bare ruling in relation to an application to recuse.
Applicant’s submissions
In his submissions, Mr Harradine sought to make a point of the difference between the two definitions of “judgment” in the District Court Act 1991 and the Magistrates Court Act 1991. I do not consider that for the purposes of this matter anything turns on that difference.
The applicant referred to Stone v Moore,[12] and submits that a review of the Magistrate’s refusal to recuse herself on the ground of apprehended bias from the further hearing of the matter is a judgment within the definition in s 3 of the Magistrates Court Act 1991.
[12] [2015] SASC 46.
I do not accept the applicant’s submissions. Nicholson J in Stone v Moore specifically referred to the definitions of the word ‘judgment’ in both the District Court Act 1991 and Magistrates Court Act 1991. Although the discussion centred around s 43 which concerned an appeal as opposed to a minor civil review, the principles are the same.
I consider that the Magistrates ruling, which is a bare ruling in the sense it was not accompanied by any other order, is not a ‘judgment’ within the meaning of s 38(6) of the Magistrates Court Act 1991 and therefore not amenable to review. Accordingly, I dismiss the applicant’s application to set aside the Magistrate’s refusal to recuse herself.
Application to reserve question of law for determination by the Full Court
By interlocutory application filed 15 July 2020,[13] the applicant sought an order that this Court reserve a question of law for determination by the Full Court of the Supreme Court, namely: ‘Is the Magistrate’s refusal of 3 July 2020 to recuse herself a “judgment” within the meaning of s 38(6) of the Magistrates Court Act 1991?’.
[13] FDN3.
The interlocutory application was heard before her Honour Judge Fuller on 6 August 2020. Her Honour refused the application.
Although acknowledging her Honour’s order refusing the application, the applicant submits that her Honour had stated at the hearing that his application to reserve a question of law was premature and was a matter for the judge hearing the review.
Upon review of the transcript, I am satisfied that her Honour made those comments.[14]
[14] See T18.33-19.9.
I initially indicated to the applicant that because this issue had already been decided by her Honour Judge Fuller, I would not consider it again however as the matter progressed it became apparent it was appropriate to reconsider the interlocutory application. As part of his submissions the applicant pressed the issue and submits that the Court has the power to refer the matter to the Full Court under s 38(9) of the Magistrates Court Act. Section 38(9) provides:
However, the District Court may reserve a question of law arising in a review for determination by the Full Court of the Supreme Court which may determine the question and make any consequential orders or directions appropriate to the circumstances of the case.
The applicant submits further that the orders of her Honour Judge Fuller are not binding on me.
The applicant referred me to Director of Public Prosecutions v Cassell & Anor[15] and Cassell v Director of Public Prosecutions[16] and submits that in these matters the Court held that if the question of law is not vexatious or frivolous, then it ought to be decided by the Full Court.
[15] [1995] NSWSC 113, [1995] NSWSC 81.
[16] [1995] HCATrans 392.
The applicant submits in light of Cassell and Stone v Moore,[17] as well as her Honour Judge Fuller’s intimation that the application was premature, the question of law should be referred to the Full Court of the Supreme Court pursuant to s 38(9) of the Magistrates Court Act.
[17] [2015] SASC 46.
Notwithstanding my initial indication to the applicant, I have considered whether or not I should reserve a question of law to the Full Court in the terms proposed by the applicant and have taken the applicant’s submissions into account. In view of the authorities I have set out and Nicholson J’s observation in Stone v Moore, I do not consider it appropriate to reserve a question of law to the Full Court and I dismiss the applicant’s interlocutory application.
Whether the Magistrates should have recused herself

In view of my finding that the application for review is not competent, this question does not arise.
Additional Procedural Matters
The applicant seeks two procedural orders.
I indicated to the applicant at the hearing of the review that these procedural matters should be dealt with by the Magistrate’s Court.
Conclusion and Orders
1I dismiss the application for review of the Magistrate’s refusal to recuse herself.
2I dismiss the applicant’s interlocutory application for an order reserving a question of law for determination by the Full Court of the Supreme Court.