Harradine v The Magistrates Court of South Australia
[2021] SASCA 16
•26 March 2021
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
HARRADINE v THE MAGISTRATES COURT OF SOUTH AUSTRALIA
[2021] SASCA 16
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Doyle and the Honourable Justice Bleby)
26 March 2021
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GENERALLY
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - BIAS - APPREHENSION OF BIAS
COURTS AND JUDGES - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - REASONABLE APPREHENSION OF BIAS GENERALLY
The appellant commenced a Minor Civil Claim in the Magistrates Court seeking damages for intentional infliction of psychiatric harm. He alleges that his ex-wife made false allegations of rape against him. At a Directions Hearing in the Magistrates Court, the Magistrate explored possible avenues of settlement with the parties. Following remarks made by the Magistrate at the hearing, the appellant applied for the Magistrate to recuse herself due to a reasonable apprehension of bias. The Magistrate refused. The appellant sought judicial review of that decision in the Supreme Court before a single judge. The judge refused the application. The appellant appeals that decision.
Held, per Lovell JA (Doyle and Bleby JJA agreeing) allowing the appeal, setting aside the order of the Magistrate and the order of Livesey J and remitting the matter to the Magistrates Court to be determined by a different Magistrate:
1. A fair-minded lay observer might reasonably apprehend that the Magistrate might not bring an impartial and independent mind to the fair resolution of the issues to be decided.
Crown Proceedings Act 1992 (SA) s 9; Magistrates Court Act 1991 (SA) s 38, referred to.
Attorney-General (SA) v Marmanidis [2019] SASCFC 3; CNY17 v Minister for Immigration (2019) 94 ALJR 140; Commissioner of Taxation v Cancer and Bowel Research Association (2013) 305 ALR 534; Commissioner of Taxation of the Commonwealth of Australia v Futuris Corporation Ltd (2008) 237 CLR 146; Craig v Workers Compensation Tribunal (2004) 90 SASR 490; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Harradine v S [2020] SADC 130; Isbester v Knox City Council (2015) 255 CLR 135; Kirk v Industrial Court (NSW) (2010) 239 CLR 531; RE JRL; Ex parte CJL (1986) 161 CLR 342; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; Webb v The Queen (1994) 181 CLR 41; Wilczynski v District Court of South Australia [2016] SASC 51, considered.
HARRADINE v THE MAGISTRATES COURT OF SOUTH AUSTRALIA
[2021] SASCA 16
Court of Appeal – Civil: Lovell, Doyle and Bleby JJA
LOVELL JA:
Overview
Mr Harradine (the appellant) has commenced a Minor Civil Action against his ex-wife (the first interested party) seeking damages for intentional infliction of psychiatric harm. At a Directions Hearing in the Adelaide Magistrates Court, the Magistrate, who was listing the matter for hearing, explored with the parties possible settlement of the action. Because of remarks made by the Magistrate, the appellant applied for the Magistrate to recuse herself from further hearing the matter due to a reasonable apprehension of bias. The Magistrate refused to recuse herself. The appellant sought judicial review of that decision. Livesey J dismissed the application. The appellant has appealed the decision of Livesey J.
Background
The background is not in dispute. The appellant lodged a Minor Civil Claim against his ex-wife seeking damages for intentional infliction of psychiatric harm. The statement of claim alleges that the appellant’s ex-wife made false allegations of rape against him leading to him (amongst other things) being arrested and spending a short time in custody, losing his job, being denied access to his child and suffering a psychological injury. The appellant claimed damages but, by issuing the claim in the Minor Civil Claims jurisdiction, the amount that could be awarded is capped. The appellant also sought an extension of time in which to bring the proceedings.
On 30 June 2020, the appellant attended the First Directions Hearing before the Magistrate in the Adelaide Magistrates Court. The Magistrate was required by s 38(2) of the Magistrates Court Act1991 (SA) (“the Act”) to explore possible avenues of achieving a negotiated settlement of the matters in dispute. The Magistrate embarked on that course.
The Directions Hearing was recorded and a transcript of what occurred tendered on appeal. Self-evidently there is no dispute about what was said during the Direction Hearing. During the Directions Hearing the Magistrate said of the proceedings: “they do smack a bit of a vendetta”.
She immediately apologised and resiled from her use of that expression. The Magistrate continued to discuss the claim and the reason(s) why Mr Harradine wanted to pursue it. She discussed with Mr Harradine the difficulties he may face obtaining an extension of time in which to bring his proceedings and also difficulties he may face proving his claim. The appellant developed an apprehension that the Magistrate was biased against him and might not bring an impartial and unprejudiced mind to the resolution of the claim. He applied to the Magistrate that she recuse herself due to there existing a “reasonable apprehension of bias” as a result of her remarks.
The Magistrate considered the application on 3 July 2020 and refused to recuse herself.
The Magistrate noted in her reasons that the matter was a Minor Civil Action and thus governed by s 38 of the Act. The section envisages a proactive role by the Court at a trial of a Minor Civil Action, including conducting an enquiry into the issues for determination at trial. She noted that s 38(2) obliged her at or before the trial to explore possible avenues of achieving a negotiated settlement of the matters in dispute.
The appellant sought judicial review of the Magistrate’s decision. The ground of review was:
In all the circumstances the appellant (or a fair-minded observer) might entertain a reasonable apprehension that the Learned Special Magistrate might not bring an impartial and unprejudiced mind to the resolution of the appellant’s Minor Civil Action and, or the questions involved in it.
Before Livesey J, the Attorney-General for the state of South Australia applied for permission to intervene, pursuant to s 9(2)(c) of the Crown Proceedings Act 1992 (SA), so as to assist the court as contradictor. Leave was granted.
Livesey J heard the matter on 19 October 2020 and on that date delivered ex tempore reasons dismissing the application. The appellant appeals from that decision.
Legal principles
Minor Civil Actions are governed by s 38 of the Act. It relevantly states:
38—Minor civil actions
(1) The following provisions are applicable to the trial of a minor civil action:
(a)the trial will take the form of an inquiry by the Court into the matters in dispute between the parties rather than an adversarial contest between the parties;
(b)the Court will itself elicit by inquiry from the parties and the witnesses, and by examination of evidentiary material produced to the Court, the issues in dispute and the facts necessary to decide those issues;
(c) the Court may itself call and examine witnesses;
(d) the parties are not bound by written pleadings;
(e) the Court is not bound by the rules of evidence;
(f)the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(2) At or before the trial of a minor civil action, the Court should explore any possible avenues of achieving a negotiated settlement of the matters in dispute.
(3) After giving judgment in a minor civil action, the Court—
(a)should advise the unsuccessful party of his or her right to apply for review of the proceedings by the District Court; and
(b)should give the successful party any advice or assistance as to the enforcement of the judgment that the Court considers appropriate in the circumstances; and
(c)if there is a judgment debtor who is present, should proceed immediately to investigate his or her means of satisfying the judgment and to take any further action that appears appropriate in view of the results of that investigation.
(4) The following provisions govern representation in minor civil actions:
(a)representation of a party by a legal practitioner will not be permitted unless—
(i) another party to the action is a legal practitioner; or
(ii) all parties to the action agree; or
(iii)the Court is of the opinion that the party would be unfairly disadvantaged if not represented by a legal practitioner;
(ab) …
It is important to observe that proceedings in the Minor Civil Claims jurisdiction are not adversarial but an inquiry where the Court has a wide range of powers. A Magistrate can call and examine witnesses, is not bound by the pleading and is not bound by the rules of evidence. Further, s 38(2) directs the Magistrate to “explore any possible avenues of achieving a negotiated settlement of the matters in dispute”. That is not a direction to settle the matter; it is a direction to explore a possible “negotiated” settlement.
The Directions Hearing conducted by the Magistrate needs to be viewed in its legislative context.
It is also important to understand the rights of appeal from a Magistrate’s decision in this jurisdiction. The rights of, and on, appeal are contained in
s 38 (6)-(8) of the Act. They relevantly state:38—Minor civil actions
(6) 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.
(7) The following provisions apply to such a review by the District Court:
(a) ….
(b)the Court may inform itself as it thinks fit and, in doing so, is not bound by the rules of evidence;
(c)the Court may, if it thinks fit, re-hear evidence taken before the Magistrates Court;
(d) in determining the matter, the Court may—
(i) affirm the judgment; or
(ii)rescind the judgment and substitute a judgment that the Court considers appropriate; or
(iii)if the review arises from a default judgment or summary judgment, rescind the judgment and—
(A)substitute a judgment that the Court considers appropriate; or
(B)remit the matter to the Magistrates Court for hearing or further hearing;
(e)in hearing and determining the review, the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(8) A decision of the District Court on a review is final and not subject to appeal.
The District Court has wide powers on a review. It is important to note that an appeal to the District Court is not restricted to an appeal by way of rehearing on the papers. While the appeal is not necessarily an appeal de novo, the District Court has a discretion in the way it conducts a matter and this includes starting afresh. The District Court can tailor the nature of the review to the circumstances of the case.[1] That is, if there is an allegation of a reasonable apprehension of bias (“ostensible bias”) against a Magistrate, the District Court may rehear the matter. In those circumstances, an allegation of ostensible bias against a Magistrate would no longer be relevant. A decision of the District Court is final and not subject to appeal. The only further right a party has is to bring judicial review proceedings in the supervisory jurisdiction of the Supreme Court.[2]
[1] Wilczynski v District Court of South Australia [2016] SASC 51 at [47]-[49] (Doyle J); Harradine v District Court of South Australia (2012) 280 LSJS 572 at [53].
[2] Wilczynski v District Court of South Australia [2016] SASC 51 at [49]-[52].
The purpose of the jurisdiction is to provide a quick and inexpensive method of resolving minor disputes including the wide range of powers of the District Court on appeal.
It is against that background that I make the following observations about a litigant issuing judicial review proceedings against an interlocutory ruling of a Magistrate in this jurisdiction.
An application for judicial review engages this Court’s supervisory jurisdiction.[3] This role is fundamental to the maintenance of the rule of law. A function of the Supreme Court is to police the limits governing the extent and exercise of power vested in inferior courts and in the executive.
[3] Kirk v Industrial Court (NSW) (2010) 239 CLR 531.
Decisions, including judicial decisions, must be made in accordance with the rules of natural justice. There are two traditional rules of natural justice (procedural fairness), namely the hearing rule, that is the right to be heard and the bias rule, that is the decision maker must be impartial. In this matter, it is the bias rule that is in issue. A question of the ostensible or apprehended bias of a decision maker can be a ground of judicial review.
The Court does have not have a discretion to refuse to entertain an application for judicial review. The relevant discretion is to refuse relief.[4] Ordinarily, the availability of appeal to correct an error would be a powerful discretionary reason not to grant a remedy on judicial review. Further, a court should be reluctant to grant relief where the challenge is to an intermediate determination made along the way to reaching an ultimate determination of the substantial issue.[5]
[4] Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82.
[5] Attorney-General (SA) v Marmanidis [2019] SASCFC 3 at [143]; Commissioner of Taxation v Cancer and Bowel Research Association (2013) 305 ALR 534.
The question arose on this appeal as to whether the appellant had exhausted his appeal rights. The appellant sought review in the District Court of the Magistrate’s decision pursuant to s 38(6). The District Court Judge held, correctly in my view, that the appeal to the District Court was incompetent on the basis that the Magistrate’s refusal to recuse herself was a bare ruling, and not a “judgment” within the meaning of s 38(6) of the Act.[6]
[6] Harradine v S [2020] SADC 130 at [31].
Before Livesey J, the Attorney-General took a conservative approach and did not apply to strike out the application as lacking utility. Such an approach is understandable in the circumstances. However, in my view the appellant had not exhausted his appeal rights; he had attempted to exercise them prematurely.
The s 38 procedure is unusual as discussed earlier in these reasons. It is an inquisitorial not an adversarial procedure. The purpose is to provide a less formal and therefore less expensive procedure to deal with small claims. Such a change in procedure involves a trade-off between rights and protections. While the procedure is less formal and in the nature of an inquiry, the appeal rights are greater, in particular the right to have the matter determined afresh.
Generally a remedy for ostensible bias should be sought at the earliest possible time as there is no point in allowing a flawed process to run to its conclusion. However, in my view Minor Civil Claims stand on a different footing. Given the statutory context discussed, and that proceedings should proceed expeditiously and inexpensively, the trial should not be delayed or the proceeding bifurcated. Given the extensive appeal rights available on appeal to the District Court, including the right to a fresh hearing, this Court should rarely grant the discretionary remedy available on a judicial review, before judgment, on the basis of an allegation of ostensible bias against a Magistrate. Such an allegation is best dealt with on review of the Magistrate’s judgment by the District Court after judgment has been delivered.
As the matter was not argued before Livesey J on that basis, the matter having reached the Court of Appeal, should be dealt with on its merits.
Principles on appeal
A breach of the bias rule of natural justice amounts to jurisdictional error[7] or at least leads to the decision being declared a nullity.[8] The question on appeal is whether the decision of the Magistrate was right or wrong. That is, on appeal, no exercise of discretion is involved as the legal criterion applied by the Magistrate to reach her conclusion demands a unique outcome.
[7] Commissioner of Taxation of the Commonwealth of Australia v Futuris Corporation Ltd (2008) 237 CLR 146 at [134] (Kirby J).
[8] Craig v Workers Compensation Tribunal (2004) 90 SASR 490; see also Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action (Thomson Reuters, 4th Ed, 2009) at [14] nn 45.
The appellant has appealed the judgment of Livesey J dismissing his appeal from the Magistrate’s decision. The appellant filed nine grounds of appeal but after discussions the parties agreed that only one ground of appeal was relevant. The only question to be decided is whether the decision of the Magistrate was correct. It is therefore unnecessary for us to consider the grounds of appeal that relate to the reasons of Livesey J.
Apprehended bias
It was accepted on appeal that the test to be applied is that enunciated in Ebner v Official Trustee in Bankruptcy,[9] namely whether a fair-minded lay observer might reasonably apprehend that the judicial officer might not bring an impartial and independent mind to the fair resolution of the issue to be decided.[10] This has been referred to as the double might test.
[9] (2000) 205 CLR 337.
[10] (2000) 205 CLR 337 at [6]-[7].
The question of whether conduct has resulted in a breach of the bias rule is determined in light of the totality of the circumstances that exist at the time when that question arises.[11] To establish an apprehension of bias requires two essential steps. First, identification of the factor(s) which is said might lead the Magistrate to decide the trial otherwise than on an independent and impartial evaluation of the merits. That is, what is it that is said to effect the Magistrate’s impartiality. Secondly, there must be a logical connection between the factor(s) identified and the apprehended deviation from deciding the case on its merits. In other words, how will the claimed factor(s) have the suggested affect. Taking those two steps is necessary when deciding whether the fair-minded lay observer might reasonably apprehend, in the totality of the circumstances, that the articulated departure might occur. When taking that final step, it is the court’s view of the public’s view, not the court’s own view, which is determinative.[12] A finding of apprehended bias is not be reached lightly.[13]
[11] Webb v The Queen (1994) 181 CLR 41, 52.
[12] CNY17 v Minister for Immigration (2019) 94 ALJR 140 at [21] (Kiefel CJ and Gaegler J); see also Nettle and Gordon JJ at [57]ff.
[13] RE JRL; Ex parte CJL (1986) 161 CLR 342 at 371.
It is necessary, when applying the test, to consider the legal, statutory and factual context in which the decision is made. A fair-minded lay observer has a broad knowledge of the material objective facts as distinct from a detailed knowledge of the law.[14] A fair-minded lay observer knows the nature of the decision, the circumstances which led to the decision and the context in which it was made. In the present case, the fair-minded lay observer would be taken to understand the general nature of the Minor Civil Claims jurisdiction and the style of hearing contemplated by s 38 of the Act.
[14] Isbester v Knox City Council (2015) 255 CLR 135; CNY17 v Minister for Immigration (2019) 94 ALJR 140; Webb v The Queen (1994) 181 CLR 41, 73.
The Directions Hearing
The appellant submits that when the entirety of the Magistrate’s statements made during the Directions Hearing are considered, the fair-minded lay observer might reasonably apprehend that the Magistrate might not bring an impartial and independent mind to the fair resolution of the issue to be decided. The Attorney-General accepted that regard must be had to the entirety of the transcript of the Directions Hearing.
The Magistrate, in her reasons for refusing the application to recuse herself, stated:
I observed during my interaction with the applicant in the course of that hearing, that I only had the respondent’s defence before me and had no evidence upon which to have formed a view about the merits of the respondent’s case. I did use the word ‘vendetta’ during the course of my interactions with the respondent. I understand the applicant relies upon my use of that term in his application that I recuse myself. I consider that, in the context in which I made that comment and given the balance of the matters discussed in the hearing, a fair minded observer would consider that that was a term used in the course of my enquiry with the applicant and did not indicate that I had formed a definite view about the merits of his claim.
The context in which I made the comment was that I had raised numerous requirements and issues that the applicant will have to deal with in order to establish his claim. I raised those matters out of concern that, given the applicant’s allegation of having suffered psychological injury, these proceedings may not help him with his recovery. I went on to say ‘they do smack of a bit of a vendetta. I do not have a firm view about that and vendetta is too strong a word. Please forgive me…It’s been a very long morning but obviously there is a history of a relationship breakdown between the two of you’. I consider my immediate correction of my use of that word in my explanation for that word being ill-advised, would satisfy a fair minded observer that I retained an impartial view, as I expressed.
The Magistrate conceded in her reasons that a fair-minded observer might consider that she had entered into a robust enquiry of the appellant. However, she considered that she did not express a view about his prospects of success either way, but observed that in this particular case, as in every case, each party faces significant risks in litigation that they may not establish their claim or their defence on the balance of probabilities. The Magistrate considered that in taking the active role she did, she was acting in accordance with the requirements of s 38(2) of the Act.
I have read the transcript of the hearing before the Magistrate.[15] It is clear that the Magistrate did take a robust approach to the Directions Hearing. The question that arises on appeal is whether the robust approach adopted simply went too far such that a fair minded lay observer might reasonably apprehend that the Magistrate might not bring an impartial and independent mind when conducting the trial.
[15] AB31ff.
The Magistrate, at the commencement of the Directions Hearing, told the parties that when conducting the Directions Hearing she did not go into the evidence or make any final decisions. She advised the parties that the purpose of the hearing was to see whether the matter could be resolved.
It must be remembered, however, that s 38(2) states that the Court should explore any “possible avenues of achieving a negotiated settlement of the matters in dispute”. There is clearly tension between the obligation for the Magistrate to conduct such exploration, and then for the Magistrate to embark on the hearing of the matter if settlement does not eventuate. The statements of the Magistrate must be assessed against the statutory framework and the manifest purpose of the jurisdiction discussed earlier. Against that background and the reasons given by the Magistrate, it is necessary to assess the entire exchange that occurred between the appellant and the Magistrate.
Having advised the parties that she was conducting a Directions Hearing, that she was not going to go into the evidence or make decisions, and the purpose was trying to resolve the matter, the Magistrate addressed the appellant. The Magistrate, during the course of addressing the appellant, made the following points (emphasis added):
·As the claim was out of time he would need leave of the court to proceed. The Magistrate stated: “There would seem to be a lot of obstacles potentially for you, Mr Harradine in your claim.”
·Having ascertained why the appellant had brought the claim the Magistrate stated: “Can I suggest to you, Mr Harradine, that you have a very serious think about trying to pursue this claim…this is a really difficult matter for you to establish given the age of these things to establish that you should be granted an extension of time to bring the proceedings.”
·The Magistrate then stated: “Then there’s issues about whether you could even establish a liability …for the things that you’re claiming for…there’s no certainty you can establish those things.”
·Having ascertained that the appellant was alleging a psychological injury the Magistrate stated: “I don’t see these proceedings being of any help to you at all with your recovery. They do smack a bit of a vendetta. I don’t have a firm view about that and vendetta is too strong a word. Please forgive me, it’s been a very long morning”.
·The Magistrate then stated: “I’ve tried to set out for you that there’s a really long road for you to get over any of these issues. I have serious concerns about your ability to establish an entitlement to an extension of time to make the claim and also even if you were granted that extension whether you were able to make out the matters that you allege on the balance of probabilities.”
·The Magistrate then stated: “Can I suggest these proceedings won’t assist you? They’ll continue over a period of time. That just prolongs your anxiety and has consequences for your wellbeing.”
·Having ascertained that the appellant was seeking, as well as damages, “vindication”, the Magistrate stated: “…you may not receive vindication. So what you may do is actually put yourself through a process that’s really stressful and very upsetting…There is absolutely no guarantee that you would receive that and in fact far from it. In fact, there’s quite a risk that you won’t get what you’re seeking…”
·The Magistrate then stated: “…I don’t know that this proceeding is going to help you with any aspect of that given that, and we’re here today and we could be able to resolve the matter today, would you be willing to consider resolving this claim today on the basis that it just simply be dismissed with no order as to costs?”
·The Magistrate then stated: “…when you talk about harm to your reputation, it may be that this proceeding doesn’t assist with any of that…and it may, to the contrary, create further issues for you in that respect and it’s for that reason that I suggest that perhaps consideration be given. Is there any other type of remedy, because we’re in the realm of just having a discussion, what other do you seek, Mr Harradine? I’m thinking aloud and this is certainly not obviously binding for Ms [S], but is an acknowledgement that you have suffered injury without any admission of liability of that, would that be sufficient for this proceeding to discontinue?”
·The Magistrate again stated: “…I would strongly encourage you to reconsider this claim…but if you wish to pursue this claim I am firstly going to proceed by dealing with the extension of time point. That’s going to require you to lead some evidence that establishes why the Court…grant the extension of time. That’s a pretty broad discretion that the Court has, whether to grant an extension of time or not. So, if you seek that leave to be able to bring these proceedings I’m going to deal with that issue on its own and first up.”
·The Magistrate then stated: “Before this goes any further I’ll hear from Ms [S] about what she thinks but what I’m thinking is if you want to pursue this you need to get over the extension of time issue. You’re going to have to obtain and provide to Ms [S] and to the Court a psychiatrist report that supports all of the things that you say and that’s going to cost you. Psychiatrist reports are not cheap. There is no surety that you will be awarded the costs of obtaining the report so, here you go, you’re already going to clock up a few hundred dollars trying to pursue this claim with absolutely no assurance that you will get that money back and more so, Mr Harradine, while this is a minor civil claim, this Court does have a very broad discretion as to costs. Ms [S] should not have to give up her time to be here if your claim does not have much merit for the many reasons that I have mentioned.”
·The Magistrate then stated: “…I’ve strongly encouraged you to reconsider this and I’m not prepared to consider your claim further without you obtaining a psychiatrist report that’s going to assist you with your request for an extension of time for leave to bring these proceedings.”
·The Magistrate then stated: “So, Mr Harradine, it looks like this is just going to cause grief for everyone. A lot of unpleasantness with very nil prospect or certainly a high risk that this is not going to give you what you’re seeking.”
Appellant’s submissions
The appellant accepted that many of the statements taken in isolation would not establish apprehended bias. The appellant submitted however that, from the outset of the Directions Hearing, the Magistrate was not attempting to achieve a negotiated settlement, rather she was determined to have him withdraw his claim. The Magistrate, he submitted, made it plain that it was unlikely he would obtain an extension of time in which to bring the proceedings, and even if he did, she would dismiss his claim. The appellant submitted that the Magistrate’s use of the word “vendetta”, even though she immediately resiled from the use of that word, revealed how she perceived the proceedings. The appellant submitted that the Magistrate, not having heard any evidence, made comments about the lack of merit in his claim, and consistently urged him to reconsider the matter and withdraw his claim. He observed that the Magistrate did not make any attempt to encourage the defendant to resolve the claim or consider her risks. He submitted the Magistrate was not attempting to resolve the matter but rather was attempting to pressure him to withdraw his claim.
Attorney-General’s submissions
Ms Doecke, for the Attorney-General, submitted that a thorough reading of the transcript before the Magistrate revealed a busy Magistrate who was properly engaged in the statutory task provided by s 38 of the Act. The Magistrate, she submitted, identified the consequences of proceedings for the parties and the risks that both parties face should the matter proceed. The Magistrate also identified the hurdles that a claim of this nature brought by the appellant faced.
Further, Ms Doecke submitted, the appellant had not articulated the “logical connection” between the matters which might lead the Magistrate to determine the matter other than on its merits and the feared deviation. Ms Doecke submitted that the application was no more than a fear that the case may be determined adversely to the appellant, not that there was a reasonable apprehension of bias.
Discussion
The transcript reveals that the Magistrate did focus on the alleged difficulties facing the appellant. The tenor of the Magistrate’s remarks, when looked at in their entirety, disclose that she did make comments which could be interpreted as expressing a view of the merits of the appellant’s claim, or perhaps better expressed, a lack of merit in his claim. Her remarks, and the number of them, could only be interpreted as robust attempts to have the appellant withdraw his claim. Rather than encouraging any “negotiated settlement”, the Magistrate’s remarks appeared to only consist in the suggestion, repeatedly made, that the appellant should not proceed with the claim. The appellant, no matter what view is taken of the purpose of the claim, is entitled to have his day in court. In my opinion, even making allowance for the statutory context in which the Directions Hearing was conducted, a fair-minded lay observer might reasonably apprehend that the Magistrate might not bring an impartial and independent mind to the fair resolution of the issues to be decided. The Magistrate’s failure to make any attempt to encourage the defendant to resolve the claim, or consider her risks, served only to reinforce the apprehension.
I would allow the appeal.
I add that nothing in these reasons should be interpreted as a criticism of the Magistrate in the way she approached this most unusual action. Her concern about what could be achieved by the matter proceeding was reasonably held. A robust approach was called for, and indeed was appropriate, in the unusual circumstances confronting her. However, the Magistrate in effect turned the Directions Hearing into a settlement conference or mediation. I consider that the Magistrate’s attempt to resolve the matter was appropriate. The error lies, not in the approach she adopted at the Directions Hearing, but in the failure to then recuse herself. Having attempted to achieve a particular result, and the attempt having failed, the Magistrate ought to have recused herself from hearing the matter further.
Orders
1.Appeal allowed.
2.The order of Livesey J made on 19 October 2020 is set aside.
3.The order of the Magistrate made on 3 July 2020 is set aside.
4.The matter be remitted to the Magistrates Court to be determined by a different Magistrate.
DOYLE JA: I agree that the appeal should be allowed for the reasons given by Lovell JA. I would join the orders that Lovell JA proposes.
BLEBY JA: I agree that the appeal should be allowed for the reasons given by Lovell JA. I would join the orders that Lovell JA proposes.
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