Harradine v The Magistrates Court of South Australia
[2020] SASC 210
•19 October 2020
Supreme Court of South Australia
(Civil: Application)
HARRADINE v THE MAGISTRATES COURT OF SOUTH AUSTRALIA & ORS
[2020] SASC 210
Reasons for Decision of The Honourable Justice Livesey (ex tempore)
19 October 2020
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GENERALLY
By an originating application for review, the applicant sought judicial review of a decision made by a Magistrate in which she declined to disqualify herself on the grounds of ostensible bias in connection with a minor civil action. The applicant claims damages for an alleged intentional or reckless infliction of psychiatric harm caused by making an unfounded rape allegation.
Held, dismissing the application;
1. There is no basis for concern about whether the Magistrate will bring an impartial and fair-minded approach to the resolution of the issues arising in the minor civil action; and
2. The Magistrate made no error of law when refusing the disqualification application.
Civil Liability Act 1936 (SA); Crown Proceedings Act 1992 (SA) s 9; Magistrates Court Act 1991 (SA) s 38; Uniform Civil Rules 2020 (SA) r 101.1, r 131.3, referred to.
Attorney-General (NSW) v Quin (1990) 170 CLR 1; Bradman v Allens Arthur Robinson (2009) 103 SASR 438; Bunyan v Jordan (1937) 57 CLR 1; Church of Scientology Inc v Woodward (1982) 154 CLR 25; CNY17 v Minister for Immigration and Border Protection (2019) 94 ALJR 140; Contract Mining Services Pty Ltd v Adelaide Brighton Cement Ltd [2020] SASC 69; Dickens v New South Wales [2018] NSWCA 222; Harradine v District Court of South Australia (2012) 280 LSJS 572; Harradine v The Commonwealth of Australia (Child Support Agency) [2018] SADC 144; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; Magill v Magill (2006) 226 CLR 551; Prince Alfred College Inc v ADC (2016) 258 CLR 134; Re JRL; Ex parte CJL (1986) 161 CLR 342; Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; Wilczynski v District Court of South Australia [2016] SASC 51; Wilkinson v Downton [1897] 2 QB 57, considered.
HARRADINE v THE MAGISTRATES COURT OF SOUTH AUSTRALIA & ORS
[2020] SASC 210Civil: Application for Judicial Review
LIVESEY J:
Introduction
By an originating application for review, the applicant seeks judicial review of a decision made by a Magistrate on 30 June 2020, by which she declined to disqualify herself on the grounds of ostensible bias in connection with a minor civil action.
The applicant seeks an order in the nature of certiorari, quashing the order that the Magistrate made that day.
A minor civil action
The minor civil action commenced by the applicant is presently stayed whilst this Court determines the question of judicial review.
That action is a claim for damages for what the applicant claims was an intentional or reckless infliction of psychiatric harm. The applicant emphasises that it is not a claim for negligence, and is based upon authorities such as Wilkinson v Downton,[1] Bunyan v Jordan,[2] Magill v Magill,[3] and Dickens v New South Wales.[4]
[1] Wilkinson v Downton [1897] 2 QB 57.
[2] Bunyan v Jordan (1937) 57 CLR 1.
[3] Magill v Magill (2006) 226 CLR 551.
[4] Dickens v New South Wales [2018] NSWCA 222.
The claim follows the applicant’s earlier “success” in the District Court in a different matter against a different respondent.[5]
[5] Harradine v The Commonwealth of Australia (Child Support Agency) [2018] SADC 144.
The Attorney-General
When this matter initially came before this Court, the interested party was the only contradictor. As I indicated in earlier reasons, she was neither legally represented nor able to speak fluent English. In the result, the Attorney‑General for the State of South Australia has 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.
Today, I gave leave to the Attorney‑General to intervene, there being no opposition from the applicant or the interested party.
Judicial review
It is, I think, helpful to emphasise the general nature of judicial review. Judicial review exists so as to prevent executive power being wielded outside its permissible scope, and thereby to safeguard the interests of the individual. In Church of Scientology Inc v Woodward Brennan J said:[6]
Judicial review is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of the individual are protected accordingly …
[6] Church of Scientology Inc v Woodward (1982) 154 CLR 25, 70 (Brennan J).
It has also been said that judicial review is not available in every circumstance, but permits a party to “test the legality of a decision, and not its merits”. The courts are not authorised to ask whether a decision was a “good decision”, only whether the decision has been properly made, in accordance with the law.[7] Likewise, it has been emphasised:[8]
Judicial review is restricted to supervision of the legality of action by an “inferior” body – but does not normally involve an outcome based on the merits of the case. To succeed, an applicant for review must show some kind of legal error. Administrative law grounds of review fall into two basic categories. The first concerns the principle of legality: for an action to be authorised it must be within the power granted to the official or body by the governing legislation. The second category is concerned with procedural irregularity – and in particular with procedural fairness. The traditional labels applied to these categories are ultra vires and natural justice respectively.
(Emphasis in original.)
[7] Australian Law Reform Council, Traditional Rights and Freedoms — Encroachments by Commonwealth Laws (Report No 129, March 2016) [15.10]. See also Attorney-General (NSW) v Quin (1990) 170 CLR 1 and Harradine v District Court of South Australia (2012) 280 LSJS 572, [35] (Blue J).
[8] Roger Douglas et al, Douglas and Jones’s Administrative Law (Federal Press, 8th ed, 2018) 56-57.
A little later, the same authors emphasised that one of the well-recognised categories concerning procedural fairness is the rule against bias:[9]
In order to ensure that a fair outcome is possible, decision-makers must be – and appear to be – disinterested in any outcome that they determine …
[9] Roger Douglas et al, Douglas and Jones’s Administrative Law (Federal Press, 8th ed, 2018) 57.
An example of this latter category is provided by the decision of the High Court in Laws v Australian Broadcasting Tribunal.[10]
[10] Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70.
Ostensible bias
As clarified today in argument, the applicant rests his claim on the contention that there is apparent in the material before this Court grounds for a finding of ostensible bias. The applicant contends that there are a number of features of the hearing before the Magistrate which give rise to that apprehension and, by reason of which, there was an error of law in the failure of the Magistrate to disqualify herself.
In his written submissions, the applicant put the matter in this way:
1.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 appellant’s claim as the circumstances comprise a “perfect storm” for the generation of bias against the applicant:
1.1 Our culture affords women generally with a chivalrous and protective regard.
1.2 The said regard is underscored where the individual woman concerned is a petite, pretty migrant claiming that she has been raped.
1.3 The applicant has the; “guilt by accusation – women must be believed” bias against him.
1.4 The applicant has the; “if a woman hurts a man, he deserved it” bias against him.
1.5 The applicant has more specific personal biases against him. Including the “dirty old man – marrying a woman half his age” bias, and also the; “frequent litigants are narcissistic, mal- adjusted whingers,” bias. (Dr. Raeside is reported to have opined similarly in Prescott but there refers to “vexatious litigants”)
1.6 There is also the bias accruing to a claim which constitutes “dirty washing” between once married parties when the same is “dumped” upon an overworked magistrate working on the assembly line of human conflict (which assembly line in recent times has been incrementally sped up by the Executive in its profound penny-pinching wisdom).
2.A fair minded bystander would likely observe, from the Magistrate’s statements (and orders made), that the above antecedents did materialise into a reasonable apprehension of bias …
(Footnote omitted.)
In addition, in the course of argument today, the applicant has referred to what he describes as the “three Ds”, being disparagement, dissuasion and disposition. He submits that, when the transcript is closely considered, it is clear that these features run through the statements made by the Magistrate, and this necessarily gives rise to a conclusion of ostensible bias.
In response, the Attorney-General submits that these are matters purely within the subjective appreciation of the applicant and are not apparent on a fair reading of what the Magistrate had to say. In short, that these submissions say more about the applicant than they do about the Magistrate’s approach.
The Attorney-General emphasises the context in which these matters are raised by the applicant. The Attorney-General relies upon what was said by Blue J in Harradine v District Court of South Australia between paragraphs [39] and [49], namely, the purpose of minor civil actions is to provide a less expensive, less formalistic forum in which persons with small claims have an opportunity to bring them before the court.[11] Emphasis is given to the mode of conduct of a trial in a minor civil action prescribed by s 38(1) of the Magistrates Court Act 1991 (SA). In particular, under s 38(2) of that Act the role of the Court at or before the trial of a minor civil action stipulates that the Court should explore any possible avenue of achieving a negotiated settlement of the matters in dispute. Reference is also made to rules 101.1(3)(a) and 131.3 of the Uniform Civil Rules 2020 (SA), that is to say, that one of the purposes of any directions hearing in the minor civil action list is to identify the issues in dispute as well as to explore the scope for resolution, including by mediation.
[11] Harradine v District Court of South Australia (2012) 280 LSJS 572, [39]-[49].
The Magistrate’s remarks
When the matter was called on before the Magistrate on 30 June 2020 just before 12.30 pm, she said the following:
I apologise to the parties firstly about the delay in commencing this hearing and thank you both for your patience. I expect that’s probably been a bit tested this morning. We’ve just had a very long list of matters with some complexity and unfortunately it’s taken a bit longer to get to your matter.
This matter is a directions hearing today so it’s just a short hearing. I don’t go into the evidence, make any final decisions. The purpose of today’s hearing is just to see whether what - ideally the court in a minor civil action tries to resolve matters.
A little later in the course of her remarks during this directions hearing the Magistrate said this to the applicant:
HER HONOUR: … it’s not clear to me what you’re hoping to achieve from this, Mr Harradine. I think that’s really important today so we can have some sort of understanding about how we might try and resolve this matter or what has to occur if you wish to pursue this matter. What are you seeking, Mr Harradine?
MR HARRADINE: A year ago we’ve had protracted Family Court proceedings. A year ago, there was a trial. I was seeking half time for [S] but the judge declined that and I’ve got him four days a fortnight. In the judge’s judgment, I haven’t read it fully, I find it very uncomfortable, but I did notice he made the comment that I was still red raw from the rape allegations and I didn’t think that was true and didn’t like to read that but over time I have come to realise that it is still quite seriously affecting me.
The Magistrate returned to the topic of the Family Court proceedings and enquired whether they were still ongoing. It is clear from what was said that they were no longer ongoing and they had come to a resolution. In that connection the Magistrate said as follows:
I raise all of these matters because out of a concern for you actually, if you were suffering psychological injury as you say, 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 but obviously there is a history of a relationship breakdown between the two of you. It’s been the subject of Family Court proceedings.
In the course of this directions hearing the Magistrate made a number of other observations about the nature of the litigation and the risks that the applicant might confront in prosecuting his claim. Questions of costs were raised. In addition, the Magistrate referred to her preliminary view, at least, that any question of an extension of time required by the applicant before he could prosecute his action would be dealt with as a preliminary matter.
In the course of argument before me today, the applicant has made a number of criticisms about what the Magistrate had to say during the course of that directions hearing. As he has clarified for me, all of the matters about which he has criticised the Magistrate’s remarks are to be seen through the prism of the ostensible bias application. For example, it is not suggested that the Magistrate erred in law when directing that there be a separate determination of the extension of time. Rather, that is a matter raised as an aspect of the argument about ostensible bias. Reference has also been made to the fine distinctions that can sometimes be drawn about whether it is or is not appropriate to hear an extension of time as a preliminary matter, and the parties have referred me to, amongst others, Wardley Australia Ltd v Western Australia,[12] Prince Alfred College Inc v ADC[13] and Bradman v Allens Arthur Robinson.[14]
[12] Wardley Australia Ltd v Western Australia (1992) 175 CLR 514.
[13] Prince Alfred College Inc v ADC (2016) 258 CLR 134.
[14] Bradman v Allens Arthur Robinson (2009) 103 SASR 438, [28]-[31] (Kourakis J)
At all events, if the applicant wishes to raise any question about whether it is appropriate to proceed by way of preliminary determination of the extension of time, that is a matter for submissions before the Magistrate and not a matter for judicial review in this Court, at least on the matters which have been raised before me today.
In argument today it is not suggested by the applicant that the Magistrate had erroneously stated the legal test that applies to an application for disqualification, including the requirement, as it is sometimes described, of the “two mights”. I had occasion to consider the test for disqualification on the grounds of ostensible bias earlier this year in Contract Mining Services Pty Ltd v Adelaide Brighton Cement Ltd and I will not repeat the authorities to which I referred.[15] Today the applicant has also referred to paragraphs [29], [111], [132] and [133] of CNY17 v Minister for Immigration and Border Protection.[16] The applicant emphasises what Edelman J had to say about the question of “human frailty”.
[15] Contract Mining Services Pty Ltd v Adelaide Brighton Cement Ltd [2020] SASC 69.
[16] CNY17 v Minister for Immigration and Border Protection (2019) 94 ALJR 140.
The applicant spent some time criticising a submission made on behalf of the Attorney-General regarding the serious nature of an allegation of ostensible bias, as well as whether it should or should not be made lightly. Ultimately, it is not necessary to go into too much detail about those submissions because it is clear when one reads the decision of Re JRL; Ex parte CJL and, in particular, the passages of Mason J at 352 and of Dawson J at 371.[17] What is emphasised is that the question is whether the judicial officer will decide the case impartially and without prejudice rather than whether the judicial officer will decide the case adversely to a party. In addition, it is necessary to consider the whole of the circumstances and a conclusion of ostensible bias must be firmly established and not reached lightly.
[17] Re JRL; Ex parte CJL (1986) 161 CLR 342.
Disposition of the application for judicial review
In my opinion, when one has regard to the context in which the Magistrate made her remarks, it is clear that no prejudgment was involved and there is no sign that the Magistrate will decide the case other than on its merits.
It is of the first importance, in my view, to recognise that what was said was said in the course of a directions hearing of a minor civil action. It may be accepted that Magistrates in that context will, at times, require a great deal of latitude in order to discharge their duties properly. They have long lists and it is necessary to deal with a wide range of litigants who come from all walks of life.
Even if it could be said that the use of the word “vendetta” carried with it the suggestion of an attitude adverse to the applicant and his claim, it is clear that the Magistrate appropriately checked herself and, on a reading of the whole of the transcript, it is clear that she was engaged in the kind of robust testing and discussion that may be expected with this kind of inquisitorial process.
The other matters that have been raised by the applicant must be considered in that light, namely, that these are all matters which are to be viewed from the perspective of whether they do or do not give rise to ostensible bias. For example, any reference to the Family Court was, in my view, understandable and not suggestive of any predetermination or predisposition against the applicant. It was a natural issue to raise in the context of parties who have a history of Family Court litigation.
In addition, the reference by the Magistrate to what appears to be negligence and certain provisions of the Civil Liability Act 1936 (SA) are not matters that give rise to any suggestion of predetermination or predisposition against the applicant. Granted, it may be that the Magistrate misunderstood the nature of the cause of action that was being relied upon. Having said that, there is no suggestion that the raising of an extension of time or the possibility that the Civil Liability Act 1936 (SA) provisions concerning damages might apply to this case were in any sense erroneous. The same may be said about the terms of the defence which, the applicant says, prejudiced him in the eyes of the Magistrate.
I reject these criticisms. These were not matters that were the subject of any correction or submission by the applicant before the Magistrate. There will be ample opportunity for the applicant to put submissions to the Magistrate as to the nature of the cause of action upon which he relies and the relevance of any evidence which may or may not need to be called in support of that cause of action, or its defence.
The earlier review
Before concluding this case, it is appropriate to mention that this is not the first occasion that the question of ostensible bias in connection with this minor civil action has come before the courts. The applicant sought the review of the Magistrate’s decision before the District Court pursuant to s 38(6) of the Magistrates Court Act 1991 (SA). A Judge of the District Court determined that that review was not competent. There is no right of appeal against a decision by a District Court judge on a review.
Nonetheless, it is not suggested by the Attorney-General, nor indeed by the interested party, that the applicant was precluded from seeking judicial review of the Magistrate’s decision concerning ostensible bias at this time, and I refer to Wilczynski v District Court.[18]
[18] Wilczynski v District Court of South Australia [2016] SASC 51, [49]ff (Doyle J).
Conclusion
For these reasons, I dismiss the originating application for judicial review. In my view, the applicant has no basis for concern about whether the Magistrate will bring an impartial and fair-minded approach to the resolution of the issues arising in this minor civil action.
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