McFarlane v Outback Communities Authority

Case [2024] SASC 54


SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Judicial Review)

MCFARLANE v OUTBACK COMMUNITIES AUTHORITY

[2024] SASC 54

Judgment of the Honourable Justice Hughes  

ADMINISTRATIVE LAW - PREROGATIVE WRITS AND ORDERS - CERTIORARI - GROUNDS FOR CERTIORARI TO QUASH - EXCESS OR WANT OF JURISDICTION - PARTICULAR INSTANCES OF JURISDICTIONAL ERROR

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - BIAS

The applicant seeks judicial review of interlocutory orders made in the District Court of South Australia on a review of a minor civil action. The minor civil action was a debt recovery action by the Outback Communities Authority in relation to unpaid community contributions allegedly owed  by the applicant. The applicant was found to owe $9,662.92 by a Magistrate and sought a review.

Prior to the review being heard in the District Court, the applicant sought various interlocutory orders. These applications included inter alia that the Chief Judge hear the review, that a third party be joined to the action, that questions of law be referred to the Court of Appeal, and that the matter proceed as a retrial. The Judge allowed the applicant to file an amended grounds of review and to be assisted by a communications partner, but refused the other applications except for the application to proceed by way of a re-trial which was reserved for determination at the hearing of the review. The Judge delivered an ex tempore decision.

The applicant seeks judicial review of the refusals of his interlocutory applications, as well as the conduct of the District Court Judge, on grounds of apprehended bias and jurisdictional error.

The respondent applied for summary dismissal of the judicial review on the basis that the applicant has no prospect of succeeding.  The respondent contended that the nature of the scheme for review of minor civil actions militates against fragmentation.  The respondent argued if the judicial review were to proceed and errors were identified, relief would not be appropriate in the exercise of the Court’s discretion.

The respondent maintained that in any event the conduct of the Judge did not give rise to an apprehension of bias, and the orders made were within jurisdiction and appropriate.

Held:

The interlocutory nature of the orders in respect of which judicial review is sought, and the discretionary nature of the relief, lead to the conclusion that the judicial review is amenable to summary dismissal.  The applicant’s contentions on judicial review disclosed no basis upon which it might be found, if the matter proceeded to hearing, that an apprehension of bias arose or that any errors going to the Judge’s jurisdiction had been committed.  The respondent’s application for summary dismissal is granted.  Judicial review action CIV-22-012932 is dismissed, and the review of the minor civil proceeding should proceed in the District Court.

Magistrates Court Act 1991 (SA) s 3, s 38;

Continue reading McFarlane v Outback Communities Authority

Sign in free to access the full text

Details
AGLC
McFarlane v Outback Communities Authority [2024] SASC 54
Case
[2024] SASC 54
Decision Date

CaseChat Overview and Summary

The applicant, the Outback Communities Authority (OCA), sought summary dismissal of the respondent, Mr McFarlane's, judicial review proceedings against the OCA's decision to dismiss his application to be heard at a District Court review of a decision of the Magistrates Court. Mr McFarlane had been found liable for community contributions imposed by the OCA, and had lost his application for review of the decision. Mr McFarlane sought to have the OCA's decision to dismiss his application reviewed, but the OCA sought to have the judicial review proceedings dismissed without a hearing. The court was required to decide whether the OCA was correct in asserting that Mr McFarlane's judicial review proceedings were so lacking in merit that it was appropriate to bring them to an early conclusion without conducting a hearing. The court considered that the OCA had demonstrated that Mr McFarlane's judicial review proceedings were so lacking in merit that it was appropriate to bring them to an early conclusion without conducting a hearing. The court considered that Mr McFarlane's submissions did not disclose an arguable case that the orders about which he complained were arguably vitiated by error, or that there was an apprehension of bias arising on the Judge's conduct of the interlocutory hearing or its outcomes. The court concluded that the OCA had demonstrated that there was little or no prospect of Mr McFarlane making out the claim. The court dismissed the judicial review proceedings.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the reasons that follow, the application to summarily dismiss the judicial review proceedings is granted.Background To understand the judicial review proceedings, it is necessary to step back and summarise the most relevant interactions between the parties that led to this point. Minor Civil Claim The OCA is a statutory authority that performs functions and exercises powers in respect of the administration of communities in particular geographical areas of the state. On 8 December 2014, the OCA brought a minor civil action in debt in the Magistrates Court in respect of unpaid charges imposed on Mr McFarlane pursuant to s 21 of the Outback Communities (Administration and Management) Act 2009 (SA).[1] [1] Outback Communities Authority v Brian David McFarlane [2022] SAMC 6 Exhibit A7 to the Affidavit of Brian David McFarlane sworn on 18 November 2022. In brief, in the minor civil proceedings, Mr McFarlane was found to be liable, as a land-owner,[2] to pay an amount on account of a community contribution imposed by the OCA under the Outback Communities (Administration and Management) Act 2009. [2] Outback Communities (Administration and Management) Act 2009, s 21(2). It is sufficient for the purposes of this decision to observe that the charges were community contributions which are imposed by the OCA on land-owners in areas not covered by local councils, serve a similar purpose to council rates. The OCA must follow a statutory process in setting the community contributions. Mr McFarlane considers that he is not liable to pay the charges because the process by which they were set was, in his view, non-compliant with the legislation. After a period of dispute over several years, the OCA commenced debt recovery proceedings against Mr McFarlane. While the amount asserted to be owed was $13,150.72,[3] the OCA reduced its claim in the Magistrates Court to $12,000.00, which had the effect that the proceedings were within the claim value of the minor civil action jurisdiction.[4][3] Outback Communities Authority v Brian David McFarlane [2022] SAMC 6, [3]. Exhibit A7 to the Affidavit of Brian David McFarlane sworn on 18 November 2022.[4] Magistrates Court Act 1991, s 3. Mr McFarlane attempted to join another party to the proceedings, and to file a counter-claim, but his applications were refused. Over two decisions ([2021] SAMC 123 and [2022] SAMC 6) the Magistrate determined the issue of liability against Mr McFarlane, but found in his favour in respect of a particular argument as to how the calculation was to occur, which reduced the liability. An order was made ordering Mr McFarlane pay $9,662.92 to the OCA, in addition to other fees associated with the proceedings. District Court Review Mr McFarlane then brought an application for review in the District Court (CIV-21-012406) of the judgements in the minor civil proceedings. Such a review is governed by s 38 of the Magistrates Court Act 1991 (SA). This section provides that the Court may inform itself as it thinks fit, is not bound by the rules of evidence and must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. The rights to legal representation is restricted. The Court may re-hear evidence taken in the Magistrates Court. The Court on review may affirm, vary or rescind and substitute the outcome, and in limited circumstances may remit the matter to the Magistrates Court.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

HH J
The Judge’s refusal to accede to these orders was a decision within jurisdiction. It was not an issue beyond the scope of his power to determine. Conclusion Proceedings that do not entail a significant factual dispute are more amenable to summary judgement. The orders made have no factual element and therefore, this Court may be satisfied that it can assess the merits of the judicial review prior to the hearing of the matter insofar as the facts are concerned. The application for summary dismissal is granted. The OCA has established that Mr McFarlane’s judicial review proceedings are so lacking in merit that it is appropriate to bring them to an early conclusion without conducting a hearing. Mr McFarlane’s filed documents and submission do not disclose even an arguable case that the orders about which he complains are arguably vitiated by error, or that there was an apprehension of bias arising on the Judge’s conduct of the interlocutory hearing or its outcomes. The review should now proceed in the District Court. The judicial review proceedings are dismissed.

Ratio Decidendi

Legal Principle Established

Established by: HH J

The OCA’s contention is that the words and conduct of the Judge on the interlocutory applications are not such as to give rise to a reasonable bystander apprehending bias on the part of the Judge. It was submitted that the Judge’s conduct was orthodox and routine and appropriate to the circumstances.Bias - consideration An element of providing procedural fairness to a litigant is for the Judge is to be free of bias when deciding the dispute. A decision affected by actual or apprehended bias is liable to be quashed. The test for apprehended bias is whether a reasonable observer might apprehend that the Judge might not bring an impartial mind to the disposition of the matter.[21] [21] Ebner v Official Trustee in Bankruptcy[2000] HCA 63; (2000) 205 CLR 337 per Gleeson CJ, McHugh, Gummow and Hayne JJ. On the summary dismissal, the question then is whether the OCA is correct to assert that there is little or no prospect of Mr McFarlane making out the claim. A person seeking to establish actual or apprehended bias must establish to a high probability that the decision maker brought a closed mind to the issues to be decided, or had prejudged them.[22][22] R v Stevedoring Industry Board; Ex parte Northern Stevedoring Co Pty Ltd (1953) 88 CLR 100, 116. A reasonable apprehension that the Judge lacked impartiality or would lack impartiality on the hearing of the review, does not emerge from a reading of the transcript, or from the Judge’s reasons for decision. It was open, if not necessary, for the Judge to refuse to agree at the interlocutory proceeding to call specified witnesses at the hearing. The fact that the review proceeding has an inquisitorial complexion does not mean that a Judge, on an interlocutory application, is obliged to direct the attendance of new witnesses at the review hearing. It was also plainly open to the Judge to inform Mr McFarlane that he would hear all of the applications, and the OCA’s response, and then provide a ruling rather than deal with each application in turn. Mr McFarlane’s submission that the Judge improperly maintained carriage of issues that were outside the Judge’s experience in disciplining Government authorities is misguided. He argued that the Judge was obliged to establish to Mr McFarlane’s satisfaction that the Judge had a track record of deciding disputes between individuals and Government bodies in favour of the individual. The Judge had no such obligation, but rather a duty to determine the applications before him, and the review in due course, on their legal merits. Mr McFarlane complained that the Judge failed to exercise his duty to elicit from him the questions proposed for referral to the Court of Appeal and disadvantaged him by then refusing to refer any questions on the basis that no proper questions were identified. Mr McFarlane says that he does, in fact, have questions of law to be referred. They are:Is s 17 of the OCA&M Act 2009 compatible with the Human Rights contained in ICCPR Article 25 that is the foundation of democracy?Did the OCA by adopting the IAP2 [International Association for Public Participation[23]] in its consultation Policy require the OCA to respect the human rights contained in the IAP2 by observing the Construction in par 12(a) above and inform the community of their rights during consultation in compliance with sec 14(1)(c) of the 1/7/2010 – OC Act 2009?Will equity prevail over precedent when a violation of human rights is in dispute?[23] As explained by the Magistrate in Outback Communities Authority v Brian David McFarlane [2021] SAMC 123 at [65]-[72].