Moore-McQuillan v Cox
[2016] SADC 98
•19 August 2016
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
MOORE-MCQUILLAN v COX & ORS
[2016] SADC 98
Reasons for Decision of Her Honour Judge Davison
19 August 2016
PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS
Appeal against a Decision of a Master who refused to remit the appellant's matter to the Supreme Court of South Australia, refused to disqualify himself and refused that an application be heard urgently.
Held: Appeal dismissed. Respondents to have the costs of the appeal.
District Court Act 1991 s 24(2); Defamation Act 2005 s 33, referred to.
McLean v DID Piling Pty Ltd [2010] SASC 33; House v The King (1936) 55 CLR 499; McDonald v South Australia [2015] SASC 141; Southern Equities Corporation Ltd (in liq) v Bond (2000) 78 SASR 339; Stone v Moore [2015] SASC 46; Johnson v Johnson (2000) 201 CLR 488; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Moore-McQuillan v WorkCover Corporation [2010] SASC 162, considered.
MOORE-MCQUILLAN v COX & ORS
[2016] SADC 98
The appellant has filed an action for defamation relating to comments allegedly made on Facebook by the respondents in 2012. The appellant seeks damages and removal of the allegedly defamatory statements. The action commenced in the Supreme Court in October 2013 and was transferred to the District Court on 27 March 2014 by his Honour Judge Dart. His Honour indicated that he thought it was more appropriate to conduct this action in either the District Court or the Magistrates Court, and as the appellant opposed the matter being transferred to the Magistrates Court, Judge Dart remitted the matter to the District Court.
The statement of claim filed in the Supreme Court on 21 October 2013 is as follows: [1]
[1] FDN 2.
Part 1:
The causes of action, the basis of them and the material facts are:-
1. Defendants Jan Cox of [address], Steph Preston [postal address] and Jarrod Cox [address] have defamed M Moore-McQuillan on the 21 December 2012 when you wrote or instructed to be written by Jarrod Cox defamatory remarks on FaceBook site “Steph Preston” on the 21 December 2012.
2. The defamation remarks were published on:”Facebook” wed site which has an international readership and not a local confined readership.
3. These posts have defamed Mr M Moore-McQuillan and further subjected Mr Moore-McQuillan to suffer and be subject to abuse and threats from unknown people which start after the defamation material was publish, that have Mr Moore-McQuillan in fear for his well-being and safety.
4. On the 21 December 2012 Jan Cox and Jarrod Cox did use Steph Preston’s FaceBook account with consent and permission to post defamation material about Mr M Moore-McQuillan
5. Jan Cox did not use her own FaceBook site, or any site that is directly connected to Jan Cox, in an attempt to hide her identity and deliberately post defamatory statements to knowingly cause harm, abuse and to defame M Moore-McQuillan’s character. By knowingly using false, misleading and inaccurate information.
6. Steph Preston did allow the use of her FaceBook site, or any site that is directly connected to Jan Cox, in an attempt to hide her identity and deliberately post defamatory statements against Mr Moore-McQuillan on the 21 December 2012
7. Mr Moore-McQuillan considers the entire post published on Steph Prestons FaceBook account on the 21 December 2012 is considered defamatory against Mr M Moore-McQuillan.
Part 2:
The remedies sought are:-
1. Compensation for damages.
2. Removal of the defamation Face Book internationally.
On 15 January 2016 the appellant filed an urgent interlocutory application in the following terms: [2]
The Plaintiff M Moore-McQuillan applies for the following orders or directions:
1. That this application be made specially returnable
2. That this matter return to the Supreme Court and be heard urgently.
3. In the alternative,
3.1 The matter be dealt with urgently
3.2 That Master Blumberg stand aside in this matter
3.3 The two applications dated 23/11/2013 and resent Dec 2013 made in the Supreme Court are heard urgently.
3.4 This matter be heard before 18-2-2016
[2] FDN 22.
On 5 February 2016 Master Blumberg heard argument and delivered ex tempore reasons. These were subsequently emailed and posted to the parties on 8 February 2016. The orders made on 5 February 2016 were as follows:[3]
1. Paragraphs 2, 3.2 and 3.3 of the application in FDN22 are refused.
2. The Argument listed for 18 February 2016 is vacated to enable the plaintiff, if he wishes, to exercise his right of appeal from this decision.
3. The application in FDN 19 is relisted for argument on Thursday 24 March 2016 at 10am for one half day.
4. A short directions hearing is listed for 10am on 17 March 2016 to ensure the utility of the argument hearing.
5. In the event that an appeal is instituted and a decision is not delivered on that appeal prior to 17 March 2016 both the directions hearing, and the argument date, will be administratively vacated and the Action not relisted before me until the determination of that appeal, or, any appeal from that appeal.
6. Defendants to have the costs of and incidental to FDN22 including the costs of the hearing on 5 February 2016 certified fit for counsel.
7. Defendants to file and serve an outline of argument relating to FDN 19 on or before 10 March 2016.
8. A copy of these reasons is to be sent to the plaintiff by three means: first, to him care [of PO Box address]; secondly, to him care of [address]; and, thirdly, by email as a pdf attachment to [email address].
[3] FDN 24.
The appellant now appeals against those orders. The grounds of appeal are as follows: [4]
[4] FDN 25.
1. Master Blumberg had erred when stating that the matter started in Oct 2013 and clearly the record of the Court in also in error.
2. The courts should make orders or full compensation and the removal of the defamation from FaceBook immediately.
3. Master Blumberg had erred thinking that only one defendant is involved when there is in fact three
4. Master Blumberg had erred in his decision returning to the Supreme Court or staying in the District Court by using the rule263(2)(f)(g) which clearly excluded defamation and the Defamation Act 2005. As the Act does not have any limits to reach before costs are awarded.
5. Master Blumberg also erred in stating that neither party made application to have the matter moved from the Supreme Court to the District Court when it is clear that the defendants made application to move the Court against the wishes of the plaintiff.
6. Master Blumberg stand aside, accuse himself.
7. Master Blumberg has erred in allowing an unsafe environment within the Courtroom because of the Sheriffs actions and treatment.
8. Master Blumberg has erred when he states that the 10 months of non action by the defendant is now not an issue as they have legal representation.
9. This matter was not fit for counsel and as Master Blumberg made the error of the 18-2-16 by not listening to the plaintiff cost should be awarded to the plaintiff.
10. As the defendants refused to do anything for the first 10 months they have forfeited the right to a trial.
The Appeal
An appeal lies of right from a judgment of a Master to this court constituted by a Judge. This appeal is by way of rehearing. The court is obliged to conduct a review of the decision and the Master’s reasons.[5]
[5] McLean v DID Piling Pty Ltd [2010] SASC 33 at [18].
As this decision involved an exercise of discretion, it is necessary for the appellant to identify an error of the kind described in House v The King[6] before any appeal would be allowed.
[6] (1936) 55 CLR 499.
The learned Master has set out in some detail the reasons for his decision. I will deal with them in the same order.
In the affidavit filed by the appellant[7] in support of this application, he sets out his understanding of the history of the matter and his argument in respect of each of the grounds of appeal. In addition to this, I heard oral argument from him in respect of these matters. The respondents have filed a summary of argument. Counsel for the respondents, Mr Files, also made brief oral submissions.
[7] FDN 26.
Return of the Matter to the Supreme Court
A Master of the District Court may order that civil proceedings in the District Court be transferred to the Supreme Court.[8] Such transfer involves an exercise of discretion. The considerations in respect of the exercise of the discretion are whether there is good reason to transfer the action and whether any prejudice may flow to the defendant from so doing.
[8] District Court Act 1991 s 24(2).
The learned Master had regard to both considerations as can be seen from his reasons.[9]
[9] FDN 24.
36There are various authorities about the appropriate circumstances for transfer of actions between courts. The authorities to which I will refer are as follows: Thornley v Conte (1997) 193 LSJS 484, being a decision of Bollen AJ, in which his Honour dealt with the regime that also appears to be applicable at the current time (albeit in that case it related to the Magistrates Court):
One can see how courts have dealt with similar sections in other States, from the authorities to which I have been referred. I pay attention to that.
I do not propose to attempt to lay down any rules about the operation of s19(2) of the Magistrates Court Act. I think it would be unwise to do so. I think it would be unwise to try to law down strict rules or formulae for the operation of the rule. I think one can, spreading the net wide, say that if it appears that the interests of justice required a transfer of the matter, then it should be transferred. I do not think anyone could cavil at that general statement.
Of course, “the interests of justice” is a wide expression. Everything would need to be taken into account. Any prejudice to the other party would need to be taken into account. Mr Illingworth has not suggested to me that there was any prejudice to the defendants, or would be any prejudice, in proceeding in another court.
One thing which he mentioned is that the defendants are entitled to know the case to be made against them. That is perfectly correct. But I do not think that goes to jurisdiction. The defendant would be entitled to that information wherever he has to meet the plaintiff. If it is not forthcoming, appropriate steps would be taken in the court to which the matter finally arises.
In my opinion, the information offered to the Magistrate was sufficient to raise a distinct possibility of an award of more than $60,000. I say that that is especially so, having regard to the timing. This was what we will perhaps call a pre-Wrongs Act action. The award for pain and suffering would not be restricted as it is in s35A of the Wrongs Act now.
I think that on the information in the medical reports, and from fair inference to be drawn from them, that one could see it was a distinct possibility of an award of, I would just say, at this stage, of something more than a trifling amount for loss of capacity to earn.
His leg was shortened. There was scarring. There were injuries that could have been incapacitating. Of course, all these things will need properly to be proved when the case eventually comes on.
I think that the Magistrate must have fallen into error in not giving adequate weight to the medical evidence and inferences to be drawn from it. In these circumstances, I will allow the appeal.
37The next case to which I will refer is Liddell v Southern Area Health Service [2010] SASC 11 being a decision of Bleby J. The approach taken in that case is best evident from paragraphs 12 through to 18 as follows:
[12]I therefore turn to address that question. Both courts have jurisdiction to try the action. This is the plaintiffs’ application. The plaintiffs could have commenced the action in this court if they had chosen to do so. I consider that that is a relevant factor.
[13]Against that background, the first question to be addressed in such a case is whether the action is an appropriate one to be heard in this court. The second question is whether there is some good reason to transfer the action. The third question is whether there is any prejudice to the defendant in so doing. A different approach may be necessary on an application by a defendant who has been brought to the District Court by compulsion, at the option of the plaintiff.
[14]The plaintiff’s claim is for damages. If successful the damages will be very large. It is an appropriate action to be heard in this court. The plaintiffs, if they wished, could have commenced the action in this court. It is the plaintiffs who now wish to have the action transferred.
[15]It is clear that they wish to have the matter judge managed as a special classification action in this court. Although that can theoretically happen in the District Court, the set-up of managing such actions in this court is well established and the procedures for doing so are well known and frequently invoked. I understand that that is not the case necessarily in the District Court. The nature of the action is such that it may be appropriate so to classify the action. It would not be a futile application to do so.
[16]The plaintiffs also believe that by transferring the action to this court they are likely to get an earlier trial. That in itself is not an adequate reason. Transfers will not be made merely to assist plaintiffs in jumping a District Court queue.
[17]There is no evidence of irremediable prejudice to the defendant by having the action transferred. It was the plaintiffs’ choice in the first place to sue in the District Court. They could have chosen to sue in this court but did not. They are not bound by that election for ever. As it is not an appropriate action to be heard in this court, and as there is an acceptable reason for the plaintiffs now to wish to have the action hard in this court and there is no irremediable prejudice to the defendant, I consider that the plaintiffs are entitled to the order that they seek, but only subject to conditions.
[18]The condition will be that the plaintiffs pay their own and the defendant’s costs of and incidental to the application to transfer the action in any event. As the plaintiffs could have commenced the action in this court, there is no reason why the defendant should suffer the burden of the costs of the transfer. I include in the costs that the plaintiffs must bear the filing fee of $1740 paid on commencing this action. This application could have been made without payment of any fee to a judge or master of the District Court.
38The final case from which I will quote in detail is Cooper v Moloney [2012] SASC 35 being a decision of Judge Lunn. From that case I will insert paragraphs 9 and 13 from the judgment:
Having elected to institute his action in this court, the plaintiff should not be permitted to transfer it to the District Court without the consent of the defendant unless he shows that it is in the interests of justice that he should be permitted to do so. His counsel submitted that he may be at risk on costs order under 6R 263(3)(h) as he may not recover a judgment for at least $75,000. I do not accept this. To have pleaded a claim for $727,921 the plaintiff must have bona fide believed that he had arguable causes of action for that amount, or at least much of it. I do not accept that the matters disclosed in the Defence and Counterclaim now mean that the plaintiff believes he is genuinely at risk of not recovering more than $75,000. The Defence and Counterclaim do little more than dispute the agreements alleged by the plaintiff. The 6R 33 procedures were not carried out before instituting the action. There had obviously been considerable animosity between the parties and there is no ground to believe that the plaintiff could have expected the defendants to have agreed with his version of the agreements.3 I also do not accept that if both the claim and the counterclaim succeed to some extent this will necessarily result in a balance judgment which would be relevant to the limit of $75,000 under 6R 263(2)(h). It appears that not all of the claims and counterclaims are necessarily against, or by, all of the defendants, and it may well be that at the end of any trial the Judge will have to enter multiple judgments. Furthermore, if the contents of the Defence and Counterclaim had, as he alleges, caused the plaintiff to believe that the action should have been in the District Court, he should have immediately taken out an application for a transfer, but he did not.
…
In my view, as the plaintiff elected to institute this action in the Supreme Court, it should remain here unless good reason is shown why it should be transferred. The issues in the action in this court are much broader than those in the District Court. The appropriate exercise of the discretion under s 24 of the District Court Act is that the District Court action should be transferred into this court.
39The common thread which runs through the case law is to transfer an action there should be some good reason, or, it is desirable, or, otherwise, in the interests of justice.
40Given the plaintiff chose the Supreme Court to issue his Action, given the special category enjoyed by a defamation action, and, given the circumstances of its transfer here, one can see some bases for acceding to the application.
41 However, it seems to me that in this case it would be inappropriate to do so.
42In this case a Master of the Supreme Court, who has the status of a judge of the District Court, has decided that this action is appropriate to transfer to the District Court.
43 I have no doubt that an appeal could have been instituted against that decision.
44 It was not.
45It being the decision of a superior judicial officer, it would, in my view, be inappropriate to allow this application to constitute some type of appeal “through the back door” to a decision of a superior Court. That is especially as there is no material change in the circumstances of the litigation, or the parties, since Judge Dart made the order on 27 March 2014.
46It is also for discretionary reasons that I decline the application to transfer: it is an unseemly appearance for the administration of justice to have actions crossing Gouger Street from the Supreme Court, to the District Court, and, then, back to the Supreme Court.
47I acknowledge that in the case of Bambrick v Easterbrook [2013] SASC 21 that very phenomenon did occur, albeit in reverse. That was an Action in the District Court. It was transferred to the Supreme Court. Then the Supreme Court transferred it back to District Court. The circumstances in that case are clearly distinguishable as (1) there was an issue of law involved and a finding that the transfer to the Supreme Court occurred under a mistake of law; and (2) it was a Superior Court making a re-transfer order.
48So, for those reasons, I consider that it would be inappropriate to transfer this back the Supreme Court absent any challenge to the initial decision made by Judge Dart.
The appellant argued that the learned Master had erred in his decision by considering rules 263(2)(f) and (g) of the Rules of Court in the following way:
21It is clear that the plaintiff chose to issue his proceedings in the Supreme Court. That cannot be gainsaid as a right, or entitlement, vesting in anyone who asserts a claim in defamation.
22It is clear from the cost principles in the rules of court that defamation actions are regarded in a special light by the rule-making authority.
23 That that is so evident from considering the cost thresholds in rule 263.
24The content of rule 263(2)(f)(g) in the Supreme Court I will set out when settling these reasons. Suffice to say that in a defamation case, unlike any other case, a plaintiff need only achieve $50,000 in the Supreme Court in order to have a prima facie entitlement to costs. That compares with $120,000 in any other matter.
263—Court’s discretion as to costs
(1) As a general rule, costs follow the event.
(2) The general rule is, however, subject to specific rules to the contrary1 and also to the following exceptions (which apply subject to the Court’s order to the contrary)—
……
(f)in an action founded on a claim for defamation, general costs of action are not to be awarded in favour of the successful plaintiff unless the damages exceed $50,000;
(g)in an action founded on a claim for damages or any other monetary sum (other than a claim for defamation), general costs of action are not to be awarded in favour of the successful plaintiff unless the amount awarded exceeds $120,000.
25In the District Court I will set out the equivalent rules at this point of the reasons when settling them, namely, rules 263(2)(f)(g).
263—Court’s discretion as to costs
(1) As a general rule, costs follow the event.
(2) The general rule is, however, subject to specific rules to the contrary1 and also to the following exceptions (which apply subject to the Court’s order to the contrary)—
……
(f)in an action founded on a claim for defamation, general costs of action are not to be awarded in favour of the successful plaintiff unless the damages exceed $25,000;
(g)in an action founded on a claim for damages or any other monetary sum (other than a claim for defamation), general costs of action are not awarded in favour of the successful plaintiff unless the amount awarded exceeds $60,000.
26As appears from the terms of the District Court rule, in this court a plaintiff need only obtain $25,000 in a defamation action to have a prima facie entitlement to costs. Other cases require a plaintiff to obtain $60,000.
27I do not think it a great leap to conclude that the law views the protection of a person’s reputation as warranting matters being instituted in the Supreme Court – even if the amount of money obtained is relatively modest.
28It reflects the way in which the law views the nature of and the sanctity of a person’s reputation.
29It is then important to ascertain how this Action came to be shifted from the Supreme Court to the District Court.
In addition to this, the appellant argues that the learned Master erred in determining that the matter had been transferred from the Supreme Court to the District Court without any party making an application to transfer. The learned Master said this:[10]
31A thorough search of the file of this court and the materials transmitted to this court from the Supreme Court do not show that any party made an application to have this Action shifted to this Court.
[10] FDN 24 at [31].
The appellant argues that it is clear that the respondents made application to ‘move the court’. He further asserts that this action by the respondents was to prolong the matter ‘because of other matters in NSW concerning one of the Defendant’s only’. According to the appellant, this relates to the respondent Jan Cox being involved in an unrelated criminal matter in New South Wales.[11]
[11] T 14.
The respondents argue that the learned Master correctly identified the relevant principles and approach to be taken to the exercise of the discretion, and further, that the learned Master was correct in considering that it would be inappropriate to transfer the action back to the Supreme Court in these circumstances.[12]
[12] FDN 24 [41]-[48].
The respondents further submitted that although the learned Master did not expressly consider whether there would be any prejudice if the action was transferred back to the Supreme Court, he correctly identified that a transfer would cause delay.
In all the circumstances it was argued that there was no error of the kind referred to in House v The King[13] in the exercise of the discretion.
[13] (1936) 55 CLR 499.
The learned Master had regard to all relevant circumstances. A copy of the Court Record does not reflect that an application was made for the transfer of this matter from the Supreme Court to the District Court in March 2014. The Supreme and District Court have the same jurisdiction to hear a defamation matter. Either court may award damages for non-economic loss up to the limit prescribed by the Defamation Act 2005[14] and, in this case, any damages awarded are likely to be for non-economic loss.
[14] Defamation Act 2005 s 33.
The learned Master was correct in his analysis of Supreme and District Court Rules 263(2) (f) and (g). If this matter is transferred to the Supreme Court, the appellant will be unable to recover the general costs of the action, unless his damages exceed $50,000. Whilst there can be no criticism of the appellant for bringing his action initially in the Supreme Court, the appropriate court for the hearing of this matter is the District Court. I can see no good reason to transfer the action back to the Supreme Court.
The Appellant has not demonstrated any error in the reasons of the learned Master. His argument, it seems, is based entirely upon a misapprehension that if the matter was transferred to the Supreme Court, a default judgment would be entered by the Supreme Court, as there had been a series of non-attendances of the defendants before the Supreme Court, and a Notice of Acting by a solicitor[15] was not filed until 26 March 2014.
[15] FDN 8.
Furthermore, the appellant asserts that the matter was transferred from the Supreme Court to the District Court to facilitate an early trial that has not eventuated. I can see no evidence that the matter has not been dealt with expeditiously and I am not satisfied that this would give rise to good reason to return the matter to the Supreme Court.
Application that the learned Master disqualify himself
The application was made that Master Blumberg ‘stand aside’ in this matter. The basis for this application is set out as follows:[16]
[16] FDN 21 at [23] – [31].
23. The lawyer for the defendants has openly approached the judge, masters without the plaintiff being present.
24. The lawyers for the plaintiff has openly sort and discussed the matter of defamation with other lawyers and clerks which has prejudiced the plaintiff.
25. If the plaintiff had done this then the full force of the courts would have been applied against the plaintiff but in this matter Blumberg allowed this to flourish.
26. At no time during the hearings before Blumberg has the plaintiff been listened to hear or given a fair hearing by Blumberg.
27. On the last occasion Blumberg refused to listen to the plaintiff and sided with the defence lawyer that prejudiced the plaintiff.
28. The fact that the sheriffs are used to intimate the plaintiff clearly shows that Blumberg has been influenced by CJ Kourakis and others. This is both bias and prejudicial. If Blumberg has not been influenced then he should order the sheriffs to leave instead of being in fear of making a proper just decision that has occurred to date.
29. It is clear that Blumberg doesn’t want to have anything to do with this matter or the plaintiff. But by refusing to answer questions is against Wells J in Carter v Haynes where he has a duty to keep the matter error free.
30. The fact that Blumberg has drawn this out when it was only the orders that needed to be done and that now the plaintiff is being injuried [sic] clearly shows prejudice and bias that continuing.
31. For these reasons Blumberg must stand side [sic] as he is openly prejudiced.
Further submissions were made by the appellant at the time of the initial hearing.
The affidavit[17] filed by the appellant sets out the factual basis in support of the grounds for appeal on this issue as follows:
[17] FDN 26 at [33] – [50].
33. Since 1998 the plaintiff have been subjected to harassment, excessive attention, indiscreet surveillance, verbal taunting and improper behaviour by the sheriff dept of the Adelaide complex.
34. The plaintiff does not get this treatment in any other Court complex only the Adelaide complex.
35. In fact the plaintiff has a good liaison and repore with the Christies beach complex who on occasions has stated the treatment of Adelaide Complex is from the management of that complex.
36. This special treatment of the sheriff dept being either ordered by the Judge of the Courtroom or by the management of the sheriffs; or by the individual sheriffs’ themselves.
37. Either way the plaintiff should never have been treated this way.
38. The plaintiff has been told by the judiciary that sheriffs’ actions etc towards the plaintiff have nothing to do with them and if that wasn’t the case then grounds for bias and prejudice which would mean that the plaintiff has not been given the legal right to a fair hearing/trial.
39. However the judiciary places the blame of the special treatment onto the management of the sheriffs dept.
40. On the 5-2-16 the sheriffs were observed to enter the Judges Door to talk to Master Blumberg which must be prejudicial and bias to the plaintiff.
41. Further the manager of the sheriffs told the courtroom that if he thinks that the matter should end he will end it immediately raising the question of who is incharge of the matter before Courts the judicial or sheriff dept?
42. It is obvious that the sheriff dept are perverting the course of justice against the plaintiff.
43. Either way this is prejudicial and bias towards the plaintiff.
44. However the sheriff dept place the blame on to judiciary ordering them to maintain this treatment to harass me.
45. Either way with one side saying it’s the other the situation now exists where the plaintiff is in fear of his wellbeing and safety when attending court.
46. This is assault on the plaintiff by the judiciary and sheriff dept by the definition of the criminal code.
47. This does prejudice the plaintiff.
48. As the sheriffs have placed the orders of this improper action by the sheriffs onto his honour the plaintiff ask that Master Blumberg stand aside for the following reasons
a. Treating the defendant differently to the defendant.
b. Allowing an unsafe environment to the plaintiff to exist causing mental duress.
c. Having knowledge, and prejudice of the plaintiff that would cloud the decision against the plaintiff
d. Using a superior position to inflict mental duress, unfairness and unsafe environment towards the plaintiff only.
e. Not providing a fair, just and proper hearing in this matter.
f. The test of someone at the back of the room apprised of all the facts etc would have no problem seeing the improper actions ordered by the judiciary for the sheriffs to undertake. Nor would the same person not see the difference in treatment towards the plaintiff as being blatantly obvious and wrong.
49. At Para 103 with regards to the excessive sheriffs in the Courtroom Master Blumberg wrote “their presence has no assertion on the outcome of any hearing before me” however the fact that more than the one sheriff in the room hovering over the plaintiff during the hearing clearly must raise questions with the judicial officer conducting the trial. Coupled with the fact that the sheriff entered the judge’s door to speak to the judicial officer prior to the hearing cannot be said to have no impact on the mind of the judicial officer against the plaintiff.
50. The memo between Doyle CJ and Kourakis J stating the use of sheriffs should be used to harass the plaintiff clearly is being used in the hearing in this matter.
In determining this matter the learned Master considered the relevant legal principles and had regard to the recent decision of Nicholson J in McDonald v South Australia.[18] He also considered the nature of the hearing and the interlocutory nature of the hearing. He had regard to the judgment of Bleby J in Southern Equities Corporation Ltd (in liq) v Bond: [19]
In particular, it should not be assumed that, merely because a judge has been responsible for pre-trial case management of a particular case and will obviously have made decisions adversely affecting one party or another, the judge is necessarily precluded from conducting the trial. Indeed, there would be few interlocutory applications, a decision on which would be likely to give rise to a reasonable apprehension of bias. This is particularly so because most contested applications are decided on affidavit evidence where either the facts are not in dispute or where, as in the case of an interlocutory injunction, the judge merely has to be satisfied that the facts deposed to raise a serious question to be tried. Usually, findings on such issues will be cast in language which could not possibly found a successful submission of apprehension of bias.
[18] [2015] SASC 141.
[19] (2000) 78 SASR 339 at [129].
The learned Master also considered the specific allegations that were being made by the appellant and addressed each of them in turn.
Ultimately, the learned Master declined to recuse himself.
There is a question as to whether an appeal lies from a Judge’s refusal of an application that he or she disqualify himself or herself, on the basis of apprehended bias. This matter has recently been subject of an appeal. Nicholson J considered the issue in Stone v Moore.[20] In that case it was argued by the appellant that the trial judge’s refusal to recuse himself constitutes a judgment from which an appeal lies. In the alternative, it was argued that where a judge’s refusal is subsequently followed by an interlocutory judgment or order, a right of appeal from that judgment or order arises on the basis that the Court made an order when it was not properly constituted to hear the matter, because of the apprehended bias. The respondent submitted that a bare refusal to recuse is not appealable. Further, whilst they conceded that a right of appeal may arise with respect to a subsequent interlocutory judgment or order, it was submitted that an adjournment ruling is not a judgment amenable to appeal.
[20] [2015] SASC 46.
Nicholson J, after considering the relevant authorities in respect of the matter concluded that there is no appeal from a bare refusal to recuse. On the basis of this authority the appeal against the learned Master’s refusal to disqualify himself is not competent. However, this is not an end to this matter. The decision of the learned Master to refuse to transfer the action back to the Supreme Court is an appealable decision. The appellant in this matter has not sought to argue that the Master ought not to have made the decision because he ought to have disqualified himself from further hearing. However, I consider that this is an appropriate matter for me to consider in circumstances where the appellant is unrepresented, and, the grounds of appeal as currently framed are sufficiently wide in their terms in any event.
As explained by Nicholson J in Stone v Moore the well-established test for determining whether a judge should disqualify himself on the basis of an apprehension of bias is that of a fair minded lay observer. The High Court in Johnson v Johnson[21] explains as follows:
It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision”. The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.
[21] (2000) 201 CLR 488 at [11]-[12].
This approach was endorsed by the High Court in Ebner v Official Trustee in Bankruptcy:[22]
Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
[22] (2000) 205 CLR 337 at [6].
As can be seen the test is an objective one. The learned Master considered each of the allegations made in this matter. There was no error in relation to the learned Master’s decision. A reasonable observer would not have an apprehension that the learned Master lacked impartiality. The learned Master was quite right to conclude that he ought not disqualify himself, and, there was no error in the exercise of his discretion.
Application that FDN 4 be heard urgently
This was an application that was made originally in the Supreme Court. The matter was subsequently transferred to the District Court as I have already set out. This application lapsed when the matter was transferred to the Supreme Court. Even if it had survived the transfer the learned Master had no power to order the superior court to hear the application. The rejection of this application by the learned Master amounts to no more than an administrative action that was a refusal to entertain the application. That being so there is no right of appeal against this action.[23]
[23] Moore-McQuillan v WorkCover Corporation [2010] SASC 162.
The application in FDN 4 was for substantive relief. In the orders and directions sought, the appellant sought damages and removal of the defamation from Facebook internationally by the respondents by way of default judgment. The learned Master considered these applications in his judgment.[24] He rightly took the view that the matters had been superseded by the filing of the Notice of Acting, which then removed the prospect of any type of default judgment being recorded. Taking any other view of this matter would mean that there would have to be a determination of the substantive issues in dispute. Those issues could only be determined by a Judge after hearing evidence if they remained in dispute.
[24] FDN 24 at [114] – [126].
There was no error in the approach of the learned Master in respect of this ground of appeal.
Orders
1. The appeal in FDN 25 is dismissed.
2. The respondents to have the costs of and incidental to FDN 25.
3. A copy of these reasons be sent to the appellant by three means: to his post office box, residential address and by email.
0
11
1