O'TOOLE v Atkins - [2020] SASC 166

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
O'TOOLE v ATKINS
[2020] SASC 166
Judgment of The Honourable Justice Lovell
11 September 2020
MAGISTRATES - HEARING - PROCEDURAL FAIRNESS AND NATURAL JUSTICE
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION
After two days of hearing an application for an intervention order, the Magistrate recused herself from hearing the remainder of the matter. The parties were not informed of the Magistrate’s reasons for recusal and were not invited to make submissions. The Magistrate’s decision brought the trial to its end, forcing it to recommence before a different Magistrate.
Whether there are special reasons why it is in the administration of justice to hear the appeal - whether the appellant was denied procedural fairness – whether the Magistrate erred in failing to provide reasons
Held, per Lovell J:
1. The Magistrate erred in failing to afford the parties procedural fairness.
2. The Magistrate erred in failing to provide reasons.
Magistrates Court Act 1991 (SA) s 42, referred to.
Rogers v Police (2017) 130 SASR 190; White v State of South Australia (2007) 96 SASR 581; Siewertsz van Reesema v Police [2009] SASC 8; The Corporation of City of Adelaide v Circelli [2015] SASC 21; Police v Dorizzi (2002) 84 SASR 416; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1; Stokes v Ragless [2019] SASCFC 31; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Fleming v The Queen (1998) 197 CLR 250; DL v The Queen (2018) 266 CLR 1; Papps v Police (2000) 77 SASR 210, considered.

O'TOOLE v ATKINS
[2020] SASC 166
LOVELL J.
Overview

To the surprise of counsel for the appellant, after hearing two days of an application for an intervention order, the Magistrate dramatically disqualified herself from hearing the remainder of the trial. The Magistrate’s decision, which was made in the absence of counsel submissions, brought the trial to an abrupt end, requiring the matter to be relitigated before a different Magistrate.
The appellant, Susan O’Toole, seeks permission to appeal against the Magistrate’s decision on the grounds that she erred in failing to invite the parties to make submissions on the question of recusal and in failing to give reasons for her recusal. The appellant seeks to have the matter remitted before the same Magistrate.
Background
It is necessary to briefly set out the history of the proceedings. The appellant, a legal practitioner, represented the respondent, the matter finalising in 2014. The appellant did not hear from the respondent until 8 February 2017, when she received a 13-page letter containing numerous allegations against her. The appellant stated that the tenor and content of the letter caused her concern. Between receiving the letter and 1 March 2019, the appellant alleges she received “well in excess of 40 emails/letters” from the respondent. The appellant stated that she found the emails and letters “to be disturbing and threatening”.
The appellant alleges that, amongst other things, the respondent sent her an email on 11 February 2019 which stated the following:
Please advise what time you get to work in the morning as I wish to deliver this sealed Summons personally so you can bend over and I can stick it up your ass so everyone in the legal community can see you for what you are, a thieving con-artist mitch (sic).
The appellant alleges that the respondent also contacted other parties, who had worked on his matter with her, about the appellant. In particular, she alleges that he sent the other parties envelopes with a photograph of her face attached to the front.
These actions formed the basis of the appellant’s application for an intervention order before the Magistrate.
The respondent contested the intervention order and the matter proceeded to trial on 4 July 2019 and 7 November 2019. The trial time was largely occupied by the respondent’s cross-examination of the appellant. At the conclusion of the hearing on 7 November 2019, the matter was adjourned, with the expectation that the respondent was to present his case on 23 January 2020. The matter was then adjourned a number of times.
For reasons unknown to the appellant or her counsel, the matter was listed for a status conference on 1 June 2020. At that hearing, the Magistrate stated that she had received correspondence from the respondent, which compromised her position as a judicial officer. Without inviting the parties to make submissions, the Magistrate disqualified herself from the matter. The correspondence was not provided to the appellant until after the hearing.
The appeal
The appellant appeals the decision of the Magistrate to recuse herself, on the following grounds:
1. The LTM erred in law by failing to give reasons, or alternatively by failing to give sufficient reasons, to explain why or how she concluded that she ought to disqualify herself, thereby causing a mistrial; and
2. The LTM erred in making the impugned Order without hearing from the parties resulting in a denial of procedural fairness.
Permission to appeal
Special reasons required
Appeals in the criminal division are governed by s 42 of the Magistrates Court Act 1991 (SA). Section 42(1a) provides:
(1a) An appeal does not, however, lie against an interlocutory judgment unless—
(a)the judgment stays the proceedings; or
(b)the judgment destroys or substantially weakens the basis of the prosecution case and, if correct, is likely to lead to abandonment of the prosecution; or
(c)the Court or the appellate court is satisfied that there are special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial and grants its permission for an appeal.
The decision of the Magistrate to recuse herself did not dispose finally of the rights of the parties in the action; it is clearly an interlocutory judgment.[1] The appellant thus requires permission to appeal. Permission will not be granted unless the appellant demonstrates that there are special reasons why it would be in the administration of justice to have the appeal determined before the completion of trial.
[1] See Rogers v Police (2017) 130 SASR 190 at 201 [33] per Peek J.
“Special reasons” is a protean concept and is not defined in the Act. The expression must be interpreted in light of its context.[2] In Siewertsz van Reesema v Police (‘van Reesema’)[3], Bleby J stated:[4]
… I consider that, for there to be “special reasons” to grant permission to appeal under s 42(1a)(c), there must be some feature of the case which takes it out of the ordinary and distinguishes it from the usual cases. An arguable case by itself will generally be insufficient. There must be something about the unusual features of the case that calls for the granting of permission to appeal.
(Footnotes omitted)
[2] White v State of South Australia (2007) 96 SASR 581 at 592 [48] per Doyle CJ.
[3] [2009] SASC 8.
[4] Siewertsz van Reesema v Police [2009] SASC 8 at 4 [23].
It follows that for special reasons to exist, the case must contain features which are extraordinary, unusual or atypical.[5]
[5] See The Corporation of City of Adelaide v Circelli [2015] SASC 21 at 8 [49] per Bampton J.
To determine what constitutes the “unusual” cases, it is necessary to consider why interlocutory judgments are generally precluded from appeal. The purpose of the section is to prevent undue delays and the fragmentation of proceedings.[6] As a general rule, it is more appropriate and expedient for the trial to run its course before an appeal is heard. As explained by Bleby J in van Reesema:[7]
If an error is made in an interlocutory judgment it may or may not affect the final outcome. If it does it can be corrected on appeal from the final, substantive decision in the case, rather than by an appeal against an interlocutory order at a stage when all the evidence is not before the Court and the ultimate practical significance of the interlocutory order is not yet known.
[6] Police v Rogers (2017) 130 SASR 190 at 206 [49] per Peek J.
[7] Siewertsz van Reesema v Police [2009] SASC 8 at 5 [23].
In 2007, subsections (a) to (c) were enacted, as exceptions to the general prohibition against appeals of interlocutory judgments. By that time, it had become apparent that the administration of justice would be afforded greater efficacy if appeals from interlocutory orders in certain, limited circumstances were allowed.[8] The meaning of “special reasons” is informed by this purpose.
[8] See Police v Dorizzi (2002) 84 SASR 416, discussed in the second reading speech of Statutes Amendment Act (Criminal Procedure) Act 2005, South Australia, Parliamentary Debates, House of Assembly, 20th September 2005, 3469 (Michael Atkinson, Attorney General).
Do special reasons exist?
Mr Allen, for the appellant, submitted that, unlike most interlocutory orders, the decision of the Magistrate brought the end to the trial and will require the entire matter to be relitigated before a different Magistrate. Mr Allen submitted that an appeal at this stage would expedite, rather than fragment, the proceedings as if the matter was to be remitted, the Magistrate may be persuaded to continue the trial. This would eliminate the need for another trial. He submitted that it is in the interests of justice to have the matter determined at this stage, as an appeal against the order after the trial has proceeded before a different Magistrate would be futile.
I accept the submissions made by Mr Allen. I am satisfied that the matters outlined by the appellant constitute “special reasons” for the purpose of s 42(1a)(c). The circumstances of this matter differ from other, more procedural, interlocutory matters. If the appeal is successful, it is likely to expedite the determination of the intervention order application. For those reasons, I grant permission to appeal.
Was the appellant denied procedural fairness (Ground 2)?
The appellant submitted that the Magistrate erred in failing to afford procedural fairness to the parties by making the order:
1on material which was not available to the appellant; and
2without allowing the parties to make submissions.
The principles in this area are well-established. The judicial obligation relating to procedural fairness is concerned with a reasonable opportunity to present or meet a case. Such an opportunity is “vital both to the reality and appearance of justice”.[9] The concept of “fairness” was considered by the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam:[10]
… Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
[9] Stokes v Ragless [2019] SASCFC 31 at 3 [17] per Lovell J.
[10] (2003) 214 CLR 1 at 14 [37] per Gleeson CJ.
However, not every departure from the rules of natural justice will entitle a party to a new hearing. As I stated in Stokes v Ragless:[11]
… An appellate court will not do so if it would inevitably result in the making of the same order as made by the primary Judge at the original hearing. Where the breach of procedural fairness affects the entitlement of a party to make submissions on an issue of fact, it is more difficult for an appellate court to conclude that compliance with the requirements of procedural fairness could have made no difference.
[11] [2019] SASCFC 31 at 4 [21] per Lovell J.
Procedural fairness requires only that a party be given a reasonable opportunity to present his or her case; it does not require the Tribunal to ensure that the party takes the “best advantage of the opportunity” to which he or she is entitled.[12]
[12] Stokes v Ragless [2019] SASCFC 31 at 4 [18] per Lovell J; see also Sullivan v Department of Transport (1978) 20 ALR 323 at 343 per Deane J.
It is plain that the appellant was denied procedural fairness; she was not notified of the purpose of the hearing nor provided with a copy of the material on which the decision was to be made. The Magistrate announced her decision without inviting the parties to make submissions.
The appellant must demonstrate that the denial of procedural fairness deprived her of “the possibility of a successful outcome”.[13] On appeal, Mr Allen indicated that the appellant would have opposed the recusal if she had been provided with the opportunity to do so. Although the appellant has not been deprived of a successful outcome in the intervention order application, the appellant was denied the opportunity to have the question of recusal decided in her favour (such that the trial, which was near completion, could have proceeded before the Magistrate). While the legal test for recusal requires the judicial officer to make an evaluative judgment, the Magistrate may have been assisted by submissions from counsel as to the duty of the Court not to acquiesce too readily to requests for recusal.[14]
[13] Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147.
[14] See Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344 [6].
Due to the absence of reasons, as discussed below, there is nothing to suggest that a properly conducted hearing could not have produced a different outcome.[15] I accept the appellant’s submission that had the Magistrate heard submissions, she may have determined the matter differently.
[15] Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147.
Although the parties have now been provided with a copy of the correspondence between the Magistrate and the respondent, the issue remains that the parties did not have the opportunity to make submissions at the time. Given the significant practical consequences of the decision on the parties, it was incumbent upon the Magistrate to explain the purpose of the “status conference” and to provide the parties with the opportunity to make submissions on the issue of recusal. I note that during the course of the appeal hearing Mr Atkins stated that he was not opposed to the Magistrate continuing with the trial.
I allow the appeal on this ground.
Did the Magistrate err in failing to provide reasons (Ground 1)?
Although the appeal is allowed on Ground 2, I will also consider the appellant’s first ground. The appellant submitted that the Magistrate erred in failing to give reasons for her recusal.
The content of the obligation to give adequate reasons was considered in Fleming v The Queen.[16] In Fleming, the High Court held that the obligation demands more than a “bare statement of the principles of law the judge has applied and the findings of fact that the judge had made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that it reached”.[17]
[16] (1998) 197 CLR 250.
[17] Fleming v The Queen (1998) 197 CLR 250 at 263 [28].
In DL v The Queen,[18] the High Court explained that an assessment of the adequacy of the reasons will be dictated by the issues in the case:[19]
… Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake "a minute explanation of every step in the reasoning process that leads to the judge's conclusion". At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial.
(Emphasis added)
[18] (2018) 266 CLR 1.
[19] DL v The Queen (2018) 266 CLR 1 at 12 [33].
The failure to give reasons is an error of law.[20]
[20] Papps v Police (2000) 77 SASR 210 at 218 [33] per Gray J.
The appellant submitted that the above remarks remain apposite to an interlocutory decision; although the reasons may not require the depth of analysis and detail expected in a final judgment.
In announcing her decision, the Magistrate said:
… So, I’ve called this matter on before me today to advise that as a result of correspondence that was sent by Mr Paul Atkins to me personally and received on Monday last week, I now must disqualify myself from this trial as my position as a judicial officer has been compromised.
Mr Atkins, who was unrepresented, submitted that the Magistrate gave a reason for recusing herself, namely, that she felt as though her position had been compromised. In my view, the remarks are a conclusory statement, rather than a reason. The issue is that the Magistrate failed to explain how the correspondence received from the respondent caused her position as a judicial officer to be compromised. It is unclear whether the Magistrate recused herself for actual bias or on the basis of a reasonable apprehension of bias or indeed on some other basis. Without more by way of explanation, it is impossible for an appellate court to assess the correctness of the decision or for the parties and the public to determine how the Magistrate came to her decision. Although interlocutory, the Magistrate’s recusal brought the trial to an end. The failure of the Magistrate to explain her reasons for doing so constitutes an error of law.
I would allow the appeal on this ground.
I have not been asked to determine, nor could I have been, whether or not the Magistrate should continue to hear the trial. Ultimately, that is matter for the Magistrate. However when making that decision, whatever it may be, the Magistrate must apply the principles of procedural fairness and provide proper reasons for her decision. I remit the matter for further consideration before the Magistrate.
Orders
1Permission to appeal is allowed.
2Appeal allowed.
3The order of Magistrate Kossiavelos on 1 June 2020 that she be disqualified from hearing the matter is overturned.
4The matter is remitted to the Magistrates Court before Magistrate Kossiavelos for further consideration.