O'TOOLE v Atkins

Case [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

  1. 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.

  2. 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

  3. 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…

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AGLC
O'TOOLE v Atkins [2020] SASC 166
Case
[2020] SASC 166
Decision Date

CaseChat Overview and Summary

In the matter of O'Toole v Atkins, the appellant, Susan O’Toole, challenges the decision of the Magistrate to recuse herself from the case. The appellant, a legal practitioner, had previously represented the respondent in a matter that concluded in 2014. Subsequently, the appellant received numerous threatening communications from the respondent, which led her to apply for an intervention order. The respondent contested this application, and the matter proceeded to trial. During the course of the trial, the Magistrate received correspondence from the respondent that led her to disqualify herself from the matter without inviting submissions from the parties. The appellant now seeks permission to appeal the Magistrate’s decision on the grounds that the Magistrate erred in law by failing to give reasons for her decision to recuse herself and by not allowing the parties to make submissions on the issue of recusal.

The central legal issues in this appeal revolve around the principles of procedural fairness and natural justice. Specifically, the appellant argues that the Magistrate's failure to give reasons for her decision to recuse herself amounted to an error of law and deprived the appellant of a fair hearing. Additionally, the appellant contends that the Magistrate's decision to disqualify herself without allowing the parties to make submissions on the matter constituted a denial of procedural fairness. The appeal raises questions about the extent to which a judicial officer must provide reasons for their decisions and the circumstances under which parties should be afforded an opportunity to be heard.

In granting the appellant permission to appeal, the court noted that the Magistrate's failure to provide reasons for her decision to recuse herself was indeed a significant procedural error. The court found that such an omission was inconsistent with the principles of natural justice, which require that decisions affecting a party's rights must be accompanied by adequate reasons. Furthermore, the court highlighted that the Magistrate's decision to disqualify herself without allowing the parties to make submissions on the issue of recusal further compounded the procedural unfairness. The court concluded that these errors warranted an appeal and that the appellant had demonstrated special reasons justifying the grant of permission to appeal. The appeal will now proceed to determine whether the Magistrate's decision to recuse herself was indeed erroneous and whether it resulted in a miscarriage of justice.

Orders

Orders of the court

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Background

Background to the litigation

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; and2. The LTM erred in making the impugned Order without hearing from the parties resulting in a denial of procedural fairness.Permission to appealSpecial reasons required

Evidence

Evidence Before The Court

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Decision

Reasons for decision

LOVELL J

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Ratio Decidendi

Legal Principle Established

Established by: LOVELL J

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