Pikor v Barrett

[1990] TASSC 11

Serial No 5/1990
List "A"

CITATION:              Pikor v Barrett [1990] TASSC 11; A5/1990

PARTIES:  PIKOR
  v
  BARRETT

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 71/1988
DELIVERED ON:  16 March 1990
DELIVERED AT:  Hobart
JUDGMENT OF:  16 March 1990

Judgment Number:  A5/1990
Number of paragraphs:  30

Serial No 5/1990
List "A"
File No FCA 71/1988

PIKOR v BARRETT

REASONS FOR JUDGMENT  FULL COURT

GREEN CJ
COX J
CRAWFORD J
16 March 1990

Order of the Court

Appeal dismissed.

Serial No 5/1990
List "A"
File No FCA 71/1988

PIKOR v BARRETT

REASONS FOR JUDGMENT  FULL COURT

GREEN CJ
16 March 1990

1. The appellant was convicted in a Court of Petty Sessions upon one count of driving a motor vehicle on a public street between sunset and sunrise when the front headlamps were not alight and one count of driving a motor vehicle on a public street from one lane to another when the movement could not be made with safety. The charges were laid in different complaints but by consent were heard at the same time. The appellant sought to review those convictions by two motions to review which by consent were heard together. This is an appeal against the dismissal of those motions to review.

Grounds 1 and 2 of this appeal are:

"TAKE NOTICE:– THAT THE ABOVENAMED APPELLANT appeals to the Full Court against the Order of the Honourable Underwood J, made on the 27th day of May, 1988 whereby His Honour declined to disqualify himself from the hearing and determination of the two Notices to Review LCA 152/87 and 153/87.

UPON THE GROUNDS THAT:–

1THAT His Honour whilst in private practice with the Firm of Solicitors of Messrs Murdoch, Clarke, Neasey & Cosgrove, Mr P G Underwood conducted manifestly groundless and unlawful litigations against the Appellant in the action of P 2292/1961 – R T Holt v A Z Pikor – subsequently LCA116/63 followed by the summons dated 30/5/1966 – still undetermined.

2THAT His Honour is still owing this £70.00 to the Appellant which was paid by the Appellant to the then Mr P G Underwood on the 5th December, 1963 in order to avoid the threatened Garnishee Proceedings."

1. Those grounds of appeal were drawn by the appellant in person but counsel for the appellant submitted that in essence they amounted to an allegation that Underwood J should have disqualified himself from hearing the motion to review on the ground that a fair minded observer would have reasonable grounds for apprehending bias on his part because there was uncompleted litigation between him and the appellant.

1. In the course of this hearing some passing references were made to some exchanges which had taken place between Underwood J and the appellant during the hearing of the motions to review but as the appellant expressly informed this court that the only allegations upon which he relied were those made in grounds 1 and 2 and as no application to amend those grounds was made I am of the opinion that this court should not go outside them.

1. The uncompleted litigation between the appellant and his Honour upon which the appellant relies was identified for this Court by counsel for the appellant as the claim made in para2(3) of Part A of the document headed "statement of claim" which was a part of the following document dated 30 May 1966:

"IN THE SUPREME COURT OF TASMANIA No of 1966.

SUMMONS – Interlocutory – (Pursuant to Judgment of Court of Appeal made on 30th. day of September, 1964.)

A Z Pikor  Applican/tDefendant
BETWEEN  R T Holt  Responden/tPlaintiff
  F Coniston  Respondent/Third Party

LET ALL PARTIES concerned attend His Honour the Judge sitting in Court as in Chambers at the Court House, Macquarie Street, Hobart in Tasmania, on Wednesday the 8th day of June 1966., at ten o'clock in the forenoon on the hearing of an application on the part of the Applicant for an Order that the Applicant be at liberty to tax his costs in the process of Plaint No 229261 – R T Holt v A Z Pikor, AND that the Applicant be ALSO at liberty to tax his costs in the action on the second bill of costs in the said process of Plaint No 229261., AND that the Applicant be FURTHER at liberty to add to the taxed costs the damages sustained and losses incurred by the Applicant together with equitable compensation such as the Court may think fit to award to the Applicant upon consideration of the statement of claim contained in Part 'A' and Part 'B' of appendix I attached to this summons.

AND that the taxed costs together with awarded damages and equitable compensation and costs of this application be paid to the Applicant as follows:–

5%      by Mr F Coniston,

20%     by Mr R T Hold, LLB,

40%     by the firm of solicitors Messrs Murdoch, Clarke, Cosgrove & Drake,

35%     by the firm of solicitors of Messrs Page, Seager, Doyle & Bethune.

ON THE GROUNDS THAT:– Grounds 1 to 4 as enumerated in appendix 2 attached to this summons.

Dated the 30th day of May 1966.

This summons was taken out by the Applicant and on behalf of the Applicant – Aleksander, Zygmunt, PIKOR of 268 Park Street, North–Hobart.

CLERK OF COURT  APPLICANT

APPENDIX I

STATEMENT OF CLAIM

PART 'A'

1         THAT the Applicant be at liberty to tax his costs as follows:

1.1      In the process P.229261 – R T Holt v A Z Pikor:–

(a)Costs in the Court of Requests.

(b)Costs in the Supreme Court of Tasmania, and add to the taxed costs the counsel's fee paid by the Applicant to Mr W J E Cox, BA, LLB, Esq.

1.2In the action on the second bill of costs in re process P 2292/61 – R T Holt v A Z Pikor:–

(a)       Costs in the Court of Requests.

(b)       Costs in the Supreme Court of Tasmania.

2         THAT the applicant be also at literty [sic] to add to the taxed costs the counterclaim in the action P2292/61, and the incidental costs incurred by the Applicant in the action:–

(1)$ 87.53 – Counterclaim – pursuant to the Judgment of Court of Appeal made on 30th day of September, 1964.

(2)$ 515.38 – (£257.13.9) – paid by the Applicant to his solicitors.

(3)$ 140.00 – (£70.00) – paid by the Applicant to Mr P G Underwood on 5/12/63, together with interest at 5% p.a.

(4)$ 26.65 – (£13.6.6) – paid by the Applicant under GO 580/61 – F Coniston v A Z Pikor.

(5)$ 39.99 – (£19.19.11) – taxed by Mr P G Underwood on 5/12/63 in re R T Holt v A Z Pikor.

(6)$ 20.00 – (£10.00) – taxed by Mr P G Underwood on 25/3/64 in the action re F Coniston and R T Holt.

(7)$ 113.15 as allowed to Mr B J Doyle on the Review of Taxation on 9/5/66, together with the awarded costs.

PART 'B'

THAT the Applicant be further at liberty to add to the taxed costs the general damages sustained and losses incurred by the Applicant together with equitable compensation for the following:

(1)Damages for loss of 45 earning (working) days.

(2)Damages for loss of 708 days of recreational time – (Weekends and Holidays) – for the period of over 6 years from March, 1960 to June 1966.

(3)$ 37.75 incidental expenses and contingencies.

(4)Equitable compensation for wilfully causing injuries to the Applicant's credit and fair name, and alienating members of legal profession against the Applicant, and imposing great anxieties upon the Applicant and thereby causing hardship and loss of enjoyment of life to the Applicant.

APPENDIX 2

GROUNDS IN SUPPORT OF SUMMONS

1THE judgment of Court of Appeal made on 30/9/64.

2THE Respondent R T Holt was a solicitor of the Applicant until 28th of August, 1964.

3THAT the Respondent R T Holt was and still is in contempt of the Order of Court of Requests made on 15th day of December, 1961.

4THAT the Respondents R T Holt and F Coniston and their respective solicitors without lawful justification, knowingly and intentionally combined for the purpose of wilfully causing injury to the Applicant's credit and fair name and to inflict material damage upon the applicant and actual moral and material damage resulted to the Applicant therefrom."

1. The test to be applied is whether the appellant or the public might entertain a reasonable apprehension that because the claim referred in para2(3) in the above process had been made the learned judge at first instance might not have brought an impartial and unprejudiced mind to the resolution of the issues raised by the motions to review; see Livesy v NSW Bar Association (1987) 151 CLR 288. In determining what apprehension could reasonably be entertained by the appellant or a member of the public the following factors at least would have to be taken into account:–

1The determination of the motions to review involved only a consideration of whether the magistrate had erred in any of the respects alleged in the grounds. The learned judge was not required to make any determinations of fact, assess the appellant's credibility or exercise a discretion.

2The appellant has made no effort to pursue the claim and there was no suggestion made to this Court that he ever intends to pursue it.

3There is a real possibility that if the appellant ever attempted to revive the claim it would be dismissed for want of prosecution or for the patent irregularity of the process by which it was commenced and that any fresh proceedings would be defeated because the claim would be statute barred.

1. I am quite unpersuaded that in the circumstances the appellant or a member of the public would apprehend that upon the hearing of the motions to review in 1988 the learned judge might have been affected in any way by the fact that in 1966 the process which I have set out above was filed or that if the appellant or a member of the public did have such an apprehension that it could possibly be characterised as reasonable. I would not uphold grounds 1 or 2.

1. The remaining ground of this appeal purports to incorporate the grounds relied upon in the motions to review and I now turn to those grounds.

"LCA 1521987

PART 'A'

Ground 1 – THAT His Worship ought to have held that in the circustance [sic] of the case, if one Prosecuting Officer elected to abandon the hearing, it is irregular for another Prosecuting Officer to re–instate the hearing without consent of the Defendant."

1. Counsel did not expressly abandon this ground but conceded that he could not submit that there was any evidence that the Prosecuting Officer had abandoned the hearing. The appellant has not persuaded me that the factual foundation for this ground has been established.

"Ground 2 – THAT His Worship erred in law by not issuing his ruling whether the two complaints (Nos 09700 & 09701) and the summons thereof, not being signed by Justice of the Peace as required by s58(2) of the Evidence Act 1910, are legally binding upon the Defendant."

1. Counsel conceded that the signatures on the complaints were not facsimiles. As the appellant appeared and took part in the proceedings before the magistrate I am not persuaded that if there was any error in the summons that it was a material error.

"Ground 3 – THAT His Worship erred both in law and in the exercise of his discretion by over–ruling grounds 2 and 3 of the Notice of Demurrer dated 17387 in the complaints Nos 09700/86 & 09701/86 – (The current LCA'S 152 and 153)."

1. The "Notice of Demurrer" referred to read as follows:

"NOTICE OF DEMURRER – on the grounds that:–

1THAT the unconditional judgment of 'Sine Die' granted by the Court to the Prosecution on the 8th January, 1987 is a final judgment of the Court issued in the Complaints Nos. 970086 and 970186.

2THAT neither party appealed against or otherwise obtained Order of the Supreme Court setting aside the aforesaid judgment – pursuant to Part XI of the Justices Act 1959.

3THAT the Clerk of the Court of Petty Sessions acted without or in excess of his jurisdiction in issuing the two summons dated 9th January, 1987 without leave of the Court or evidence that either party is entitled to re–open the hearings."

1. Counsel advanced no argument in support of this ground but was content to adopt what the appellant submitted in the court below. Those submissions seem to consist of a complaint that the magistrate did not rule on the "demurrer" rather than that he erred in any ruling he made in respect of it. It seems to me to be implicit in the learned magistrate's determination of the complaint that he must be taken to have overruled the points appearing in this document. But in any event in so far as I can understand them those points are either a restatement of other grounds or of no substance.

"Ground 4 – THAT His Worship ought to have held that the two complaint Nos 09700/86 and 09701/86 and the two summons thereof are irregular for reason of non–compliance with the provisions of Rule 15 of the Justices Rules 1976."

1. Rule 15 of the Justices Rules requires that a complaint shall include a specific reference to the particular regulation alleged to have been contravened. The appellant's submission that the reference in the complaint to the regulations alleged to have been contravened should have included a reference to statutory rules which amended those regulations is incorrect: see ss5(2) and 13(5) of the Acts Interpretation Act 1931 and reg1(1) of the Traffic (General and Local) Regulations 1956.

"Ground 5 – THAT His Worship wrongly exercised his supervisory jurisdiction by failing to consider and issue his rulings upon:–

(a)The apparent frivolous nature of the two complaints initiated against the Defendant from some ulterior motives of the complainants.

(b)The length of the delays and the reasons justifying such delays.

(c)The responsibility of the Defendant for asserting his rights to bring the protracted hearins [sic] to finality.

(d)Whether the Prosecution's unpreparedness to proceed on the dates fixed for some of the hearings tantamount to an abuse of the process of the Court.

(e)Whether the parties were not brought before the Court against their will on 24387 by the arbitrary intervention of the Clerk of the Court of Petty Session in the absence of request by either party as required by the provisions of Rule 37–(1) Justices Rules 1976; and

(f)Any prejudice to the Defendant arising therefrom by virtue of all or some of the aforesaid issues."

1. I am not persuaded that the magistrate possessed any general jurisdiction to dismiss the complaints without a hearing on the grounds appearing in the grounds.

Ground 6 – abandoned

"Ground 7 – THAT His Worship ought to take under consideration the danger of susceptibility and fallibility of memory of the two witnesses giving evidence on a common occurrence of some nineteen (19) months ago; – and His Worship in the exercise of his discretion ought to dismiss the complaint as stale and irregular and unfair both to the witnesses and the Defendant."

1. There is no justification for suggesting that the magistrate failed to have regard to the factors referred to in this ground when he assessed the credibility of the witnesses. There is no substance in the second part of the ground.

"Ground 8 – THAT His Worship erred in fact and in law in the interpretation of the provisions of s 44 – (1)(b) Evidence Act 1910 as amended by No 36 of 1958 and s 9 Schedule 2, paragraph 1 of the United Kingdom Interpretation Act 1978:–

The two witnesses for the Prosecution submitted no evidence to the Court that the alleged offence occurred during Eastern Standard or Local time and therefore Greenwich Mean Time was the evidence before His Worship; Consequently, no offence know [sic] to the law was committed by the Defendant."

1. This argument was founded upon the untenable proposition that the obligation imposed upon courts by s44 (1)(b) of the Evidence Act (1910) to take judicial notice of Imperial Acts imports an obligation to comply with the terms of the Act of which judicial notice is taken.

1. There was evidence upon which it would have been open to the magistrate to find that the offence had been committed between sunset and sunrise.

PART "B"

Ground 1 – abandoned

"Ground 2 – THAT the Order of His Worship is ex facie bad, uncertain and alternative;– leaving the Appellant with the embarrassing option of election between fine and imrisonment, [sic] and that consequently His Worship failed to exercise the discretion as to which punishment should be inflicted upon the Defendant."

1. The order complained of was properly made pursuant to s78(1)(b) of the Justices Act 1959.

"Ground 3 – THAT His Worship ought to dismiss the complait [sic] under the provisions of s7(1)(b) (c) & (d) of the Probation of Offenders Act 1973, particularly in view of the Appellant's continuous driving experience since 1943 in United Kingdom and subsequently in Australia since 1952 without serious convictions for breaches of Traffic Regulations."

1. No error in the way in which the magistrate exercised his discretion has been demonstrated.

"Ground 4 – THAT the Appellant is entitled to reduction of the fine and costs and the one Demerit Point by five–sixth (56) because the Appellant attended the Court of Petty Sessions on five previous occasions to answer the Complaint No 0970086. The dates of the hearing of the aforesaid Complaint were originally listed for 1st. December, 1986, 8th. January, 1987, 24th. March, 1987, 18th. June, 1987, and 17^th September, 1987. On each and every of the aforesaid dates the Appellant attended the Court and was ready and willing to proceed with the hearing but on each occasion the hearing was adjourned due to no fault of the Appellant."

The appellant had no such entitlements.

LCA 153987

PART "A"

"Ground 1 – THAT His Worship acted without or in excess of his jurisdiction by amending the original complaint of the 23rd April, 1986, and subsequently convicting the Appellant on the amended complaint of the 7th. December, 1987, without giving him opportunity to prepare his defence to the amended complaint."

1. No error or injustice to the appellant in the way in which the magistrate exercised his discretion to amend the complaint has been demonstrated.

"Ground 2 – THAT the Appellant could not be lawfully convicted on the defective unamended complaint of the 23rd April, 1986, nor on the Statute barred amended complaint of 71287."

1. It was lawfully open to the magistrate to convict the appellant upon the amended complaint.

"Ground 3 – THAT His Worship erred in fact and in law in accepting the second hand evidence of the passenger of the Police vehicle given by him uncorroboratively on behalf of the driver of the Police vehicle."

1. The magistrate was entitled to accept the evidence of 1st Class Constable Paul who was the witness referred to in this ground. Upon the evidence it was open to the magistrate to be satisfied that the lane change could not be made with safety.

Grounds 4 & 5 – abandoned

PART "B"

The grounds raised the same points that were relied upon in the grounds appearing in part B of LCA 152/1987.

1. In my opinion the appeal in respect of both motions to review should be dismissed.

   List "A"
   File No FCA 71/1988

PIKOR v BARRETT

REASONS FOR JUDGMENT  FULL COURT

COXJ
16 March 1990

1. I agree with the reasons for judgment prepared by the Chief Justice and with the order he proposes.

   List "A"
   File No FCA 71/1988

PIKOR v BARRETT

REASONS FOR JUDGMENT  FULL COURT

CRAWFORD J
16 March 1990

1. As can be seen from the judgment of the Chief Justice the appellant was convicted in a Court of Petty Sessions of two traffic offences. He sought to review those convictions by two motions to review which were heard together. The motions came before Underwood J who dismissed them.

1. The appellant has submitted that Underwood J should have disqualified himself from hearing and determining the motions upon the following grounds:

"1THAT  His Honour whilst in private practice with the Firm of Solicitors of Messrs Murdoch, Clarke, Neasey & Cosgrove, Mr P G Underwood conducted manifestly groundless and unlawful litigations against the Appellant in the action of P. 2292/1961 – R T Holt v A Z Pikor – subsequently LCA 116/63 followed by the summons dated 30/5/1966 – still undetermined.

2THAT  His Honour is still owing this £70.00 to the Appellant which was paid by the Appellant to the then Mr P G Underwood on the 5th. December, 1963 in order to avoid the threatened Garnishee Proceedings."

1. Mr R T Holt was a solicitor who acted for the appellant. In 1961 Mr Holt sued the appellant in the Court of Requests for payment of £10 for professional services. On 30 October 1963 judgment was given in favour of Mr Holt with costs to be taxed. In December 1963 the appellant paid to Underwood J the sum of £70. At that time his Honour was in private practice with the firm of Murdoch, Clarke, Cosgrove & Drake and was representing Mr Holt as a solicitor. The money represented costs allegedly due from the appellant to Mr Holt and was paid to his Honour in his capacity as solicitor for Mr Holt, and not in any personal capacity.

1. On 30 September 1964 the appellant was successful in an appeal against the Court of Requests judgment, upon the basis that Mr Holt had not sent him a bill of his fees, charges and disbursements which had been signed by him as was required by s33 of the Legal Practitioners' Act 1959. As a result the appellant wanted his £70 back. Underwood J did not personally owe it. If the appellant had an entitlement to be repaid the £70 (I am unable to say whether he did) the money was due from Mr Holt and not from his Honour.

1. The first ground of appeal might suggest an allegation that his Honour in some way acted unprofessionally or improperly by conducting the litigation on behalf of Mr Holt, but that was not the basis of the argument presented to this Court. Its basis was that the appellant had issued the summons dated 30 May 1966, that summons has not been determined and the appellant still claims that his Honour owes him £70. I emphasise that the appellant asserts that the money is owed by his Honour, but  I have heard and read nothing which suggests that there is any valid basis for such a claim whatsoever.

1. The "principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it" (Livesey v New South Wales Bar Association (1983) 151 CLR 288 at pp293 and 294). No matter what the appellant might personally believe or assert I am satisfied that the apprehension expressed on his behalf has no foundation and is not reasonably held.

1. Subject to what I have said, I agree with the judgment of the Chief Justice in relation to all of the grounds of the appeal and the order he proposes.