Toth v State of New South Wales

[2022] NSWCA 185

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Toth v State of New South Wales [2022] NSWCA 185

Hearing dates:

29 August 2022

Date of orders:

21 September 2022

Decision date:

21 September 2022

Before:

Brereton JA at [1];
Kirk JA at [2];
Basten AJA at [64]

Decision:

(1) The application for leave to appeal is dismissed.

(2) The applicant is to pay the respondent’s costs of the application.

Catchwords:

APPEALS — Leave to appeal denied — Section 127 of the District Court Act 1973 (NSW) — Principles relating to appeals for small claims — Damages assessed to be between $7000 and $7500

TORTS — Misfeasance by public officer in discharge of public duty – Mental element

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 60

Crimes Act 1900 (NSW), s 91L(1)

Crimes (Administration of Sentences) Regulation 2014 (NSW), reg 188

Crimes (Appeal and Review) Act 2001 (NSW), s 63(2)

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 94-100

District Court Act 1973 (NSW), s 127(2)(c)

Evidence Act 1995 (NSW), ss 37(1), 38(1), 142

Supreme Court Act 1970 (NSW), ss 69C, 101(2)(r)

Cases Cited:

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164

Carolan v AMF Bowling Pty Ltd (t/as Bennetts Green Bowl Ltd) [1995] NSWCA 69

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Jaycar Pty Ltd v Lombardo [2011] NSWCA 284

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48

New South Wales v Robinson (2019) 266 CLR 619; [2019] HCA 46

Northern Territory v Mengel (1995) 185 CLR 307; [1995] HCA 65

Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (2021) 95 ALJR 128; [2021] HCA 2

Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98

Robinson v State of New South Wales (2019) 100 NSWLR 782; [2018] NSWCA 231

SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668

Toth v Director of Public Prosecutions (NSW) [2017] NSWCA 344

Category:

Procedural rulings

Parties:

Andrew Leslie Toth, Applicant
State of New South Wales, Respondent

Representation:

Counsel:
Applicant (Self-represented)
G J Bateman (Respondent)

Solicitors:
Crown Solicitor’s Office (Respondent)

File Number(s):

2022/44407

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Civil

Citation:

Toth v State of New South Wales [2021] NSWDC 615

Date of Decision:

16 November 2021

Before:

Montgomery DCJ

File Number(s):

2022/44407

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Toth was convicted of an offence under s 91L(1) of the Crimes Act 1900 (NSW) of filming “another person’s private parts” for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification. He was sentenced to a good behaviour bond subject to a condition, amongst other things, of being supervised by the Community Corrections Service (“CCS”). Two CCS officers gave him directions restricting his possession of recording devices. The conviction and sentence were subsequently overturned.

Mr Toth sued the State as being vicariously liable for the actions of the two officers. He alleged that the actions of the officers in imposing the conditions amounted to the tort of misfeasance in public office. The primary judge dismissed the claim, but nonetheless estimated damages to be between $7000 and $7500.

Mr Toth sought to appeal that judgment. Leave to appeal was required because the judgment or order challenged involved an amount less than $100,000: District Court Act 1973 (NSW), s 127(2)(c).

The Court (Kirk JA, Brereton JA and Basten AJA agreeing) declined to grant leave to appeal, holding as follows:

1. In some cases a small amount may be at stake but it may raise an important issue of principle or question of general public importance. Leaving aside cases raising issues of principle or public importance, it will be rare that justice will require that an application for leave to appeal involving a small amount will merit the expenditure of court resources: at [14].

Carolan v AMF Bowling Pty Ltd (t/as Bennetts Green Bowl Ltd) [1995] NSWCA 69; Jaycar Pty Ltd v Lombardo [2011] NSWCA 284; applied.

2. Mr Toth’s appeal arguably raised issues of principle and possible public importance, but this did not suffice to obtain leave. Mr Toth’s appeal had no realistic prospect of success, regardless of the determination of those issues: at [12], [49]-[50].

3. Allegations that the primary judge acted with a lack of procedural fairness and due process, or demonstrated bias, were without merit: at [31]-[47].

4. Mr Toth could not make out the tort of misfeasance in public office because he could not show that the relevant public officers actually knew, or were recklessly indifferent to, the fact that they were acting beyond power: at [48]-[62].

Judgment

1. BRERETON JA: I agree with Kirk JA.

2. KIRK JA: Mr Toth, the applicant in this matter, was convicted in the Local Court in March 2016 of an offence under s 91L(1) of the Crimes Act 1900 (NSW) of filming “another person’s private parts” for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification. He was sentenced to a good behaviour bond subject to a condition, amongst other things, of being supervised by the Community Corrections Service (“CCS”). Two officers of that service gave him directions restricting his possession of recording devices. The conviction and sentence were later overturned.

3. Mr Toth sued the State as being vicariously liable for the actions of the two CCS officers. He alleged that the actions of the officers in imposing the conditions amounted to the tort of misfeasance in public office. The primary judge dismissed that claim. Lest he was wrong in that conclusion, the primary judge went on to assess Mr Toth’s damages as either $7000 or $7500 (it is not entirely clear which). Mr Toth has not sought to challenge that assessment. Given the amount involved, leave to appeal is required. Mr Toth’s application for leave and the appeal itself were heard concurrently.

4. The application for leave to appeal should be dismissed with costs. There are good reasons why there is no right to appeal in matters involving small claims. Mr Toth claims that the primary judge was biased and failed to accord him “due process”, but those claims have no merit. It may be arguable that some of the substantive issues he raises are ones of principle or public importance, but even if he succeeded on those issues that would not be determinative. He cannot overcome his failure to make out a necessary element of his tort claim, namely that the officers acted knowing that they were acting beyond power or with a reckless disregard to whether they were doing so.

5. This judgment sets out the background to the matter, then addresses the proposed grounds of appeal. Before doing so, however, it is appropriate to emphasise the principles applicable to leave applications when only small amounts are in dispute.

The requirement for leave to appeal for cases involving small claims

6. The applicant does not have a right of appeal to this Court. Leave to appeal is required because the judgment or order that is challenged involves a matter at issue amounting to less than $100,000. Section 127(2)(c) of the District Court Act 1973 (NSW), which sets that requirement, is in materially the same terms as s 101(2)(r) of the Supreme Court Act 1970 (NSW).

7. In Carolan v AMF Bowling Pty Ltd (t/as Bennetts Green Bowl Ltd) [1995] NSWCA 69, Kirby P considered an application for leave for an appeal from the District Court. His Honour identified factors which led the legislature to impose a financial limit on the right to appeal to this Court:

“(1) A respect for the office of a Judge of a District Court who is entitled to determine matters within jurisdiction and to have such determination regarded as final unless for good reason the matter may come to this Court;

(2) The respect for, and recognition of, the heavy work load of this Court. It is commonly known that unless appeals are expedited they will normally require a delay, given the state of our list, of eighteen months to two years before they will be heard;

(3) The discouragement of unnecessary litigation in small amounts where [public] costs are necessarily involved including the time of the Judges, court officers, use of court buildings and functions, court reporters and the other expensive features of public litigation;

(4) A recognition of the fact that, particularly in small claims, the amount of costs that can be recovered on a party and party costs order, are typically below those which are actually incurred by a party and which, in respect of a small claim, may be completely disproportionate to the amount actually at stake;

(5) The need ordinarily to conserve the time of the Court of Appeal in small claims to matters which involve issues of principle, questions of general public importance or an injustice which is reasonably clear, that is to say goes beyond merely being arguable.”

8. The delay in having matters heard in this Court is now less than was referred to by Kirby P in 1995. The hearing of this case, for example, occurred some eight and a half months after it was filed, which includes the summer break. That does not undermine the force of the other points made by his Honour. And any appeal causes some delay to the finalisation of the matter, which of itself may cause some prejudice to the successful party in the dispute.

9. In the same case Cole JA stated that “[i]t should be recognised that where such small claims are involved there must be an early finality and determination of litigation otherwise the costs which will be involved are likely to swamp the money sum involved in the dispute”. Since these statements the Parliament has enacted s 60 of the Civil Procedure Act 2005 (NSW) which requires that “the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute”. That consideration reinforces the discouragement of appeals about small amounts: note Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [37]-[39]. The fact that an applicant may be unrepresented does not alter the drain on the resources of the other side. Nor does it reduce the usage of the resources of the Court, which comes at the cost of potential detriment to other litigants: cf Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [30] and [93]-[95].

10. In Jaycar Pty Ltd v Lombardo [2011] NSWCA 284, leave to appeal on liability was refused where the value in dispute was significantly less than the leave threshold but still more than triple the amount in question here. Campbell JA stated as follows at [47] (Young and Meagher JJA agreeing):

“The present case involves no question of principle that is subject to any doubt, and no issue of general public importance. The dispute has already consumed significant time, and no doubt significant costs, in the court below. It is not ‘reasonably clear’ that the judge's conclusion about liability is wrong. The damages in question are not close to the $100,000 cut-off point below which leave is needed. Indeed, when there are two companies each liable for the damages, the amount of damages for which each is liable, on the facts established in this appeal, is of the order of $23,000.”

11. His Honour at [46] referred to the point made by Kirby P in Carolan that ordinarily it is appropriate to grant leave to appeal only concerning matters that involve issues of principle, questions of general public importance or a reasonably clear injustice going beyond something that is merely arguable. That point has been reiterated many times since.

12. That an application might raise an issue of principle or public importance may not suffice to obtain leave if that issue will not be determinative because the applicant has no realistic prospect of succeeding in any event, regardless of the determination of those issues. This case is an example of the point.

13. In some cases a small amount may be at stake but it may raise an important issue of principle or question of general public importance. For example, Robinson v State of New South Wales (2019) 100 NSWLR 782; [2018] NSWCA 231 involved damages assessed by the District Court at $5000, but it concerned a significant issue about police powers of arrest, and leave was granted and the appeal upheld by majority. The High Court granted special leave to appeal and this Court’s decision was upheld by a 4:3 majority of the High Court in New South Wales v Robinson (2019) 266 CLR 619; [2019] HCA 46.

14. Leaving aside cases raising issues of principle or public importance, it will be rare that justice will require that an application for leave to appeal involving a small amount will merit the expenditure and use of resources in having an appeal determined by this Court. This is not such a case.

Background

The Bond

15. As noted above, the applicant was convicted in the Local Court in March 2016 of an offence under s 91L(1) of the Crimes Act. On 30 May 2016 the applicant appeared before Viney LCM at his sentencing hearing. Her Honour completed a standard bench “Court Orders” form, and ticked the boxes for a bond/recognisance under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSP Act”) for a term of 18 months. Her Honour also ticked the box under the heading “Bond or Discharge Conditions” and populated relevant fields. The combined effect of this was that the bench Court Orders form for Mr Toth read as follows:

“To accept Community Corrections supervision for as long as considered necessary, obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation and report to the City CC Community Corrections Office within 24 hours/7 days.”

16. The conditions of the Bond to Comply with Conditions subsequently signed by Mr Toth, later that day, stated as follows (in the proceedings below this was called the “Third Bond”):

“The offender must be of good behaviour and appear before the court during the bond term if required.

To accept Community Corrections Service supervision for as long as considered necessary and obey all reasonable directions.

To attend for counselling, educational development, drug or alcohol rehabilitation.

To report to [CCS] at City Community Corrections District Office within 7 Days.”

17. There are some discrepancies between the wording of the bench Court Orders form signed by the magistrate and the bond signed by Mr Toth. In particular, the former contemplates Mr Toth being required to comply with reasonable directions “for counselling, educational development or drug and alcohol rehabilitation”, whilst the latter is expressed in an unrestricted manner: “obey all reasonable directions”, with a separate condition relating to counselling (etc).

18. The applicant then appealed to the District Court. The execution of the Orders of Viney LCM was stayed automatically pending the conclusion of that appeal: Crimes (Appeal and Review) Act 2001 (NSW), s 63(2).

19. On 22 March 2017 Syme DCJ dismissed the applicant’s appeal as to his conviction. Her Honour did not separately address the sentence that was imposed by Viney LCM, not having been asked to do so. Her Honour seemingly made orders confirming the sentence (in the proceedings below the bond thus imposed was called the “Fourth Bond”). The orders were as follows:

“Conviction Appeal Dismissed - Orders Confirmed (ID 37400631)

The offender, ANDREW LESLIE TOTH is convicted and is directed to enter into a good behaviour bond for 18 months pursuant to Section 9(1) of the Crimes (Sentencing Procedure) Act 1999 to commence on 22 March 2017 and accept the following conditions:

The offender must be of good behaviour and appear before the court during the bond term if required.

To accept Community Corrections Service supervision for as long as considered necessary and obey all reasonable directions.

To attend for counselling, educational development, drug or alcohol rehabilitation.

To report to Community Corrections Service at City Community Corrections District Office within 7 days.”

20. The applicant then sought judicial review of the decision of Syme DCJ in this Court. That application was filed in July 2017. Once that occurred the sentence was automatically stayed pursuant to s 69C of the Supreme Court Act. The two impugned directions, identified below, were issued prior to that occurring.

21. On 22 December 2017 this Court quashed Syme DCJ’s determination of the conviction appeal, holding amongst other things that “the questioning of Mr Toth [involved] a denial of procedural fairness, and on that ground alone the orders should be quashed”: Toth v Director of Public Prosecutions (NSW) [2017] NSWCA 344 at [77]. The Court remitted the applicant’s appeal from the decision of Viney LCM to the District Court to be heard and determined anew. When that occurred Mr Toth’s conviction was overturned.

22. Mr Toth had previously been subject to a good behaviour bond imposed in 2012 for an offence under s 7(1)(b) of the Surveillance Devices Act 2007 (NSW). The applicant had used a video recorder to surreptitiously record the conversation between himself and a female medical practitioner while she examined his groin region following a hernia related complaint. A bond had first been imposed in the Local Court, then a replacement bond was imposed on appeal in the District Court. In the proceedings below these two bonds were called the “First Bond” and “Second Bond” respectively. The significance of these for current purposes is that both variants of the bond had included a court-imposed condition restricting Mr Toth’s possession of certain listening devices.

The impugned actions of the CCS officers

23. Mr Toth complains that the actions of two CCS officers, Officers Fotofili and Mina, in issuing directions to Mr Toth pursuant to the Fourth Bond constituted a misfeasance in public office. First, on 3 May 2017 Officer Fotofili orally directed the applicant not to possess any recording devices by 7 May 2017. Secondly, on 17 May 2017 Officer Mina issued a replacement direction in writing which required him (amongst other things) not to possess a pen camera or any small, concealable recording device for the duration of the bond.

24. Mr Toth also claims that Officer Fotofili exceeded his powers by “interrogating” the plaintiff without a proper basis for doing so on 3 May 2017.

Primary Judgment

25. At first instance Montgomery DCJ dismissed Mr Toth’s claim for damages for misfeasance in public office. His Honour summarised his findings at [174]:

“(a) The oral direction given by Officer Fotofili on 3 May 2017 was within his power to give;

(b) The direction given by Officer Mina on 17 May 2017 was within her power to give;

(c) The questioning of the plaintiff by Officer Fotofili on 3 May 2017 was within his power to ask;

(d) Neither Officer Fotofili nor Officer Mina knew that they did not have power to do the things (a), (b) and (c) or was recklessly indifferent as to whether they had that power (which power I found they in fact had);

(e) Even had I found that Officer Fotofili or Officer Mina lacked power to do (a), (b) or (c); then I have found that neither of them when doing those things did so with malice, knowledge or reckless indifference stamping their action with the character of abuse of or misfeasance in public office.”

26. The primary judge appropriately made an assessment of damages lest he was wrong in his findings on liability. That being said, it is not entirely clear what his total assessment was. At [187] his Honour stated that “even if the plaintiff had succeeded on liability, I would not award more than a nominal sum of $500.00 in damages”. But at [189] his Honour stated as follows:

“Approaching damages mindful of the above principles and considerations, I would allow:

(1) Damages for distress in the sum of $3,000

(2) Damages for exemplary (incorporating aggregated [sic: aggravated]) damages $4,000

Total: $7,000”

27. In any event, the maximum value of the matters realistically in contest in the appeal is $7,500, being well below the $100,000 threshold requiring leave. Mr Toth seeks to appeal the decision on liability. As noted, he makes no challenge to the assessment of damages by the primary judge.

Determination

28. Mr Toth’s draft notice of appeal raises three types of ground, claiming that:

1. the primary judge had acted with a lack of procedural fairness and due process so as to deny Mr Toth the opportunity of fairly putting his case (first ground);

2. the primary judge “demonstrated bias” (second ground);

3. as regards the substance of his claim, the primary judge made erroneous findings of fact, failed to consider relevant matters, and failed to apply the correct test concerning the validity of directions given by the officers (third to fifth grounds).

29. The High Court has indicated that appeal grounds raising allegations of bias should be addressed first, and that if such a ground is made out it may lead to the appeal being upheld regardless of the strength of other grounds raised: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [117] per Kirby and Crennan JJ, Gummow ACJ agreeing at [3]; note also Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (2021) 95 ALJR 128; [2021] HCA 2 at [24].

30. The second ground directly raises an allegation of bias, and Mr Toth’s complaint in his first ground about lack of “due process” also savours of such a claim and to that extent it is appropriate that it be addressed directly. I shall thus address the grounds raised in the order set out above.

First ground: claimed lack of due process

31. Mr Toth’s core complaint here is that the primary judge “erred by sabotaging the plaintiff’s cross exam of Dr Barton”. He also alleged under this ground that his Honour erred by “his consideration and reliance on the discredited and internally inconsistent evidence from Dr Barton”. The latter point need not be considered as even if the primary judge erred in his reliance on the evidence of Dr Barton, it could make no difference to the result given the analysis below with respect to the third to fifth grounds.

32. Dr Barton held a position of Senior Forensic Clinical Psychologist within the CCS. She had been consulted by Officer Fotofili shortly after he had given the first impugned direction.

33. The allegation that the primary judge sabotaged Mr Toth’s cross-examination of Dr Barton is without foundation. The oral examination of Dr Barton by Mr Toth occupied some 36 pages of transcript, starting in the afternoon of one day and concluding on the morning of the next. In his judgment his Honour said at [142] that “[a]t points, the plaintiff’s cross-examination of Dr Barton was repetitive and harassing, even allowing for his being a self-represented litigant”.

34. The primary judge did intervene from time to time in the course of the examination. Sometimes it was to ask a question, the purpose of which seemed to be to assist to clarify issues being raised by some of Mr Toth’s questions. On occasions his Honour intervened to prevent repetitive questioning. He suggested at one point that given that Dr Barton had given evidence she did not recall the conversation with Officer Fotofili (which had occurred four years previously), there was little point in continuing to question her about it. He once indicated a particular topic was not relevant, namely whether or not the Police Facts Sheet which had been provided to Dr Barton should have been headed “unverified”. The exchange on that issue ended with the judge saying: “Move on to another topic, sir. That point is not going to advance your prospects. I’m sorry.” These views were expressed politely. The view expressed was correct.

35. None of these interventions caused unfairness to Mr Toth. They certainly did nothing to manifest anything approaching bias. Mr Toth’s complaint that the judge sabotaged his cross-examination reveals a significant misunderstanding on his part. Dr Barton was not called to give evidence by the State; she was subpoenaed by Mr Toth. He therefore had no right to cross-examine her. He had not sought leave of the Court to do so pursuant to s 38(1) of the Evidence Act 1995 (NSW) on the basis that she was an unfavourable witness. He was, thus, supposed to be asking non-leading questions directed to eliciting her evidence: Evidence Act, s 37(1). Instead, his questions were frequently leading and attacking. At one point he said to Dr Barton “I’m putting it to you that you fudged this report”, thus making a serious allegation for which he appeared to have had little basis. The primary judge correctly noted during the hearing below that Mr Toth’s examination of the witness was “in the style of a cross-examination”.

36. In a context where Mr Toth was inappropriately undertaking a cross-examination of a witness he himself had called, on issues for which it was difficult to detect any relevance, his Honour showed a significant degree of patience and forbearance with what was occurring. The allegation that the primary judge sabotaged Mr Toth’s examination of Dr Barton is without merit.

Second ground: the allegation of demonstrated bias

37. Mr Toth’s draft notice of appeal alleges that the primary judge “demonstrated bias”. Mr Toth was asked in this Court whether he was alleging actual or apprehended bias. He answered that he was alleging both.

38. Allegations of actual bias against a judicial officer are serious and should not lightly be made. Nor are they readily made out: see eg Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68] and authorities there cited. The test for apprehended bias is whether 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: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]. An allegation of actual bias suggests that the judge in fact did not bring an impartial and open mind to bear on the issues in dispute.

39. Mr Toth claims that the primary judge manifested bias in relation to what occurred in the course of the hearing below, and also in aspects of the judgment. As regards the former, Mr Toth raised two main points. First, he asserted that his Honour “entered the arena and interrupted the [the State’s] cross exam of [Mr Toth]”. In his submissions Mr Toth referred to a particular passage of the cross-examination, the first half of which was as follows:

“Q. But why would it shock you?

A. Well, it shocked me for the same reason that after Ms Giddens told me that my question to her was irrelevant. That put me into a panic too and when after - after I left Ms Giddens who I got on very well with I thought, it took me about two to three hours to settle down.

HIS HONOUR

Q. Sir, I don’t think you understand. You keep answering confirming that you were shocked. Mr Bateman has not asked you whether or not you were shocked or how you felt. He is asking you something different. He is asking you, why would you be shocked if you had the prior experience, so, why would you be shocked by it?

A. Because it brought it all back. You know.

Q. So, when you say shocked you don’t mean unexpected, you mean it just brought it back?

A. Well, no, absolutely unexpected because I’d been going along very well with Ms Mena for six weeks and everything was going nice, and I thought Lara Mena was a tremendous - I thought I was very lucky to have her as a case manager and then all of a sudden the whole thing just fell apart. It was a shock; I don’t know how I could put it in any other way. It was, you know, I was shocked. Maybe there is something inside me that it activated, I don’t know why. I was shocked.

HIS HONOUR: So, I don’t know if that helped or not, Mr Bateman, but I just thought you hadn’t received an answer to the question you had asked.

BATEMAN: Yes. Thank you, your Honour. I know. I am reluctant in the circumstances to cut the plaintiff off.

HIS HONOUR: Indeed.”

40. For a judge to ask a question in order to seek to clarify for the witness exactly what is being asked is not uncommon practice. There is nothing to suggest this occurred in a derogatory fashion. Neither this exchange, nor what followed, suggests a lack of impartiality or that the primary judge had a closed mind.

41. Mr Toth also suggested that the primary judge “displayed a double standard” by allowing cross-examination of Mr Toth on matters that pre-dated imposition of the Fourth Bond where he had rejected a particular paragraph of one of Mr Toth’s affidavits on the basis that it pre-dated the Bond. The paragraph in question set out the terms of an email from a medical practitioner to Mr Toth sent in November 2013, prior to the events in question, and some three and a half years before the impugned directions were given. It relates to a suggested preoccupation Mr Toth had with another person. It was not connected to the matters at issue. His Honour rejected this evidence on the basis of relevance. The ruling was correct.

42. As for allowing cross-examination by the State of Mr Toth on matters before the Bond, no particular transcript was identified as manifesting bias. Cross-examination about some events prior to imposition of the Bond could throw some light on the reasonableness of the directions which were impugned. For example, it was relevant to take account of the fact that the First and Second Bonds had been imposed together with the circumstances which had led to the imposition of those Bonds. There is no evidence of any double standard.

43. Mr Toth then pointed to aspects of the judgment delivered by the primary judge which were said to show a bias against him. It is not necessary to go through all the other purported examples that Mr Toth gave; addressing the first will suffice to illustrate the claim. Mr Toth addressed that point as follows in one of his written submissions:

“[21] With regard to Argument 2 … and with regard to the prohibition of recorders, Dr Barton at T57.34-36 stated: It wouldn’t be unusual for someone who is an average risk of sexual reoffending or above, whose offence involves use of a recording device, to have that requirement in their supervision. This is couched in the passive, namely that the prohibition is ‘in their supervision’. HH however misquotes this and puts Barton’s statement into the active at [144]: Dr Barton explained that it was not unusual for the Appellant’s type of offence, that the CCS Officers, in supervision of the bond, would direct the offender that they were not allowed to possess recording devices.

[22] This is a misquote, and it changes Barton’s statement considerably.

[23] To be fair, Barton’s statement is vague and admits of two distinct meanings, one being the passive, namely that the prohibition was ‘in their supervision’, meaning ‘a condition of the bond’. The other being HH’s active version, meaning that the CCOs initiate such a prohibition of their own cognisance. When pressed, Barton replied at T72.2-3, ‘I think it can be both’.

[24] The difference is considerable. In the one, the power is in the bond, in the other the power is at the discretion of the CCOs. HH’s misquote clearly favoured the latter interpretation. This introduces bias into HH’s judgment. HH’s favouring of one interpretation over the other, to the point of misquoting the source quotation is an indication of bias.”

44. In his own argument, thus, Mr Toth acknowledges that there was a basis in the evidence for understanding Dr Barton to have said that it was not unusual for sex offenders whose offences involved use of a recording device to be subject to restrictions directed to having such devices, including restrictions imposed by CCS officers. That provided a foundation for his Honour saying at [144] that “Dr Barton explained that it was not unusual for the plaintiff’s type of offence, that the CCS Officers, in supervision of the bond, would direct the offender that they were not allowed to possess recording devices”.

45. This illustration points up a deeper problem with Mr Toth’s claims of bias founded on the judgment. Mr Toth’s submissions suggest that the primary judge revealed bias by determining various issues against him. The very point of exercising judicial power is to resolve disputes. That involves determining issues of fact and law. The mere fact of accepting the submission of one side or the other on some issue in dispute, or on all issues in dispute, cannot of itself constitute bias. It is part of exercising judicial power.

46. Even if the primary judge had erred in his understanding of the evidence, or on other matters, that would not suffice to establish that the judge had been biased in the sense of not having brought an impartial and open mind to bear in determination of the issues in dispute. Judges sometimes make errors. That is why we have provision for appeals. In Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [67], the plurality referred to “the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side's arguments or otherwise, demonstrates prejudgment”. That is not to rule out the possibility of exceptional cases where the reasons for judgment manifest some actual bias by revealing that the judicial officer did not bring an impartial and open mind to resolution of the issues: note SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J. There is nothing in this judgment remotely to suggest that this is such a case.

47. The allegation of bias raised in the second ground of the draft notice of appeal is without merit.

Third to fifth grounds

48. The third to fifth grounds of the draft notice of appeal were that the primary judge “made findings of fact fundamentally inconsistent with the evidence”, “failed to consider relevant matters”, and “failed to apply the correct test concerning the validity of directions by CCO’s”. In oral submissions, Mr Toth said that “the central part of this case” is that the primary judge erred in relying on the Bond condition that Mr Toth “obey all reasonable directions” to support the validity of the two impugned directions.

49. Mr Toth’s submissions do arguably raise some issues of principle and possible public importance. An example of an issue of principle would be the difference between a Court’s power to impose a condition on a bond on the one hand, and the power of CCS officers to give directions under a bond condition on the other. An example of an issue of possible public importance is the apparent discrepancy between the bench Court Orders form which Viney LCM had filled out after sentencing Mr Toth and the bond that Mr Toth was then required to sign, as discussed above at [15]-[17]. It might be inferred that this disparity was not limited to this case. That being said, there is a good argument that that point would have fallen away in light of the orders recorded by Syme DCJ.

50. But for one point, these issues might have merited a grant of leave even allowing for the fact that the statutory scheme has now changed significantly: cf CSP Act, ss 9 and 94-100; Crimes (Administration of Sentences) Regulation 2014 (NSW), reg 188. The point which undermines Mr Toth’s claim for leave is that determining these issues would not be dispositive of the appeal, for it is clear that his claim has no realistic prospect of success regardless of the arguments he has raised on these and other issues.

51. The primary judge and the parties proceeded on the basis that to succeed in a claim for misfeasance in public office, in circumstances where what is alleged is acting in excess of power, it is necessary for the claimant to establish (amongst other things) that the public officers in question were acting beyond power, and that they knew or were recklessly indifferent to the fact that they were doing so: judgment [126]-[127], [134], [170] and [174]; note Northern Territory v Mengel (1995) 185 CLR 307 at 347, 357, 370-1; [1995] HCA 65.

52. As it happens, the impugned directions given pursuant to the Fourth Bond were in fact invalid, given that this Court held that the decision of Syme DCJ was affected by jurisdictional error due to a lack of procedural fairness. Of course, no plausible argument could be made that the two CCS officers realised this, as they acted prior to this Court’s decision. That was not the focus of Mr Toth’s argument. Rather, his submissions were directed to establishing that the two impugned directions were beyond power because they were so restrictive of his freedom that they could only be imposed as conditions of the Bond by the sentencing court (as had occurred with the First and Second Bonds), and could not be imposed as directions by CCS officers.

53. The primary judge found that Mr Toth could not make out that the officers knowingly acted beyond power because he found that they acted within power. But he added at [134] that “the evidence does not identify steps that either Officer might have taken and which they did not take toward ascertaining what their power was”. He also stated at [161] that “[t]here is not a scintilla of evidence that the directions were, in the circumstances, given maliciously or otherwise in abuse of exercise of the functions of their office”.

54. None of Mr Toth’s grounds of appeal were directed in terms to these issues, and he said little in his written submissions to this Court on them. These matters were raised with him by members of the Court in oral submissions. The State also invoked these hurdles in its address to this Court.

55. Officers Fotofili and Mina did not give evidence below. That would not prevent an inference being drawn about their state of knowledge if sufficiently supported by the evidence, taking account of the fact that deliberately or recklessly acting beyond power in imposing a restriction on Mr Toth’s freedom is a relatively grave allegation to make: cf Evidence Act, s 142. But Mr Toth identified no evidence supporting any such inference. His legal argument about the scope of the directions power is not so obvious as to support a natural inference that the officers must have known that, or been recklessly indifferent as to whether, the impugned directions were beyond power.

56. Mr Toth submitted that the fact that a similar requirement restricting his possession of recording devices had been imposed by courts as a condition of the First and Second Bonds should have indicated to both officers that it was beyond their authority to impose such a requirement as a direction. This argument still presupposes an understanding of his legal argument. Further, it is not uncommon for the law to provide different powers to achieve the same end.

57. As regards the direction given by Officer Fotofili, Mr Toth relied on his own evidence that when he met with the officer “[h]e told me that he had only just been given the interview and that he needed five minutes to read my file” and that the officer called him in three minutes later. Mr Toth suggested this meant that Officer Fotofili could not have been familiar with the terms of the Fourth Bond. Yet there was time enough for the officer to familiarise himself with the bond, its material parts being brief. In Mr Toth’s own recitation of the conversation that followed he says that the officer said: “Under the terms of the bond, you must obey any reasonable direction”. That statement indicates Officer Fotofili had read the Bond. When this was suggested to Mr Toth in the course of argument he submitted that the officer must have been presuming that there was such a condition because they were commonplace. Not only is that suggestion mere speculation, but given the concordance of what Officer Fotofili said with the terms of the Bond, it is improbable.

48. Mr Toth also relied on his own evidence stating that Officer Fotofili had said, after giving the impugned direction, that “[i]t’s possible … that your Case Manager, [Officer Mina], may reverse my decision when she gets back”. Mr Toth submitted that this indicated that the officer “didn’t feel on sure grounds”. Mr Toth is confusing being on sure legal grounds with the fact that different people might reasonably take differing views in deciding what directions to give. The statement attributed to Officer Fotofili is an anodyne acknowledgement of the latter possibility. Similarly, the fact that Officer Fotofili consulted Dr Barton after he had given the direction also tends to support the view that he was undertaking a good faith exercise of power in an area where there could be differing views.

49. Mr Toth put little to this Court about the allegation that Officer Mina knowingly or recklessly acted beyond power. He identified no particular evidence in support of the claim.

50. As regards the claim that Officer Fotofili also acted beyond power in “interrogating” Mr Toth, the claimed interrogation seemed to be constituted by the following exchange as recorded in one of Mr Toth’s affidavits:

“Fotofili: Have you photographed anyone since your conviction?

Toth: No.

Fotofili: Do you have a surveillance device on you now?

Toth: No.

Fotofili: Do you have a cell phone?

Toth: No.

Fotofili: Any other recording devices?

Toth: I do have a Canon Camera. It's fairly large. It is certainly not a surveillance device. I would like to hold onto it. I need it to gather evidence against my neighbour with whom I’m having some problems.

Fotofili: No. My instructions are ALL recording devices. (He emphasised the word ALL)

Toth: But I need it to gather evidence against my neighbour.

Fotofili: But there are other ways.”

61. This brief exchange does not merit being described as an “interrogation”, even assuming that an “interrogation” was not permissible. Officer Fotofili was asking questions reasonably related to the direction he had given for Mr Toth to rid himself of his recording devices. Mr Toth was subject to a condition to accept CCS supervision, and that notion obviously involves interaction between CCS officers and the person being supervised. In any case, even if it be assumed that the questioning was beyond power, there is again nothing to suggest that Officer Fotofili knew or was recklessly indifferent to that fact.

62. The tort of misfeasance in public office is not easy to make out, including because of the need to show that the public officer concerned actually knew, or was recklessly indifferent to, the fact that he or she was acting beyond power. Mr Toth did not do so below and has no realistic prospect of doing so on appeal. In those circumstances, the other issues sought to be raised by Mr Toth need not be addressed, and he has not made out a case that leave to appeal should be granted.

Conclusion

63. For the reasons set out above the orders of the Court should be as follows:

1. The application for leave to appeal is dismissed.

2. The applicant is to pay the respondent’s costs of the application.

64. BASTEN AJA: I agree with Kirk JA.

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I CERTIFY THAT THIS AND THE 22 PRECEDING PAGES ARE A TRUE COPY OF THE REASONS FOR JUDGMENT OF THE COURT

Associate ……….……….. Date …………….…...

Decision last updated: 21 September 2022