Claimant's Bias Claims Against Magistrate Dismissed

The claimant sought orders to prevent a magistrate from hearing matters involving them, alleging bias. The Court dismissed the summons, finding the claimant's assertions of bias unfounded following a previous Court of Appeal decision.

New South Wales Supreme Court

CITATION : [NAME] v [NAME] [2004] NSWSC 337 HEARING DATE(S) : 7 April 2004 JUDGMENT DATE : 7 April 2004

JUDGMENT OF : Simpson J DECISION : Summons dismissed; Plaintiff to pay second defendant's costs of the proceedings

CATCHWORDS : summons regarding matters in [ADDRESS] - notice of motion seeking dismissal of summons - assertion of bias - Court of Appeal decision LEGISLATION CITED : Supreme Court Rules Part 13 Rule 5 (1) (a), (c) [NAME] - Plaintiff PARTIES : [NAME] - First Defendant Attorney General for NSW - Second Defendant Magistrates of NSW - Third Defendants FILE NUMBER(S) : SC 13835/01 COUNSEL : [redacted] [NAME] Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SIMPSON J

Wednesday 7 April 2004

13835/01 [NAME] v [NAME] 1 HER HONOUR: By summons filed in this court on 14 December 2001 the plaintiff, [NAME], claims orders as follows: "(1) An order that: The respondent, [NAME], L.C.M. of [ADDRESS] be prevented from hearing any matters involving the plaintiff, [NAME]. (2) The respondent, [NAME], transfers all pending matters involving the plaintiff to the [COMPANY]. (3) Any other orders the Court deems fit." 2 The proceeding before me is a notice of motion filed on 30 October 2003 by the Attorney General for New South Wales seeking orders that the summons be dismissed generally pursuant to Pt 13 r 5 (1) (a) and/or (c) of the Supreme Court Rules 1970. However, there have been a number of other proceedings in relation to the summons in the meantime. It appears that the matters to which the summons alludes are both civil and criminal matters listed in the [ADDRESS]. 3 On 31 July 2001 at the plaintiff's request [NAME] transferred from [ADDRESS] to the [COMPANY] all matters except for one, which was a social security charge. In September or October 2001 that order was countermanded by the [NAME] Chief Magistrate at the [COMPANY] and the matters were re-transferred to Coffs Harbour, to be heard by a Sydney-based magistrate. 4 The social security charge came on for hearing on 5 December 2001 on which occasion the plaintiff asked [NAME], to disqualify himself. He declined to do so. That prompted an application to this Court by the plaintiff seeking an order that [NAME] be prevented from hearing that particular proceeding. That matter came on for hearing before [NAME] in February 2003. [NAME] made orders favourable to the plaintiff, that [NAME] be disqualified from proceeding with the hearing. 5 The Attorney General appealed against that decision. On 15 October 2003 the Court of Appeal set aside [NAME]'s order and ordered that the magistrate proceed with the hearing. 6 The basis on which the application was made to [NAME] and on which the appeal was decided, was the plaintiff's assertion that [NAME] was biased or, alternatively, that a reasonable observer would apprehend that [NAME] was biased. [ADDRESS] of Appeal made clear that there was no reason for such a perception and that [NAME] should proceed with that particular matter. 8 The case made on behalf of the Attorney General pursuant to the notice of motion is that effectively the matters raised by the plaintiff in the summons have been the subject of a decision by the Court of Appeal. 9 For that reason and, having regard to the width of the terms of the summons, I pressed [NAME] as to the basis on which she claims the orders in the summons which are, as I said, wider than those that were before [NAME] and the Court of Appeal. She told me that the reason she sought the removal of all matters and the effective disqualification of the magistrate at Coffs Harbour was to do with what she regarded as the unsatisfactory behaviour of Registry staff in Coffs Harbour. 10 The matter is complicated by this circumstance. On 16 June 2003 when the Court of Appeal proceedings were pending the plaintiff filed a notice of motion which came before Dowd J. By consent Dowd J ordered that magistrates of New South Wales not list any hearing of pending matters in the [ADDRESS] involving the plaintiff until further order. 11 The matter then came before Master Malpass on 4 February 2004 who referred to the order of Dowd J and held that he had no jurisdiction to vacate or vary those orders. 12 If it be the case that the plaintiff, contrary to her responses to me today, wishes to continue to assert bias on the part of [NAME], that issue is concluded by the judgment of the Court of Appeal. 13 In a wide-ranging argument before me today the plaintiff appeared to challenge the basis upon which the Court of Appeal made its decision, but it is of course not open to me, or indeed to her, to challenge those rulings in this court. The issue of bias is concluded against the plaintiff. 14 The only thing remaining is whether the other orders which the plaintiff would seek to advance as being reasons for preventing [NAME] from continuing to hear matters that involve her, are the matters raised by her in response to my questions concerning behaviour of the Registry staff. In my opinion those matters are not capable of going to whether [NAME] should be disqualified from hearing such matters. 15 The second order sought by the plaintiff for transfer of pending matters falls into the same category. It can only be put forward either because of apprehended bias as to which the gate is closed, or the other matters raised by [NAME] in argument. They are not a basis in my opinion for a transfer. 16 The consequence of what I have said is that the plaintiff's prospects of succeeding on her summons are negligible as they disclose no reasonable cause of action and constitute no abuse of process of the court. In accordance with Supreme Court Rules Pt 13 r 5(1) I order that the proceedings for summons be dismissed. I order the plaintiff to pay the second defendant's costs of the proceedings.

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