Abbott v Burns

Procedural and legislative background

1. On 21 December 2017, Mr Burns filed four summonses in the Local Court of NSW commencing proceedings against Mr Abbott for alleged breaches of the Anti-Discrimination Act 1977 (NSW). The breaches were said to have arisen due to material Mr Abbott published online which suggested, amongst other things, that male to male sex is an abomination and that AIDS is a divine punishment for homosexuality. These publications identified Mr Burns.
2. Mr Abbott is a resident of Queensland. Prior to 2017, applications of the kind brought by Mr Burns in New South Wales under the Anti-Discrimination Act were dealt with at first instance by the NSW Civil and Administrative Tribunal ("the Tribunal").
3. However, on 3 February 2017, the New South Wales Court of Appeal handed down its decision of Burns v Corbett; Gaynor v Burns (2017) 96 NSWLR 247; [2017] NSWCA 3 ("Corbett"). Mr Burns was also an appellant in that case. In Corbett, the Court of Appeal held that as the Tribunal is not a court of the State, it does not have jurisdiction to hear a dispute arising under the Civil and Administrative Tribunal Act 2013 (NSW) ("the CAT Act") concerning a resident of another State, as interstate disputes fall within the diversity jurisdiction identified in s 75(iv) of the Commonwealth Constitution ("the Constitution"). This determination was later approved by the High Court in Burns v Corbett; Burns v Gaynor; Attorney General for NSW v Burns; Attorney General for NSW v Burns; NSW v Burns (2018) 353 ALR 386; [2018] HCA 15.
4. By virtue of s 77 of the Constitution, Federal Parliament may invest any court of the State with federal jurisdiction in respect of matters mentioned in s 75 of the Constitution. Section 39(2) of the Judiciary Act 1903 (Cth) invests a State court with federal jurisdiction to hear and determine matters identified by s 75 of the Constitution, which relevantly include "all matters between States, or between residents of different States, or between a State and a resident of another State" (s 75(iv)).
5. Following the decision in Corbett, amendments were made to the Local Court Act 2007 (NSW) and the CAT Act to confer jurisdiction on the Local Court in matters previously dealt with by the Tribunal.
6. Pursuant to the Justice Legislation Amendment Act (No 2) 2017 No 44, the CAT Act now contains Part 3A, which concerns federal proceedings. Section 34B reads: "34B Applications or appeals involving federal jurisdiction may be made to authorised court (1) A person with standing to make an original application or external appeal may, with the leave of an authorised court, make the application or appeal to the court instead of the Tribunal. (2) The authorised court may grant leave for the application or appeal to be made to the court only if it is satisfied that-- (a) the application or appeal was first made with the Tribunal, and (b) the determination of the application or appeal by the Tribunal would involve an exercise of federal jurisdiction, and (c) the Tribunal would otherwise have had original jurisdiction or external appellate jurisdiction enabling it to determine the application or appeal, and (d) substituted proceedings on the application or appeal would be within the jurisdictional limit of the court. (3) An application for leave must be-- (a) filed with the authorised court along with-- (i) an application or appeal that has been completed in the form and manner required under this Act for the kind of application or appeal concerned, and (ii) if the parties to the application or appeal have reached a settlement before leave is sought using a resolution process referred to in section 37--a copy of the terms of settlement, and (b) accompanied by the applicable fee (if any) payable in the Tribunal for the application or appeal unless it has already been paid to the Tribunal. …"
7. Section 34A of the CAT Act defines "authorised court" as being the Local and District Courts. Section 34A also defines "federal jurisdiction" as jurisdiction of the kind referred to in ss 75 or 76 of the Constitution.
8. Following Corbett, the Local Court Act was also amended to include s 30(1)(b2), which concerns substituted proceedings within the meaning of Part 3A of the CAT Act. It reads: "30 Conferral of jurisdiction (1) Subject to this Part, the Court sitting in its General Division has jurisdiction to hear and determine: … (b2) substituted proceedings within the meaning of Part 3A of the Civil and Administrative Tribunal Act 2013, so long as the amount of any money claim, or the value of any goods or property, to which the proceedings relate does not exceed the jurisdictional limit of the Court when sitting in that Division; …"
9. It is by virtue of these provisions that Mr Burns brought his applications to the Local Court of NSW.
10. On 2 February 2018, Magistrate Barko considered the four summonses brought by Mr Burns and granted leave for him to commence proceedings in the Local Court.
11. On 14 September 2018, Magistrate Keogh heard Mr Burns' four applications in the Downing Centre Local Court. On 18 September 2018, her Honour upheld two of those applications. Mr Abbott was ordered to pay $4,000 in damages and to post an apology on the website where he had published the offensive material. In the event that he failed to do so, he was ordered to pay an additional $2,000 in damages to Mr Burns. To date, Mr Abbott has refused to publish an apology. On 13 May 2019, an enforcement warrant was issued in the Magistrates Court of Queensland against Mr Abbott in respect of the judgment amount.
12. On 7 March 2019, Judicial Registrar Howard of the District Court of NSW dismissed Mr Abbott's appeal from the decision of Magistrate Barko on the basis that the Court lacked jurisdiction.

Judicial review generally

1. Mr Abbott seeks a judicial review of the decisions of Magistrate Barko and the Registrar.
2. This Court has jurisdiction to grant any relief or remedy in the nature of a writ of certiorari. This includes jurisdiction to quash the ultimate determination of a court in any proceedings, if that determination was made on the basis of an error of law that appears on the face of the record of the proceedings. The face of the record includes the reasons expressed by the court for its ultimate determination: s 69 of the Supreme Court Act 1970 (NSW).
3. In Martin v Kelly [2008] NSWSC 577, Johnson J at [13]-[20] outlined the confines of judicial review. I note that although the result was reversed by the Court of Appeal in Martin v Kelly [2009] NSWCA 105, the part to which I refer was not the subject of dispute. Those comments read as follows: "[13] The present hearing involves judicial review of administrative action by way of a claim for prerogative relief. In Attorney-General for New South Wales v Quin (1989-1990) 170 CLR 1 at 35-36, Brennan J described the duty and jurisdiction of the Court on such an application in the following way: 'The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.' [14] This statement has been applied in subsequent decisions of the High Court of Australia where the confines of judicial review have been emphasised: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 579-580 [195]; Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135 at 152-154 [43]-[44]. [15] The limited role of a court reviewing the exercise of an administrative decision must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrative tribunal exercising power which the legislature has vested in that body: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985-1986) 162 CLR 24 at 40-41. [16] The reasons for an administrative decision are not to be minutely and finely construed with an eye keenly attuned to the perception of error. The reasons of an administrative decision maker are meant to inform, and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 271-2; SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [25]. The reasons under challenge must be read as a whole and must be fairly read: Cross v McHugh [1974] 1 NSWLR 500 at 503; Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 291. Relief in the nature of certiorari [17] Relief in the nature of certiorari is not an appellate procedure enabling either a general review of the order or decision, or substitution of the order or decision which the Supreme Court thinks should have been made. Relief enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds - jurisdictional error, denial of procedural fairness, fraud and error of law on the face of the record: Craig v South Australia (1994-1995) 184 CLR 163 at 175-176. … [19] In Craig v South Australia, Brennan, Deane, Toohey, Gaudron and McHugh JJ at 179 identified the scope for intervention by way of relief in the nature of certiorari with regard to administrative tribunals: 'If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.' [20] In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, McHugh, Gummow and Hayne JJ referred to the non-exhaustive list of kinds of error in Craig v South Australia, and continued at 351 [82]: 'Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.'"
4. I respectfully agree and adopt the words of Johnson J above.
5. The question for this Court is whether Mr Abbott has established relevant error(s) of law on the face of the record or jurisdictional error(s) that warrant the Court to exercise its discretion to quash the decision(s). That is the nature of judicial review proceedings, as distinct from an appeal or review on questions of law, fact or discretion.

Grounds of judicial review

1. The plaintiff's grounds of review are as follows (as unamended): "1. The Plaintiff received a mobile phone text from the first Defendant (Gary Burns) on the 7 February 2019 at 10.23 am informing the First Plaintiff that the Magistrates court at Southport Qld has been informed that my Amended Summons would be dismissed. (a) Upon a perception of bias from the presiding Judicial Registrar Howard, the Plaintiff made a formal application in writing dated 12 February 2019 for the presiding Registrar to disqualify himself. (b) The Judicial Registrar refused to disqualify himself; and (c) The Plaintiff orally made a second request for the judicial registrar to disqualify himself for not disqualifying himself and this was also refused. 2. That Magistrate Barko of the local court NSW on the 2 February 2018 allowed leave to the First Defendant without first:- (a) Dismissing my objection to jurisdiction; (b) Give reasons for the dismissal; (c) Avail the Applicant the required time to appeal that decision; (d) Formerly invoke jurisdiction (e) The application before Her Honour on 18 September 2019 was an application coming from the purported granting of leave by Magistrate Barko on the 2nd February 2018 and where this Honourable Court determines that leave could not be granted on the 2nd February 2019 then there was no application before Her Honour on the18 September and any order flowing from the absence of any application are a nullity. (f) In the alternative, Magistrate Barko had no application before the court from Garry Burns pursuant to the provisions of the UCPR 1999."
2. Considering the chronology of decisions under review, I will consider first ground 2, followed by ground 1.

Ground 2 - the decision of the Local Court Magistrate

1. This ground of judicial review is that Magistrate Barko granted leave to Mr Burns to commence proceedings in the Local Court without first dismissing Mr Abbott's objection to jurisdiction, giving reasons for the dismissal, giving Mr Abbott "the required time" to appeal that decision and "formerly" - by which Mr Abbott perhaps means "formally" - invoking jurisdiction. It is not clear from Mr Abbott's amended summons whether Magistrate Barko is said to have erred by identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material, although more than one such characterization is possible: see Craig v South Australia at [82].
2. By this ground of review, Mr Abbott appears to argue that because Magistrate Barko improperly granted leave to Mr Burns to commence proceedings in the Local Court, the subsequent decision and orders of Magistrate Keogh on 18 September 2018 are of no effect.
3. Despite phrasing this ground of review on the basis of Magistrate Barko having lacked jurisdiction, Mr Abbott also provided lengthy written submissions concerning the decision of Magistrate Keogh. These included 16 questions "for the Court to consider and declare" as follows: "A. Can the Parliament of NSW invest its State courts with Federal Jurisdiction; B. Can the Parliament of the State of NSW legislate to give Federal Diversity Jurisdiction to a magistrate or any officer not appointed pursuant to Chapter III - S. 72 of the Commonwealth of Australia Constitution Act 1900 (UK) (the Constitution). C. Can the Parliament of NSW legislate for a Magistrate, in the LOCAL COURT OF NSW, preside for a matter to be dealt with as a Tribunal pursuant to the provisions of the [Anti-Discrimination Act] and in particular, as amended in 2017 thereby investing NCAT with Federal diversity jurisdiction (section 30 (b)(2) was inserted into the [Local Court Act]")? D. Can the Parliament of NSW amend a law and or Act and then invoke/enforce that Act or law without the required time pursuant to provisions of Gazette time and or 12 months to lapse prior to enforcement and or incorporate that Act or law to a proceeding commenced prior to the date that that Act or Law was passed by the Parliament of NSW? E. Can a Magistrate of the local court of NSW or any court relying on the Application for Leave and Leave is not granted then preside of the matter and make orders for the Applicant who does not have to make an Application? F. Can the Parliament of NSW bypass and or circumvent the inherent right to appeal/review the decision of a magistrate to a judge appointed under the provisions of Chapter III of the Constitution? G. Can a Tribunal (NCAT) who does not have Federal Jurisdiction then bring proceedings regarding a civil matter dealing with Federal Diversity Jurisdiction to a court created under S. 77 (iii) of the Constitution by way of 'substituted proceedings'? H. Can the State Parliament of NSW enact special laws to restrain or inhibit or impinge the General community to protect minority groups and or races pursuant to the provisions of Section 106 of the Constitution where the States so created are subject to 'THIS CONSTITUTION'? I. Can the state of NSW enact laws to inhibit, impinge or otherwise restrain the General Community from the exercise and or observance of religious doctrine, exercise or observance contrary to the provisions of Section 116 of the Constitution? J. Can the NSW Parliament inhibit or impinge a citizen of a State outside NSW to plead to a judge or justice appointed pursuant to Chapter III of the Constitution with a State Act dealing with Federal diversity? K. Can the act of homosexuality, lesbianism or any chosen sexual act be a matter for the State Parliament of NSW to legislate upon given that marriage and divorce is an exclusive Commonwealth legislative prerogative power as provided by S. 51 Ssxxi? L. Can the State Parliament of NSW legislate to punish or inhibit the general community for freely expressing their opposition to the sexual acts of consenting adults such as adultery or homosexuality given the provisions of said S. 51 Ssxxi and Section 116? M. Can the Commonwealth or the States legislate to undermine the observance or the free exercise of religion to express the provisions of the Holy Bible and in particular the terminology of Leviticus 20:13? N. By special laws being enacted regarding LGBTIQA+ 'community' does then that community or those who so identify with LGBTIQA+ lose franchise? … O. What is the definition of HATRED as referred to by section 49ZT? P. Is the 'HATRED' as referred to by said section also or exclusively to 'INCITE HATRED towards' the person or the act of homosexuality or both? As to 'O' and 'P' this Honourable Court should consider the definition of 'Hatred' in that, if a person hates the sin but loves the sinner then is the 'Hatred' for the sin offend the provision provisions of ADA?"
4. Many of these questions fall far outside the scope of Mr Abbott's judicial review, although the issues raised in questions A to G are broadly addressed in this judgment. Questions H to P are entirely irrelevant to Mr Abbott's application to this Court, as are Mr Abbott's other submissions concerning the substance of Magistrate Keogh's decision.

The decision of Magistrate Barko dated 2 February 2018

1. On 2 February 2018, Magistrate Barko considered the four summonses brought by Mr Burns seeking leave to proceed in respect of his applications against Mr Abbott in the Local Court. Mr Burns appeared in person. Mr Abbott submitted a conditional appearance. Magistrate Barko delivered his decision ex tempore.
2. Magistrate Barko began his decision by addressing the four files before the Court, which had been transferred from the Administrative and Equal Opportunity Division of the Tribunal. Magistrate Barko then addressed the Court of Appeal's decision in Corbett and the subsequent amendments made to the Local Court Act and the CAT Act (T 3.1-26). I have summarised the relevant law earlier in this judgment.
3. Magistrate Barko then set out s 34B of the CAT Act, reproduced earlier in this judgment, before continuing (T 4.3-50; 5.1-31): "It is apparent from the reading of s 34B that I have to be satisfied that Mr Burns was initially entitled to bring his application in NCAT. I then have to be satisfied that NCAT does not have jurisdiction to determine that application and some guidance can be given by its own ruling in that regard. Further, that the Tribunal would have had original jurisdiction to determine the application and that Mr Burns' claim for damages in this Court would not exceed its jurisdictional limit of $100,000... Turning to the four applications against Mr Abbott. Mr Burns first appears before me on 19 January 2018 and we had a discussion as to the issue of service of the applications. There is nothing I could see within the new provisions of the [CAT Act] which relate to service of the appeal documents. After some discussion, it was agreed between myself and Mr Burns that the application for leave could be seen to be or defined to be an originating application and, accordingly in that regard, there would have to be evidence of personal service. I could be wrong about that but given the history of these proceedings and the delay in respect of the matter getting to a hearing, Mr Burns was content to accept that proposition so as to not delay the matters further. I just now move to each of the Abbott files. In each file, I am satisfied that Mr Burns, the applicant, had an arguable claim under the Anti-Discrimination Act. I am satisfied that before the Anti-Discrimination Board that that dispute could not be resolved in each matter before the Board. I am satisfied that NCAT had the jurisdiction to then hear the dispute and there is within not only each of the Tribunal's files but also attached to, as I understand it, the affidavit of Mr Burns, a copy of a letter from the Tribunal wherein it declined to determine the application before it because the determination, it said, involved exercise of Federal diversity jurisdiction. As the Act says, the determination of the Tribunal can only be used as being helpful in this Court making the determination. Having read the case of Burns v Corbett; Gaynor v Burns, I am satisfied that this Court does have the jurisdiction to have the applications transferred to it. I am satisfied in my reading of the material before me which has been properly filed by way of summons with supporting affidavit in each file and Mr Burns has set out, very helpfully…the background of the matter. The claim that is going to be made by Mr Burns seeking damages in this jurisdiction has not sought to exceed $100,000. Mr Abbott has filed what he has termed a conditional appearance… Mr Abbott, by letter received yesterday, writes (this is in respect of each of the files): 'I enclose my conditional appearance and three copies of my address to the Court with attachments. I request attendance by way of telephone link in regard to any directions here on telephone number.' And he is not here today and requests an adjournment if a directions hearing is set for the date. Mr Abbott writes in bold underlined: 'In any event as I challenged jurisdiction, the Court must first deal with jurisdiction before setting aside any date for directions or list any trial. My reasons are set out in my address to the Court.' Mr Abbott then has filed a conditional appearance, and then there is a document headed, 'Address to the Court' which sets out some submissions in respect of this Court's jurisdiction. It reads somewhat like Justice Leeming's judgment but in any event, the submission is made. I reject the submission [that] this Court doesn't have jurisdiction for the reasons which have been submitted by Mr Abbott. Clearly, given the decision of the New South Wales Court of Appeal and the legislative change made by parliament at this point in time I am satisfied the Court does have jurisdiction for reasons expressed by Leeming JA and contained in the new legislation, but of course, I can appreciate Mr Abbott's difficulties being interstate and having to come down for what might have been a very short matter."
4. Having addressed Mr Abbott's submissions concerning jurisdiction, Magistrate Barko granted leave to Mr Burns under s 34B of the CAT Act to bring the proceedings in the Local Court.

Mr Abbott's submissions

1. Mr Abbott acknowledged that Magistrate Barko rejected his submissions, and that his Honour stated that he was "satisfied that the Court [had] jurisdiction". However, Mr Abbott submitted that because he challenged the jurisdiction of the Local Court to hear Mr Burns' applications, Magistrate Barko was required to first deal with the question of jurisdiction "before listing the matter or granting any date for hearing".
2. Mr Abbott submitted that when faced with his challenge to the Local Court's jurisdiction, Magistrate Barko's delegated power was automatically offset until his Honour established that the Court had jurisdiction to hear the matter. Mr Abbott submitted that the "proper procedure" is to dismiss his objection and provide Mr Abbott with written reasons for the decision.
3. Mr Abbott submitted that Magistrate Barko erred by continuing to consider Mr Burns' application for leave "at the same hearing regarding jurisdiction, because a hearing regarding jurisdiction must be heard separately and any matter pertinent cannot be heard on the same day and time for a possible appeal must be considered."

Mr Burns' submissions

1. Mr Burns submitted that Mr Abbott's application for judicial review is legally embarrassing and has poor prospects of success. He submitted that the application is simply designed to cause a stay of Mr Burns' enforcement warrant against Mr Abbott for the damages awarded in the Local Court by Magistrate Keogh.

Resolution

1. Certain of grounds 2(a)-(d) can be answered on the face of Magistrate Barko's decision. As to ground 2(a), Magistrate Barko stated, "I reject the submission [that] this Court doesn't have jurisdiction for the reasons which have been submitted by Mr Abbott" (T 5.25). As to grounds 2(b) and (d), Magistrate Barko stated, "[g]iven the decision of the NSW Court of Appeal and the legislative change made by Parliament, at this point in time I am satisfied that the Court does have jurisdiction for reasons expressed by Leeming JA and contained in the new legislation."
2. Ground 2(c) is more perplexing. By it, Mr Abbott alleges that by continuing to consider whether to grant leave to Mr Burns "on the same day and time" as the question of jurisdiction, Magistrate Barko acted "contrary to the rules or procedure", although Mr Abbott has not specified any rules to which he refers. It is also not clear whether Mr Abbott intends this alleged error to constitute an error of law or a denial of procedural fairness. Either way, his submissions are misconceived.
3. I appreciate, as did Magistrate Barko (at T 5.29-31 of his Honour's decision), that Mr Abbott may have had difficulties attending the interstate proceedings in the Waverley Local Court. His choice to file a conditional appearance may have been informed by a belief that only his objection to jurisdiction would be considered. However, whatever Mr Abbott's understanding may have been, there is no identified court rule or procedure requiring Magistrate Barko to separately consider Mr Abbott's objection to jurisdiction and Mr Burns' applications for leave. On the contrary, Magistrate Barko's concurrent consideration of these issues best facilitated the the just, quick and cheap resolution of the real issues in the proceedings: see s 56 of the Civil Procedure Act 2005 (NSW). For these reasons, it is my view that this ground of review reveals no jurisdictional error or denial of procedural fairness.

Ground 1 - the decision of the District Court Registrar

1. This ground of review is that the Registrar erred by refusing to disqualify himself on the basis of apprehended bias, following Mr Abbott's request. By this ground, Mr Abbott appears to allege that he was denied procedural fairness. Mr Abbott further submitted that the Registrar's decision to dismiss Mr Abbott's amended summons violated his Constitutional rights to an appeal.

The decision of Judicial Registrar Howard dated 7 March 2019

1. By amended summons filed 3 October 2018, Mr Abbott sought an appeal from the decision of Magistrate Barko in the District Court of NSW. A copy of the amended summons was not provided to this Court.
2. On 12 February, 2019, Mr Abbott wrote the following letter to the Registrar: "… Formally, I hereby request the Judicial Registrar James Howard DISQUALIFY himself from the proceedings of John M Abbott v Garry Burns No. 2018/00258188. For reasons as follows: That the Defendant Garry Burns obtained information that the Judicial Registrar would - Dismiss my application (2018/00258188) for want of jurisdiction in the District Court of NSW in excess of 30 days prior to any such consideration and or order being made by the District Court of NSW in these proceedings. My request for disqualification is for reasons of PERCIEVED BIAS. A text on my mobile phone number XXXXXXXXXX from Garry Burns on the 7 February 2019 stated: Text from Gary Burns 7 February at 10.23 AM: - "Mr Abbott please only deal with my solicitors and do not contact me again. I am legally represented. Could you please go through my lawyer Mr Murray. I will not be withdrawing my enforcement hearing against you. It will proceed. The QLD court has been informed that on the 7 March 2019 at 2pm your appeal will be formally dismissed for lack of jurisdiction. There is no appeal on foot and the Southport Magistrates Court has copies of [the Registrar's] directions of the 4 February 2019. Kind regards Gary Burns" I have not been given any such information and it appears that the Defendant Burns was able to obtain knowledge of orders one month prior to any such order being made by [the Registrar] and has used that information to prejudice me or attempt to prejudice me. …"
3. On 7 March 2019, the Registrar dismissed Mr Abbott's appeal under Pt 50 of the Uniform Civil Procedure Rules 2005 (NSW) for lack of jurisdiction. The Registrar made the following orders: 1. Mr Abbott's application to disqualify the Registrar from conducting the hearing was refused. 2. Mr Abbott withdrew from the hearing at 2.15pm after advising the Court of his intention and reasons for doing so. 3. Mr Abbott's amended summons filed 3 October 2018 was dismissed for lack of jurisdiction.

Mr Abbott's submissions

1. Mr Abbott submitted that the decision of the Registrar on 7 March 2019 was based on a State law which provides that no appeal or review of a Magistrate's decision can be made to the District Court. Mr Abbott submitted that the Registrar erred for the following reasons.
2. Firstly, the Registrar "relied not on the provisions of [Chapter III of the Constitution] but on the provisions of the [CAT Act] and the Local Court Act."
3. Secondly, "given the provisions of the Constitution pursuant to Chapter III to appoint judges and justices, and that any decision/order made by a Registrar/Magistrate is a delegated power conditional to review on request from a party with standing, then no State law can be made to inhibit or impinge on an automatic right of a party to the proceedings to be denied an appeal/review to a judge/justice appointed under those constitutional provisions, especially when the matter concerns Federal diversity jurisdiction, and especially an Act providing for a Tribunal which is not recognised by the Constitution".
4. Thirdly, Mr Abbott submitted that because the Registrar was asked to disqualify himself on two occasions, "any purported jurisdiction was automatically denied", especially as "no judicial officer can preside in their own case". As such, Mr Abbott argued that the Registrar's orders of 7 March 2019 were made without jurisdiction and should be set aside.

Mr Burns' submissions

1. Mr Burns submitted that there is no statutory avenue for Mr Abbott to appeal Magistrate Barko's decision, including to the District Court. There was also no possibility for Mr Abbott to seek a judicial review to the District Court. Both the Registrar and the Crown Solicitor's Office attempted to assist Mr Abbott, but the proceedings were nonetheless dismissed for lack of jurisdiction. Mr Burns submitted that Mr Abbott was told he could challenge Magistrate Barko's decision in the Supreme Court, but that Mr Abbott chose not to do so, instead filing his application for judicial review in these proceedings on 27 July 2019.

Resolution

1. Sections 39 and 40 of the Local Court Act concern appeals. They read: "39 Appeals as of right (cf LCA 1982, section 73) (1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law. (2) A party to proceedings before the Court sitting in its Small Claims Division who is dissatisfied with a judgment or order of the Court may appeal to the District Court, but only on the ground of lack of jurisdiction or denial of procedural fairness. 40 Appeals requiring leave (cf LCA 1982, section 74) (1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court on a ground that involves a question of mixed law and fact may appeal to the Supreme Court but only by leave of the Supreme Court. (2) A party to proceedings before the Court sitting in its General Division who is dissatisfied with any of the following judgments or orders of the Court may appeal to the Supreme Court, but only by leave of the Supreme Court: (a) an interlocutory judgment or order, (b) a judgment or order made with the consent of the parties, (c) an order as to costs."
2. Under s 30(1)(b2) of the Local Court Act, the Local Court had jurisdiction in its General Division to consider Mr Burns' applications as substituted proceedings within the meaning of Part 3A of the CAT Act. There is no legislative provision in the Local Court Act providing for an appeal from Magistrate Barko's decision, as a decision of the Local Court sitting in its General Division, to the District Court. Under s 39(1) of the Local Court Act, Mr Abbott could have sought an appeal to this Court on a question of law. Under s 40(1) of the Act, he could have sought leave to appeal to this Court on a mixed question of law and fact. To date he has done neither, but instead sought a judicial review.
3. It is Mr Abbott's submission that ss 39 and 40 of the Local Court Act are unconstitutional. His understanding of the effect of Chapter III of the Constitution is that no State law can inhibit or impinge upon his right to appeal and/or review a decision of the Local Court to the District Court.
4. In Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 ("Kable"), Gaudron J set out the effect of Chapter III of the Constitution on State courts at 101-103 as follows: "[If ss 72 and 77 of the Constitution] are put to one side, the provisions of Ch III clearly postulate an integrated Australian court system for the exercise of the judicial power of the Commonwealth, with [the High Court] at its apex as a constitutional court and as a court exercising appellate jurisdiction for the whole of Australia, and with no distinction, so far as concerns the judicial power of the Commonwealth, between State courts and federal courts created by the Parliament… Again, s 77 does not distinguish between State courts and federal courts created by the Parliament as repositories of the judicial power of the Commonwealth. It does, however, recognize that the other courts which may be invested with federal jurisdiction are State courts. When s 77 is considered in conjunction with s 72 which, as earlier indicated, provides as to the appointment, tenure and renumeration of the members of this Court and federal courts created by the Parliament, it is correct to say, by reference to those provisions, that Ch III recognizes that this Court and other federal courts are creatures of the Commonwealth and that State courts are the creatures of the states… [I]t follows that it is for the States and the State alone to determine the…structure, organization and jurisdictional limits of State courts. In that sense, it is correct to say, as it often is, that the Commonwealth must take State courts as it finds them. However, it should be remembered that that dictum originates in the judgment of Griffith CJ in Federated Sawmill, Timberyard and General Woodworkers' Employees' Association (Adelaide Branch) v Alexander [(1912) 15 CLR 308], a case involving the question whether jurisdictional limits imposed by State law on a State court applied in matters of invested federal jurisdiction. It was in that context that his Honour said [15 CLR, 313] that 'when the Federal Parliament confers a new jurisdiction upon an existing State Court it takes the Court as it finds it, with all its limitations as to jurisdiction, unless otherwise expressly declared' - a vastly different statement from the unqualified proposition that the Commonwealth must take a State court as it finds it. Neither the recognition in Ch III that State courts are the creatures of the States nor its consequence that, in the respects indicated, the Commonwealth must take State courts as it finds them detracts from…one of the clearest features of our Constitution, namely, that it provides for an integrated Australian judicial system for the exercise of the judicial power of the Commonwealth. Moreover, neither that recognition nor that consequence directs the conclusion that State Parliaments may enact whatever laws they choose with respect to State courts. If Ch III requires that State courts not exercise particular powers, the Parliaments of the States cannot confer those powers upon them. That follows from covering cl 5, which provides that the Constitution is 'binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State', and from s 106, by which the Constitution of each State is made subject to the Australian Constitution. And so much was recognised in Commonwealth v Queensland [(1975) 134 CLR 298, 315] where it was said that State legislation in violation of 'the principles that underlie Ch III' is invalid. The question whether the Constitution requires that State courts not have particular powers conferred upon them depends, in my view, on a proper understanding of the integrated judicial system for which Ch III provides…. One thing that clearly emerges is that, although it is for the States to determine the organization and structure of their court systems, they must each maintain courts, or, at least, a court for the exercise of the judicial power of the Commonwealth. Were they free to abolish their courts, the autochthonous expedient, more precisely, the provisions of Ch III which postulate an integrated judicial system would be frustrated in their entirety. To this extent, at least, the States are not free to legislate as they please."
5. Gaudron J continued in Kable to say that the provisions of Chapter III of the Constitution do not permit for different grades or qualities of justice depending on whether judicial power is exercised by State or federal courts, nor do they permit States to confer powers on State courts which are incompatible with their exercise of judicial power (at 103).
6. The Local Court, District Court and Supreme Court of New South Wales are creatures of statute established by, respectively, s 7 of the Local Court Act, s 8 of the District Court Act 1973 (NSW) and s 22 of the Supreme Court Act. As Gaudron J stated in Kable, it is for the State of New South Wales alone to determine the structure, organisation and jurisdictional limits of these courts. There is no federal constitutional requirement for the District Court to hear an appeal from the Local Court.
7. It is true that the State of New South Wales cannot legislate to abridge the power of this Court to grant relief on account of jurisdictional error: see Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 ("Kirk") at 581. Since federation, the supervisory jurisdiction of State Supreme Courts has been the mechanism for determining and enforcing the limits on the exercise of State executive and judicial power (Kirk at 580). It is under its supervisory jurisdiction that this Court considers Mr Abbott's judicial review in these proceedings. However, nothing about this Court's supervisory jurisdiction permits Mr Abbott to appeal the decision of Magistrate Barko to the District Court.
8. For these reasons, it is my view that the Registrar's decision to dismiss Mr Abbott's amended summons for lack of jurisdiction reveals no jurisdictional error.
9. Turning to grounds 1(a)-(c), the principles governing apprehended bias are set out in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 ("Ebner") at [6]-[7] relevantly as follows: "[6] Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that…a judge is disqualified if 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. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial…. [7] The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror."
10. Briefly, the test for identifying apprehended bias requires two steps: first, the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits; and second, an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits (Ebner at [8]).
11. In Ebner at [8], the Court stated: "[8] …The bare assertion that a judge (or juror) has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed."
12. Mr Abbott submitted that Mr Burns' text message on 7 February 2018, advising him that his application would be dismissed for lack of jurisdiction, revealed an apprehension of bias on the part of the Registrar. These submissions are misconceived. As outlined earlier, there was no statutory avenue by which Mr Abbott could appeal the decision of Magistrate Barko (or Magistrate Keogh) to the District Court of NSW. Mr Abbott was aware that this was the case, having been told by Magistrate Keogh as noted in her decision of 18 September 2018 at [24]. Mr Burns' text message advising Mr Abbott that the Registrar would dismiss his application for lack of jurisdiction was simply a statement of this fact, and did not serve to indicate that the Registrar might determine the case other than on its legal and factual merits. In other words, it cannot be said that a fair-minded lay observer might reasonably apprehend that the Registrar might not bring an impartial mind to determining Mr Abbott's application.
13. Moreover, Mr Abbott is mistaken in his general submission that the Registrar could not consider an application that he disqualify himself due to apprehended bias. On the contrary, it is standard practice for the relevant decision maker to consider the merits of such an application.
14. For these reasons, it is my view that ground 1 of Mr Abbott's judicial review reveals no jurisdictional error, denial of procedural fairness or error of law on the face of the record.

Result

1. There is one final matter to consider. In addition to his application for judicial review, Mr Abbott sought an order that this Court declare Mr Burns to be a vexatious litigant. Mr Abbott made no submissions on this point. Moreover, Mr Burns has been successful in two of his applications against Mr Abbott. As such, I decline to make order 8 of the further amended summons.
2. The result is that the plaintiff's application for judicial review fails. The further amended summons filed 21 November 2019 is dismissed.

Costs

1. Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the first defendant's costs on an ordinary basis.

THE COURT ORDERS THAT: 1. The further amended summons filed 21 November 2019 is dismissed. 2. The plaintiff is to pay the first defendant's costs on an ordinary basis.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 May 2020