DJC v Burg & Magistrates' Court of Victoria [1998] VSCA 139

5. On 22 October 1996, the appellant filed an Originating Motion in the Supreme Court seeking, under Order 56 of Chapter I of the Rules, an order in the nature of certiorari setting aside the orders made in the Magistrates' Court on 23 August 1996 "and remitting the charges to the Magistrates' Court to be dealt with according to law". The firstnamed defendant was the informant and the secondnamed defendant was the magistrate (Mr. John Martin Murphy) constituting the Magistrates' Court when the orders were made on 23 August 1996. The appellant also sought an order in the nature of prohibition preventing Mr. Murphy from dealing further with the charges against him.

8. By the time the proceeding in this Court came on for trial, the Originating Motion had been amended by leave. As amended the grounds relied upon by the appellant (to whom we shall refer for convenience as "the plaintiff") were as follows:-

"That the secondnamed defendant should not have presided over any proceedings where the plaintiff was a party as the plaintiff and the secondnamed defendant are related. That the secondnamed defendant was actuated or might reasonably be apprehended to have been actuated by affection favour or ill-will."

The proceeding was heard by Mr. Justice Gillard on 30 May and 1 June 1997. On 19 June 1997, in a carefully reasoned judgment, his Honour dismissed the proceeding with costs. It is from the order then made that the appellant now appeals as of right.

14. The background to the proceeding is summarised by Gillard, J. in his reasons for judgment and it is not in dispute. The plaintiff was born on 2 May 1940. On 24 March 1962, he married and four daughters were born of that union between 22 August 1963 and 11 June 1967. Between about 1962 and 1990 the family lived on a property near Shepparton and in 1980, it moved to another property at Invergordon. The husband and wife separated in 1983 and (according to the police brief) they were later divorced.

17. On 28 July 1995, the firstnamed defendant issued a summons charging the plaintiff with 16 sexual offences. Fifteen of the charges alleged that the plaintiff had indecently assaulted one or other of his four daughters (contrary to s.55(1) of the Crimes Act 1958) and the other alleged sexual penetration of a child over the age of 10 years (contrary to the provisions of s.52(1) of the Crimes Act). The charges and summons were served on the plaintiff on 11 September 1995, together with a hand-up brief, and the committal hearing commenced on 23 May 1996 before the magistrate Mr. Murphy. The plaintiff was represented by counsel.

20. On the first day of the hearing three of the plaintiff's daughters gave evidence, adopting their respective statements which formed part of the hand-up brief and being cross-examined by counsel for the plaintiff. The material shows, as his Honour pointed out, that each of the daughters was subjected to a thorough, detailed, searching and at times aggressive, cross-examination which involved repeated questions as to minute details of the alleged sexual interference with their bodies by their father. The burden of the cross-examination was that the complainants were not telling the truth.

23. It appears that there was some discussion between the parties; for during the second day of the committal hearing, one of the charges - that which concerned sexual penetration - was amended by consent to a charge of indecent assault. The plaintiff then consented to all 16 charges being dealt with summarily and pleaded guilty to them. It was agreed that he should be remanded to appear on a later date for plea and sentence and that bail should be extended.

26. It was after this had been resolved, though shortly before formal orders were pronounced, that the magistrate made certain observations about the evidence which had been given during the committal proceeding, directing his remarks to one of the complainants who was still in court. He said:-

"I feel I should say - you could pass it on to your sisters, [name omitted], and I will say it now because there is a plea of guilty. I have been a magistrate for 12 years in three different states. I have never heard three witnesses like you and your two sisters that have been so frank, so open, and you have just been a delight to listen to as far as your frankness. I commend you obviously and I would like you to pass that on to your sisters. I just felt that your - I will just commend you for it."

Mr. Murphy added that he would be in a position to deal with any application the victims might make for compensation (under the Criminal Injuries Compensation Act 1983) and that no hearing would be necessary. He suggested that they might want to discuss the matter with their solicitor. The magistrate then formally remanded the plaintiff to appear on a later date for plea and sentence, and extended bail.

31. The plea in mitigation was heard on 23 August 1996. The plaintiff was again represented by counsel. No objection was taken to Mr. Murphy's entertaining the plea and proceeding to sentence. One of the persons who attended Court on that day was the plaintiff's sister whose letter as to her brother's good character was tendered to the Court in support of the plea. After the plea the plaintiff was sentenced to 18 months' gaol on each charge, all sentences to be served concurrently, and, as already noted, a non-parole period was fixed of 12 months. It was declared that three days spent in custody were to be reckoned as already served under the sentence. The plaintiff promptly lodged notice of appeal to the County Court (under s.83 of the Magistrates' Court Act 1989) and was granted bail.

34. The plaintiff and his sister then left the Court building. Outside they saw Mr. Murphy. The sister then told the plaintiff that she had seen the magistrate in attendance at the wedding of their niece. According to the evidence before Gillard, J., that wedding had taken place in December 1990 at Deniliquin between the daughter of one of the plaintiff's several brothers and the magistrate's nephew (the son of the magistrate's sister). There was no suggestion in the evidence that the plaintiff or any of his daughters were at the wedding or that there had been any personal acquaintance or social contact, either before or after the wedding, between the magistrate and the plaintiff or the plaintiff's immediate family. Indeed in his affidavit, the plaintiff swore:-

"15. I do not know the second named defendant [Mr. Murphy] personally. To my knowledge I have never met him or been at a function or social engagement where he has been present. 16. I do not know whether in the course of these proceedings the Second Named defendant knew or realised that he was related to me. As a result I do not know whether or not the learned Magistrates' mind was biased either in my favour or against me. These unanswered questions have caused me to doubt the integrity of the proceedings wherein I received a period of imprisonment."

Before us it was not put that there was any basis in the transcript of proceedings in the Magistrates' Court for supposing that Mr. Murphy had any knowledge of the plaintiff or any of his four daughters beyond that which he gained in the proceedings before him.

40. Throughout the proceeding in the Supreme Court the magistrate has not appeared. By letter and through counsel for the firstnamed defendant (the informant below) he informed Gillard, J. that he would abide the Court's decision. It appears from the papers that at some stage the second defendant, who was named as John Martin Murphy in the plaintiff's Originating Motion, was renamed as "the Magistrates' Court of Victoria (constituted by John Martin Murphy)" - notwithstanding that in the Originating Motion the plaintiff was seeking to prohibit Mr. Murphy in particular from conducting any further hearing - and it is "the Magistrates' Court of Victoria (constituted by John Martin Murphy)" which is named in the heading to the Notice of Appeal as second respondent. Apparently the change was made before 25 March 1997 when the plaintiff was given leave to amend the grounds in the Originating Motion, but the alteration, which may have been viewed as no more than a correction dictated by Rule 56.01(3), was not explained to us and, as no point has been made of it, we simply pass it by. Because of our decision on the appeal, it seems to be of no immediate consequence.

43. Although the magistrate himself, or indeed the Magistrates' Court, has not taken any formal part in this proceeding, at one stage Mr. Murphy did forward to the Court what he described as a report concerning the alleged relationship between himself and the plaintiff. This was forwarded under cover of a letter sent by the Victorian Government Solicitor to the Prothonotary, and a copy of the "report" was apparently provided to the representatives of the plaintiff and the first defendant. In the course of the hearing below, the judge declined to treat the document as evidence and accordingly it was not reproduced in the appeal papers before us. His Honour said, however, that he would be prepared to receive an affidavit from the magistrate which dealt with the subject matter of the "report" if such an affidavit were to be filed within 48 hours - but no such affidavit was forthcoming. As will be seen, the absence of an affidavit was relied upon by counsel for the plaintiff.

46. The general nature of the plaintiff's case will now be apparent. A number of points were taken before Gillard, J. in argument but the main thrust of the complaint remained the same: the magistrate ought not to have adjudicated on the charges brought against the plaintiff and the proceedings were tainted by bias. Mr. Perkins, who appeared for the plaintiff, disavowed any suggestion of actual bias - as he did, too, before us. His submission was that in all the circumstances there was "apparent bias". Gillard, J. described it thus in his reasons for judgment:-

"[Mr. Perkins'] submission was that there was apparent bias. He submitted that the relationship between the magistrate and the plaintiff and the conduct of the magistrate in the course of the hearing would leave the reasonable observer to reasonably apprehend that the plaintiff did not receive a hearing from an impartial and detached judicial officer."

50. In support of the submission Mr. Perkins relied upon what he called "the family relationship" between the magistrate and the plaintiff, the magistrate's comments on the daughters' evidence and his suggestion that he would entertain an application for criminal compensation. At first instance (though not before us) Mr. Perkins relied also upon a remark alleged by the plaintiff in his affidavit to have been made early in the peace by the magistrate about the plaintiff's hearing ability, which was claimed to indicate some prior knowledge of the plaintiff and his circumstances. But the transcript from the Magistrates' Court did not bear out the making of such remark and Gillard, J. found that the plaintiff was mistaken in his recollection. For the rest, Gillard, J. rehearsed the authorities bearing on ostensible or apparent bias, distilled what he considered to be the appropriate test, and then, in the light of that test, canvassed each of the factors relied upon by Mr. Perkins to sustain his submission. His Honour concluded that none of them, either separately or in conjunction, afforded any sound basis for the contention that there was any "reasonable apprehension of bias" in this instance - and so he dismissed the proceeding. The plaintiff now contends that that was wrong.

54. According to the notice of appeal there are four grounds of appeal:-

"1. The decision was wrong in law. 2. The learned judge failed to give any or any sufficient weight operation or effect to the failure on the part of the learned Magistrate to place affidavit material before the court. 3. The learned judge failed to assess appropriately or correctly the significance of the relationship between the complaining witnesses and the learned Magistrate. 4. The learned magistrate would [in] the eyes of a detached observed appear to have been tainted by favour to the complaining witnesses and/or ill will towards the appellant."

58. The first of these four is, of course, no ground at all. As for the rest, it was made clear in argument that the plaintiff did not contend that Gillard, J. had erred in identifying the relevant test. Actual bias having been expressly disavowed, his Honour took the test from this passage in the judgment of Dawson, J. in Grassby v. The Queen [1989] HCA 45; (1989) 168 C.L.R. 1 at 20, a judgment in which Mason, C.J., Brennan, Deane and Toohey, JJ. agreed:-

"The test which is to be applied when bias is raised has been clearly laid down. It is whether in all the circumstances the parties or the public might entertain a reasonable apprehension that the judge [in this instance the magistrate] might not bring an impartial and unprejudiced mind to the resolution of the matter before him. If so, then the judge ought not to proceed to hear the matter. Of course as Gibbs, C.J. pointed out in Reg. v. Simpson; ex parte Morrison, the mere expression of the apprehension of the bias does not establish that it is reasonably held; that is a matter which must be determined objectively."

See also R. v. Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 C.L.R. 546 at 553, Livesey v. New South Wales Bar Association [1983] HCA 17; (1983) 151 C.L.R. 288 at 293-4 and Webb v. The Queen [1994] HCA 30; (1994) 181 C.L.R. 41 at 50-52, 87, and in this Court, Rozenes v. Kelly [1996] VicRp 20; [1996] 1 V.R. 320 and Gascor v. Ellicott [1997] 1 V.R. 332, especially at 342. Essentially the question which Gillard, J. asked himself was whether in all the circumstances there was any basis in the evidence for a reasonable apprehension on the part of the notional bystander that the magistrate might not be a disinterested adjudicator, as both the complainants and the alleged offender had every right to expect. We agree in that approach.

63. Nor do we see any difficulty in this case in deciding what knowledge must be attributed to the notional bystander. Sometimes that can be a problem: compare Fingleton v. Christian Ivanoff Pty. Ltd. (1976) 14 S.A.S.R. 530 at 533 per Bray, C.J., S & M Motor Repairs Pty. Ltd. v. Caltex Oil (Australia) Pty. Ltd. (1988) 12 N.S.W.L.R. 358, Laws v. Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 C.L.R. 70 at 87 per Mason, C.J. and Brennan, J., Webb at 73 per Deane, J. and Gascor at 342-3 per Tadgell, J.A. In argument before us it seemed to be common ground that in this instance the notional bystander should have attributed to him knowledge of the facts now on affidavit, supplemented, if appropriate, by any inference fairly to be drawn from those facts. We are content to proceed on that basis, without canvassing the significance or otherwise in this connection of the inference that plaintiff's counsel contended could - and should - be drawn against the magistrate by reason of his failing to go on affidavit. We deal with this inference later; but whether such an inference, if it could be drawn as contended, would be significant to the plaintiff's case is something that we do not decide.

66. As has been seen, in his notice of appeal the plaintiff does not assert merely a reasonable apprehension that the magistrate might not have brought to the case "an impartial and unprejudiced mind to the resolution of the matter before him". The plaintiff puts it more positively, asserting that in the eyes of a detached observer the magistrate would have appeared to be "tainted by favour to the complaining witnesses and/or ill-will towards the appellant." It may be that the plaintiff does not need to go so far as to show that the appearance of bias, if established, is of bias against himself; for every litigant is entitled to impartial adjudication and it matters not who is favoured if there is partiality. Of course a party is unlikely to complain if the bias which is apprehended is to his or her advantage, but we should have thought it sufficient, strictly speaking, if the plaintiff established some sound basis for its appearing to a detached observer that the magistrate was not disinterested in the relevant sense. Perhaps the further claim that the appearance was of bias against the plaintiff stems from the second of the amended grounds in the Originating Motion, but if so we agree with Gillard, J. that the second seems to add little or nothing to the first. On the basis that, without having to show also which party might thus be favoured, it would be enough for the plaintiff to establish a reasonable apprehension that the magistrate was not disinterested in the relevant sense at the relevant time, in our opinion the plaintiff did not show any sound basis for so concluding and accordingly the learned Judge fell into no error in dismissing the claim for relief under Order 65. Our reasons are as follows.

70. First, there is what Mr. Perkins dubbed the argument on "kinship". This is the argument that the mere existence of the so-called relationship between the magistrate and the complainants served to disqualify the magistrate on this occasion, and counsel made it plain that by "relationship" in this context he was referring to no more than the existence of the family connection which was forged at the wedding of the magistrate's nephew to the plaintiff's niece in 1990. That is why "kinship" is probably the better word; "relationship" can mean much more than that. But mere kinship - at least in this case - was clearly not enough in itself to raise a reasonable apprehension of bias in any relevant sense.

73. No doubt there are situations where the adjudicator, whether judge or magistrate, ought not to sit because of some family tie - or at the very least ought not to sit without first disclosing it - but this is not one of them. In some cases the mere existence of the tie must inevitably give rise to a reasonable apprehension of bias on the part of the adjudicator. Thus if the judge is parent or spouse of one of the litigants or of one of the witnesses whose evidence may be in question, it is not to be thought that the judge would not stand aside: in such a case it is difficult to suppose that the judge could be unaffected by family ties. It would not matter that the party was only the former wife of the judge, or whether the child was living with the parent; nor would it matter whether the two were on good terms or bad, in constant communication or rarely seeing each other; it is enough that the adjudicator would reasonably be supposed by the detached observer not to bring to the adjudication a mind untrammelled by the family connection, whether past or present. In those cases the very existence of the connection may serve to disqualify.

76. Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon [1968] EWCA Civ 5; [1969] 1 Q.B. 577 might be thought to provide an example of a disqualifying family connection, though in that case the relative (in that case the father) was neither the litigant nor a witness in the proceeding actually being determined by the son. But the interests of both were aligned. The son was a solicitor who lived with his father. He was also chairman of a fair rents assessment committee which was called upon to examine an application by the father's landlord to increase the rent of a particular property, though not the property occupied by father and son. At the time, however, the father was in also dispute with the landlord in relation to the flat which the father did have on lease, and the son had been assisting the father over that dispute. Not surprisingly, the Court of Appeal held that the son was disqualified from sitting in the case because of a reasonable apprehension of bias. Lord Denning M.R. said, at 600:

"No reasonable man would draw any distinction between [the son] and his father, seeing he was living with him and assisting him with his case ... Everyone would agree that a judge, or a barrister or solicitor (when he sits ad hoc as a member of a tribunal) should not sit on a case in which a near relative or a close friend is a party."

Perhaps the critical point was that the father, and thus the son when their interests were aligned, were themselves in dispute with the very same landlord. Compare Holmes v. Neilson (1979) Tas.R. 89, where the magistrate was a personal friend of the defendant, and Re Kennedy & Cahill (1995) F.L.C. 92-605, where to the ignorance of one party the trial judge was currently in a close personal relationship with the solicitor appearing for the other party.

81. In those cases where bias is apprehended from no more than the very existence of the family connection, the disqualification will arise because, in the experience of mankind, where such a connection exists the absence of bias may really be doubted. Each case will thus turn on questions of fact and degree; the closer the tie and the more personal the connection, the more likely a reasonable apprehension that the adjudicator may not be bringing to bear an impartial mind, unaffected by considerations extraneous to the dispute to be determined. But cases where that result follows from the mere existence of the family connection will surely be rare; when they do arise they will usually be obvious enough. This is simply not such a case. Before the marriage took place there was no ground for suggesting bias, and one may ask what changed? The family connection which was wrought is tenuous; indeed it is so tenuous that it may not have been known to the magistrate. It was not known to the plaintiff until his sister recalled having seen the magistrate at the wedding in 1990; why should it be supposed that the magistrate was any more aware than the plaintiff? After all the plaintiff was not at the wedding; what basis is there for supposing that the magistrate knew at any time that the woman his nephew married was a niece of the plaintiff or the cousin of the complainants? There is none, save that the surname of the plaintiff was that of the niece before her marriage, and that is not sufficient in itself.

85. Moving, then, beyond the mere existence of the family connection created when the nephew married the niece, Mr. Perkins sought to rest the submission of apparent bias on the "relationship" between the plaintiff and the magistrate in some wider sense. In this sense the word was used to mean the association, if any, between the magistrate and the plaintiff, whether that association stemmed from the family connection, such as it was, or had developed independently of it (or, as may happen in some cases, despite it). Again no doubt there will be cases in which a relationship, in that sense, between the adjudicator and a party or a witness will properly disqualify, although obviously whether that is so must depend upon a consideration of all of the circumstances, such as the nature, extent and duration of the association, whether considered independently of the family connection or in conjunction with it. It may depend, too, upon the time that has elapsed between the existence of the association and the exercise of the relevant judicial function: S & M Motor Repairs v. Caltex Oil (1988) 12 N.S.W.L.R. 358 at 368 per Kirby, P. (dissenting).

88. Here there was no evidence of any such association at all. The only evidence was that the magistrate had attended the marriage between his nephew and the plaintiff's niece in 1990; the plaintiff was not in attendance and there was no evidence that his daughters were. It cannot be the case that mere attendance by the magistrate at the wedding served to disqualify him; a reasonable bystander would not conclude, merely because of that attendance, that the magistrate might not be disinterested, five years later, in court proceedings concerning one of the uncles and certain of the cousins of the bride. Nor was this a case of some clandestine or covert relationship, so that any association that existed between magistrate and the plaintiff or the complainants would presumably have been discovered had inquiry been made. Yet no attempt appears to have been made by the plaintiff to do more than assert the possibility of association, based simply upon attendance by the magistrate at a wedding many years previously. There was, for instance, no affidavit by the plaintiff's sister who herself had drawn attention to the wedding; nothing in evidence even raised the possibility of a further or subsequent contact between the magistrate and anyone connected with the plaintiff, save perhaps his brother's daughter who had been the bride - and even that is speculation. The plaintiff's children were not still living at home, and so contact with one would not necessarily have been contact with them all. By 1990, the plaintiff and his wife had been separated (if not actually divorced) for a number of years, he living in Magnetic Island and she in Shepparton, her daughters no longer living with her, each of them having married and moved away.

91. In short, the magistrate's attendance at the wedding in 1990 gives rise to no more than idle speculation about subsequent, or indeed prior, social contact between the magistrate and the plaintiff or his immediate family. As the trial judge said:

"The only evidence before me is that the magistrate attended a wedding on 8 December 1990, some five and a half years before the hearing at Shepparton. His nephew married the niece of the plaintiff. There is no evidence of any contact between the magistrate and any members of the plaintiff's family since that date. I have read the transcript of the proceedings which were conducted over two days. There is nothing in the transcript which would in any way indicate that the magistrate had any knowledge of the three daughters of the plaintiff who gave evidence. There was no suggestion of any personal acquaintance or social contact between the magistrate and the plaintiff or the plaintiff's family."

95. Mr. Perkins sought to overcome the absence of evidence about the alleged "relationship" (that is, the association) between the magistrate on the one hand and on the other the plaintiff and his immediate family by pointing to what counsel called the magistrate's reluctance to go on oath. Counsel referred to the magistrate's submitting a "report" and then, despite an opportunity to file an affidavit, his failing to do so. We have not seen the "report" because the trial judge declined to receive it in evidence. Mr. Perkins argued that the Court should take the view that the magistrate had been attempting to become involved, as he put it, in the proceeding between the plaintiff and the informant, while at the same time seeking to avoid the rigours of cross-examination. This, he said, displayed partiality or, at all events, was conduct which went to sustain his submission that, to the detached bystander, there would be a reasonable apprehension of bias.

98. A number of things can be said of this submission. First, it is not immediately clear how the magistrate's conduct, after the event as it were, can be used to support or to answer an allegation that there was a reasonable apprehension of bias at a much earlier point of time. But this is to question the significance of any inference to be drawn against the magistrate from the course followed in this proceeding and that is a question which we have already said we do not decide. So we put no store by that first point.

101. Secondly, we do not see that the magistrate's attempting to put before the Court a "report", though apparently declining thereafter to go on affidavit, was at all sinister. He may have believed, perhaps mistakenly (although we express no opinion on that), that it would be inappropriate for him to become a protagonist in this proceeding by filing an affidavit. He may have thought that he was being helpful by filing material in a non-contentious form which the Court could, if it saw fit, receive. The Court does have power to accept evidence otherwise than on oath; it was just that in this instance the judge declined to exercise that power.

104. Thirdly, when asked, Mr. Perkins said that he relied upon Jones v. Dunkel [1959] HCA 8; (1959) 101 C.L.R. 298 to support his submission that an inference could be drawn, from the conduct of the magistrate in "declining to go on oath", that his evidence (if to the effect that there was no bias or no relevant "relationship") would not have survived cross-examination. But that is altogether speculative. The magistrate might have decided not to go on oath because he did not wish to become more directly involved in what was, after all, an argument between the parties about the appearance of bias. As actual bias is not alleged, evidence from the magistrate himself that he was not partial to the one side or the other could scarcely be relevant and it is speculation what otherwise the affidavit might have contained. Certainly in our opinion the magistrate's failing to file an affidavit does not ground an inference that the magistrate had something to hide - which was perhaps the suggestion underlying the submission.

107. In an effort to meet some of these points, Mr. Perkins submitted that this case did not involve any question of inference but rather of "imputation"; for what he relied upon, he said, was an appearance of partiality, not an inference of partiality. That may be so but it is still very difficult to see how there can be an appearance of partiality if there are no facts from which that appearance derives. And in the end the absence of such facts is the essential difficulty facing the plaintiff in this proceeding.

110. It is true that, as the plaintiff was charged with sexual offences against his daughters, the magistrate was connected by his nephew's marriage to both the alleged perpetrator of the crimes and to his victims. Hence, the possibility existed - in theory - that, if the magistrate was influenced at all by family connection, that influence might have worked either way (at all events before the plaintiff pleaded guilty). But the theoretical possibility is just too remote, if based merely upon what is now known. Reasonable apprehension of bias due to the magistrate's family connection to the complainants, like that due to his connection to the plaintiff, depended on more than the existence of the connection formed by the marriage of the nephew of the magistrate and the niece of the plaintiff. In the absence of any evidence at all that the link between the magistrate and the plaintiff and his family extended beyond that which was created by that marriage, we do not consider that the plaintiff established any sound basis for a reasonable apprehension of bias.

114. Before Gillard, J., the plaintiff claimed that what the magistrate said about the daughters' evidence and about his willingness to hear any application for compensation, if taken by itself, showed ostensible bias on his part. On appeal, however, the plaintiff did not put the matter in that way, perhaps (although we do not know) because no objection was taken at the time of the plea in mitigation. Instead counsel contended that the magistrate's observations about the daughters' evidence, when taken in conjunction with the other circumstances referred to earlier (such as the magistrate's being connected to the plaintiff by marriage and his attendance at the wedding), combined to form a sound basis for a reasonable apprehension of bias. We do not think so. The comments were made by the magistrate to the complainants as proceedings were adjourned after the committal hearing had come to a premature end. By then the plaintiff had pleaded guilty to all 16 charges and the magistrate was alive to the difference that made, as his remarks themselves bear witness. (As for the reference to the complainants possibly making a claim for criminal compensation, that is explained by his being the magistrate for the time being responsible for such claims in that district.) Taken separately the remarks of the magistrate do not ground an apprehension of bias and when taken in conjunction with the other factors referred to by counsel, they still do not do so. However they are viewed, the facts in evidence fall far short of providing any sound basis for the plaintiff's claim that the magistrate might not have brought an impartial or unprejudiced mind to the task of his sentencing. That was the critical exercise of judicial power here, and in our opinion it was not tainted as the plaintiff now claims.

118. Accordingly, despite counsel's arguments we are clear that this appeal must fail. Indeed so far from demonstrating error his Honour's reasons for judgment in this proceeding appear to us to have been entirely appropriate. None of the grounds of appeal has been made out. Strictly speaking it is therefore unnecessary for us to express any further opinion on the arguments that were raised before us, but we desire say to something about one or two of the other points taken, if only by way of obiter dicta, lest our silence be taken to indicate that they have no relevance or be otherwise misinterpreted.

121. If, contrary to our view, the magistrate ought to have disqualified himself so that the proceedings conducted by him should be quashed, counsel submitted that it would be appropriate then for this Court to quash not only the magistrate's sentencing of the plaintiff, but also to set aside the plaintiff's election to be dealt with summarily and his pleading guilty. For the informant (the firstnamed respondent on the appeal) it was contended that those were matters entirely for the plaintiff himself and had nothing to do with the magistrate or his conduct. Plaintiff's counsel sought to argue that the plaintiff had been "misled" into foregoing his right to trial by jury by the magistrate's leaving him in ignorance about the disqualifying "relationship", but that was not so. The plaintiff consented to summary jurisdiction and pleaded guilty before he discovered any supposed family connection, and indeed before the magistrate made any of the comments to the witnesses, of which complaint is now made. The plaintiff's conduct in so consenting and so pleading cannot have been influenced by what is now said to have been a reasonable apprehension of bias. The claim that in some way the magistrate displayed partiality in the course of the committal hearing was rejected at first instance and not repeated on this appeal. Accordingly, we see no basis for quashing the convictions. Had the plaintiff made out a case for this court's intervention, we should have thought it proper simply to quash the sentences and send the matter back for sentencing afresh.

124. Even that, however, must be subject to further qualification; for, as at present advised, we should have thought that, arguably at least, this Court could properly refuse relief in the exercise of discretion. Plaintiff's counsel accepted that the granting of relief in the nature of certiorari was discretionary, as were the old prerogative writs, but he submitted that we ought not to refuse relief once the ground for intervention was established. The informant argued that we should refuse relief because the plaintiff might have brought the question of law up to the Supreme Court for decision under s.92 of the Magistrates' Court Act 1989, which allows an appeal on a question of law. The difficulty with that argument, as pointed out by plaintiff's counsel, is that if a party appeals under s.92 he forgoes (by virtue of s.83(2)) any right of appeal to the County Court, and that was certainly not the plaintiff's intention or wish. The trial judge indicated that he was not much moved by the informant's submission in this regard and as at present advised we are inclined to agree.

127. A better basis for refusing relief in the exercise of discretion might well lie in the nature of the appeal to the County Court which the plaintiff has on foot. (This was not an argument that Gillard, J. was required to consider, but we allowed the point to be taken by the late filing of a notice of contention.) An appeal under s.83 of the Magistrates' Court Act is a hearing de novo: see s.85. Accordingly, any complaint that the plaintiff now has about the treatment he received in the Magistrates' Court must necessarily be overcome when the charges are heard again in the County Court. Indeed, the plaintiff has already notified that he will seek leave to reverse his plea and, whatever the outcome of that application, any "bias" of the magistrate, however apprehended, must surely cease to be relevant when the charges are heard and determined in the County Court. Plaintiff's counsel argued that a party should not be required to appeal unless and until there has been an unimpeachable hearing and disposition of his case at first instance, but we doubt that the cases justify such an absolute proposition. The plaintiff's complaint is of error below (albeit error in the magistrate's sitting when according to the argument he ought not to have sat) and the right of appeal to the County Court, which is available here, is apt to correct error (even such an error as is now asserted). It seems to us at least arguable that that would justify the Court's refusing relief in the nature of certiorari. See for example R. v Cook, ex parte Twigg [1980] HCA 36; (1980) 147 C.L.R. 15 especially at 29, 30, 34, R. v. Chief Constable, ex parte Calveley [1986] Q.B. 424 at 433, Gudgeon v. Black (1994) 14 W.A.R. 159 (where many of the cases are rehearsed by Malcolm, C.J.) and generally, Aronson and Dyer, Judicial Review of Administrative Action (1996) at pp.759-760. We say no more about it because there is no need to decide it, the ground for such relief having not been established in any event.