Abbott v Burns

1. [1]

   HER HONOUR: There are two judicial reviews before the Court. The first is in respect of the determination of his Honour Magistrate Barko of the Local Court of New South Wales dated 2 February 2018. The second is in respect of the determination of Judicial Registrar Howard of the District Court of New South Wales (“the Registrar”) dated 7 March 2019.

2. [2]

   At the hearing of these proceedings, I granted leave to the plaintiff to rely on a further amended summons filed 21 November 2019. By it, the plaintiff seeks the following orders (as uncorrected):

3. [3]

   The plaintiff is John Murray Abbott. The first defendant is Garry Burns. Both the plaintiff and first defendant were self-represented. The second defendant is the District Court of New South Wales, and the third defendant is the Local Court of New South Wales. The second and third defendants filed submitting appearances. Mr Burns relied upon his affidavit filed 5 August 2019 and made oral submissions. Mr Abbott relied upon his affidavit filed 27 June 2019, oral submissions and further written submissions filed in Court. His submissions were wide-ranging and difficult to follow at times, including ten pages of material concerning the decision of Magistrate Keogh under the heading, “A Simple Matter Has Become a Byzantine Plot”. As such, I propose to confine myself to the issues he raised in the further amended summons.

4. [4]

   For convenience, I will refer to the parties by name throughout this judgment.

Procedural and legislative background

1. [5]

   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. [6]

   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. [7]

   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. [8]

   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. [9]

   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. [10]

   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:

7. [11]

   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. [12]

   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:

9. [13]

   It is by virtue of these provisions that Mr Burns brought his applications to the Local Court of NSW.

10. [14]

    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. [15]

    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. [16]

    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. [17]

   Mr Abbott seeks a judicial review of the decisions of Magistrate Barko and the Registrar.

2. [18]

   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. [19]

   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:

4. [20]

   I respectfully agree and adopt the words of Johnson J above.

5. [21]

   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. [22]

   The plaintiff’s grounds of review are as follows (as unamended):

2. [23]

   Considering the chronology of decisions under review, I will consider first ground 2, followed by ground 1.

3. [24]

   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].

4. [25]

   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.

5. [26]

   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:

6. [27]

   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.

7. [28]

   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.

8. [29]

   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.

9. [30]

   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):

10. [31]

    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.

11. [32]

    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”.

12. [33]

    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.

13. [34]

    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.”

14. [35]

    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.

15. [36]

    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.”

16. [37]

    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.

17. [38]

    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.

18. [39]

    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.

19. [40]

    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.

20. [41]

    On 12 February, 2019, Mr Abbott wrote the following letter to the Registrar:

21. [42]

    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. (1)

       Mr Abbott’s application to disqualify the Registrar from conducting the hearing was refused.

    2. (2)

       Mr Abbott withdrew from the hearing at 2.15pm after advising the Court of his intention and reasons for doing so.

    3. (3)

       Mr Abbott’s amended summons filed 3 October 2018 was dismissed for lack of jurisdiction.

22. [43]

    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.

23. [44]

    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.”

24. [45]

    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”.

25. [46]

    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.

26. [47]

    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.

27. [48]

    Sections 39 and 40 of the Local Court Act concern appeals. They read:

28. [49]

    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.

29. [50]

    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.

30. [51]

    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:

31. [52]

    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).

32. [53]

    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.

33. [54]

    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.

34. [55]

    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.

35. [56]

    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:

36. [57]

    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]).

37. [58]

    In Ebner at [8], the Court stated:

38. [59]

    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.

39. [60]

    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.

40. [61]

    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. [62]

   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. [63]

   The result is that the plaintiff’s application for judicial review fails. The further amended summons filed 21 November 2019 is dismissed.

Costs

1. [64]

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

   1. (1)

      The further amended summons filed 21 November 2019 is dismissed.

   2. (2)

      The plaintiff is to pay the first defendant’s costs on an ordinary basis.