[2024] SASC 54

Applicant: BRIAN DAVID MCFARLANE In Person First Respondent: MINISTER FOR HEALTH AND WELLBEING Counsel: MR W AMBROSE - Solicitor: CROWN SOLICITOR (SA) Interested Party: COURTS ADMINISTRATION AUTHORITY Hearing Date/s: 29/12/2023, 05/02/2024 File No/s: CIV-22-012932 B SUPREME COURT OF SOUTH AUSTRALIA (Civil: Judicial Review) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment 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 in which it was generated. MCFARLANE v OUTBACK COMMUNITIES AUTHORITY [2024] SASC 54 Judgment of the Honourable Justice Hughes 16 April 2024 ADMINISTRATIVE LAW - PREROGATIVE WRITS AND ORDERS - CERTIORARI - GROUNDS FOR CERTIORARI TO QUASH - EXCESS OR WANT OF JURISDICTION - PARTICULAR INSTANCES OF JURISDICTIONAL ERROR PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - BIAS The applicant seeks judicial review of interlocutory orders made in the District Court of South Australia on a review of a minor civil action. The minor civil action was a debt recovery action by the Outback Communities Authority in relation to unpaid community contributions allegedly owed by the applicant. The applicant was found to owe $9,662.92 by a Magistrate and sought a review. Prior to the review being heard in the District Court, the applicant sought various interlocutory orders. These applications included inter alia that the Chief Judge hear the review, that a third party be joined to the action, that questions of law be referred to the Court of Appeal, and that the matter proceed as a retrial. The Judge allowed the applicant to file an amended grounds of review and to be assisted by a communications partner, but refused the other applications except for the application to proceed by way of a re-trial which was reserved for determination at the hearing of the review. The Judge delivered an ex tempore decision. The applicant seeks judicial review of the refusals of his interlocutory applications, as well as the conduct of the District Court Judge, on grounds of apprehended bias and jurisdictional error. -- 1 of 21 -- The respondent applied for summary dismissal of the judicial review on the basis that the applicant has no prospect of succeeding. The respondent contended that the nature of the scheme for review of minor civil actions militates against fragmentation. The respondent argued if the judicial review were to proceed and errors were identified, relief would not be appropriate in the exercise of the Court’s discretion. The respondent maintained that in any event the conduct of the Judge did not give rise to an apprehension of bias, and the orders made were within jurisdiction and appropriate. Held: The interlocutory nature of the orders in respect of which judicial review is sought, and the discretionary nature of the relief, lead to the conclusion that the judicial review is amenable to summary dismissal. The applicant’s contentions on judicial review disclosed no basis upon which it might be found, if the matter proceeded to hearing, that an apprehension of bias arose or that any errors going to the Judge’s jurisdiction had been committed. The respondent’s application for summary dismissal is granted. Judicial review action CIV-22-012932 is dismissed, and the review of the minor civil proceeding should proceed in the District Court. Magistrates Court Act 1991 (SA) s 3, s 38; Outback Communities (Administration and Management) Act 2009 (SA) s 21, referred to. Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd [2020] SASC 161; Kirk v Industrial Court (NSW) (2010) 239 CLR 531; Craig v State of South Australia (1995) 184 CLR 163; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, applied. Outback Communities Authority v Brian David McFarlane [2022] SAMC 6; Outback Communities Authority V McFarlane [2021] SAMC 123, discussed. Wilczynski & Anor v District Court of South Australia & Ors [2016] SASC 51; Martincic & Anor v Ethnic Broadcasters Inc [2024] SASCA 33; Gassy v The King [2023] SASCA 90; Vansetten v The State of South Australia [2020] SASC 158; Harradine v The Magistrates Court of South Australia (2021) 138 SASR 122; Harradine v The District Court of South Australia (2012) 280 LSJS 572; Clone Pty Ltd v Players Pty Ltd (In liquidation) (Receivers & Managers Appointed) [2019] HCA 12; R v Stevedoring Industry Board; Ex parte Northern Stevedoring Co Pty Ltd (1953) 88 CLR 100; Bar- Mordecai v Rotman [2000] NSWCA 123; Adelaide City Council v Lepse [2016] SASC 66; House v The King (1936) 55 CLR 449; BRK v Police [2020] SASC 151; Forrest v Director of Public Prosecutions (NSW) [2020] NSWCA 162; R v Nixon (2000) 181 ALR 747, considered. -- 2 of 21 -- MCFARLANE v OUTBACK COMMUNITIES AUTHORITY [2024] SASC 54 Civil: Judicial Review 1 HUGHES J: This decision communicates to the parties the Court’s determination of an application by the Outback Communities Authority (“OCA”) for summary dismissal. The OCA seeks to dismiss judicial review proceedings brought by Mr McFarlane in respect of various interlocutory orders made by a Judge of the District Court on a review of a minor civil action. 2 The OCA is represented by the Crown Solicitor and Mr McFarlane is a litigant in person. 3 For the reasons that follow, the application to summarily dismiss the judicial review proceedings is granted. Background 4 To understand the judicial review proceedings, it is necessary to step back and summarise the most relevant interactions between the parties that led to this point. Minor Civil Claim 5 The OCA is a statutory authority that performs functions and exercises powers in respect of the administration of communities in particular geographical areas of the state. 6 On 8 December 2014, the OCA brought a minor civil action in debt in the Magistrates Court in respect of unpaid charges imposed on Mr McFarlane pursuant to s 21 of the Outback Communities (Administration and Management) Act 2009 (SA).1 7 In brief, in the minor civil proceedings, Mr McFarlane was found to be liable, as a land-owner,2 to pay an amount on account of a community contribution imposed by the OCA under the Outback Communities (Administration and Management) Act 2009. 8 It is sufficient for the purposes of this decision to observe that the charges were community contributions which are imposed by the OCA on land-owners in areas not covered by local councils, serve a similar purpose to council rates. The OCA must follow a statutory process in setting the community contributions. Mr McFarlane considers that he is not liable to pay the charges because the process by which they were set was, in his view, non-compliant with the legislation. 1 Outback Communities Authority v Brian David McFarlane [2022] SAMC 6 Exhibit A7 to the Affidavit of Brian David McFarlane sworn on 18 November 2022. 2 Outback Communities (Administration and Management) Act 2009, s 21(2). -- 3 of 21 -- [2024] SASC 54 Hughes J 2 9 After a period of dispute over several years, the OCA commenced debt recovery proceedings against Mr McFarlane. While the amount asserted to be owed was $13,150.72,3 the OCA reduced its claim in the Magistrates Court to $12,000.00, which had the effect that the proceedings were within the claim value of the minor civil action jurisdiction.4 10 Mr McFarlane attempted to join another party to the proceedings, and to file a counter-claim, but his applications were refused. 11 Over two decisions ([2021] SAMC 123 and [2022] SAMC 6) the Magistrate determined the issue of liability against Mr McFarlane, but found in his favour in respect of a particular argument as to how the calculation was to occur, which reduced the liability. An order was made ordering Mr McFarlane pay $9,662.92 to the OCA, in addition to other fees associated with the proceedings. District Court Review 12 Mr McFarlane then brought an application for review in the District Court (CIV-21-012406) of the judgements in the minor civil proceedings. Such a review is governed by s 38 of the Magistrates Court Act 1991 (SA). This section provides that the Court may inform itself as it thinks fit, is not bound by the rules of evidence and must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. The rights to legal representation is restricted. The Court may re-hear evidence taken in the Magistrates Court. The Court on review may affirm, vary or rescind and substitute the outcome, and in limited circumstances may remit the matter to the Magistrates Court. 13 Importantly, in the context of these judicial review proceedings, the outcome of a review in the District Court is final and not subject to appeal. In conducting a review, the District Court may reserve a question of law arising in a review for determination by the Court of Appeal. On a reserved question of law, the Court of Appeal may determine the question and make any consequential orders or directions appropriate to the circumstances of the case. 14 On 24 June 2022, a Judge of the District Court conducted a directions hearing in relation to the review. Mr McFarlane made various interlocutory applications and the proceedings were adjourned until 4 August 2022 for a hearing of those interlocutory applications. 15 Below is a description of the orders Mr McFarlane sought, and the outcomes of those applications that the Judge ordered:5 3 Outback Communities Authority v Brian David McFarlane [2022] SAMC 6, [3]. Exhibit A7 to the Affidavit of Brian David McFarlane sworn on 18 November 2022. 4 Magistrates Court Act 1991, s 3. 5 Exhibit A1 of the affidavit of Brian David McFarlane sworn on 18 November 2022. -- 4 of 21 -- [2024] SASC 54 Hughes J 3 (a) The Chief Judge hear the matter. This application was refused. (b) Permission for the matter to proceed as a retrial. This application was reserved for determination at the hearing of the review. (c) Amendment of the notice of review in accordance with a draft amended notice of review annexed to McFarlane’s affidavit of 3 August 2022. This application was granted. (d) The joining of Andamooka Progress and Opal Mine Association Inc (APOMA) as a respondent. This application was refused. (e) Leave to file a claim against OCA and a third-party claim against APOMA. This application was refused. (f) That questions of constitutional law and complex law be referred to the Court of Appeal. This application was refused. (g) That McFarlane be allowed to have a communications partner to address the court because of a medical disability. This application was granted. 16 The Judge’s orders were accompanied by ex tempore reasons which were subsequently settled and issued to the parties on 22 November 2022.6 The Judicial Review 17 On 18 November 2022, Mr McFarlane filed an originating application for judicial review in the Supreme Court of the orders made by the Judge on 4 August 2022. Mr McFarlane nominated the OCA as the respondent and the Courts Administration Authority as an interested party. 18 Judicial review is available where it is established that there has been an error that goes to the jurisdiction that the Judge was required to exercise. In Wilczynski & Anor v District Court of South Australia & Ors7 Blue J described judicial review in the following way: 6 Exhibit AJB-3 of the Affidavit of Andrew Brook sworn on 20 January 2023. 7 [2016] SASC 51, [292] - [294]. -- 5 of 21 -- [2024] SASC 54 Hughes J 4 Judicial review is to be contrasted with review by way of appeal. The latter focuses on the merits of the decision: was it right or wrong? The former focuses on the process whereby the decision was reached and articulated: did that process miscarry so as to vitiate the decision? Traditionally there are four broad grounds for judicial review: jurisdictional error, procedural unfairness, fraud and error of law on the face of the record. Certiorari is the judicial review remedy to quash a decision vitiated by one of the four types of error referred to above and is the applicable remedy in the present case if such error is established. 19 The distinction between an error that demonstrates that jurisdiction was not exercised, and an error within jurisdiction, must be maintained. If it is not, the distinction between appeal and judicial review is lost. In relation to a review of a minor civil action, the legislature has determined that the review may not be appealed.8 That legislative edict is not to be undermined by courts entertaining complaints labelled as errors of the type that are amenable to judicial review when such complaints are properly understood to concern alleged errors in decisions that are within the judge’s realm of power. 20 The application for judicial review was made on the following grounds:9 • Alleged apprehended bias for acting non-transparently; • His Honour refusing to give his point of view on any issue when the applicant repeatedly requested his view prior to delivering judgment; • Being aware of the applicants autism and speech disability; • Failing to enquire in his duty to understand; • Failing to understand the real issues; and • Failing to identify any question of law that may be referred to the Court of Appeal. 21 The relief sought in the initiating application was: • That the matter be heard especially returnable as a matter of urgency. • That the Court provide the transcript containing HH J Burnetts 15 minutes of Judgement and reasons delivered on 4/8/22. • That the Court investigate the concealment of the judgement and reasons from the transcript of 4/8/22. 8 Magistrates Court Act 1991, s 38(7). 9 FDN 1 Originating Application for Judicial Review. -- 6 of 21 -- [2024] SASC 54 Hughes J 5 • The appeal [District Court review] be heard as a retrial in the Civil Court Jurisdiction. • Any other orders seen just. 22 However, in his Statement of Facts and Contentions, the orders Mr McFarlane sought were: 1. That His Honour J Burnett be removed from proceedings on the grounds of Apprehended Bias. 2. The court provide a true and correct copy of the transcript containing His Honour J Barnett’s Judgement delivered 4/8/22 No. CIV-21-012406. 3. The Questions of Law be referred to the Court of Appeal. 4. The appeal be heard as a retrial in the Civil Court Jurisdiction. 5. The appeal be heard in the Civil court Jurisdiction 6. Any other orders the court sees just. 23 The documents by which Mr McFarlane initiated the application for judicial review do not use the usual language that distinguishes judicial review from appeal, in that they do not specify errors in the decisions relating to jurisdiction. Further, they do not seek the relief that is available to a successful applicant, such as certiorari. Mr McFarlane is unrepresented, incarcerated (and hence has less access to physical and electronic resources than most in the community) and apparently experiences a language disorder. Therefore, the Court and counsel for the OCA appropriately extended some latitude to him and accepted that it was necessary to consider whether grounds for judicial review might be discerned from Mr McFarlane’s filed documents. In so doing, a balance must be achieved between reaching an understanding of a self-represented litigant’s grievances and ensuring fairness to both of the parties.10 24 The judicial review is in its pre-hearing stage. The OCA filed a response but has also applied for summary dismissal of the judicial review proceedings brought by Mr McFarlane.11 The application is supported by an affidavit of the OCA’s solicitor, Mr Brook of the Crown Solicitor’s Office, sworn on 20 January 2023. 25 In support of its application for summary dismissal, the OCA contends that: • The Judge’s orders are, in a broad sense, amenable to judicial review, however • No proper grounds or relief have been disclosed, and • The orders made by the Judge were within jurisdiction, and 10 Martincic & Anor v Ethnic Broadcasters Inc [2024] SASCA 33; Gassy v the King [2023] SASCA 90. 11 23 November 2023 and FDN 11. -- 7 of 21 -- [2024] SASC 54 Hughes J 6 • Even if the orders were amenable to review, any relief to be ordered is discretionary, and • The nature of the review proceedings in the District Court, and the fact that the judicial review relates to interlocutory orders, strongly indicate that the judicial review proceedings will be unsuccessful if permitted to run their course, therefore • The application for summary dismissal of the judicial review proceedings should be granted. 26 The parties made written submissions on the application for summary dismissal, and agreed that this Court’s determination of the OCA’s application for summary dismissal could be undertaken without a further oral hearing. This was considered by Mr McFarlane to ameliorate the disadvantage he perceives he suffers in preparing his submissions in light of the fact that he is currently imprisoned. It provides him with the opportunity to formulate his contentions in writing rather than within the time constraints of an oral hearing, taking into account the communication impairment he maintains he experiences. Summary dismissal 27 The OCA filed an application for summary judgment under the Uniform Civil Rules (“UCR”) 144.2 and 256.5. UCR 256.5(3)(a) provides that the Court will dismiss the judicial review action unless the Court is satisfied there is a reasonable basis for the action. The Court can enter summary judgment if satisfied that there is no reasonable prospect that if the judicial review proceeded to trial, the trial judge would exercise the discretion to grant the relief.12 28 The overarching proposition to be established by the OCA on its application for summary dismissal is that Mr McFarlane has failed to put forward in his application for judicial review any arguable point, such that it would not do Mr McFarlane injustice to determine his claim at this early juncture.13 The application for summary dismissal does not relate merely to procedural defects in Mr McFarlane’s initiating application and statement of facts and contentions, but to whether the Court can be satisfied that Mr McFarlane’s application lacks merit such that summary dismissal is appropriate. 29 Consideration of an application for summary dismissal does not require a close examination of the issues as they would be ventilated at the hearing of the substantive proceedings, but a careful consideration of the legal propositions and the way in which the party proposes to establish their applicability to the particular context. 12 Vansetten v The State of South Australia [2020] SASC 158 at [69]. 13 Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd [2020] SASC 161. -- 8 of 21 -- [2024] SASC 54 Hughes J 7 30 In Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd,14 Doyle J (as his Honour then was) put it as follows: By way of summary of the approach articulated in Spencer v Commonwealth, it can be said that the power to determine a claim summarily should not be exercised lightly. Exercise of the power requires a practical assessment of whether the applicant has real, as opposed to merely fanciful, prospects of success. While the Court need not be satisfied that the claim is hopeless or bound to fail, nevertheless it must be cautious not to do a party injustice by summarily determining an action, particularly where there are disputed issues of fact or law or mixed fact and law, merely because the Court considers that the claim is unlikely to succeed. However, beyond these very general guidelines, the Court should focus upon the words used in the rules and avoid applying any judicial gloss. Related to the requirement that the Court undertake a practical assessment is the notion that the Court should not embark upon a mini trial of the claim. Rather, the claim should be assessed in a summary manner, while being cognisant of the incomplete nature of the evidence upon which the Courts decision must be based. Adversarial argument may assist, and indeed may result in the emergence of a sufficiently clear answer to a complex issue that summary judgment is appropriate. On the other hand, the need for prolonged argument may be indicative of a reasonable basis for the claim. 15 Summary judgement in judicial review 31 The OCA’s application for summary dismissal asserted that Mr McFarlane has not shown that he has any arguable contention to make that the orders issued by the Judge were affected by bias or jurisdictional error. The OCA submitted that the orders made were appropriate and to the extent that any error might be discerned, such an error was within jurisdiction. 32 The respondent submitted that the scheme for review of minor civil actions provides a persuasive case for caution in relation to a grant of relief in the circumstances of this case. Whilst the absence of a right of appeal has the effect that judicial review is the only curial remedy to error in the proceedings, it is also indicative of the legislature’s intention that low-value disputes should be allowed and required to be disposed of in an efficient, timely manner so as to reduce the burden of litigation on the parties and the community as a whole. The Court should be reticent to allow a review to be derailed at the interlocutory stage by issues that may properly be ventilated during the hearing of the review, noting the flexible approach demanded by s 38 of the Magistrates Court Act 1991 (SA). 33 At the directions hearing on the judicial review, Mr McFarlane was invited to make a written submission on the application for summary dismissal rather than return for a further oral hearing. He chose to do so because: • He is incarcerated and it is difficult for him to get mail regarding upcoming hearings; 14 Ibid. 15 Ibid, [59]-[60]. -- 9 of 21 -- [2024] SASC 54 Hughes J 8 • His communication difficulties present challenges for him to make oral argument; and • He can better prioritise which of his several court proceedings to work on at a particular time. 34 Mr McFarlane’s written submission dated 16 February 2024 was directed to respond to the OCA’s summary dismissal application but in fact did not engage closely with the OCA’s contentions as to summary dismissal. Instead, Mr McFarlane’s written submission is more akin to a written submission in support of the application for judicial review. Nevertheless, it is possible to discern from those submissions that he considers that he has an arguable point or points to put forward that the Judge’s orders should be quashed. 35 Mr McFarlane said that there is no discretion to refuse to entertain judicial review, citing Harradine v Magistrates Court of South Australia.16 But before the Court considers whether to grant relief, an applicant for judicial review must establish that the judgment or decision is amenable to judicial review. That is what is under consideration here, as part of the overall consideration of whether OCA has established that the judicial review proceedings are so lacking in merit that they can be dismissed at this early juncture. Further, the Court retains a discretion to refuse relief, as distinct from the discretion to entertain the application. 36 Therefore, it is necessary to consider the contentions that Mr McFarlane would make if the judicial review proceedings were to be permitted to proceed. Fraud and error on the face of the record 37 Of the four possible grounds of judicial review, there is nothing in Mr McFarlane’s initiating proceeding, statement of facts and contentions, or written submissions that would indicate that he claims, or that there is a basis for a claim of, fraud or error of law on the face of the record. “Fraud” in this context refers to an actual contrivance by a party or their representative to secure orders by an action such as denying the other party and the court access to critical documents that the party knows to be relevant to the decision to be made.17 The fraud must concern the conduct of the proceedings, not the conduct that is the subject of the litigation. Error on the face of the record concerns the court record of the original proceedings and the impugned order, and refers to a disparity between that which was ordered and that which was recorded. An error on the face of the record will not usually extend to reasoning errors in judgements, either within or outside of jurisdiction.18 38 As I understand Mr McFarlane’s claims, taking into account his unrepresented status, he asserts that all of the orders are vitiated by apprehended bias, and that those which were refused are also vitiated by jurisdictional error. 16 [2021] SASCA 16, [19]. 17 Patch v Ward [1867] referred to in Clone Pty Ltd v Players Pty Ltd (In Liquidation) (Receivers & Managers Appointed) [2018] HCA 12, [55] per Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ. 18 Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58, [16]-[20]. -- 10 of 21 -- [2024] SASC 54 Hughes J 9 The orders sought, as set out in his submissions on the application for summary dismissal (rather than in the initiating proceedings) are that the Judge be “removed” from the proceedings and replaced with a Judge with “experience and precedent that ha[s] discipline[d] the Government”.19 Bias 39 Mr McFarlane contended that the Judge “acted non-transparently”. It may be accepted that this amounted to an allegation of apprehended bias. The words or conduct relied upon by Mr McFarlane to establish apprehended bias are that: • The Judge did not attempt to elicit from Mr McFarlane the proposed question or questions of law to be referred to the Court of Appeal; • The Judge inappropriately refused to answer Mr McFarlane’s request for a response to his application to refer questions of law to the Court of Appeal and required Mr McFarlane to make submissions on his next application before seeking the OCA’s submissions on the application to refer questions of law; • The Judge refused to express a view on particular applications when requested to do so on three occasions; • The Judge concealed the transcript of the orders made on 4 August 2022.20 40 Mr McFarlane argued that this conduct gave rise to an apprehension of bias in the context of the Judge being aware of Mr McFarlane’s autism and language disorder. It was contended that he failed to apply an inquisitorial approach when such an approach was appropriate for a District Court review of a minor civil action. 41 The OCA’s contention is that the words and conduct of the Judge on the interlocutory applications are not such as to give rise to a reasonable bystander apprehending bias on the part of the Judge. It was submitted that the Judge’s conduct was orthodox and routine and appropriate to the circumstances. Bias - consideration 42 An element of providing procedural fairness to a litigant is for the Judge is to be free of bias when deciding the dispute. A decision affected by actual or apprehended bias is liable to be quashed. 19 FDN26 Written submissions of the Applicant filed 16 February 2024, [27.2]. 20 FDN3 Applicant’s Statement of Facts Issues and Contentions, [3]. -- 11 of 21 -- [2024] SASC 54 Hughes J 10 43 The test for apprehended bias is whether a reasonable observer might apprehend that the Judge might not bring an impartial mind to the disposition of the matter.21 44 On the summary dismissal, the question then is whether the OCA is correct to assert that there is little or no prospect of Mr McFarlane making out the claim. A person seeking to establish actual or apprehended bias must establish to a high probability that the decision maker brought a closed mind to the issues to be decided, or had prejudged them.22 45 A reasonable apprehension that the Judge lacked impartiality or would lack impartiality on the hearing of the review, does not emerge from a reading of the transcript, or from the Judge’s reasons for decision. 46 It was open, if not necessary, for the Judge to refuse to agree at the interlocutory proceeding to call specified witnesses at the hearing. The fact that the review proceeding has an inquisitorial complexion does not mean that a Judge, on an interlocutory application, is obliged to direct the attendance of new witnesses at the review hearing. It was also plainly open to the Judge to inform Mr McFarlane that he would hear all of the applications, and the OCA’s response, and then provide a ruling rather than deal with each application in turn. 47 Mr McFarlane’s submission that the Judge improperly maintained carriage of issues that were outside the Judge’s experience in disciplining Government authorities is misguided. He argued that the Judge was obliged to establish to Mr McFarlane’s satisfaction that the Judge had a track record of deciding disputes between individuals and Government bodies in favour of the individual. The Judge had no such obligation, but rather a duty to determine the applications before him, and the review in due course, on their legal merits. 48 Mr McFarlane complained that the Judge failed to exercise his duty to elicit from him the questions proposed for referral to the Court of Appeal and disadvantaged him by then refusing to refer any questions on the basis that no proper questions were identified. Mr McFarlane says that he does, in fact, have questions of law to be referred. They are: Is s 17 of the OCA&M Act 2009 compatible with the Human Rights contained in ICCPR Article 25 that is the foundation of democracy? Did the OCA by adopting the IAP2 [International Association for Public Participation23] in its consultation Policy require the OCA to respect the human rights contained in the IAP2 by observing the Construction in par 12(a) above and inform the community of their rights during consultation in compliance with sec 14(1)(c) of the 1/7/2010 – OC Act 2009? 21 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 per Gleeson CJ, McHugh, Gummow and Hayne JJ. 22 R v Stevedoring Industry Board; Ex parte Northern Stevedoring Co Pty Ltd (1953) 88 CLR 100, 116. 23 As explained by the Magistrate in Outback Communities Authority v Brian David McFarlane [2021] SAMC 123 at [65]-[72]. -- 12 of 21 -- [2024] SASC 54 Hughes J 11 Will equity prevail over precedent when a violation of human rights is in dispute? 49 Mr McFarlane does not have an arguable point that the Judge was biased in his approach to Mr McFarlane’s request for a referral of questions of law to the Court of Appeal. Whilst a judicial officer has a duty to assist an unrepresented litigant to navigate proceedings, that duty is not open-ended. In Adelaide City Council v Lepse24 Peek J said: It is well accepted that a court has a duty to assist unrepresented litigants in the interests of the proper administration of justice. However, the precise extent of that duty, and the way in which it must be discharged, remain open questions. … As Rooke ACJ [in Meads v Meads] rightly recognised, assessing the extent of the court’s duty to advise and assist is very much a contextual response when it concerns unrepresented litigants who are deliberately attempting to assert meritless arguments and stratagems.25 50 The transcript of the hearing on 4 August 2022 discloses that the Judge’s approach did not exceed the Judge’s role in controlling the hearing and eliciting such information as was required to decide whether the applications should be granted, and keeping the proceedings focused to the relevant matters. 51 In any event, I accept the submissions of counsel for the OCA that the questions that Mr McFarlane proposed for referral are: (a) Not questions of law, but questions of mixed law and fact, or (b) Not questions that, if amended such that they engaged with the South Australian legal system, the Judge could not have ruled upon in the course of the trial, or (c) Are speculative and do not seek an answer to a properly constructed question of law, or (d) Some combination of, or all of, the above. 52 The final aspect of Mr McFarlane’s allegations of apprehended bias concerns his complaint that the manner in which the Judge dealt with the transcript entailed concealment. It is evident that Mr McFarlane misapprehended the ordinary arrangements with respect to transcript on occasions of argument leading to orders and reasons being given ex tempore. Transcript of reasons given ex tempore are not provided to the parties until the Judge has settled them and made any changes not affecting substance that the Judge wishes to make. There was nothing underhand to be inferred from the fact that the transcript that Mr McFarlane initially received did not include the transcript of the part of the hearing at which 24 [2016] SASC 66. 25 [2016] SASC 66, [58] – [62]. -- 13 of 21 -- [2024] SASC 54 Hughes J 12 reasons were given, and nothing underhand to be inferred from any discrepancy, not going to substance, between what was said during the ex tempore reasons and the settled version subsequently issued by the Judge.26 53 The allegation of an apprehension of bias on the part of the Judge lacks merit to the extent of being unarguable. Jurisdictional error 54 Mr McFarlane’s contention is that the orders were also amenable to judicial review because of various jurisdictional errors. An error that goes to jurisdiction was described in Craig v State of South Australia27 and summarised in Kirk v Industrial Court (NSW)28 as follows: First, the Court stated, as a general description of what is jurisdictional error by an inferior court, that an inferior court falls into jurisdictional error "if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist" (emphasis added). Secondly, the Court pointed out that jurisdictional error "is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers" (emphasis added). (The reference to "theoretical limits" should not distract attention from the need to focus upon the limits of the body's functions and powers. Those limits are real and are to be identified from the relevant statute establishing the body and regulating its work.) Thirdly, the Court amplified what was said about an inferior court acting beyond jurisdiction by entertaining a matter outside the limits of the inferior court's functions or powers by giving three examples: (a) the absence of a jurisdictional fact; (b) disregard of a matter that the relevant statute requires be taken to account as a condition of jurisdiction (or the converse case of taking account of a matter required to be ignored); and (c) misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case. ... As this case demonstrates, it is important to recognise that the reasoning in Craig that has just been summarised is not to be seen as providing a rigid taxonomy of jurisdictional error. The three examples given in further explanation of the ambit of jurisdictional error by an inferior court are just that – examples. They are not to be taken as marking the boundaries of the relevant field. So much is apparent from the reference in Craig to the difficulties that are encountered in cases of the kind described in the third example. 29 26 Bar-Mordecai v Rotman [2000] NSWCA 123, [193]. 27 (1995) 184 CLR 163; [1995] HCA 58. 28 (2010) 239 CLR 531; [2010] HCA 1. 29 Ibid, [72] – [73] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. -- 14 of 21 -- [2024] SASC 54 Hughes J 13 55 As has been observed above, for the decision to be amenable to judicial review, the alleged error must go to jurisdiction. It is not enough to simply say that the Judge was wrong.30 Mr McFarlane identified the following alleged errors in his submissions: - Errors of principle regarding referring questions of law to the Court of Appeal; - An error by the Magistrate / the OCA in orchestrating for the matter to be heard as a minor civil matter when there were important legal issues to be tried; - An error by the Judge in refusing to answer the applicant’s question as to whether the Judge had appropriate experience in holding Governments to account in accordance with the separation of powers. 56 Counsel for the OCA made submissions as to whether there could be said to be an error going to jurisdiction in relation to the orders that were refused. The OCA submitted that this entailed considering whether the Judge’s refusal to refer questions of law to the Court of Appeal, to join APOMA as a party to the proceedings, or to allow a counter-claim to be filed against the OCA or file a third party notice against the APOMA, could be said to be errors going to the Judge’s exercise of jurisdiction. The OCA submitted that the Judge’s refusals were within jurisdiction and, indeed, were appropriate decisions. Consideration – are the orders that are complained about ones that, if proven, would establish jurisdictional error? 1. Refusal to refer questions of law 57 In his reasons, the Judge said31: I have considered the matters raised in paragraph 2 of the affidavit of Mr McFarlane sworn 3 August 2022 and each of the matters raised in paragraphs 2 and 3 of that affidavit. I do not consider any of these matters raise a question of law that require me or make it desirable that I should refer those matters to the Court of Appeal. ... Further, I consider that the matters that are agitated by Mr McFarlane concern questions of fact and do not raise questions of law. They possibly raise questions of mixed fact and law but they are appropriate matter[s] to be determined by this Court and not by the Court of Appeal on the case stated or referral. For all of the above reasons I refuse the application to refer any of the matters or any questions of law to the Court of Appeal.32 30 House v The King (1936) 55 CLR 449, 505 per Dixon, Evatt, and McTiernan JJ. 31 Exhibit AJB-3 of the Affidavit of Andrew Brook sworn on 20 January 2023, Ex-Tempore reasons by Judge Burnett of 4 August 2022. 32 Ibid, p 3 – 4. -- 15 of 21 -- [2024] SASC 54 Hughes J 14 58 The power to refer or reserve a question of law to a higher court is conferred by statute or rule. 59 The referral of a question of law pursuant to s 38(9) can occur prior to, or during, a proceeding.33 It may be proposed by a party, or the parties jointly, and can be initiated by the Judge. Importantly, however, it is a matter for the Court to decide whether a referral is appropriate. 60 Questions of law are routinely identified and answered by judges in the proceedings over which they preside. It is part of the judicial function to identify and answer questions of law in the disposition of proceedings. A referral of a question of law is a relatively rare occurrence. I have not identified any authority on a referral under s 38(9). In 2020, in BRK v Police34 Livesey J (as he then was) examined the role of a case stated or question of law with a focus on the power conferred by s 49 of the Supreme Court Act 1935 (SA) which enables the Court constituted by a single judge, master or judicial registrar to reserve a question to the Full Court (since 1 January 2021, to the Court of Appeal). His Honour observed that the power is a discretionary one35 and will usually only be exercised if the answer will be dispositive of the rights.36 Livesey J also referred to various factors relevant to the exercise of the discretion described by Basten JA (with whom Leeming and McCallum JJA agreed) in Forrest v Director of Public Prosecutions (NSW) including “whether the judge has any significant doubt as to the correct answer to the question of law.” 37 61 Where a question of law is referred, it will usually occur on the basis of agreed or found facts, and not where the facts are yet to be determined. That is, the Court deciding the question of law will usually have before it agreed facts to which the law can be applied. In R v Nixon,38 Prior J said: The questions reserved for this Court call for answers to hypothetical questions and the giving of advisory opinions. It is not appropriate for a case stated procedure to be used, or appear to be used, to give advisory opinions or determine any question of law other than that directly arising in a particular matter. … Thus the only question which can be answered at all in this case is the first question as it applies to the agreed facts.39 62 In the present case, in addition to the Judge’s expressed view that the issues in dispute did not require a referral of a question of law, factual findings are still in dispute and accordingly, it is currently a poor candidate for referral of a question of law. 63 Whilst there may be some circumstances in which there are more compelling reasons than in this case to refer a question of law to the Court of Appeal, it is 33 Magistrates Court Act 1991 (SA), s 38(9). 34 [2020] SASC 151. 35 Ibid, [16]. 36 Ibid, [20]. 37 [2020] NSWCA 162, [48]. 38 (2000) 181 ALR 747; (2000) 159 FLR 296; [2000] SASC 437. 39 Ibid, [1] – [2]. -- 16 of 21 -- [2024] SASC 54 Hughes J 15 never mandatory to do so. It cannot be said that a failure on the part of the Judge to refer questions of law is an error that goes to jurisdiction. The Judge’s failure to refer a question of law is therefore not a decision that is amenable to judicial review. 2. Hearing the matter as a minor civil proceeding 64 Mr McFarlane did not make an application to the Judge that the review be heard as a matter in the “civil jurisdiction of the Court”. However, it appears that he considers that the Magistrate’s decision to hear the matter as a minor civil action, which was only achievable by the OCA reducing its claim to beneath the jurisdictional threshold, was wrong. 65 What Mr McFarlane is required to do in these judicial review proceedings is show that the Judge’s orders, not the Magistrate’s, were affected by jurisdictional error. The opportunity to demonstrate that the Magistrate’s decision miscarried is one that has not yet been explored because the review has not yet been heard. 66 Mr McFarlane now seeks, on judicial review, an order that the District Court review should be conducted within the civil jurisdiction.40 Such an order could not be made by this Court for several reasons. 67 Firstly, if this Court were to quash the Judge’s interlocutory orders, the appropriate step thereafter would be to remit to the District Court for the task of making further fresh interlocutory orders. It is not for this Court to direct the District Court as to the procedure to adopt in the manner proposed. 68 Secondly, even if the District Court review were to operate as a re-hearing at which the parties were given permission to adduce fresh evidence or agitate new issues, the review would not be within the civil jurisdiction of the Magistrates Court. It can only be heard as a review of a minor civil proceeding in the District Court pursuant to s 38 of the Magistrates Court Act 1991 (SA). 69 Thirdly, the forum for the hearing of the original proceedings was determined by the value of the claim. It was within the OCA’s discretion to forego the right to an order for the whole amount and to reduce its claim slightly to bring it within the minor civil jurisdiction of the Magistrates Court. 70 Mr McFarlane’s complaint that the original proceeding should not have been heard as a minor civil action, and his request that this Court direct that the District Court hear the review in its civil jurisdiction, are not arguably matters that would give rise to a grant of relief on judicial review. 3. Refusing to establish his experience in the type of matter 71 In his oral submissions to the Judge, Mr McFarlane said: 40 FDN26 Written submissions of the Applicant filed 16 February 2024, [25]. -- 17 of 21 -- [2024] SASC 54 Hughes J 16 So it’s not only like it’s a political matter and there is – from my, from what I’ve observed or witnessed, it’s that the courts do not want to go against the government and abide or follow or comply with the separation of powers and because of the decisions which have happened, the courts are upholding them not in the interest of the people, which the courts are supposed to do, they are making the decisions in support of the government or to not offend the government, or make the government do what they are supposed to do. The courts are required to keep, protect, like it doesn’t matter whether this is a civil, minor civil or a Supreme Court matter or whatever. The courts are supposed to observe any misconduct or abuse of power, and provide judicial relief to correct that. Well, basically turning a blind eye to abuse of human rights is failing or overstepping the separation of powers. … … why I’m asking for this to be referred, for the question of law to be dealt with by the Full Supreme Court of Appeal because they don’t have the peer pressure on them. It’s in their jurisdiction and I believe from my understanding – reading of the new rules, the Uniform Civil Rules, that any constitutional law or complex law was supposed to go, or they had jurisdiction on that question of law. But now it reads something like any judge can deal with constitutional law and complex law or the question of law, but it’s up to the judge, for him to decide whether it’s a matter for the judge or whether it’s a matter for the Court of Appeal, Supreme Court of Appeal. So basically what I’ve got, what concerns me is that I actually asked you last time whether you have any experience or precedent in matters, questions of law similar to the questions or my interpretation of the law, and you didn’t answer and from my research you have only been here for a short period and I would expect that you haven’t dealt with any matters which are similar.41 Later he said, Like, this is serious stuff, and you can’t sit there and support the government because that’s what separation of powers is. You’re here to serve the – or to - it’s the people’s court.42 72 Mr McFarlane has not established any identifiable jurisdictional error by the Judge declining to enter into discussion with him about the Judge’s experience in disciplining Government.43 The proceedings concern a debt between an individual and a statutory authority. The allocation of matters to judicial officers is a matter within the discretion of the head of jurisdiction, as the Judge informed Mr McFarlane at the time. 73 It is not entirely clear whether Mr McFarlane’s complaints about the Judge’s experience are intended to convey a claim of apprehended bias or an error of law or principle, or both. However, it is evident that Mr McFarlane has misapprehended the doctrine of separation of powers and the role of the court in adjudicating disputes between government authorities and individuals. The Judge had no obligation to demonstrate to Mr McFarlane his experience in hearing any type of dispute adjudication. The complaint does not give rise to any point upon which it might be argued that the occasion of the making of the interlocutory orders 41 Transcript of hearing before Judge Burnett on 4 August 2022, p 13-14. 42 Ibid, p 21. 43 FDN26 Written submissions of the Applicant filed 16 February 2024, p 7. -- 18 of 21 -- [2024] SASC 54 Hughes J 17 was an occasion affected by jurisdictional error such that judicial review might be available. 4. Refusing to join APOMA to the review; and Refusing to allow a counter- claim or a third party notice 74 These two applications were considered together and refused. His Honour said: The next application was that Mr McFarlane sought to joining APOMA as a respondent or third party and also file third party claims against both APOMA and OCA or a claim against OCA. APOMA was not a party to the proceedings at the time the matter proceeded to judgment. … I do not consider I have the power to, or alternatively it is not appropriate that I, join third parties to the action who were not parties below. If I did that, I would not be reviewing the matter but would be reviewing some other matter which included further actions.44 75 In keeping with the manner in which these two applications were dealt with by the Judge, it is convenient to address Mr McFarlane’s fourth and fifth complaints together. 76 To understand Mr McFarlane’s complaint, it is necessary to revisit an aspect of the proceedings before the Magistrate. The minor civil proceeding entailed the hearing of two actions: a debt recovery action by OCA, and a debt review action by Mr McFarlane against OCA and APOMA. APOMA is the body with which the OCA consulted in the setting of the community contributions. 77 In the interlocutory stages, Mr McFarlane’s claim against APOMA was discontinued by court order on 9 August 2019. 78 The two actions proceeded as between Mr McFarlane and the OCA, and they were different sides of the same coin: a claim in debt by the OCA, and a defence and counter-claim by Mr McFarlane.45 At paragraph [20] of the Magistrate’s decision it is explained that the proceedings were most efficiently treated as one, being a dispute as to whether Mr McFarlane was liable to pay the charges, and that it was not appropriate to investigate or consider in great detail some of the allegations that Mr McFarlane had made about the governance of APOMA and the propriety of interactions between the OCA and APOMA. 79 As part of his broader agitation on the application for review in the District Court, Mr McFarlane asked the Judge to permit the review to occur on the basis that APOMA would be joined as a party and that he could agitate a claim against the OCA. 44 Exhibit AJB-3 of the Affidavit of Andrew Brook sworn on 20 January 2023, Ex-Tempore reasons by Judge Burnett of 4 August 2022, 4. 45 Outback Communities Authority v McFarlane [2021] SAMC 123 at [3]-[4]. -- 19 of 21 -- [2024] SASC 54 Hughes J 18 80 From Mr McFarlane’s submissions, it appears that he may intend, by seeking that the review be heard as a “re-trial”, that the parameters of the dispute could be re-set for the purposes of the review including as to the parties to the proceedings. 81 The Judge’s refusal to accede to that request identified that the Judge considered that the effect of granting the application would be to conduct a proceeding that was no longer a review of the earlier proceeding, but a hearing of a materially different dispute. 82 Given the wide powers of the District Court in the conduct of a review, it is not inconceivable that in some circumstances it may be that a review is conducted in a manner that constitutes quite a different adjudication of the dispute than occurred in the minor civil action. As Lovell JA said in Harradine v Magistrates Court of South Australia,46 the Court on review can ‘start afresh’ and can ‘tailor the nature of the review to the circumstances of the case’.47 However, the review cannot depart so significantly from the original proceedings to lose the character of a review. As Blue J said in Harradine v District Court of South Australia,48 “it would be incongruous if the District Court were to adopt a radically different approach to the hearing to that required to be adopted by the Magistrate at first instance given that there is no power of remitter.” 83 Even if Mr McFarlane could establish that this was an occasion for broadening the scope of the review beyond that of the original proceedings, Mr McFarlane has not identified, and it is not apparent, how the Judge’s refusal to allow the joining of a new party and the bringing of a new action was attended by any error of principle or error of apprehension of the relevant legal framework such as might make the order amenable to judicial review. 84 The Judge’s refusal to accede to these orders was a decision within jurisdiction. It was not an issue beyond the scope of his power to determine. Conclusion 85 Proceedings that do not entail a significant factual dispute are more amenable to summary judgement. The orders made have no factual element and therefore, this Court may be satisfied that it can assess the merits of the judicial review prior to the hearing of the matter insofar as the facts are concerned. 86 The application for summary dismissal is granted. The OCA has established that Mr McFarlane’s judicial review proceedings are so lacking in merit that it is appropriate to bring them to an early conclusion without conducting a hearing. Mr McFarlane’s filed documents and submission do not disclose even an arguable case that the orders about which he complains are arguably vitiated by error, or 46 (2021) 138 SASR 122; [2021] SASCA 16, per Lovell JA, Doyle JA and Bleby JA concurring. 47 At [14]. 48 (2012) 280 LSJS 572; [2012] SASC 96, [52]. -- 20 of 21 -- [2024] SASC 54 Hughes J 19 that there was an apprehension of bias arising on the Judge’s conduct of the interlocutory hearing or its outcomes. 87 The review should now proceed in the District Court. 88 The judicial review proceedings are dismissed. -- 21 of 21 --