David Harold Eastman v Magistrate Michael Somes Sca [1992] ACTSC 28; (1992) 26 ALD 750 (Extracts) (1992) 106 FLR 346 (26 March 1992)

SUPREME COURT OF THE ACT

DAVID HAROLD EASTMAN v. MAGISTRATE MICHAEL SOMES
S.C.A. No. 64 of 1992
Magistrates Court - Administrative Law - Administrative Decisions - Grounds
for Review
[1992] ACTSC 28; (1992) 26 ALD 750 (extracts)
[1992] ACTSC 166; (1992) 106 FLR 346

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Magistrates Court - procedure before trial - Case Status Inquiry regarded as adjourned hearing of committal hearing.

Administrative law - Administrative Decisions (Judicial Review) Act 1989 - whether Magistrate made decision identified by applicant - whether "decision" within Act's application - "of an administrative character" - "under an enactment".

Administrative Decisions (Judicial Review) Act 1989 - grounds for review of decision - breach of rules of natural justice - disqualification for bias - no participation by party to proceedings.

Grounds for review - breach of rules of natural justice - decision to commit for trial - no special circumstances shown.

Administrative Decisions (Judicial Review) Act 1989 (ACT), s.5

Lamb v. Moss and Another [1983] FCA 254; (1983) 49 ALR 533

Yates v. Wilson (1989) 168 CLR 338

Australian Boradcasting Tribunal v. Bond and Others [1990] HCA 33; (1990) 170 CLR 321

Tahmindjis v. Brown and Another [1985] FCA 181; (1985) 60 ALR 120

Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342

The Queen v. Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248

Re Polites; Ex parte Hoyts Corporation Pty. Ltd. [1991] HCA 25; (1991) 65 ALJR 445 at 448

R v. Judge Leckie; Ex parte Felman (1977) 18 ALR 93

Emanuele v. Cahill and Another (1987) 71 ALR 302

Spratt v. Hermes and Another [1965] HCA 66; (1965) 114 CLR 226

Capital TV and Appliances Pty. Limited v. Falconer [1971] HCA 10; (1971) 125 CLR 591

Limbo v. Little [1989] NTSC 110; (1989) 65 NTR 19

Raybos Australia Pty Ltd and Another v. Tectran Corporation Pty Ltd and Others (1986) 6 NSWLR 272

New South Wales Bar Association v. Livesey (1982) 2 NSWLR 231

HEARING

CANBERRA
26:3:1992

ORDER

1. The application be dismissed.

DECISION

This is an application by a litigant in person seeking review under s.5 of the Administrative Decisions (Judicial Review) Act 1989 (ACT) (the Act) of certain decisions made by a Magistrate in the course of committal proceedings against the applicant in respect of certain criminal offences alleged against him. The decisions identified in the amended written application to the Court are as follows:
1. On 10 February 1992 and on three occasions on 25

March 1992 that the first respondent not disqualify
himself from hearing any charge presently before the
ACT Magistrates Court concerning the applicant.
2. On 25 March 1992, committing the applicant for
trial to the ACT Supreme Court on charges where the
complainants are Poole, Olorenshaw and Campbell.

2. The first respondent is a Magistrate, a member of the Australian Capital Territory Magistrates Court (the Magistrate). The other respondents to the application were added by order made by me on 6 March 1992. They are the informants in the proceedings pending in the Magistrates Court. All those proceedings are by way of preliminary inquiry or committal proceedings for alleged indictable offences committed in contravention of the Crimes Act 1900 (NSW) in its application to the Australian Capital Territory (the ACT proceedings).

3. There are, as I understand it, other proceedings by other informants for contravention of the provisions of the Crimes Act 1914 (Commonwealth) (the Commonwealth proceedings) to which I will make reference later.

4. The ground relied upon by the applicant is as follows:

"That the (first) respondent showed bad faith
in that on the 10th of December 1991 he discussed
charges against the applicant with the Prosecutor
outside the Court, in the absence of the applicant,
and without the applicant's knowledge."

5. However, the events about which the applicant complains only begin on 10 December 1991. On that date a Case Status Inquiry was held in accordance with the procedures in the Magistrates Court prior to the fixing of dates for the commencement of taking of evidence in relation to the charges against the applicant. The applicant has sworn an affidavit in which he states that after the Case Status Inquiry on that date he was told by Mr Roger Cotter, Deputy Registrar of the Magistrates Court, that shortly before the Case Status Inquiry began Mr Grant Lalor, who was appearing on behalf of the informants in the Commonwealth proceedings, entered the office of Mr Cotter and "demanded that a consolidated summons be issued" in substitution for or in addition to a multiplicity of summonses that had already been issued. The applicant further states in his affidavit that Mr Cotter told him that at the time of such demand Mr Lalor said, "Michael Somes (the Magistrate) is in favour of it". The applicant also states in the same affidavit that he was told by Mr George Hardiman, Senior Deputy Registrar of the Magistrates Court, who was apparently present at the same time as Mr Cotter, that Mr Lalor either stated that he had just come from discussing the matter with Magistrate Somes, or conveyed the impression that he had done so.

6. On 16 December 1991 the applicant wrote a letter of complaint to the Chief Magistrate concerning what he alleged to have been a discussion between the Magistrate and Mr Lalor as related to him by Mr Cotter and Mr Hardiman. On 3 January 1992 the Chief Magistrate replied to the applicant by letter stating that the Chief Magistrate had discussed the complaint with the Magistrate and that they were both of the view that the complaint should be raised when the matter next came before the Court.

7. On 10 February 1992 there was a further Case Status Inquiry which was presided over by the Magistrate. I have read a transcript of part of the proceedings on that date. The Case Status Inquiry related to the Commonwealth proceedings as well as to the ACT proceedings. Dates for hearing of the Commonwealth proceedings, as fixed at a previous Case Status Inquiry, were vacated and some of the Commonwealth proceedings were withdrawn and dismissed. Dates for hearing of the ACT proceedings, fixed at another Case Status Inquiry, were confirmed. The applicant participated in the discussion which took place between the bench and those at the bar table in what appears to be a normal manner relating to the vacation and confirmation of the various hearing dates. At the end of that discussion the applicant indicated that there were matters which he wished to raise. He told the Magistrate about them. They included a reference to what he had been told by Mr Cotter and Mr Hardiman relating to the alleged discussion between the Magistrate and Mr Lalor. The applicant also mentioned to the Magistrate the letter which the applicant had sent to the Chief Magistrate. The applicant read to the Magistrate the letter from the Chief Magistrate to the applicant. What happened thereafter is recorded on the transcript as follows:

"THE DEFENDANT: So, I simply say that there
is a matter of concern to me there and I would
appreciate your Worship's comments as to whether any
consultations did occur between yourself and Mr Lalor
about this, about the issue of this consolidated
summons and if so how does this square with the
general principle that things should be done in court
in front of both parties?
HIS WORSHIP: Well, I have heard what you say,
Mr Eastman. I do not propose to make any comment at
this time. Is there anything else you want to say?
THE DEFENDANT: Yes, your Worship. If you are
not prepared to make a comment on it, it leaves me in
an invidious situation. I would have thought that if
consultations had not taken place the obvious thing -
- -
HIS WORSHIP: I have heard what you said,
Mr Eastman. Is there anything you want to say
further?
THE DEFENDANT: Yes, I am asking you to
disqualify yourself, your Worship.
HIS WORSHIP: I do not propose to do that. Is
there anything else you want to say?
THE DEFENDANT: Yes, I seek leave to adjourn
to the Supreme - to an adjournment - - -
HIS WORSHIP: Well you can do that, you do not
have to do anything before the 25th - 24 February.
There is nothing going on before then.
THE DEFENDANT: Your Worship, there are
procedural matters still to be decided today.
HIS WORSHIP: If you want to decide them you
put them up. I am not giving you an adjournment to do
anything at this stage, Mr Eastman.
THE DEFENDANT: Well, your Worship, as I
understand it the principle of justice applies to CSIs
as well - - -
HIS WORSHIP: I have heard all you want to
say. If you want to make some specific thing then do
so because I am not granting an adjournment in
relation to the CSI. If we have something to work out
you have got plenty of time to go and seek to prohibit
me or whatever you want to do.
THE DEFENDANT: That is right. But I do not
wish your Worship to be taking decisions on setting
matters down for hearing - - -
HIS WORSHIP: They are all set down for
hearing already, Mr Eastman.
THE DEFENDANT: - - - or any other procedural
questions, your Worship.
HIS WORSHIP: All right. Well, the matters
are fixed for the dates that have been agreed upon and
the court is adjourned.
THE DEFENDANT: I have no confidence in you
making any decisions affecting my matters.
HIS WORSHIP: You are excused, Mr Eastman."

8. I turn briefly to the events of 25 March 1992. They are not the subject of evidence but are common ground on what I have been told by the applicant and counsel for the second respondents. They resulted in the hearing of the application in this Court, in relation to the events of 10 February 1992, which was already part-heard, being brought forward to yesterday evening as a matter of urgency. What happened on 25 March 1992, was that three of the informations, being part of the ACT proceedings, came before the Magistrate for hearing. The applicant once again made an application that the Magistrate disqualify himself. The Magistrate declined to do so. The applicant applied for an adjournment. That application was refused. Evidence was presented by the prosecution and the applicant was committed for trial on that day on all three charges. By reason of the amendment of the application to this Court yesterday the decision to commit for trial and the refusal of the Magistrate to disqualify himself on 25 March 1992 are now added to the scope of review. The refusal to grant an adjournment is not sought to be reviewed.

9. In relation to the application to review a decision of the Magistrate made on 10 February 1992 there are two preliminary questions to be decided, each independent of the other but closely connected with the other. This is a somewhat complicated matter but the questions are raised by the applicant and I have to decide them. The first is whether the Magistrate made the decision on that date which the applicant claims he made, and the second is whether that was a decision which may be reviewed under the Act.
Did the Magistrate on 10 February 1992 decide to refuse to disqualify himself from hearing the charges?

10. It is not immediately clear that the Magistrate decided to refuse to disqualify himself from hearing any of the charges against the applicant. It appears that when the Magistrate told the applicant that he did not have to do anything before 24 February and that there was "nothing going on before then", the Magistrate at that stage was turning his mind to the question whether he should disqualify himself in respect of matters that were expected to proceed to a hearing on 24 February and that he regarded the Case Status Inquiry as concluded. However, the applicant persisted with his application that the Magistrate disqualify himself there and then and the applicant did so clearly in terms seeking that at that stage the Magistrate should disqualify himself from further presiding over the Case Status Inquiry. In fact, in my view, the Case Status Inquiry was as close to conclusion as it could have been in practical terms. It was kept alive only by the applicant's request that the Magistrate disqualify himself from any further consideration of it.

11. So there is a real question whether what the Magistrate did and said amounted to a decision to disqualify himself from further presiding over the Case Status Inquiry or from hearing the charges against the applicant, or any of them, at some future date, should the charges come before him for hearing and determination or for consideration by way of preliminary inquiry in a committal hearing. To the applicant's request, "I am asking you to disqualify yourself", the Magistrate replied, "Really, I do not propose to do that". It is not clear that that was merely an indication on the part of the Magistrate that at the time of the request to him he was of the provisional view that should the matters come before him for determination at a later stage, he did not propose to disqualify himself at that later stage.

12. It must be said that for a judicial officer (including a magistrate carrying out an administrative function by presiding over a committal hearing) to make a decision to disqualify himself or herself from hearing a matter properly before the magistrate involves a decision to decline to exercise the jurisdiction which the magistrate is sworn to exercise. It is not to be lightly made, and not without good cause.

13. The Practice Direction of the Magistrates Court relating to Case Status Inquiries was issued on 11 March 1991 and presented in evidence in this Court. It provides in part that where a defendant has no legal representation, the defendant will be bailed to appear at a Case Status Inquiry not less than four weeks prior to the date fixed for hearing. This indicates an intention that the Case Status Inquiry procedure is not simply an administrative adjunct to the hearing and determination of charges under the Magistrates Court Act. That Act lays down a regime for the laying of charges (more precisely, informations), the bringing of the defendant before the Magistrates Court, the remand of the defendant on bail or otherwise and similar matters. There is no power in a Magistrate to remand a defendant on bail to appear at a Case Status Inquiry unless the Case Status Inquiry is part of the procedure provided for under the Magistrates Court Act which culminates in a hearing of the charges brought against a defendant and subsequently, in the case of a summary offence, a dismissal of the charge or a finding of guilt, or, in the case of an indictable offence dismissal or committal for trial. In this respect I think that the informations were properly before the Magistrate on 10 February 1992 and that it was within his power to make a decision there and then on whether or not to disqualify himself from what was in law the further hearing of the charges, although no evidence had yet been taken. In other words the Case Status Inquiry is an adjourned hearing, authorised by ss. 70, 83 and 84 of the Magistrates Court Act, or any one or two of those sections.
Were the Magistrate's decisions on 10 February and 25 March 1992 reviewable?

14. Under sub-s.3(1) of the Act a decision to which the Act applies is a decision of an administrative character, made, proposed to be made or required to be made (whether in the exercise of a discretion or not) under an enactment.

15. Not without some hesitation I think that whether or not the Magistrate made a final decision on 10 February 1992 not to disqualify himself, it was a decision that he proposed to make, and to that extent it was a "decision proposed to be made" within the Act.

16. The Magistrate's decisions to commit for trial and not to disqualify himself made on 25 March 1992 were clearly decisions with a sufficient character of finality.

17. There is no question that, as the determination of the charges had to proceed by way of a committal hearing, the hearing was of an administrative nature and not part of the judicial process. Accordingly, any decision made during the course of the committal hearing was administrative and the decision to commit for trial was a decision reviewable under the Act; Lamb v. Moss and Another [1983] FCA 254; (1983) 49 ALR 533, Yates v. Wilson (1989) 168 CLR 338, Australian Broadcasting Tribunal v. Bond and Others [1990] HCA 33; (1990) 170 CLR 321.

18. Finally, the decisions had to be decisions under an enactment, and I am satisfied that the Magistrate, making the decisions, was acting within power, and whilst exercising jurisdiction under the Magistrates Court Act, although no particular provisions of that Act may be identified as authorising him to make it. I will return to this question of the enactment in a moment.
Ground for Review: Denial of Natural Justice

19. The applicant submits that the Magistrate's decision not to disqualify himself from hearing any of the charges brought against the applicant and the decision to commit him for trial should be reviewed on the ground that there was a breach of the rules of natural justice. No other ground is relied upon and it is unnecessary, in particular, to consider what evidence was called to support the charges on which the applicant was committed for trial.

20. The applicant placed particular reliance upon Tahmindjis v. Brown and Another [1985] FCA 181; (1985) 60 ALR 120, a decision of Fox J. sitting in the Federal Court of Australia. That was an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) to set aside orders for committal on the ground that there had been a private and confidential communication of the Magistrate's views to the solicitor for the prosecution. The applications were made by the defendants. During the committal hearing the Magistrate in that case telephoned the solicitor for the informant and told him that the prosecution was wasting time with particular witnesses whose credit had been seriously undermined, and that to continue to rely on such evidence might constitute oppression of the defendants. Fox J. held that there was a denial of natural justice on the part of the Magistrate which had been brought about by his communication to the solicitor for the informants. It was the very communication which in his Honour's view gave rise to the appearance of bias and it did not matter that the Magistrate's expression of his view to the solicitor for the informant appeared to favour the interests of the defendants rather than those of the prosecution.

21. In Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, proceedings were taken in the High Court for an order nisi for prohibition to restrain a Family Court Judge from proceeding in a matter where the Judge had received information from a court counsellor relating to the hearing of a custody application. It was held that the actions of the counsellor and Judge gave rise to a reasonable apprehension that the Judge would not bring an impartial mind to the resolution of the issue.

22. Gibbs C.J. stated the principles as follows (at 346-347):

It is a fundamental principle that a judge
must not hear evidence or receive representations from
one side behind the back of the other: see Kanda v.
Government of Malaya (1962) A.C. 322, at p 337.
McInerney J. stated the practice as it is generally
understood in the profession in Reg. v. Magistrates'
Court at Lilydale; Ex parte Ciccone (1973) VR 122,
at p 127 as follows:
'The sound instinct of the legal
profession - judges and practitioners alike - has
always been that, save in the most exceptional cases,
there should be no communication or association
between the judge and one of the parties (or the legal
advisers or witnesses of such a party), otherwise than
in the presence of or with the previous knowledge and
consent of the other party. Once the case is under
way, or about to get under way, the judicial officer
keeps aloof from the parties (and from their legal
advisers and witnesses) and neither he nor they should
so act as to expose the judicial officer to a
suspicion of having had communications with one party
behind the back of or without the previous knowledge
and consent of the other party. For if something is
done which affords a reasonable basis for such
suspicion, confidence in the impartiality of the
judicial officer is undermined."
The principle, which forbids a judge to
receive representations in private, is not confined to
representations made by a party or the legal adviser
or witness of a party. It is equally true that a
judge should not, in the absence of the parties or
their legal representatives, allow any person to
communicate to him or her any views or
opinions concerning a case which he or she is hearing,
with a view to influencing the conduct of the case.
Indeed, any interference with a judge, by private
communication or otherwise, for the purpose of
influencing his or her decision in a case is a serious
contempt of court: see Halsbury's Laws of England, 4th
ed, vol 9, par 28 and cases there cited."

23. Mason J., as he then was, after referring to the facts set out at 356-357, said:

"It is evident from what I have said that
there is a firm basis for a reasonable apprehension
that the judge will not bring to bear an impartial and
unprejudiced mind on the resolution of the custody
issue. It is not to the point to say that the
prosecutor has failed to establish the existence of
any bias on the part of the judge. The courts have
always refused, for obvious reasons, to embark upon an
inquiry whether a judge will determine the issues
impartially and with an unprejudiced mind. It would
be idle for this Court to say that it is confident
that the judge will act impartially. We have to ask
ourselves how the matter would appear, viewed
reasonably, to the public and the parties. And when
we ask this question the answer that immediately
presents itself is that the judge, who in all
probability would be called upon to evaluate the
correctness of the opinion of the court counsellor and
her credibility as a witness, had the unprecedented
advantage of a private discussion with her on the very
issue for decision in the case, the counsellor being a
convinced, and perhaps convincing, advocate of the
wife's cause in the case. The fact that the
counsellor is an officer of the court is a matter
which enhances, rather than diminishes, cause for
concern. A fair-minded observer, as well as a
concerned parent who is a party to the litigation
would naturally and rationally conclude that the
counsellor's standing as an officer of the court would
ensure that her opinion would carry weight with the
judge. The subsequent discussion between the judge
and counsel in private chambers would have done
nothing to dispel that cause for concern. The case is
plainly one in which the principle that justice must
manifestly be seen to be done requires that the matter
be heard by another judge: see Goold v. Evans and Co.
(1951) 2 TLR 1189, at 1191."

24. To the cases relied upon by the applicant there may be added The Queen v. Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 in which the majority judgment of the High Court contains the following passage at 264:

"The question is not whether there was a real
likelihood that Watson J. was biased. The question is
whether it has been established that it might
reasonably be suspected by fair-minded persons that
the learned judge might not resolve the questions
before him with a fair and unprejudiced mind."

25. More recently the High Court has warned against pressing the "possibility" test too far "when the qualifications for membership of the tribunal are such that the members are likely to have some prior knowledge of the circumstances which give rise to the issues for determination or to have formed an attitude about the way in which such issues should be determined or the tribunal's powers exercised": see Re Polites; Ex parte Hoyts Corporation Pty. Ltd. [1991] HCA 25; (1991) 65 ALJR 445 at 448.

26. The fundamental difference between the two cases relied upon by the applicant and the present is case lies, in my view, in the factual background. It was clearly established in both the cases relied upon that there had been a communication between the judicial officer and the other person after the judicial officer had commenced the hearing of a proceeding in which the judicial officer was bound to give a decision on the merits. That is not so in the present case. Although, for reasons to which I have already referred, I consider that the Case Status Inquiry was an adjourned hearing of the committal hearing, there had been no commencement of the hearing in any real sense at the time of the alleged conversation between the Magistrate and Mr Lalor. That is not to say that actual bias or the appearance of bias may not arise from communications between a judicial officer and another person prior to the commencement of the hearing of proceedings, so that, by reason of such communication, a subsequent hearing of a case in which the judicial officer presided would become tainted because of the perception of bias. But it is obvious that not every communication between a judicial officer and another person even if a party or representative of a party would give rise to that result. In R v. Judge Leckie; Ex parte Felman, (1977) 18 ALR 93, the High Court refused special leave to appeal against a refusal to set aside a sentence imposed by a judge who had been supplied previously with material relative to the breach of a bond. Gibbs J., as he then was, said at 98:

"It is perfectly true, as McInerney J. said in
R v. Magistrates' Court at Lilydale; Ex parte Ciccone
(1973) VR 122 at 127 that "the sound instinct of the
legal profession - judges and practitioners alike -
has always been that, save in the most exceptional
cases, there should be no communication or association
between the judge and one of the parties (or the legal
advisers or witnesses of such a party), otherwise than
in the presence of or with the previous knowledge and
consent of the other party". But of course that does
not mean that if a communication has been made to the
judge on behalf of one of the parties the judge will
necessarily and in all circumstances be disqualified.
The question remains whether the fact that such a
communication has been made would raise a reasonable
suspicion that the judge will not or cannot deal with
the case fairly and impartially."

At 100 his Honour continued:

"It is desirable in the administration of
criminal justice to take every possible step to avert
criticism and suspicion, however ill-founded and
misconceived it might be. But it does not follow that
because a practice may be improved, or even because
its observance may give rise to suspicions in
embittered or hypercritical minds, that there has been
a failure to observe the principles of natural
justice."

27. I add that it could hardly be contended that the Chief Magistrate should be disqualified from hearing or considering any of the charges concerning the applicant by reason of the applicant communicating with the Chief Magistrate by means of his letter of complaint dated 16 December 1991.

28. The next point is that in contrast with Tahmindjis v. Brown, the communication was not between the Magistrate and a representative of a party to the present proceedings. I am concerned only with the Magistrate's decision not to disqualify himself from hearing the charges brought in respect of the alleged offences against the ACT Crimes Act. The person with whom it is suggested the Magistrate had the communication was an officer of the Office of the Commonwealth Director of Public Prosecutions and could play no part in those proceedings. Furthermore, in contrast to Re JRL; Ex parte CJL, the suggested subject of the conversation related not to the charges brought for offences under the ACT Crimes Act, but to a consolidated summons relating to the proceedings brought by the Commonwealth Director of Public Prosecutions.

29. The applicant referred to several other authorities which are but examples of applications of the principles laid down in the High Court. It is not necessary to discuss other authorities.

30. I should say something about the prosecutions under the Commonwealth Crimes Act. The written application to the Court did not identify the enactment under which the decision sought to be reviewed was made. Initially I took the view that, insofar as the Magistrate's decision on 10 February 1992 related to prosecutions which were brought for offences under a Commonwealth statute, and not ACT legislation, then the decision by the Magistrate was not a decision under an enactment within the terms of the Act. For that reason I declined to order that the informants in the Commonwealth proceedings be joined as respondents. However, I am now of the view, accepting a submission put by the applicant, that the Magistrate's decision not to disqualify himself may be just as accurately characterised as a decision under the Magistrate's Court Act as under the Crimes Act 1914 (Commonwealth). That it is also a decision under an Act of the Commonwealth Parliament is not determinative. The Magistrate's Court Act on its face confers upon the Magistrates Court jurisdiction to hear and determine charges brought under the criminal law of the Territory. It combines with s.68 of the Judiciary Act 1903 of the Commonwealth to confer jurisdiction to hear and determine charges brought under the criminal law of the Commonwealth: Emanuele v. Cahill and Another (1987) 71 ALR 302, Spratt v. Hermes and Another [1965] HCA 66; (1965) 114 CLR 226, Capital TV and Appliances Pty. Limited v. Falconer [1971] HCA 10; (1971) 125 CLR 591. Insofar as the Magistrate's decision not to disqualify himself might have been relevant to the hearing of charges under the Commonwealth Crimes Act 1914, it may have been that different considerations would have applied from those to which I have just referred.

31. Lastly, and I consider it to be a matter of considerable importance, there is the inconclusive nature of the allegation against the Magistrate. The facts in the two reported decisions relied upon by the applicant were clear. On the other hand, in the present case, what we have is merely a statement on oath by the applicant that he heard Mr Cotter say that Mr Lalor said that the Magistrate was in favour of the issue of a consolidated summons and that he had also heard Mr Hardiman say either that Mr Lalor stated that he had just come from discussing the matter with the Magistrate or that Mr Lalor conveyed the impression that he had done so. These matters of hearsay and impression are, in my view, quite insufficient to raise a case to establish that a reasonable person might apprehend that the Magistrate might not bring an impartial mind to the hearing of the charges against the applicant brought by the ACT Director of Public Prosecutions under the ACT Crimes Act.

32. The applicant submitted that there was a refusal on the part of the Magistrate to respond to the matters which the applicant put to the Magistrate and upon which he called for the Magistrate's comments. According to the submission of the applicant, the conduct of the Magistrate indicated that he had something to hide, indeed even that a reasonable person would conclude that the Magistrate might have allowed the authority of his name to be used to procure the issue of a consolidated summons.

33. In Limbo v. Little [1989] NTSC 110; (1989) 65 NTR 19, a Full Court of the Supreme Court of the Northern Territory decided that a litigant was not entitled to seek to ascertain by questioning of a magistrate or judge any facts concerning him or her which, if so disclosed, might lead to disqualification of the magistrate or judge upon the grounds of reasonable apprehension of bias based on the facts sought to be disclosed.

34. In Raybos Australia Pty Ltd and Another v. Tectran Corporation Pty Ltd and Others (1986) 6 NSWLR 272, Priestley J.A. at 276 gave a warning against acceding too readily to suggestions of appearance of bias lest there be an encouragement to a party to believe that by seeking the disqualification of a particular judicial officer that party will have his or her case tried by someone thought to be more likely to decide the case in favour of that party. That warning is consistent with the decision of the High Court in Re Polites; Ex parte Hoyts Corporation Pty. Ltd.

35. On the material before me, I am unconvinced that it might reasonably be suspected by any fair-minded person that the charges brought against the applicant for the offences under the ACT Crimes Act might not be determined with a fair and unprejudiced mind. I am also unconvinced that special circumstances exist which justify the intervention of this Court to set aside the Magistrate's decision to commit the applicant for trial or to otherwise intervene. None were sought to be shown. It is necessary that such special circumstances be shown: Australian Broadcasting Tribunal v. Bond. It also follows that this Court can make no order to the effect that the Magistrate should have made a decision to disqualify himself from hearing any other proceedings in the future which may be brought against the applicant, nor that he should disqualify himself at some time in the future. No doubt if any such application should be made to the Magistrate by the applicant in the future, the application will receive proper consideration and it may be that other factors may have intervened in the meantime which may be relevant, factors such as those which emerged in New South Wales Bar Association v. Livesey (1982) 2 NSWLR 231. However, it is unnecessary for me to express any further opinion on such matters and inappropriate for me to offer advice either to the applicant or to the Magistrate.

36. The formal order of the Court is that the application be dismissed.