Goldsworthy v Local Court of New South Wales [2013] NSWSC 459

Goldsworthy v Local Court of New South Wales [2013] NSWSC 459

The magistrate was entitled to disqualify himself because he had made credibility findings, at least in part, on the basis of an unread affidavit that was not in evidence and which corroborated evidence adverse to Mr Santisi. In circumstances where unresolved issues remained, a fair-minded lay observer might reasonably apprehend that the magistrate might not bring an impartial and unprejudiced mind to those issues. The recusal was in the interests of justice and its appearance, was not jurisdictional error or error within jurisdiction, was not an ultimate determination, and did not engage the Supreme Court's powers under ss 65 or 69 of the Supreme Court Act 1970.

Jurisdiction
Australia
Judgment Date
03 May 2013
Procedural Posture
Summons Seeking Declarations and Consequential Orders in the Nature of Mandamus and Certiorari Pursuant to Ss 65 and 69 of the Supreme Court Act 1970 / Supreme Court Review of a Local Court Magistrate's Decision to Disqualify Himself From Further Hearing Civil Proceedings
Outcome
Summons dismissed.
Legal Topics
['joinder' 'disqualification of Judicial Officer' 'apprehended Bias' 'procedural Fairness' 'certiorari' 'mandamus' 'jurisdictional Error']
['practice and Procedure' 'administrative Law' 'civil Procedure'] ['joinder' 'disqualification of Judicial Officer' 'apprehended Bias' 'procedural Fairness' 'certiorari' 'mandamus' 'jurisdictional Error']

Case Brief

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Procedural Posture

Summons Seeking Declarations and Consequential Orders in the Nature of Mandamus and Certiorari Pursuant to Ss 65 and 69 of the Supreme Court Act 1970 / Supreme Court Review of a Local Court Magistrate's Decision to Disqualify Himself From Further Hearing Civil Proceedings

Legal Issues

  1. 1 ['Whether the magistrate erred in law or committed jurisdictional error by disqualifying himself after referring to and relying on an affidavit that had not been read and was not in evidence.' "Whether the magistrate's use of the unread affidavit produced procedural unfairness or a reasonable apprehension of bias in determining remaining issues." "Whether the Supreme Court's powers under ss 65 and 69 of the Supreme Court Act 1970 were engaged." 'Whether additional persons, including non-participating Local Court plaintiffs or a cross-defendant, were required to be joined in the Supreme Court proceedings.']

Ratio Decidendi

The magistrate was entitled to disqualify himself because he had made credibility findings, at least in part, on the basis of an unread affidavit that was not in evidence and which corroborated evidence adverse to Mr Santisi. In circumstances where unresolved issues remained, a fair-minded lay observer might reasonably apprehend that the magistrate might not bring an impartial and unprejudiced mind to those issues. The recusal was in the interests of justice and its appearance, was not jurisdictional error or error within jurisdiction, was not an ultimate determination, and did not engage the Supreme Court's powers under ss 65 or 69 of the Supreme Court Act 1970.

Court Disposition

Summons dismissed.

Orders

  • ['The summons is dismissed.' 'The plaintiffs are to pay the costs of the second and third defendants.']