Boscolo v IPM Enterprise Pty Ltd
[2012] WADC 168
•30 NOVEMBER 2012
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: BOSCOLO -v- IPM ENTERPRISE PTY LTD [2012] WADC 168
CORAM: DERRICK DCJ
HEARD: 19 NOVEMBER 2012
DELIVERED : 30 NOVEMBER 2012
FILE NO/S: APP 10 of 2012
BETWEEN: MARIO BOSCOLO
Appellant
AND
IPM ENTERPRISE PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE MALLEY
File No :CTC 920 of 2010
Catchwords:
Appeal against magistrate's decision to dismiss minor case claim - Rules of natural justice - Denial of natural justice
Legislation:
District Court Rules 2005 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Result:
Appeal allowed
Representation:
Counsel:
Appellant: In person
Respondent: Mr T Dionisio (as authorised representative)
Solicitors:
Appellant: Not applicable
Respondent: Not applicable
Case(s) referred to in judgment(s):
Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Gamage v The State of Western Australia [2008] WASCA 49
Hoskins v Van Den-Braak (1998) 43 NSWLR 290
Johnson v Johnson (No 3) [2000] HCA 48; (2000) 201 CLR 488
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
National Companies & Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296
Re Burton; Ex parte Lowe [2003] WASCA 306
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212
Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1
Webb & Hay v The Queen [1994] HCA 30; (1994) 181 CLR 41
DERRICK DCJ:
Introduction
The appellant appeals against the decision of his Honour Magistrate Malley dismissing his minor case claim against the respondent. The issue which the appeal gives rise to is whether the learned magistrate, in dealing with the appellant's claim, denied the appellant natural justice.
The matter has a long and unhappy history. The upset and inconvenience that the matter has caused to the parties is completely disproportionate to the amount that is in dispute. Members of the Magistrates Court and this court have attempted to facilitate the settlement by the parties of their dispute. However, these attempts have proved unsuccessful.
To enable this court to deal with the appeal the Magistrates Court file has been provided to the court pursuant to r 52(3) of the District Court Rules 2005 (WA) (the DCR). I have therefore had access to all documentation that was before the magistrate at the time that he made his decision. I have also had access to the transcript of the trial of the appellant's claim.
Factual background to claim
The appellant is an elderly gentleman. He is well into his 80s.
In or around early November 2008 the appellant's son offered to give to the appellant his unregistered 1991 Toyota Celica. The appellant wanted to know if the Celica could be repaired to a standard that it would be able to be registered, and if it could be repaired to this standard what the cost of the repairs would be. Accordingly, on or around 7 November 2008 the appellant approached a Mr Alfonso Berardis. Mr Berardis was one of the directors of the respondent. The respondent operated an engine reconditioning business trading as Favazzo Engine Reconditioning.
After speaking to the appellant Mr Berardis agreed to collect the Celica from the appellant's son's premises and take it to the respondent's workshop for inspection. This is what occurred.
After the respondent's employees had completed their inspection of the Celica Mr Berardis spoke to the appellant about the work that needed to be done on the car and the cost of carrying out the work. Exactly what was said and agreed between the appellant and Mr Berardis during this conversation is at the heart of the dispute between the parties. In any event, and whatever the precise terms of the agreement reached between the appellant and Mr Berardis, the appellant agreed to leave the Celica with the respondent for work to be done on the car.
Over the next few months the Celica remained in the respondent's workshop. No work was done on the car.
In March 2009 the appellant's son, that is, the son who had given the Celica to the appellant, passed away. Therefore for some period of time the Celica was understandably not one of the appellant's priorities.
The respondent commenced work on the car some time after Easter in 2009. During the ensuing months the appellant made enquiries of the respondent about the progress of the repairs. He visited the respondent's workshop on occasions.
In November 2009 a representative of the respondent, Mr Mario Favazzo, contacted the appellant and told him that the cost of the repairs that had to that point been carried out on the Celica amounted to around $2,000. The appellant, either at the time of this conversation or at some later point, informed Mr Favazzo and other representatives of the respondent that he could not afford to pay this amount of money to the respondent and that it was more than what he had agreed with Mr Berardis to pay for the agreed work on the car. The respondent, in light of the appellant's refusal to pay the $2,000, stopped working on the Celica and refused to release the car to the appellant.
The claim
On 8 July 2010 the appellant instituted a minor case claim against the respondent under pt 4 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (the Act).
On 7 December 2010 the appellant filed and served his Statement of Minor Case Claim (the statement of claim). In the statement of claim the appellant alleged, in substance, that the agreement that he had reached with Mr Berardis was that the respondent would, for a price of $1,000, carry out such repairs to the Celica as were necessary to enable it to be registered, and that the respondent would further arrange for the Celica to be 'taken over the pits' and registered at an additional cost of $400. Therefore, the appellant's claim was that the agreement that he had reached with Mr Berardis on behalf of the respondent was that the respondent would carry out whatever repairs to the Celica were needed to enable it to be registered, and arrange for it to be registered, for a total cost of $1,400.
The appellant attached to the statement of claim a number of documents which he contended supported his claim. The documents included:
1.a copy of a letter from the appellant to the respondent dated 15 February 2010;
2.a copy of a letter from the appellant to the respondent dated 14 June 2010;
3.a copy of a letter from the appellant to the respondent dated 2 August 2010;
4.a copy of a letter from the respondent to the appellant dated 13 August 2010; and
5.a copy of a letter from the appellant to the respondent dated 8 November 2010.
On 19 September 2011 the respondent, at the direction of the court, filed a Listing Conference Memorandum. In the Memorandum the respondent set out its defence to the appellant's claim. The defence was, in substance, as follows.
The respondent at no stage agreed with the appellant to repair the Celica for an all inclusive price of $1,400. Rather, the agreement reached with the appellant was that for a price of $1,485 plus GST the respondent would carry out a 'top overhaul and re-ring job' on the Celica in order to 'get the engine running'. When, as part of the 'top overhaul and re-ring job' the Celica's engine was stripped down, it was found to have many major issues that needed to be addressed in order to get the car's engine running. The appellant was advised of the additional work that needed to be done and authorised the carrying out of the work. The additional work was then performed which resulted in the total cost of the repair work undertaken on the Celica being $2,240.37 inclusive of GST.
On 26 September 2011 the appellant filed his Listing Conference Memorandum. The appellant attached to the Memorandum a number of documents including a copy of a letter from him to the respondent dated 17 August 2011.
Trial and magistrate's decision
The trial of the appellant's claim took place on 25 January 2012. The trial commenced at 2.18 pm and finished at 3.16 pm.
In accordance with s 30(2) of the Act the appellant appeared in person. In accordance with s 30(2) and s 44(2) of the Act the respondent was represented by one of its directors, Mr Tiziano Dionisio.
During the trial the appellant was assisted by an Italian speaking interpreter.
The appellant gave evidence in support of his claim. The magistrate facilitated the giving by the appellant of his evidence by asking the appellant questions. The appellant was cross-examined by Mr Dionisio. The appellant did not call any other witnesses.
Mr Dionisio gave evidence for the respondent. The magistrate facilitated the giving by Mr Dionisio of his evidence by asking Mr Dionisio questions. Mr Dionisio was cross-examined by the appellant. Mr Dionisio was the only witness for the respondent.
At the end of the trial the magistrate reserved his decision. He told the appellant and Mr Dionisio that they would 'get [his] decision in writing within the next couple of weeks', that they would not be required to come back to court and that he would 'simply publish [his] reasons'.
Although the magistrate reserved his decision the 'Form 8 Order' which is on the Magistrates Court file indicates that his Honour entered judgment for the respondent against the appellant on 25 January 2012, that is, the day of the trial. The order for judgment was in the following terms:
Judgment for the Defendant against the Claimant in the sum of $2,240.37 and upon payment of such sum the vehicle be made available by the Defendant to the Claimant for recovery forthwith.
The magistrate provided written reasons for his decision. The written reasons are not dated.
The magistrate's written reasons for decision are relatively brief. It is convenient to set them out in full. They are as follows:
In these proceedings the Claimant primarily seeks return of his Celica motor vehicle in compliance with an alleged agreement with the Defendant to repair the said vehicle to a state where it can be registered at a cost of $1,400.
The Defendant denies such agreement saying that an agreement was given to remove and verify the head, sump and pistons and to remove seized rings from the pistons grooves, hone block and supply top gasket set, rings, big end bearing and exhaust valves for head at a cost of $1,485.
The Defendant says that as a consequence of those repairs other related work would be required at extra expense.
The Defendant says that work has been done and seeks $2,240.37 which includes $203.67 GST.
As is often the case this agreement between the parties is vague and lacking in corroborative evidence.
The Claimant carries onus on balance of probabilities and he relies on his own recollection of conversations to support his allegation that the Defendant would undertake all work required to get the vehicle registered for $1,400. That allegation is not substantiated in any other form and is denied by the Defendant.
I am not satisfied to the required standard that the Claimant has made out his case.
There is evidence that work has been undertaken and completed and there is evidence a request was made by the Claimant for work to be done.
The Defendant acknowledges he gave a price of $1,485 for the work previously referred and I am satisfied that should be allowed.
With regards to extras claimed, it is acknowledged at no time did he seek approval for this work, however it was stated that such work was incidental to the major work and if not done would render the primary repairs of no value. I accept this to be the case and accept that the Claimant was made aware extra costs may be incurred. These costs amounted to $551.70. The total cost was $2036.70 plus GST of $203.67.
I therefore give judgment to the Defendant in the sum of $2,240.37 and order that upon payment of such sum by the Claimant to the Defendant the Defendant release the Celica vehicle forthwith to the Claimant.
Legislative basis for the appeal
The appellant's entitlement to appeal against the magistrate's decision arises by virtue of s 32 of the Act. The combined effect of s 32 and s 40 of the Act is that the appellant may only appeal against the magistrate's decision on one or more of the grounds specified in s 32(3). The grounds specified in s 32(3) are:
1.that the minor case was not within the jurisdiction of the court or was not a minor case;
2.that in dealing with the minor case there was a denial of natural justice; or
3.that the judgment was beyond the court's jurisdiction.
It is obvious from the existence of the right to appeal on the ground of denial of natural justice that a magistrate dealing with a minor case claim must comply with the rules of natural justice.
Grounds of appeal
The appellant's grounds of appeal are set out in an Amended Notice of Appeal dated 16 April 2012 (the Notice). The Notice was filed pursuant to an order made by a registrar on 3 April 2012.
The Notice contains 10 pleaded grounds of appeal, one of which contains five subparagraphs. The grounds contain some repetition.
Ground 8 in the Notice asserts that it was unreasonable for the magistrate to enter judgment in favour of the respondent in the amount of $2,240.37 when the respondent had at some point prior to the trial offered to reduce its account by $400. This is not a ground of appeal which falls within one of the categories of permissible grounds of appeal specified in s 32 of the Act. It follows that ground 8 is incompetent. I therefore strike out ground 8 in the Notice as is permitted by s 43(4)(a) of the Act and r 57(2)(b) of the DCR.
So far as the remaining grounds are concerned it seems to me, doing my best to distil them, that the essence of the complaints made are as follows:
1.The magistrate denied the appellant natural justice by refusing to allow the appellant to submit 'five letters to the defendant and one reply therefrom' referred to in the appellant's Listing Conference Memorandum (grounds 1, 2, 3 and 10);
2.The magistrate denied the appellant natural justice by unreasonably curtailing the appellant's right to cross‑examine Mr Dionisio as to the agreement arrived at between the appellant and the respondent (grounds 1, 3, 4, 5 and 10);
3.The magistrate denied the appellant natural justice by making his decision without permitting the appellant to make submissions (grounds 1, 3, 6 and 10); and
4.The appellant was denied natural justice in that the magistrate was, or might have been, biased as demonstrated by his Honour's:
(1)refusal to permit the appellant to submit documentary evidence (ground 7); and
(2)failure to take into account an offer made by the respondent to the appellant in or around August 2010 to deliver the Celica to an address stipulated by the appellant which was within 10 km of the respondent's workshop if the appellant paid $1,800 for the work performed on the car (ground 9).
I will deal with each of these grounds of appeal in turn. However, before doing so it is necessary to say something about the principles of natural justice.
Natural justice - legal principles
The rules of natural justice have two substantive requirements. The first is that a person making a claim, or against whom a claim is made, must be given a reasonable opportunity of appearing and presenting his or her case: Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, 589; Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1, 4; Hoskins v Van Den-Braak (1998) 43 NSWLR 290, 294; Re Burton; Ex parte Lowe [2003] WASCA 306 [63]. The second is that the decision maker be a person who is disinterested or unbiased in the matter to be decided: Re Burton [63].
What amounts to a reasonable opportunity to present a case depends on the circumstances of the case including the nature of the jurisdiction, the subject matter that is being dealt with and the statutory provisions governing the power or jurisdiction being exercised: National Companies & Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296, 311 ‑ 312; Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 584 – 585; Re Burton [64]. However, it is clear that as a general rule a person will not be afforded a reasonable opportunity to present his or her case if he or she is not entitled to put information and submissions to the decision maker in support of an outcome that supports his or her interests: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, 591 ‑ 592; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 [22]. This entitlement extends to the right to rebut or qualify by further information, and comment by way of submission upon, adverse material from other sources which is put before the decision maker: Commissioner for Australian Territory Revenue v Alphaone (591 ‑ 592); Re Minister for Immigration; Ex parte Palme [22].
The test to be applied when it is alleged that a judicial officer has been, or might be, actuated by bias is whether fair‑minded people might reasonably apprehend or suspect that the judicial officer has pre‑judged or might pre‑judge the case: Webb & Hay v The Queen [1994] HCA 30; (1994) 181 CLR 41, 47; Johnson v Johnson (No 3) [2000] HCA 48; (2000) 201 CLR 488 [11]; Gamage v The State of Western Australia [2008] WASCA 49 [54]. The fair‑minded person is one who should be taken to have informed himself or herself on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances: Johnson v Johnson [53]; Gamage v The State of Western Australia [54].
Against this background of principle I return to the appellant's grounds of appeal.
Grounds of appeal
Failure to permit tendering of five letters and one reply
This ground of appeal relates to the appellant's above referred to five letters to the respondent dated 15 February 2010, 14 June 2010, 2 August 2010, 8 November 2010 and 17 August 2011, and to the above referred to respondent's letter to the appellant dated 13 August 2010.
When the appellant gave his evidence he did refer in general terms and at various points to the letters that he had written to the respondent (ts 7 ‑ 8, 10 ‑ 11, 12, 14). On occasions he indicated that he had copies of the letters and that he could provide them to the court. The magistrate did not ask for the copies of the letters.
At the end of the trial, after the magistrate had indicated that he was going to reserve his decision and would publish his reasons at a later date, the interpreter said to the magistrate, 'Mr Boscolo has written five letters, or some letters, and would like to know if you want any exhibits' (ts 19). To this question the magistrate replied, 'No. It doesn't assist me. I have got them all on the file anyway' (ts 19). It is therefore clear that the magistrate expressly refused to permit the appellant to tender at least the five letters that the appellant had written to the respondent. Did this refusal, in the circumstances of the case, deny the appellant a reasonable opportunity of presenting his case?
As the magistrate said when he refused to permit the appellant to tender the letters, all of the correspondence that had passed between the appellant and the respondent was on the court file as attachments to the statement of claim and the appellant's Listing Conference Memorandum. The magistrate was, by virtue of s 29(4) of the Act, not bound by rules or practice as to evidence and was able to inform himself of any matter in such manner as he saw fit. His Honour was therefore entitled to have regard to the copies of the letters between the appellant and the respondent that were on the court's file even though they had not been formally tendered as exhibits during the trial. It follows that the magistrate's refusal to permit the appellant to tender the letters did not in itself amount to a denial of natural justice because the refusal did not preclude the magistrate from reading the letters and taking their contents into account in arriving at his decision.
Although the magistrate was entitled to read and to take into account the letters even though he had refused to permit the appellant to tender them, I am satisfied on the material before me that his Honour did not do so. It is apparent from the magistrate's initial questioning of the appellant that his Honour had, prior to the commencement of the trial, reviewed the court file in order to gain some general familiarity with the nature of the dispute between the appellant and the respondent. However, the magistrate's statement to the appellant at the end of the trial that 'it', that is, the five letters, 'doesn't assist me', suggests that his Honour did not intend to have, and would not have had, regard to the letters in arriving at his decision. In addition, there is no indication in the magistrate's reasons for decision that his Honour did consider the letters in arriving at his decision.
A finding that the magistrate did not consider the letters is not, however, the end of the matter. Before the magistrate's refusal to allow one or more of the letters to be tendered, and subsequent failure to take them into account, can be said to amount to a denial of natural justice the letters must be shown to be admissible evidence on the issue in dispute between the appellant and the respondent, namely what were the terms of the agreement arrived at between the appellant and Mr Berardis in November 2008. However, the simple fact of the matter is that the letters are not admissible evidence on this issue. In the appellant's letters to the respondent, all of which post date the date on which the appellant arrived at his agreement with Mr Berardis, the appellant recites what he now asserts, and what he asserted at trial, was agreed between himself and Mr Berardis, and refers to the subsequent communications that he asserts he has had with representatives of the respondent. The letters are not evidence of the agreement actually reached between the appellant and Mr Berardis. Furthermore, there is nothing in the letter from the respondent to the appellant which amounts to an admission against interest by the respondent such that the letter provides support to the appellant's case.
In summary, given that the letters exchanged between the appellant and the respondent do not constitute admissible evidence on the issue in dispute between the parties I do not consider that the magistrate's refusal to allow the appellant to tender the letters amounted to either an error on the magistrate's part or a failure to afford the appellant a reasonable opportunity to present his case. The magistrate's refusal to permit the appellant to tender the letters did not amount to a denial of natural justice. I therefore dismiss this ground of appeal.
Curtailment of cross-examination
When Mr Dionisio finished giving his evidence the magistrate said, presumably to the interpreter:
If Mr Boscolo wishes to ask questions of the witness, now is his opportunity to do so. Given his age, I'll allow him to stay seated' (ts 16).
The appellant then commenced his cross-examination of Mr Dionisio. The appellant's first question to Mr Dionisio was, 'What is the nature of your defence?' (ts 16). The magistrate immediately told the appellant that the question was not an appropriate one. His Honour then provided the appellant with a very short summary of the substance of Mr Dionisio's evidence (ts 16 ‑ 17). The appellant then continued with his cross‑examination of Mr Dionisio.
The cross-examination was very brief. It was in the main directed at some pre‑trial communications that had taken place between the appellant and Mr Dionisio in an apparent attempt to settle the appellant's dispute with the respondent. The appellant during the cross-examination asked Mr Dionisio, in effect, why he had not agreed to the proposal for settlement that the appellant had put to him. Mr Dionisio answered the appellant's questions.
After questioning Mr Dionisio about the pre-trial settlement negotiations the appellant then put to Mr Dionisio that Mr Dionisio 'did not want the car to be seen by anybody else' (ts 18). Mr Dionisio responded that the car was fine, that he knew what the car 'sounds like and what it runs like' (ts 18). The appellant then said, or at least commenced to say, 'You want to dispossess me …' at which point the magistrate interjected and said to the appellant, 'Please don't get involved in an argument with the witness' (ts 18). The appellant then said to the magistrate (ts 18):
I'm sorry, sir. I am not a – I'm a pacific person – a peaceful person, sir, only I get frustrated, you know, because of four years and now my car is ruined. It is not even worth anything now. He wants to assert himself and he gets what he wants.
The magistrate responded to the appellant's statement by saying, 'Thank you. You can go back to your seat'. According to the transcript immediately after the magistrate said these words the 'witness withdrew' (ts 18). It is therefore relatively clear that the magistrate's statement, 'You can go back to your seat' was directed at Mr Dionisio. In any event, whether the statement was made to Mr Dionisio or the appellant the magistrate, by making the statement, brought the appellant's cross‑examination of Mr Dionisio to an end.
Having brought the appellant's cross-examination to an end the magistrate asked Mr Dionisio if he had any other witnesses to call. Mr Dionisio responded by saying that he had Mr Favazzo but that he was 'not going to worry about it' (ts 18).
The appellant's relevant pleaded grounds of appeal in the Notice do not disclose what additional questions he would have asked of Mr Dionisio if his cross-examination had not been stopped by the magistrate. The pleaded ground of appeal which deals most directly with the alleged unreasonable curtailment of the appellant's cross-examination (ground 4) asserts only that the curtailment of the cross-examination 'meant that important evidence was not considered and the appellant was denied the opportunity to prove to the court that, inter alia, the respondent had agreed to repair the vehicle for registration'.
During the hearing of the appeal the appellant, who appeared in person, told me that the magistrate did stop his cross-examination. I asked the appellant on three separate occasions to tell me what further questions he would have asked Mr Dionisio if the magistrate had not stopped his cross-examination. The appellant, in response to my questions, said that he would have asked Mr Dionisio why he was persevering with the case and why he was keeping the car. He said that he would have tried 'to get to a point'. He also said that he could not remember exactly what was in his mind on the day of the trial.
As I have already indicated, what amounts to a reasonable opportunity to present a case depends on the circumstances of the case. The short cross‑examination of Mr Dionisio that the appellant did undertake was, with respect to him, ineffective, difficult to follow and irrelevant to the real issue in dispute, namely the terms of the agreement that had been reached between the appellant and Mr Berardis as to the repair of the Celica. Moreover, the appellant, despite me giving him ample opportunity to do so during the hearing of the appeal, was unable to state with any degree of precision what further questions relevant to the issue in dispute he would have asked Mr Dionisio if his cross-examination had not been stopped. In these circumstances I am not satisfied that the magistrate, by terminating the appellant's cross-examination at the stage that he did, denied the appellant a reasonable opportunity to present his case. There might have been questions that the appellant could usefully have asked Mr Dionisio about the alleged agreement in an attempt to either adduce some evidence favourable to his case or at least to discredit the evidence given by Mr Dionisio about the agreement. However, I am simply not satisfied that the appellant would have asked such questions even if he had been given the opportunity to do so.
For the reasons I have stated I am not satisfied that the magistrate denied the appellant natural justice by terminating the appellant's cross‑examination of Mr Dionisio at the stage that he did. I therefore dismiss this ground of appeal.
Making a decision without hearing submissions
After being told by Mr Dionisio that he was not going to call Mr Favazzo the magistrate said (ts 18):
Thank you, gentlemen. That's it. I will reserve my decision and you will get my decision in writing within the next couple of weeks. Okay? So you're not required to come back I'll simply publish my reasons.
The magistrate did not give the appellant the opportunity to make any submissions to him as to why he should find that the agreement between the appellant and the respondent was in the terms alleged by the appellant. Specifically, the magistrate did not give the appellant the opportunity to make submissions as to why the magistrate should prefer his evidence as to the agreement arrived at to the evidence given in relation to this issue by Mr Dionisio.
The magistrate, in dealing with the appellant's claim, was required by s 29(3) of the Act to act with as little formality as his Honour thought was reasonable. However, I do not consider that this requirement can be construed as providing a basis for concluding that the magistrate was not required to ensure that the appellant was given one of the basic entitlements of procedural fairness, namely the entitlement to make submissions on the evidence adduced. Nor do I consider that s 29(4), which is concerned with 'rules or practice as to evidence' has any bearing on the issue.
The magistrate was in a difficult position. He had before him two unrepresented litigants neither of whom had demonstrated any degree of skill in presenting their respective cases. I have little doubt that the magistrate, with some justification, formed the view from what he had observed during the trial that the appellant would have difficulty in making any submissions that would assist him to determine the central issue in dispute. Nonetheless, in light of the authorities to which I have referred it is my view that the magistrate, in the circumstances of the case before him, was still obliged by the rules of natural justice to ensure that the appellant was given the opportunity to make submissions on the evidence to the court. The appellant was not given this opportunity. The magistrate's failure to give this opportunity to the appellant amounted, in my opinion, to a denial of natural justice, that is, a denial of a reasonable opportunity for the appellant to present his case. I therefore uphold this ground of appeal.
Bias
Given my decision to allow the appeal it is not strictly necessary for me to deal with the final ground of appeal alleging that the appellant was denied natural justice because the magistrate was biased or might have been biased. However, given the nature of the allegation I will express my conclusions in relation to this ground.
I have read the transcript of the trial. There is in my view nothing in the conduct of the trial by the magistrate that provides any ground for concluding that fair‑minded people might reasonably apprehend or suspect that the magistrate had pre-judged the case.
As I have already stated, in my opinion the magistrate did not make an error in refusing to allow the appellant to tender the correspondence between himself and the respondent. Accordingly, the magistrate's refusal to allow the tender of these documents does not support the contention that his Honour had pre-judged the case.
The respondent's pre-trial offer referred to in this ground of appeal was made by the respondent to the appellant in an attempt to come to a commercial settlement of the dispute between them. The fact that this offer was made as part of settlement negotiations was irrelevant to the determination of the issue in dispute between the appellant and the respondent. Accordingly, the magistrate's failure to have regard to this offer in determining the appellant's claim (ts 13) was proper and does not provide any basis for concluding that his Honour had pre‑judged the case.
I dismiss this ground of appeal.
Orders
The orders that I will make are as follows:
1.Ground 8 in the Amended Notice of Appeal dated 16 April 2012 is struck out;
2.The appeal is allowed;
3.The judgment of Magistrate Malley entered on 25 January 2012 is set aside.
4.The claim is remitted to the Magistrates Court for a new trial before a different magistrate; and
5.The respondent pay the appellant's disbursement costs of the appeal to be taxed if not agreed.
Although I have allowed this appeal, I state for the benefit of the parties that in my view the nature of the dispute between them is such that they should not be resorting to litigation to resolve it. They should make every effort to resolve their dispute by communicating and negotiating sensibly between themselves.
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