Chapple v DuluxGroup (Australia) Pty Ltd - [2022] WADC 73

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   CHAPPLE -v- DULUXGROUP (AUSTRALIA) PTY LTD [2022] WADC 73
CORAM:   COMMISSIONER COLLINS
HEARD:   3 JUNE 2022 & WRITTEN SUBMISSIONS FILED 11 MAY & 1 JUNE 2022
DELIVERED          :   12 AUGUST 2022
FILE NO/S:   APP 89 of 2021
BETWEEN:   STEPHEN CHAPPLE
Appellant
AND
DULUXGROUP (AUSTRALIA) PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE P G MALONE
File Number            :   FRE/MINOR/843/2020

Catchwords:

Magistrates Court appeal - Minor case claim - Whether denial of natural justice - Procedural fairness - Turns on own facts

Legislation:

Competition and Consumer Act 2010 (Cth)
District Court Rules 2005 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Magistrates Court Act 2004 (WA)

Result:

Appeal allowed in part

Representation:

Counsel:

Appellant	:	Mr R V Graham
Respondent	:	Mr T J Langdon

Solicitors:

Appellant	:	Vogt Graham Lawyers
Respondent	:	HWL Ebsworth Lawyers (Perth)

Case(s) referred to in decision(s):

Defendi v Szigligeti [2019] WASCA 115
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Fazio v Bedford [2016] WADC 162
Gambaro v Mobycom Mobile Pty Ltd [2019] FCAFC 144
International Finance Trust Company Ltd v New South Wales Crime Commission [2009] HCA 49
Leeth v The Commonwealth of Australia (1992) 174 CLR 455
McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
R v T, WA (2013) 118 SASR 382
Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148
Re Burton; Ex parte Lowe [2003] WASCA 306
Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116
Stead v State Government Insurance Commission (1986) 161 CLR 141
Strahan v Brennan [2014] WASC 190

Table of Contents

A. Introduction

B. Proceedings in the Magistrates Court

C. Issues for determination

D. Legal principles

E. Appeal to be decided on material and evidence before the Magistrate unless leave is given to adduce additional evidence

F. Ground 1: was Mr Chapple given the opportunity to be heard?

F.1 Overview

F.2 Mr Chapple's submissions

F.3 Dulux's submissions

F.4 Disposition

G. Ground 2: was the Magistrate biased?

G.1 Mr Chapple's submissions

G.2 Dulux's submissions

G.3 Legal principles

G.4 Disposition

H. Ground 3: did the Magistrate fail to give adequate reasons in relation to ordering the payment of some of Dulux's costs?

H.1 Overview

H.2 Dulux's submissions

H.3 Mr Chapple's submissions

H.4 Legal principles

H.5 Disposition

I. Conclusion

COMMISSIONER COLLINS:

A. Introduction

On 16 November 2021, Magistrate Malone (Magistrate) heard a 'minor case' claim at the Fremantle Magistrates Court involving the appellant and the respondent. The appellant, Mr Chapple, was the claimant in that matter. At the end of the hearing, the Magistrate dismissed Mr Chapple's claim and ordered Mr Chapple to pay the respondent's costs in the sum of $7,508 (Magistrate's Decision).
Mr Chapple has appealed the Magistrate's Decision. The appeal was filed on 6 December 2021. In support of his appeal, Mr Chapple filed an outline of written submissions dated 11 May 2022 together with supplementary submissions dated 1 June 2022. Mr Chapple also filed an affidavit that he swore on 1 June 2022 (Chapple Affidavit), to which the respondent objected.
The respondent, which I will refer to as Dulux, filed an outline of written submissions dated 11 May 2022.
For the reasons that follow, the appeal should be allowed in part, with the Magistrate's orders of 16 November 2021 requiring Mr Chapple to pay Dulux's cost in the sum of $7,508 set aside. Otherwise, the balance of the appeal should be, and is dismissed.

B. Proceedings in the Magistrates Court

The relevant background to the appeal was not controversial and can be shortly stated. I do not propose to refer to all of the evidence or all of the witnesses, as that is not necessary for my decision.
In September 2020, Mr Chapple elected to have his case heard and determined under pt 4 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCP Act) as a minor case, by lodging a Form 4 - Minor Case Claim. Mr Chapple claimed $10,249.20 in total. The basis of the claim was expressed in the following terms:
Duluxgroup (Australia) Pty Ltd (ABN 67 000 049 427) is the business name holder of many business names including Acratex and Dulux Acratex.
In August 2016, the defendant supplied Dulux Acratex 951 Coventry Course external render for the external walls of our house at 16 Saw Rd Kardinya. The specified colour was Colourbond Evening Haze 150%. The labels on the buckets stated C/B Evening Haze 150%.
The render was applied to the walls and appeared darker than expected. We had the front walls and alfresco walls rendered again with 100% Evening Haze at a cost of $1,320.
In March 2020 we ordered a sample pot of Acratex 951 150% Evening Haze to repair cracks in the 150% render. The colour was substantially lighter and a noticeably different tone. The repair work did not proceed.
Mike Wilkinson, a representative of the defendant attended the property and stated that the same pot was the correct colour for 150% Evening Haze, thereby confirming that the 2016 batch was not to correct colour specification.
The ratio of ingredients EE, G, M on the 2016 label are different to the ratios stated on the sample pot.
The defendant has been unable to provide a colour match to the 2016 batch and therefore we are unable to repair the cracks.
The defendant's published product data sheet states a 7-year warranty period, excellent resistance to weathering and atmospheric chemicals, heat resistance up to 90 deg C.
On 26 February 2021, Mr Chapple filed a Form 20 - Statement of Minor Case Claim, in which he further developed the basis of his claim.
On 25 March 2021, Dulux filed a Form 22 - Statement of Defence to Minor Case Claim. Amongst other things, Dulux's defence was to the effect that the 2020 Evening Haze product would not match the product applied to external walls four years earlier, after the product had endured weathering for four years, including exposure to weather, UV, salt, dirt and mould.
The matter came on for hearing before the Magistrate on Tuesday, 16 November 2021 at the Fremantle Magistrates Court.
Mr Chapple represented himself at the hearing, while Dulux was represented by Michael Hird. Neither Mr Chapple nor Mr Hird were legally trained (ts 8, ts 16, ts 23, ts 27).
Mr Chapple gave oral evidence at the hearing before the Magistrate. He also relied on a written statement dated 14 October 2021 (ts 6).
In broad terms, Mr Chapple gave evidence to the effect that he and his wife liked 'Evening Haze' as a colour to render the external walls of their home in Kardinya, Western Australia. However, he had some concerns about the render fading, and so chose to increase the colour to 150% Evening Haze, in the hope that the house would maintain the depth of colour over many years.
Mr Chapple gave evidence to the effect that in August 2016, Dulux supplied him with a render for the external walls of his house in Kardinya. Mr Chapple said that he initially selected 150% Evening Haze but after the render had been applied and had fully cured, he observed that the render was too dark. He said that he asked the renderer to recoat the rear alfresco wall and front elevation walls using 100% Evening Haze.
More than three and a half years later in March 2020, Mr Chapple built front garden walls with Thermacell EPS blocks and sought to render those walls with a render that matched the colour of the 2016 render, being the 100% Evening Haze. Mr Chapple gave evidence that the newly rendered front garden walls were lighter in appearance than the 2016 finished front house walls.
At the same time, Mr Chapple sought to repair some cracks and chips that had appeared in his original rendered northern-most wall, using 150% Evening Haze. He gave evidence that as a precaution, a sample board (otherwise referred to as a 'pot') of the 2020 150% Evening Haze was prepared for checking. On review, the sample was found to be much lighter than the 2016 150% version.
Mr Chapple alleged that Dulux could not provide a render that colour matched to an acceptable standard the 2016 100% Evening Haze or the 150% Evening Haze. He further alleged that Dulux did not maintain sufficient records to enable it to supply a matching colour for the purposes of repair.
At the core of Mr Chapple's allegation before the Magistrate was that the render which Dulux supplied to him in 2016 was the wrong colour (ts 34). In effect, it was not Evening Haze. It followed that the 2016 render was wrongly described on the paint bucket labels. That allegation rested in part, on the fact that Dulux had assured him that its 2020 render was correctly described as Evening Haze and in effect, the correct colour.
In the circumstances, Mr Chapple sought to rely on product data sheets under which Dulux agreed to provide a 7-year warranty over its products. Mr Chapple also sought to rely on provisions of the Competition and Consumer Act2010 (Cth), sch 2, The Australian Consumer Law, regulating consumer transactions, in particular, s 54 to s 56 and s 58, which concern various guarantees in relation to the supply of goods and their quality, finish and fitness for purpose.
At the hearing before the learned Magistrate, Mr Chapple called Andrew Booth to give expert evidence in support of his claim.
Mr Chapple also tendered a report prepared by Mr Booth, dated 28 April 2021. In his report, Mr Booth stated that he had a Bachelor's degree in Civil Engineering, having graduated in 1985. He also stated, amongst other things, that he had been a registered builder since 1993 and was, at the time of his report, a member of the Building Inspectors Association of WA, the Australian Institute of Building and the Institution of Engineers, Australia. He also referred to his experience in the building industry, which appeared extensive, going back to 1985. This included inspecting approximately '8,500 residential and commercial properties' and appearing as an expert witness at the Building Commission of WA, the State Administrative Tribunal of WA, and the Magistrates Courts of Armadale, Midland and Joondalup.
In his report, Mr Booth described the purpose of his report 'to inspect the works and to report on any difference in colours': Booth Report, page 6.
A little later in his report, Mr Booth described the 'complaint' (which I understand to refer to Mr Chapple's complaint about the differences in render colour supplied to him) in the following terms (page 7):
That material supplied for render of the front planter boxes does not colour match render previously supplied for the rest of the house within a reasonable tolerance.
In his report, Mr Booth concluded that the difference in the render colour to the front garden walls when compared to the front elevation of the house was not 'slight' and was not 'within a reasonable standard of tolerance': Booth Report, page 21. Mr Booth concluded that the render colour supplied in 2020 for the front garden walls was a different colour to that supplied in 2016 for the front elevation of the house: Booth Report, page 22.
Mr Booth also concluded that the original 2016 150% Evening Haze was not as described, but a 'different colour': Booth Report, page 22.
Mr Booth accepted that render may change colour over time due to weathering. However, Mr Booth concluded that the changes he observed were not due to weathering. Mr Booth's conclusions rested in part on observations he made by reviewing the various renders at Mr Chapple's home in light of Australian Standards and also a comparison of different pigment ratios supplied at various times. Relevantly, Mr Booth concluded that instead of weathering leading to a lighter colour when becoming chalky and oxidising, the 2016 render on the front elevation of the home was darker than the 2020 render to the front garden walls: Booth Report, pages 21 and 22.
In summary, Mr Chapple's claim was to the effect that render was expected to fade, not get darker over time. Although there was some evidence of fading of the 2016 Evening Haze render 100% and 150%, that render was 'significantly darker' than the render Dulux supplied in 2020. 'Therefore, the render supplied in 2016 could not have been correct': Chapple statement signed 14 October 2021, par 70.
Dulux called Armand Zurhaar to give expert evidence in defence of Mr Chapple's claim. Dulux tendered a report prepared by Mr Zurhaar, dated 8 October 2021. In his report, Mr Zurhaar stated that he had qualifications that included a Bachelor of Applied Science (majoring in chemistry) and a doctorate in philosophy (note, in his oral evidence, Mr Zurhaar said that he had a PhD in chemistry (ts 61)). In his resume, which was annexed to his report, Mr Zurhaar referred to numerous projects in which he had been engaged to provide advice as a specialist building materials and coatings (painting) consultant. Mr Zurhaar stated that he had appeared as an expert witness many times in both the District and Magistrates Courts in Western Australia and also in the Western Australian Supreme Court and the Victorian Supreme Court. His resume also indicated that he was, at the time of his report, a Senior Sessional Member of the WA State Administrative Tribunal.
In his report, Mr Zurhaar noted that Dulux had informed him that the 2020 formula for Evening Haze 100% was the same as it was in October 2016 when it was purchased on behalf of Mr Chapple (i.e. the formula had not changed). And he also noted that Dulux had informed him that the formula used to create the 150% formula in 2016 was slightly different to the 2020 version: Zurhaar Report, par 47.
Mr Zurhaar also noted that the 2016 150% Evening Haze was a 'custom colour' - being a 'non-standard colour': Zurhaar Report, par 27.
In response to Mr Chapple's complaint that the 2016 Evening Haze was incorrect because it was too dark, Mr Zurhaar's evidence was to the effect that he had not seen any evidence that the 2016 Evening Haze was mis-tinted (both as to the 100% and 150%), that being the effect of Mr Chapple's claim: Zurhaar Report, pars 21 and 54.
As to the possible effects of weathering, Mr Zurhaar stated relevantly at par 40 that:
The organic pigments used to tint coatings are only UV resistant to a point and all experience a rate of oxidation and degradation, which can either lighten or darken the appearance, which is why colour stability is never warranted and these coatings need to be maintenance recoated every 7 years. The 2016 coating was well into its weathering pattern (half its warranted life) by 2020 and any expectation that a new tub of coating would match the 3.5 year old coating was misguided.
As to possible changes to the paint formulae, Mr Zurhaar stated relevantly at par 48 that:
Whilst I have seen no evidence of any Dulux material changes to the Acratex product base between October 2016 and March 2020, it is important to note that, over time, especially years, paint manufacturers will make slight adjustments to paint and coating raw materials and compositions to adjust to markets and to make technical performance improvements. I am not aware of any manufacturer that guarantees that is paint or coating products will retain their exact same compositions over years of time. This variable exists with all consumer products and is well recognised within the coatings industry and amongst builders.
The Magistrate gave his decision orally at the conclusion of the hearing (ts 88). Relevantly, the Magistrate rejected Mr Chapple's claim, stating as follows (ts 91):
What emerges as clear as crystal and common ground is that Mr Chapple, of course, who's an owner builder and had his property - the property in question - did apply the Dulux product through the agency of CJ Texturing. That was back in 2016. That came with its difficulties in that Mr Chapple decided one of the formulations that he used was a bit dark, and so there were - that was - a lighter mix was applied in a couple of areas, not all over.
And that's the way matters stood until 2020 when the walls out the front of the - or a wall out the front of the place was built and what was meant to be the - to Mr Chapple's expectations, at least, he was going to then apply the same paint onto the front, so that it all had a coherence with the front of the house. And what happened was that there was a difference in the colour between the 2020 product that was produced, the Evening Haze, and the versions of that Evening Haze that were used back in 2016.
….
Mr Chapple has argued - and I've mentioned this to witnesses. He has effectively argued backwards, which is to say that when he discovered the paint colour or the shade that applied, he came to the conclusion that what he had received back in 2016 was the wrong colour. And in fact his conclusion was shared by a person who was meant to be his expert, Mr Booth, but in fact Mr Booth - who was called as an expert - didn't have the necessary expertise to give the evidence that he gave.
He just came along in good faith as a person who had lots of experience in the building industry, building inspector, and I don't argue with any of that, and one could admire the fact of his experience, which he detailed in his report, but he wasn't in a position to do other than, as he pointed out, just argue on a logical basis that Dulux were, for difference in the colour schemes, in breach of the consumer laws.
Now, Dulux in fact did call an expert. There's no question about the relevant expertise of Dr Zurhaar. And essentially what emerges from Dr Zurhaar's evidence is that the exercise - however understandable it might be from Mr Chapple's point of view - was an entirely invalid one, and that is that if you simply get a paint preparation named Evening Haze, if you like, and you get that in 2020 - someone estimated, I think, it's 41 months after the application. Just over three years. I think it might have been Mr Booth who mentioned the 41 months.
But if you get a formulation in 2020 that says it's Evening Haze, well, good luck with matching that to what you understand to be the Evening Haze that you applied in 2016 because it's almost an impossibility. Mr Chapple - and even in his final address has effectively drawn attention to what I see as being the problem with his position. He said that the colour change isn't - or the colour difference isn't denied. All that has happened is that Dulux has made excuses, and it's not up to Mr Chapple to implement quality control, and it's not up to Mr Chapple to say why there's different colours.
All he needs, to point to the fact that there are different colours, and that, unfortunately, is just completely and utterly unsustainable propositions. The situation is that the colour produced in 2020 and acquired by Mr Chapple's contractor at that stage is not some benchmark that had existed for all time and was something that showed the world that anything that didn't match that, that was on the house at the time, was clearly some sort of error made by Dulux in providing through the contractor, CJ Texturing or whatever - obviously not Evening Haze.
That's just not the case at all. There have - and this was something that was mentioned, of course, most recently in the evidence of Mr Rowe, who's the manager of colour services. Evolutionary processes that are associated with the paint industry. They got a closer relationship with BlueScope at some stage and tweaked this and tweaked that, and looked to produce a better product, but Dulux never purport to say that they have some standard that will just absolutely guarantee that if you apply it 2020, that it will be exactly the same as if you apply that paint in 2016.

It may be observed here that the Magistrate did not accept that Mr Booth was qualified to give the evidence that he gave. I will return to this later.
The Magistrate accepted Dulux's expert witness, Mr Zurhaar and the evidence of another Dulux witness, Michael Rowe, a Dulux colour services manager in the decorative paints business. Their evidence was to the effect that: (1) Dulux does not guarantee that if it supplies a product in 2020, it will be exactly the same product as that supplied in 2016; (2) the composition of Dulux's products change over time; (3) Dulux's products are affected by weather and other environmental factors; and (4) Dulux's products oxidise and degrade, which can either lighten or darken their appearance.
A little later, the Magistrate stated as follows (ts 94):
Now, it has to fit in - the claim has to fit in and be on the balance of probabilities under the - for it to be successful, at least - as I say, under the consumer laws and just mentioning section 54, guarantee as to acceptable quality - no question at all that the paint was - or the coating was of acceptable quality when it was supplied in 2016. The argument is backwards, that it was the wrong colour but there's no evidence as to that.
Then guarantee as to fitness for purpose, which is section 55. Well, of course it was absolutely used for the purpose that it was produced for and nobody would suggest otherwise. It's just the issues about the colour. Guarantees that it would be supplied by goods by description. Well, the 2016 said it was the Evening Haze and that was the formula at that stage. It has been tweaked a bit and now there's another version, but there's not suggestion that in 2016 that it wasn't the version that was being described, and there's no other evidence of there being any mis‑tinting or whatever.
It may also be observed that the Magistrate did not accept the premise of Mr Chapple's claim. In effect, the fact that the 2020 Evening Haze product was different in colour to the 2016 Evening Haze on Mr Chapple's home was not evidence, in and of itself, that Dulux had made an error in 2016 and sold Mr Chapple the wrong product.

C. Issues for determination

By appeal notice dated 6 December 2021 (Appeal Notice), Mr Chapple commenced an appeal from the Magistrate's Decision. The appeal was commenced within the 21 days required by s 40(3) MCCP Act.
By his Appeal Notice, Mr Chapple relied on three grounds of appeal.
First, Mr Chapple alleged that he was denied natural justice at the trial in that he was not adequately afforded the right to be heard. Mr Chapple referred to three particulars in support of his first ground, namely:
(a)the Magistrate excessively interjected during the examination‑in‑chief of Mr Chapple's expert witness (Mr Booth);
(b)Mr Chapple was denied the opportunity to prepare and put his case in response to adverse evidence which took him by surprise at the trial; and
(c)the Magistrate failed to draw Mr Chapple's attention to his right to ask for an adjournment, upon the Magistrate's adverse finding during the course of the evidence that Mr Booth lacked the adequate expertise to give expert evidence in relation to the matter.
Mr Chapple's second ground contended that he was denied natural justice due to a reasonable apprehension of bias arising from words that the Magistrate said during the course of the evidence. Mr Chapple supported this ground with two particulars, namely:
(a)the Magistrate interjected excessively during Mr Booth's evidence, which gave rise to a reasonable apprehension of bias; and
(b)the Magistrate pre‑judged Mr Booth's evidence such that it was to be disregarded, without first providing an opportunity for Mr Chapple to make submissions on the question.
Thirdly, Mr Chapple alleged that the Magistrate denied him natural justice by failing to provide adequate reasons in relation to the costs order made at the end of the trial. In particular, the Magistrate did not provide reasons for finding that Dulux had discharged the burden of establishing 'exceptional circumstances', as required by s 40(5) of the MCCP Act (as amended by Registrar Kubacz' orders dated 12 April 2022).

D. Legal principles

The jurisdiction of the District Court to hear appeals from the Magistrates Court is found in pt 7 of the MCCP Act.
Section 40 of the MCCP Act provides:
(1)A party to a case that is not a minor case may appeal to the District Court against -
(a)any order made by the Magistrates Court in the course of proceedings in the case; or
(b)the judgment of the Magistrates Court in the case.
(2)An appeal against the judgment of the Magistrates Court in a case that is a minor case is subject to section 32.
(3)An appeal cannot be commenced more than 21 days after the date of judgment, unless the District Court gives leave to do so.
(4A)The appeal must be conducted in accordance with rules of court made by the District Court.
(4)The District Court must decide the appeal on -
(a)the material and evidence that were before the Magistrates Court; and
(b)any other evidence that it gives leave to be admitted.
(5)Leave may only be given under subsection (4)(b) in exceptional circumstances.
(6)Subsection (4) does not prevent the District Court from dealing with an appeal against a decision of the Magistrates Court to admit or refuse to admit any evidence.
As is apparent from s 40(2) of the MCCP Act, an appeal against the judgment of the Magistrates Court in a case that is a 'minor case' is subject to s 32 of the MCCP Act. That section is contained in pt 4 of the MCCP Act, which is titled Minor Cases Procedure.
The minor case jurisdictional limit was, at the relevant time, $10,000: s 3(1) and s 26.
Under s 32, where the appeal concerns a minor case, an appellant has limited rights of appeal. In Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148 (Rankilor) [55], the Western Australian Court of Appeal held that an unsuccessful party has no right of appeal on the merits.
Section 32(3) of the MCCP Act provides:
(3)Despite Part 7 an appeal against a judgment in a minor case may only be made on the grounds -
(a)that the minor case -
(i)was not within the jurisdiction of the Court; or
(ii)was not a minor case; or
(b)that in dealing with the minor case there was a denial of natural justice; or
(c)that the judgment was beyond the Court's jurisdiction.
In the present case, Mr Chapple's grounds of appeal are limited to whether he was denied natural justice under s 32(3)(b) of the MCCP Act.

Having regard to s 32(3)(b) of the MCCP Act, the MCCP Act does not define the term 'natural justice'.
At common law, the rules of natural justice involve two substantive requirements. In Re Burton; Ex parte Lowe [2003] WASCA 306 [63], the court explained the requirements for establishing a breach of natural justice in the following terms:
The rules of natural justice have two substantive requirements: first, that a decision-maker give an opportunity to be heard to a person whose interests will be affected adversely by the decision; and, secondly, that the decision-maker be a person who is disinterested or unbiased in the matter to be decided. These two rules are called respectively the 'hearing rule' and the 'bias rule'. It is sometimes suggested there is a third rule required by natural justice - the 'no evidence' rule - which requires that the decision be based upon logically probative evidence. See, for example, the grounds for review available under the Administrative Decisions (Judicial Review) Act (Cth), s 5(1)(h), s 5(3), and s 6(1)(h), s 6(3). However, the third suggested rule is not universally acknowledged to be part of the general law of natural justice.
See also relevantly Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116 [51].
The rules of natural justice are essentially functional or procedural: International Finance Trust Company Ltd v New South Wales Crime Commission [2009] HCA 49 [55] (French CJ), referring to the decision in Leeth v The Commonwealth of Australia (1992) 174 CLR 455, 470.
In Rankilor at [57] - [59], Newnes JA (with whom Pullin JA agreed and Buss JA agreed on this issue), stated that the requirements of natural justice involving a minor case are to be viewed in the context of the minor case procedure of the Magistrates Court:
57It is trite law that the principles of natural justice require that a party be given a reasonable opportunity to present their case. However, what is necessary to satisfy that requirement in a particular case cannot be determined in the abstract but only in the context of the case. Thus, as Brennan J pointed out in J v Lieschke (1987) 162 CLR 447, while the principles of natural justice apply to courts:
That is not to say that the content of the principles of natural justice to be applied by a court take no account of the nature of the jurisdiction to be exercised. The nature of the proceedings, the powers to be exercised and the prescribed rules of procedure may affect the extent to which a plenary right to be heard may be qualified, even in curial proceedings. (456)
58See also, for example, R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546, 552-553; Koia v West (1985) 159 CLR 550, 584 ‑ 585. The requirements of natural justice in this case are therefore to be viewed in the context of the minor case procedure of the Magistrates Court.
59It is also important to bear in mind that while the appellant was entitled to a reasonable opportunity to present her case, the court was not required to undertake the 'impossible task' of ensuring that the appellant took the best advantage of the opportunity: see Sullivan v Department of Transport (1978) 20 ALR 323, 343.
In effect, the requirements of natural justice do not operate in a vacuum. They take their content by reference to the procedures and processes contained in the relevant enlivening Act. In the present case, the requirements of natural justice are to be viewed in light of the minor cases procedure contained in the MCCP Act, the more general procedures contained therein and the associated Magistrates Court Act 2004 (WA) (Magistrates Court Act).
The Minor Cases Procedure in pt 4 of the MCCP Act provides, relevantly, as follows:
(a)the primary object of the court when dealing with a minor case is to attempt to bring the parties to a settlement acceptable to all parties: s 27(1);
(b)the court may, at any stage of the proceedings, do all things and take all such steps as it considers to be appropriate to achieve that primary object: s 27(2);
(c)in dealing with a minor case the court is to act with as little formality as the court thinks is reasonable: s 29(3); and
(d)when dealing with a minor case, the court is not bound by rules or practice as to evidence but may inform itself on any matter in such manner as it thinks fit: s 29(4).
In Defendi v Szigligeti [2019] WASCA 115 [45] - [48], which involved an appeal of a decision under the MCCP Act, the Western Australian Court of Appeal stated that:
45It is axiomatic that a court is obliged to accord procedural fairness to a litigant.
46However, to say that a court is obliged to afford procedural fairness is only the first step of analysis. The second step is to identify the content of the requirements of procedural fairness. The second step is what is critical in most cases.
47Although sometimes expressed in terms referring to a necessity for a hearing, the fundamental requirement of procedural fairness is (relevantly for present purposes) that a party is given a reasonable opportunity to be heard, in other words, to present their case by evidence, information and submissions.
48The requirements of procedural fairness are not fixed or immutable. Procedural fairness is directed to avoid practical injustice, and what is necessary to avoid practical injustice will depend upon the circumstances. The application of the requirements of procedural fairness to a court requires analysis of the procedures of the court, and the legislation and rules which govern them.
(footnotes omitted)
Having regard to these principles, relevant features of the legislation governing the procedures of the Magistrates Court found in pt 3 of the MCCP Act and titled 'General procedure', are set out below.
Under s 13 of the MCCP Act, in dealing with cases, the court is to ensure that cases are dealt with justly, which includes ensuring that cases are dealt with efficiently, economically and expeditiously, and the court's judicial and administrative resources are used as efficiently as possible.
Section 15 of the MCCP Act provides as follows:
15.Court may act on its own initiative
(1)The Court may exercise its powers on the application of a party or on its own initiative unless this Act or the rules of court or another written law provides otherwise.
(2)The Court may make an order on its own initiative with or without -
(a)allowing the parties to make submissions; or
(b)hearing the parties.
(3)If the Court decides to allow the parties to make submissions before making an order on its own initiative, it must notify each party likely to be affected by the order of how and when the submissions are to be made.
(4)If the Court decides to hear the parties before making an order on its own initiative, it must notify each party likely to be affected by the order of the time and place of the hearing.
(emphasis added)
Under s 16 of the MCCP Act, for the purposes of controlling and managing a case, the Magistrates Court has broad powers to take any action or make any order for the purposes of complying with s 13 of the MCCP Act.
Under s 43(7) of the MCCP Act, on the hearing of an appeal, this court may, relevantly:
(a)confirm, vary or set aside all or a part of the lower court's judgment;
(b)give any judgment and make any order that the Magistrates Court could have given or made.

E. Appeal to be decided on material and evidence before the Magistrate unless leave is given to adduce additional evidence

Under s 40(4) of the MCCP Act, the District Court must decide an appeal on:
(a)the material and evidence that were before the Magistrates Court; and
(b)any other evidence that it gives leave to be admitted.
Leave may only be given under subsection (4)(b) in 'exceptional circumstances': s 40(5) of the MCCP Act.
The appeal court may ascertain what material or evidence was before the lower court in any manner that it considers sufficient: s 43(2) of the MCCP Act.
An appeal to the District Court must be by way of a 'reconsideration of the evidence' that was before the Magistrates Court: r 50(1) of the District Court Rules 2005 (WA) (DCR).
In an appeal to the District Court, a party may only adduce evidence that was not adduced in the primary court with leave of the court: r 50(2) of the DCR.
In the present case, Mr Chapple sought to adduce the Chapple Affidavit in support of his appeal. In the process, Mr Chapple assumed the burden of satisfying the 'exceptional circumstances' criterion under s 40(5) of the MCCP Act.
Dulux opposed Mr Chapple's application to adduce evidence and rely on the Chapple Affidavit on several grounds, including relevance (ts 2, ts 3).
As matters unfolded during the hearing, it became apparent that Mr Chapple had filed the affidavit in anticipation that Dulux might make submissions during the hearing necessitating a response (ts 4), which was in part, contained in the Chapple Affidavit.
Ultimately, I ruled that I would hear the appeal, and that if it became necessary for Mr Chapple's counsel to refer to the Chapple Affidavit, that I would rule on its relevance and admissibility at that time (ts 4). As matters developed during the appeal hearing, Mr Chapple's counsel did not seek to rely on the Chapple Affidavit. Accordingly, the Chapple Affidavit was not admitted into evidence. It is not relevant to my determination of the issues in this appeal.

F. Ground 1: was Mr Chapple given the opportunity to be heard?

F.1 Overview

In his written submissions, Mr Chapple submitted that the Magistrate did not provide him with an opportunity to be heard in relation to the Magistrate's adverse finding that his expert witness, Mr Booth, lacked the expertise to give expert evidence in relation to the matter: Appellant's submissions (AS), par 20.
As matters developed during the appeal hearing, it became apparent that the three particulars of this ground related to the Magistrate's questioning of Mr Chapple's expert witness, Mr Booth. In effect, Mr Chapple's case was confined to the Magistrate's questioning of Mr Booth at the conclusion of his evidence (ts 16, ts 17).
To place the Magistrate's questioning of Mr Booth in context, it is necessary to provide some background.
During the appeal hearing, it was common ground that Mr Booth gave his evidence in the ordinary way: Mr Booth was examined by Mr Chapple; Mr Chapple tendered Mr Booth's report; Mr Booth was cross‑examined by Mr Hird; and Mr Booth was re-examined by Mr Chapple.
At the conclusion of Mr Booth's evidence, the Magistrate asked Mr Booth some questions. So that there is no misunderstanding as to the context in which the Magistrate questioned Mr Booth, I have reproduced below the whole of the transcript on this issue (being ts 56 ‑ ts 59):
HIS HONOUR:   Thank you. Yes, Mr Booth, look, I'm acutely aware you've just about finished your evidence. I don't want to detain you unnecessarily but I do need just to check a couple of things with you, and I rush to point out it's an adversary system, so it's not my job to get involved in the fight. It's just to make sure I understand the evidence. It's up to the parties to prove their case, that sort of thing, but I just need to clarify. You've been called, as you would be aware, as an expert witness and you've mentioned in your report that you've given evidence in Magistrates Courts and the State Administrative Tribunal, and those sorts of things. So you would be aware that expert evidence is in a different category to normal evidence because what happens is that you need a recognised area of expertise that the court will take any notice of, otherwise the court can give a view of this or that. You recognise that?---Yes, certainly.
And as an expert, you've got a duty to the court in giving your opinion. Okay. Now, I absolutely - and I rush to tell you this. No criticism of you personally, no criticism of your impressive experience, and all the rest of it, but I have to be satisfied you're an expert in the area that I'm needing the expert evidence in. Okay. So this is why I'm asking you these questions. I think you might recognise, Mr Chapple kind of argues backwards. I don't criticise him for it and it's his case but what he says is that he had the coatings people put on the textured paint in 2016. The initial coat he thought was a bit dark, so he then applied a lighter coat, and there it sat till the planter boxes thing came on. Now, with the planter boxes being identifiably light, Mr Chapple is now saying, 'Well, guess what? The 2016 was wrong, and so now Dulux has got - they've failed, they haven't complied with the consumer laws, basically. The Australian consumer laws that are picked up, of course, under the Fair Trading Act. And that's the expertise I need, to say, 'Okay. I've got to look at the breach of consumer laws by Dulux'. Okay. Now, your expertise - I don't doubt that you're experienced in the industry, etcetera, and you can tell the difference between the colours, but that's not what I'm here about. I'm here about Dulux breaching the Australian consumer laws in the supply of the paint, and it was encapsulated a bit to say:
It's my conclusion, based on the comparisons of the different pigment ratios supplied at various times, the original 2016 texture coat supplied was in fact another different colour.
That's your final paragraph 7, but you don't have the expertise to say that, do you, because you're not a paint person and you haven't got - you did the semester of chemistry but, you know, you haven't got - all you're doing in good faith is you've gone there and gone, 'Yes, that is very definitely a different colour'. But you've actually, as part of your expertise, have said to the court, 'Look, my expertise says that what was supplied was a different colour', but you don't have the expertise to tell me that, surely?---I'm telling you it's a different colour by eye, yes.
Yes, that's right. So you're doing what - without criticism, the similar thing, I think, to what is being said by Mr Chapple, is that he said, 'You supplied me the sample in 2020', when you painted the front wall, 'to show me that it was the wrong paint that was supplied initially', and the logic is as simple as that, even from you, because you haven't got the expertise to say otherwise?---No, it's - it's an argument of logic whether - either the original one was wrong or the - or the second one was more - - -
According to you it is because you haven't got the expertise about the paint, the weathering, the pigments, the - you know, the red, the black, the ochre, what it's exposed to. In good faith, you're just telling me, 'Look, I don't think weathering is much of an issue and I've come to the conclusion that the 2016 was the wrong colour'. Isn't that what you've done?---That is correct, yes. Just because, basically, someone has gone in and said, 'I will have a batch of the evening coat in 2020', and they've applied it, and then you've gone, 'Gee, that's different'. Okay. Conclusion, the 2016 was wrong based on, as you say, just on logic, and that's the end of the story?---Well, based on evidence that there was no - any weathering there was, was minimal.
From a person who doesn't have the expertise in the paint area?---From a person who has expertise in reading the standards and - - -
Yes?--- - - - reading the expectations of - - -
I mean, this might sound a bit silly and I absolutely rush to tell you that I have no criticism of you personally or your professional experience, but I probably arguably have 40 years experience with paint as well. You know, because as a poor person, I had to paint my own walls and all the rest of it, but I am so far short of an expert, it's a giggle. Now, all I'm saying to you is that you're, as part of the consumer law, is saying Dulux supplied the wrong paint in 2016, the wrong colour?---No - - -
But all you're doing is basing that on logic?---I'm not saying that they supplied necessarily the wrong colour. I'm saying one or the other is wrong.
You did. Well, in fairness, I just need - I'm not being difficult, I just - I need your expertise; right?---I didn't say it was wrong; I said it was different.
Yes:
In my conclusion, based on the comparisons of the different pigment ratios supplied at various times, that the original 2016 texture coat supplied purportedly as 150 was in fact another different colour.
And I'm saying, yes, you've come to that conclusion. Don't argue with that but you don't have any basis for doing that that's an expert basis. It's just your logic and you're looking at it, and this will sound terribly unkind but I've got to make sure in presiding over this case that I don't take expert evidence where there isn't the expertise?---Okay.
Yes. Do you understand that?---Yes, I understand.
And if I'm being unfair, now is the time to tell me?---I didn't see it being - I didn't see it being an argument as to necessarily the paint itself. It's - it's a - or the - the qualities of the paint. It's - it's just - it was that my client has ended up with two different colours.
Yes?---When he has asked for the same thing.
Yes, and he's - - -?---And granted - - -
But you're giving expertise in a claim that is breach of consumer law. That's what I'm trying to get you to realise. That's what your expertise has been called on; not as a very well-experienced building inspector and those sorts of things who can tell the difference between -
'That's darker than that and, yes, isn't it both meant to be Evening Haze?' That's where you're coming from?---I'm not sure - - -
So you're saying then as an expert coming to the conclusion that the 2016 was a different colour, but all you're doing is just basing it on comparison of different pigment ratios - anyway, look, I'm repeating myself. I think you - I've given you the opportunity. Yes. Okay. All right. Thank you very much for that, Mr Booth. Yes. Yes, thank you, that completes your evidence. Yes, thank you, you're free to leave the court and - sorry, I didn't mean to cause you any difficulty or anything?---Am I at liberty to sit next to my client?
Yes, of course. Yes, yes?---Thank you.
You're welcome to sit in the body of the court, yes.
(THE WITNESS WITHDREW)
HIS HONOUR:   So, Mr Chapple, your next witness?
CHAPPLE, MR:   I don't have any more witnesses, your Honour.
HIS HONOUR:   Okay. Okay. So that's your case.
CHAPPLE, MR:   That's my case.
HIS HONOUR:   Okay. Okay. So, Mr Hird, it's over to you. You're now calling your witnesses.
(emphasis added)

During the appeal hearing, the parties did not dispute that the Magistrate had found that Mr Booth did not have 'the necessary expertise to give the evidence that he gave' (as recorded at page 91 of the transcript). Thereafter, the Magistrate appeared to disregard Mr Booth's evidence.
Given the centrality of the Magistrate's questioning of Mr Booth to this ground, it is convenient to consider all aspects of this ground together.

F.2 Mr Chapple's submissions

The first particular in support of this ground was to the effect that the Magistrate excessively interjected during Mr Booth's examination‑in‑chief. Mr Chapple relied on the transcript of the hearing before the Magistrate on 16 November 2021, which was annexed to his submissions at Annexure A (particularly pages 56 to 59 of the transcript): AS, pars 20 and 21(f).
As set out above, during the appeal hearing, Mr Chapple's counsel accepted that Mr Chapple's complaint was limited to the Magistrate's questioning of Mr Booth at the conclusion of his evidence (as recorded at pages 56 to 59 of the transcript). Mr Chapple did not press the Magistrate's questioning of Mr Booth during his examination‑in‑chief. In effect, the focus of Mr Chapple's complaint was on pages 56 to 59 of the transcript excerpted above.
In support of his second particular, Mr Chapple's written submissions stated that the Magistrate had at the conclusion of Mr Booth's evidence, extensively questioned Mr Booth about his expertise and whether he had the relevant qualifications to give the opinion evidence he had. The Magistrate had then made a finding that Mr Booth was not an expert in circumstances where Mr Chapple was not given an opportunity to lead further evidence about Mr Booth's expertise or to make submissions in respect of that matter: AS, par 21(d). In effect, Mr Chapple was denied an opportunity to be heard on whether Mr Booth was an expert in the relevant field of expertise.
During oral submissions, Mr Chapple's counsel submitted that the context of the Magistrate's questioning of Mr Booth was central to the denial of natural justice ground. In this regard, the relevant context included the following:
(a)the 'case was always going to rise and fall on the expert evidence' (ts 5);
(b)the 'timing' of the Magistrate's 'intervention' - coming after re‑examination, did not give Mr Chapple, a self-represented litigant, a procedurally fair opportunity to deal with Mr Booth's evidence or expertise issues (ts 5, ts 6);
(c)in the minor cases jurisdiction of the Magistrates Court, the rules of evidence do not apply; all evidence is assessed on its weight (ts 6);
(d)the Magistrate 'jumped straight to the proposition that the expert lacked relevant evidence' whereas he could have first raised it 'as a tentative issue' with Mr Chapple and thereafter, invited Mr Chapple to make submissions on the issue (ts 6);
(e)given that Mr Chapple was a self-represented litigant, the Magistrate could have raised with Mr Chapple the opportunity to apply for an adjournment, given the Magistrate's ruling that Mr Booth was not qualified to give the evidence he had given (ts 6);
(f)the cumulative effect of these steps turned the proceeding into an 'inquiry or inquisitorial proceeding rather than one that was adversarial' (ts 6, ts 7);
(g)the Magistrate did not follow the predictable process of examination-in-chief, cross-examination, and re-examination and submissions both at the start and end of the proceedings, which when dealing with a self-represented litigant, further magnified Mr Chapple's difficulties (ts 7);
(h)the rules of evidence do not apply to the minor cases jurisdiction of the Magistrates Court (ts 8, ts 10);
(i)the Magistrate gave a general introduction about the informal nature of the proceedings, but then ran the proceedings formally, until when it came to the critical evidence of Mr Booth, when the Magistrate adopted a different procedure again (ts 13). This was to be contrasted with the Magistrate's introductory remarks to the parties where he told them that he would 'adopt a fairly formalised approach' to how he would run the trial of the matter - as recorded on page 2 of the transcript.
Although Mr Chapple's counsel accepted that the Magistrate could ask Mr Booth questions about his experience and expertise, the timing of the Magistrate's questions made it very difficult for Mr Chapple to deal with, being a self-represented litigant (ts 11, ts 12). In this regard, the Magistrate's questioning of Mr Booth after he had given his evidence meant that Mr Chapple was denied the opportunity to examine (or re‑examine) Mr Booth on his expertise and relevant experience and thereby, purport to address the Magistrate's concerns (ts 8, ts 9). In effect, the Magistrate did not provide a procedurally fair process (ts 10).
In response to questions from the bench, Mr Chapple's counsel submitted that Mr Chapple had been deprived of the possibility of a successful outcome. Mr Chapple's counsel submitted that if the Magistrate had not strictly applied the rules of evidence, it was possible that, given Mr Booth's experience as a building inspector and 'the number of years that he had behind him', that that could have made a difference (ts 10). In substance, if the Magistrate had provided a procedurally fair process, it was possible that that would have led the Magistrate to a different decision (ts 10).
At the same time, while Mr Chapple's counsel maintained that the Magistrate could ask Mr Booth questions about his experience and expertise, the Magistrate's tone and phraseology and the 'starkness' of his questions, meant that Mr Chapple was denied a fair opportunity to present his case (ts 11). In this respect, Mr Chapple's counsel referred to the Magistrate's questioning of Mr Booth, in particular, how the Magistrate said to Mr Booth (ts 57) (which is quoted in full above):
…. but you don't have the expertise to say that, do you, because you're not a paint person and you haven't got - you did the semester of chemistry but, you know, you haven't got - all you're doing in good faith is you've gone there and gone, 'Yes, that is very definitely a different colour'. But you've actually, as part of your expertise, have said to the court, 'Look, my expertise says that what was supplied was a different colour', but you don't have the expertise to tell me that, surely?---I'm telling you it's a different colour by eye, yes.
In summary, Mr Chapple's counsel submitted that the Magistrate had descended into the arena with the force of his questioning of Mr Booth (ts 12 - ts 14). Because of that, Mr Chapple's counsel submitted that (ts 12):
It's very difficult for a witness to then come back from that or for the party having called the witness to try and overcome that determination once made.
As to Mr Chapple's third particular, Mr Chapple's written submissions stated that the Magistrate did not inform Mr Chapple that he could ask for an adjournment in circumstances where the Magistrate had made an adverse finding about Mr Booth's expertise and evidence: AS, par 21(e).
During the appeal hearing, Mr Chapple's counsel submitted that given the matter involved a 'battle of the experts' and given that Mr Chapple was a self-represented litigant who was unlikely to know the various options available to him when his case had 'completely fallen apart', it was incumbent on the learned Magistrate to, in effect, inform Mr Chapple of his right to apply for an adjournment (ts 15). In effect, if the Magistrate had offered Mr Chapple an adjournment, he could have tried to remedy the situation (ts 15).

F.3 Dulux's submissions

Dulux's written and oral submissions in opposition to this ground can be summarised as follows.
First, Dulux submitted that the Magistrate was entitled to ascertain whether Mr Booth's evidence was admissible (ts 24). In this respect, Mr Hird had raised with Mr Booth in cross-examination Mr Booth's qualifications and experience (ts 22, ts 23). The Magistrate's questioning of Mr Booth did not affect Mr Chapple's right to be heard (ts 24): DS, pars 17, 18 and 19. The Magistrate's approach to his questioning of Mr Booth was 'appropriate' (ts 30). It served a legitimate forensic purpose, which was to determine whether Mr Booth's evidence was admissible (ts 30).
Secondly, Dulux submitted there was no basis for Mr Chapple being taken by surprise by Mr Zurhaar's evidence. Mr Chapple was provided with a copy of Mr Zurhaar's report and Mr Chapple had cross‑examined him: DS, pars 21 - 27.
At the same time, Dulux's counsel accepted that the Magistrate's questioning of Mr Booth occurred in circumstances where Mr Hird did not submit to the Magistrate that Mr Booth was not qualified as an expert (ts 23). Dulux's counsel accepted that the Magistrate could have phrased his questions better; and he accepted that the Magistrate's questions appeared to be in the form of cross-examination questions (ts 27).
Thirdly, Dulux submitted that the Magistrate was not obliged to notify Mr Chapple of his right to an adjournment (ts 31). The hearing rule does not go that far. Given the nature of the proceedings and the matter being a minor case, the Magistrate was not obliged to give Mr Chapple an opportunity to adjourn the proceeding simply because his evidence was not 'up to scratch' (ts 32). Further, and in any event, Mr Chapple chose not to argue with the Magistrate and 'accepted the decision': DS, par 29. Moreover, Mr Chapple had not led any evidence as to what he would have done, if he had requested an adjournment and the Magistrate had given him one (ts 24). Mr Chapple had not led any evidence to show how he would have used an adjournment opportunity (ts 25). In the circumstances, it was not possible for a court to conclude that the outcome was affected by a denial of natural justice: DS, pars 28 ‑ 32.
Fourthly, in the absence of any evidence or submissions from Mr Chapple that may have altered the outcome, the court cannot conclude that there was 'practical injustice' (ts 25). In this regard, not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial: Stead v State Government Insurance Commission (1986) 161 CLR 141, 145; Defendi v Szigligeti [59].
In the present matter, if the Magistrate had admitted Mr Booth's evidence, it would not have altered the outcome of the proceeding (ts 30). In this regard, the Magistrate appeared to accept that the colour of the 2020 product was different from the colour of the 2016 product. However that did not lead to a conclusion that the 2016 product was wrong in some way (ts 30). In effect, insofar as there may have been a denial of procedural fairness, there was no practical injustice in the case: the outcome was not affected by the Magistrate's interactions with Mr Booth (ts 30).

F.4 Disposition

In my view, Mr Chapple was denied an opportunity to present his case and be heard. In light of the Magistrate's questioning of Mr Booth, the Magistrate was required to but did not give Mr Chapple an opportunity to hear from Mr Booth and/or Mr Chapple with respect to Mr Booth's expertise and experience. However, Mr Chapple was not denied the possibility of a successful outcome, and therefore, was not denied natural justice. My reasons for reaching that conclusion are as follows.
I largely agree with Mr Chapple's submissions. It is not necessary to repeat them. The timing of the Magistrate's questioning of Mr Booth together with the force of his questioning in the context of a self‑represented litigant was procedurally unfair. As a result, I am satisfied that Mr Chapple was not afforded a reasonable opportunity to present his case: Rankilor [57].
I am, however, not satisfied that the Magistrate's actions denied Mr Chapple the possibility of a successful outcome. I largely agree with the submissions of Dulux's counsel on this point. Relevantly, in Defendi v Szigligeti the Western Australian Court of Appeal stated at [59], that:
Not every departure from the rules of procedural fairness will entitle the aggrieved party to an order for a retrial. Such an order will be made only if the error deprived the party of the possibility of a successful outcome.
(citations omitted)
In the present case, I am satisfied that if the Magistrate had admitted Mr Booth's evidence, it would not have altered the outcome of the proceeding. The Magistrate appeared to accept that the colour of the 2020 Evening Haze was different from the colour of the 2016 Evening Haze. However, that did not lead to a conclusion that Dulux had provided Mr Chapple with the wrong product in 2016 (see generally ts 91 to ts 94 of the proceedings before the Magistrate, which is recorded above in part at [33] and following). As the Magistrate concluded, there were other factors that might explain the differences in colour of the two products including, weather and effluxion of time, oxidation and degradation of relevant pigments and changes to the product formulae. And separately, the Magistrate found that Mr Chapple had not demonstrated that the product he received in 2016 was not the Evening Haze described on the paint tin and further, there was no evidence of mis-tinting.
In summary, I find that Mr Chapple's first ground of appeal discloses no error. Ground 1 of the appeal has not been made out.

G. Ground 2: was the Magistrate biased?

G.1 Mr Chapple's submissions

Mr Chapple submitted that he was denied natural justice due to a reasonable apprehension of bias arising from words that the Magistrate said to Mr Booth during the course of his evidence. Mr Chapple's second ground again focused on the Magistrate's questioning of Mr Booth at the conclusion of his evidence (ts 17). Mr Chapple's counsel accepted that there was significant overlap between the first and second grounds (ts 17).
Mr Chapple's written and oral submissions on this ground can be summarised as follows.
First, Mr Chapple's counsel submitted that the Magistrate determined that Mr Booth lacked expertise in circumstances where the Magistrate did not give Mr Chapple an opportunity to make submissions on that point before him (ts 17).
Secondly, Mr Chapple's counsel submitted, in effect, that if the reasonable, fair-minded observer was in the court and had their eyes closed, they would not know that it was the Magistrate who was asking Mr Booth the questions - because the exchange between the Magistrate and Mr Booth 'was almost like cross-examination' (ts 17).
Thirdly, as to pre-judgment, Mr Chapple's counsel submitted that this was another aspect of procedural fairness. In this respect, the exchanges between the Magistrate and Mr Booth appeared to involve pre-judgment, because the Magistrate put propositions to Mr Booth and the directness of those propositions (ts 19) (which are recorded above). The Magistrate's expression was not 'tentative'; the Magistrate was not inviting a submission before making a final view (ts 19).

G.2 Dulux's submissions

Dulux's written and oral submissions in opposition to this ground can be summarised as follows.
First, Dulux submitted that the Magistrate's questioning of Mr Booth did not give rise to a reasonable apprehension of bias. The Magistrate's questioning of Mr Booth was 'forensically focused': DS, par 37. The Magistrate had 'certainly formed a preliminary view' about Mr Booth (ts 34). A fair-minded lay observer would conclude that the Magistrate wanted to give Mr Booth the opportunity to give evidence that he was in fact qualified to give. However, Mr Booth was not qualified to give admissible opinion evidence: DS, pars 35 - 37.
Secondly, Dulux submitted that the Magistrate did not pre-judge whether Mr Booth's evidence should be disregarded. The Magistrate apparently formed his opinions only once Mr Booth had been examined, cross-examined, and re-examined: DS, pars 40 - 44. Dulux's counsel submitted that the 'Magistrate had an open mind, the Magistrate was asking these questions because he was willing to be persuaded' (ts 35).

G.3 Legal principles

The principles concerning a reasonable apprehension of bias were not in dispute. Mr Chapple in his written submissions referred to the decision of Goetze DCJ in Fazio v Bedford [2016] WADC 162 [20], who had helpfully summarised the main principles, with which I agree and gratefully adopt. Relevantly:
Apprehended bias
20 In Heedes v Legal Practice Board [2005] WASCA 166, Roberts-Smith JA said in respect of a reasonable apprehension of bias with the consequence of a denial of natural justice:
15There was no dispute here as to the principles to be applied in relation to a claim of perceived or apprehended bias in judicial proceedings. It is whether the circumstances complained of would give a fair‑minded and informed observer a reasonable apprehension of a lack of impartiality on the part of the Judge; that is to say, whether a fair-minded person might reasonably apprehend or suspect that the Judge has prejudged or might prejudge the case (Webb v The Queen (1993) 181 CLR 41 per Mason CJ and McHugh J at 47).
16The axiom that justice must not only be done, but should manifestly and undoubtedly be seen to be done, is one of the most pervasive axioms of the administration of justice (R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256, 259 per Hewitt LCJ; R v Watson; Ex parte Armstrong (1976) 136 CLR 248, 263; Livesy v New South Wales Bar Association (1983) 151 CLR 288, 293 - 294).
17As Steytler J (as he then was) pointed out in McCreed v The Queen (2003) 27 WAR 554 at [7], justice can only be done if there is in fact no bias and can only be seen to be done if there is no appearance of bias.
18At [9] his Honour went on to say this about the 'fair‑minded lay observer':
'9What kind of person this fair-minded lay observer is, and how much he or she knows, has been the subject of some discussion in the cases. In Johnson (at 507 - 508), Kirby J referred to the many ways in which "the hypothesised bystander" is described. He said:
"Phrases that have been used include the 'lay observer' (Vakauta v Kelly (1989) 167 CLR 568 at 573, 574)), 'fair-minded observer' (Livesey (1983) 151 CLR 288 at 300; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87), 'fair-minded, informed lay observer' (Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 92), 'fair‑minded people' (R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 263), 'reasonable or fair-minded observer' (Vakauta v Kelly (1989) 167 CLR 568 at 585), 'reasonable and intelligent man' (Watson (1976) 136 CLR 248 at 267), the 'parties or the public' (Re Media, Entertainment & Arts Alliance and Theatre Managers' Association; Ex parte Hoyts Corporation Pty Ltd (1994) 68 ALJR 179 at 182), a 'reasonable person' (Vakauta v Kelly (1989) 167 CLR 568 at 576), or (as has sometimes been favoured in England (Metropolitan Properties Co (FGC) Ltd v Lannon [1969] 1 QB 577 at 599) and Canada (Committee for Justice and Liberty v Canada (National Energy Board) [1978] 1 SCR 369 at 394; R v S (RD) [1997] 3 SCR 484 at 505, 507)) the somewhat quaint and circular phrase, a 'right-minded' person. Obviously, all that is involved in these formulae is a reminder to the adjudicator that, in deciding whether there is an apprehension of bias, it is necessary to consider the impression which the same facts might reasonably have upon the parties and the public. It is their confidence that must be won and maintained. The public includes groups of people who are sensitive to the possibility of judicial bias. It must be remembered that, in contemporary Australia, the fictitious bystander is not necessarily a man nor necessarily of European ethnicity or other majority traits (R v S (RD) [1997] 3 SCR 484 at 508).
The attributes of the fictitious bystander to whom courts defer have therefore been variously stated. Such a person is not a lawyer (Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No 9] (unreported, Court of Appeal (NSW), 27 November 1990) at 20, cited in Australian National Industries Ltd v Spedley Securities (In liq) (1992) 26 NSWLR 411 at 419). Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided (R v George (1987) 9 NSWLR 527 at 536, per Street CJ). Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances."
10Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ said, in that case (at 493), that it must be remembered that "the person being observed is 'a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial' (Vakauta v Kelly (1988) 13 NSWLR 502 at 507, per McHugh JA, adopted in Vakauta v Kelly (1989) 167 CLR 568 at 584 - 585, per Toohey J)." They also said that, while the fictional observer is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice, the rules and conventions of which are not frozen in time. (See also Callinan J, at 517 - 518).'
19The question usually arises in a situation in which there is an application that a Judge disqualify him or herself by reason of apprehension or perception of bias. This being a case in which the point is taken on appeal rather than as a preliminary point seeking disqualification, and when the argument is that the proceedings before McKechnie J involved a denial of procedural fairness by reason of a reasonable perception of bias, it is necessary for the appellant to demonstrate, applying the test I have indicated above, that the circumstances did give rise to a reasonable perception of bias.
20As Steytler J observed in McCreed (at [16]) the test is reasonably strict and particular sensitivity may need to be shown in some cases. I would be prepared to accept that cases in which a litigant is self-represented will usually fall into that category. But that is not to suggest self-represented litigants should be entitled to rely upon unreasonable or ill-considered apprehensions or those founded upon the lack of even a rudimentary understanding of basic legal processes.
…
58I accept that where an objection is made on the basis of apprehended bias, the 'whole of the circumstances must be considered' and the 'cumulative effect' of what transpired must be evaluated (Re JRL; Ex parte CJL (1986) 161 CLR 342 at 371; Kola v District Court of South Australia [2001] SASC 268 at [38]).
21In Fazio v McNally [2014] WASCA 79 [43], it was said that:
The test to be applied in determining whether a judge is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to determine: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, 492; British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 [78] - [84], [132], [139].
22This was repeated in Fazio v Westpac Banking Corporation [2014] WASCA 80 [29], where the judgment of the court went on to say that the abovementioned test:
requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that a judge might not bring an impartial mind to bear upon the issues that are to be decided: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [67]. The onus of establishing the facts upon which an allegation of a reasonable apprehension of bias is made lies on the party making it.
23It follows that a fair-minded and informed bystander, looking at the trial before the learned magistrate, would be both reasonable and seek to be informed on at least the most basic considerations relevant to arriving at a conclusion about the magistrate's impartiality. Such bystander would found a view on a fair understanding of all relevant circumstances. Further, it is to be observed that the learned magistrate is a professional who, by training and by oath or affirmation, acts impartially and discards the irrelevant and the prejudicial.
24This must be seen against the background of a minor case in which the court acts with as little formality as is reasonable and is not bound by the rules of practice or evidence, but may inform itself on any matter in such manner as it thinks fit - s 29 of the Magistrates Court (Civil Proceedings) Act.

Mr Chapple's written submissions also relevantly referred to the Federal Court decision in Gambaro v Mobycom Mobile Pty Ltd [2019] FCAFC 144 (Gambaro) (Greenwood, Reeves & Rangiah JJ) at [19] citing R v T, WA (2013) 118 SASR 382, [38], where Kourakis CJ identified three grounds involving excessive judicial intervention which may result in a miscarriage of justice:
(a)the questioning unfairly undermines the proper presentation of a party's case (the disruption ground);
(b)the questioning gives an appearance of bias (the bias ground); and
(c)the questioning is such an egregious departure from the role of a judge presiding over an adversarial trial that it unduly compromises the judge's advantage in objectively evaluating the evidence from a detached distance (the dust of conflict ground).
In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (Ebner), the High Court held at [6] that all that was necessary was to establish apparent bias, rather than actual bias: the test of apprehended bias being whether a fair-minded lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to the resolution of the question that the decision maker is required to decide. Bias, whether actual or apprehended, connotes the absence of impartiality: Ebner [23]. The test involves a two-stage process: Ebner [8]. First, it requires the identification of what is said might lead a decision maker to decide a case other than on its legal and factual merits; secondly, there must be an articulation of a logical connection between the matter and the feared deviation from the course of deciding the case on its merits.
Prejudgment usually refers to the situation where the decision‑maker is not 'open to persuasion': Minister for Immigration and MulticulturalAffairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 [71]; McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504 (McGovern) [15] - [23]. Applying the test of apprehended bias to an allegation of prejudgment, the question is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not be open to persuasion.
Nevertheless, there may be cases in which it can be concluded that the denial of an opportunity to respond to a matter 'could have had no bearing on the outcome of the trial of an issue of fact': McGovern at [96] citing Stead at (145) - (146).

G.4 Disposition

In my view, Mr Chapple has not demonstrated that the Magistrate's interactions with Mr Booth gave rise to a reasonable apprehension of bias. My reasons for reaching this conclusion are as follows.
First, Mr Chapple has not identified what was said that might have led the Magistrate to decide the case other than on its legal or factual merits. Mr Chapple has not articulated the logical connection between that matter and the feared deviation from deciding the case on its merits: cf Ebner [8].
Although it may be accepted that the Magistrate's questioning of Mr Booth was at times direct, and Mr Chapple had limited opportunity to respond to the Magistrate's conclusions about Mr Booth's expertise and evidence, that is not, in and of itself, sufficient to give rise to a reasonable apprehension of bias. More is required.
The Magistrate's questioning of Mr Booth must be placed in context. I have already referred to part of that context above at paragraph [82]. It is not necessary for me to repeat the relevant facts surrounding that context. In my view, the relevant context also included the following: (1) the Magistrate's questions were of short duration; (2) the Magistrate was entitled to know Mr Booth's expertise and experience as that served a legitimate forensic purpose; (3) the Magistrate was entitled to know Mr Booth's methodology and the assumptions which Mr Booth had made in forming his opinion; (4) the Magistrate had read Mr Booth's report and heard his evidence; and (5) the Magistrate gave Mr Booth an opportunity to explain how he had formed the opinion that he did.
On one view, the Magistrate's questioning of Mr Booth was forensically focused toward ascertaining whether Mr Booth was appropriately qualified to give the evidence that he gave as a purported expert. The fair-minded lay observer may have concluded that having heard Mr Booth's evidence, having read Mr Booth's report (which the Magistrate had (ts 45)), but not being satisfied that Mr Booth was qualified to give the evidence that he gave, as a matter of procedural fairness, it was incumbent on the Magistrate to give Mr Booth an opportunity to demonstrate that he was in fact qualified to give the evidence that he had given.
In my view, the Magistrate's questioning of Mr Booth was to ensure that he was affording Mr Booth and Mr Chapple a fair hearing. The Magistrate was entitled to state his reasons for rejecting Mr Booth's evidence. Although it would have been preferable if the Magistrate had raised Mr Booth's expertise with Mr Chapple at an earlier point in the proceedings, the timing of the Magistrate's questions and the directness of those questions did not, in my opinion, involve a reasonable apprehension of bias.
I note here that Mr Chapple's counsel accepted that if the Magistrate held tentative views and did not express them, then that would itself, create procedural fairness issues of its own (ts 11).
Secondly, and for similar reasons, I am satisfied that the Magistrate did not prejudge Mr Booth's evidence. The interactions between Mr Booth and the Magistrate indicate that the Magistrate was open to persuasion.
Thirdly, this is not a matter involving excessive judicial intervention resulting in a miscarriage of justice as was the case in Gambaro. The facts are materially different. By way of example, there is no suggestion in the present case that Mr Chapple was interrupted so frequently that he was given no real opportunity to develop his case: cf Gambaro [30].
Fourthly, even if I had been persuaded by Mr Chapple's arguments, the departure from the rules of natural justice at a trial will not always entitle an aggrieved party to a new trial: Stead (145). Without repeating what I have said above, in the present case, the Magistrate appeared to accept that the colour of the 2020 product was different to the colour of the 2016 product. However, that did not lead to a conclusion that Dulux had provided Mr Chapple with the wrong product in 2016. In effect, even if the Magistrate's actions could properly be characterised as involving a reasonable apprehension of bias, Mr Chapple was not denied the possibility of a successful outcome.
In summary, I find that Mr Chapple's second ground of appeal discloses no error. Ground 2 of the appeal has not been made out.

H. Ground 3: did the Magistrate fail to give adequate reasons in relation to ordering the payment of some of Dulux's costs?

H.1 Overview

By his third ground, Mr Chapple contended that the Magistrate denied him natural justice by failing to provide adequate reasons in relation to the Magistrate's order at the end of the trial concerning the payment of costs.
The relevant order involved the Magistrate ordering Mr Chapple to pay Dulux (1) $198 on account of service fees and (2) $7,310 on account of Mr Zurhaar's costs (ts 98, ts 103, ts 104). The total amount payable to Dulux was $7,508.
To place the Magistrate's order in context, it is necessary to provide some background to his determination of the issue.
At the conclusion of his reasons for his decision, the Magistrate informed Mr Hird that Dulux was the successful party, but because the matter concerned a minor case, the jurisdiction was a 'cost-free jurisdiction generally speaking' (ts 95). However, the Magistrate informed the parties that there was provision for costs orders to be made in 'exceptional circumstances' (ts 95). Thereafter, the Magistrate said to Mr Hird that he would need to be persuaded to depart from 'what is the normal thing'; in effect, Mr Hird would need to demonstrate to the court why exceptional circumstances existed justifying an order for an award of costs to be made in the circumstances (ts 95, ts 96).
In response, Mr Hird submitted that the costs that ought to be recovered were Dulux's service costs and Mr Zurhaar's costs of preparing his report and attendance at court (ts 96). Following this, the Magistrate explained to the parties, the relevant cost provisions, and their intended operation. Thereafter, Mr Chapple made brief oral submissions, including why he was justified in making his claim and why Mr Zurhaar's costs were, in his view, 'outrageous' (ts 102).
Following this, the Magistrate gave his decision. I have set out part of the Magistrate's reasons below.

H.2 Dulux's submissions

In its written submissions, Dulux submitted that the Magistrate gave reasons for his decision on costs ex tempore at the hearing. Those reasons run to over a page. Dulux submitted that the Magistrate gave those reasons after Mr Chapple had conceded the point on costs. Relevantly, Mr Chapple had said to the Magistrate, 'I have to wear his [Dr Zurhaar's] costs' (ts 103). Dulux submitted that in light of that concession, the Magistrate was not obliged to give any substantive reasons at all, but he did so anyway: DS, par 46.
During his oral submissions, Dulux's counsel submitted that the Magistrate was alive to the fact that a costs order could only be made in circumstances where there were 'exceptional circumstances'. Dulux's counsel also said, quite candidly, that although the Magistrate's reasons were not 'particularly grammatical', it was possible to discern reasons from what he had said (ts 41). Dulux's counsel submitted that the Magistrate had relied on the following matters to ground a finding of exceptional circumstances, namely: (1) Mr Chapple's expert, Mr Booth, was not qualified to give the evidence that he did; (2) Mr Chapple did not have any evidence to support his claim; (3) in contrast, Dulux had engaged an expert, Mr Zurhaar, and in the process, been put to 'extraordinary expense' to defend the claim; and (4) Mr Chapple's claim had no real merit (ts 40).

H.3 Mr Chapple's submissions

In his written submissions, Mr Chapple submitted that the Magistrate did not 'adequately explain what exceptional circumstances existed' to justify the Magistrate ordering Mr Chapple to pay Mr Zurhaar's costs: AS, par 23. Mr Chapple's counsel developed that submission during the appeal hearing, which can broadly be summarised as follows.
First, the Magistrate did not, in his reasons, identify the 'exceptional circumstances' that were required in order to award costs under s 31 of the MCCP Act (ts 20). In this regard, Mr Chapple's counsel said, in effect, that the calling of an expert to give evidence in a disputed matter did not, in and of itself, involve 'exceptional circumstances'. More was required. Otherwise, it was not possible to differentiate this matter, from any other matter where expert evidence was led (ts 20).
Secondly, Mr Chapple's counsel submitted that the Magistrate had, by s 31 of the Magistrates Court Act, an obligation to provide reasons. In the context of the decision reached by the Magistrate, the Magistrate did not inform the parties as to why this particular case was exceptional (ts 21). It was not contained in his reasons: in many ways, the circumstances of the case were 'self-evidently unexceptional' (ts 21, ts 22). Put another way, Mr Chapple's counsel submitted that 'the reason [was] upon analysis not a reason' (ts 22).
Underpinning both complaints, was an obligation on the Magistrate to give 'adequate reasons'. Mr Chapple's counsel submitted that in the absence of 'adequate reasons', the parties would not know whether the Magistrate had considered irrelevant considerations or had failed to take into account relevant considerations when he made the order under s 31(3) of the MCCP Act (ts 19 - ts 21). Put differently, in reaching a conclusion under s 31(3) of the MCCP Act, the Magistrate was obliged to provide sufficient reasons, such that they enabled the parties to determine whether there had been a denial of natural justice giving rise to an appealable error.

H.4 Legal principles

Section 25(1) and s 31 of the MCCP Act provide as follows:
25.Costs
(1)The Court may order a party to a case to pay the whole or a part of another party's costs in the case.
…
31.Costs
(1)In this section -
allowable costs means -
(a)the court fees and service fees paid by a successful party; and
(b)the costs of enforcing a judgment.
(2)A successful party to a minor case is entitled to an order under section 25(1) in relation to the party's allowable costs but not in relation to the party's other costs in the case.
(3)Despite subsection (2), the Court may make an order under section 25(1) as to the payment of the party's other costs by another party if it is satisfied that -
(a)because of the existence of exceptional circumstances an injustice would be done to the successful party if that party's other costs were not ordered to be paid; or
(b)the unsuccessful party's claim or defence was wholly without merit; or
(c)the proceedings in the minor case -
(i)were commenced but not concluded in a Local Court before 1 May 2005; and
(ii)were, immediately before 1 May 2005, not proceedings that were being heard and determined under the Local Courts Act 1904 Part VIA.
(emphasis added)
It may be seen that the terms of s 31(3)(a) of the MCCP Act require the 'existence of exceptional circumstances' before a court may make an order under s 25(1) of the MCCP Act.
The phrase 'exceptional circumstances' is not defined in the MCCP Act.
The Shorter Oxford English Dictionary defines 'exceptional' as 'of the nature of or forming an exception; unusual; out of the ordinary; special': Volume 1, Shorter Oxford English Dictionary, Sixth edition, Oxford University Press.
The Macquarie Dictionary (online) defines 'exceptional' as: 'forming an exception or unusual instance, unusual, extraordinary'.
Giving the phrase 'exceptional circumstances', its ordinary and natural meaning, in its context, exceptional circumstances mean circumstances that are or were out of the ordinary or unusual.
Magistrates are required to give reasons for their decisions. Section 31 of the Magistrates Court Act provides:
31Judgments, content of
(1)The Court's reasons for a judgment in a case -
(a)need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so; and
(b)need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so; and
(c)need not canvass all the evidence given in the case; and
(d)need not canvass all the factual and legal arguments or issues arising in the case.
When considering a magistrate's reasons, it is necessary to keep in mind the work magistrates perform. In this regard, in Strahan v Brennan[2014] WASC 190 [88] - [92], Martin CJ observed that:
88It is necessary then to return to the first ground in each appeal which alleges that the magistrate's reasons were inadequate. Plainly, magistrates must give adequate reasons for their decision. However, the content of the obligation imposed upon magistrates and the question of whether that obligation has been satisfied in any particular case depends upon a number of considerations elucidated in the Magistrates Court Act and relevant case law.
89The first is that Magistrates Courts are summary courts. The very nature of the word 'summary' requires and connotes that the magistrates are to conduct their business with expedition and with a degree of informality appropriate to the disposition of the large volume of cases which are brought before those courts every day. Consistently with that notion s 31(1) of the Magistrates Court Act expressly provides that:
…
90Having regard to that section and the context in which the magistrates of this state conduct their judicial business it is not appropriate to scrutinise the reasons for decision given by magistrates with a fine-tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.
91Nevertheless it is clear that the reasons of a magistrate must disclose the underlying intellectual process which has given rise to the conclusions - Tran v Claydon [2003] WASCA 318; (2003) 40 MVR 506 [36] - [37] (McLure J, Steytler P & Johnson J agreeing). It is also clear that the adequacy of any magistrate's reasons is to be assessed by looking at the reasons as a whole and includes not only findings expressly made but findings to be inferred from the findings expressly made - Bennett v Carruthers [2010] WASCA 131 [27] (Mazza JA, McLure P & Newnes JA agreeing).
92Further, the adequacy of the magistrate's reasons in any particular case must be assessed in the context of that particular case so that what might appear to be unacceptable economy of language might be justified by the manner in which the case was conducted or by the evidence that was adduced - Francis v Todd [2011] WASC 185 [18] (Edelman J).
(emphasis added)
In Tran v Claydon [2003] WASCA 318, McLure J (with whom Johnson J & Steytler P agreed), held at [37] that:
Where there is a right of appeal, the function of reasons is to allow an appeal court to determine whether the decision was based on an appealable error. In addition to securing a right of appeal, the obligation to give adequate reasons is an aspect of procedural fairness to a litigant who is entitled to know why it is that he or she has been successful or unsuccessful. Thus, it is sufficient if the reasoning process which led to a result is disclosed with sufficient certainty to enable a litigant to know why it is that the result ensued and to ensure that the statutory right of appeal has been secured: Garrett v Nicholson (supra) per Owen J at 248. If that is achieved there is no additional requirement that every fact relevant to the ultimate decision or the detailed chain of reasoning be set out or every submission be addressed: Soulemezis v Dudly Holdings Pty Ltd (supra).
(citations omitted)

H.5 Disposition

Under s 31(3)(a) of the MCCP Act, the Magistrate was required to identify the 'exceptional circumstances' that existed to enable him to make an order under s 25(1) of the MCCP Act. In my view, the learned Magistrate's reasons do not identify the 'exceptional circumstances' that existed to found an award under s 25(1). My brief reasons for reaching that conclusion are as follows.
First, the Magistrate was required to give reasons for concluding that 'exceptional circumstances' existed entitling the 'successful party' to an award of costs under s 25(1) of the MCCP Act. The Magistrate's reasons needed to identify the facts that the court had accepted in coming to its decision and give the reasons for doing so. This follows from the express requirements contained in s 31 of the Magistrates Court Act. Their satisfaction would arguably involve a finding that the Magistrate had given adequate reasons.
The requirement to give reasons also followed from the text of s 31(3)(a) of the MCCP Act. In this regard, the entitlement to an award of costs is conditional on a finding of 'exceptional circumstances'.
The obligation to give adequate reasons also arises from the common law as set out above.

Secondly, a fair reading of the Magistrate's reasons does not reveal why the relevant circumstances were exceptional. I largely agree with Mr Chapple's submissions on this point. The Magistrate did not expressly identify the relevant fact(s) that made these circumstance exceptional and why that was so.
To place the Magistrate's conclusion in its proper context, it is necessary to briefly review the Magistrate's reasons. At the conclusion of Mr Chapple's submission, the Magistrate determined the issue as follows (ts 103, ts 104):
Now, the situation is, of course, that Mr Chapple has pointed out that he was left with this difference in colour, he felt very strongly about it and thought there was a standard, so he felt within his rights to bring the claim. And the offer that was made was conditional upon a deed of release of some sort or something to that effect, and so he wasn't persuaded that he should not only accept the paint - which obviously needed to be applied by somebody - but didn't want to sign away any recourse for the rest of the house, and I think that's probably a fair position to adopt.
In my judgment, it falls down - so because of the existence of exceptional circumstances an injustice would be done to the successful party, and the reality is that if I'm to say that Dulux - who have been put to the expense of employing Dr Zurhaar, who was quite properly the expert. Mr Booth, with all due respect, just didn't have the expertise. They would be the ones paying what Mr Chapple describes as being the outrageous fees and are unjustified.
So it would be in a situation where Mr Chapple is basically saying, 'Well, he charged way too much and that's Dulux's fault in some way, and they should have to pay his fees'. Now, Dulux did call the appropriate expert. His evidence was pivotal, really, in the determination of the matter, and it really did show that Mr Chapple had adopted an untenable position, essentially, in bringing the claim, whether he was prepared to resolve it in a certain way or not.
So with bearing in mind that I can only order it in exceptional circumstances, I am persuaded that an injustice would be done in this case to Dulux if I didn't order the payment of Dr Zurhaar's fees. And so I will make an order that Mr Chapple pay the costs that are sought by Dulux, which are the $7310 in respect of Dr Zurhaar's costs and service costs of $198. Thank you, gentlemen, that brings the matter to an end and those orders will be sent out to you in the mail. Okay. Thank you very much.
(emphasis added)
It may be seen that the key parts of the Magistrate's reasons were that: (1) Dulux had been put to the expense of employing Mr Zurhaar, who was the expert; (2) Mr Chapple's expert, Mr Booth, did not have the relevant expertise; (3) Mr Chapple had adopted an untenable position in support of his claim; (4) in contrast, Dulux had engaged an expert, Mr Zurhaar, whose evidence was 'pivotal … in the determination of the matter' (ts 103, ts 104).
Although not expressly stated, it may be inferred that the above circumstances were the key circumstances upon which the learned Magistrate relied in finding 'exceptional circumstances' for the purposes of s 31(3)(a) of the MCCP Act.
In my view, it is difficult to see which of the circumstances, if any, were exceptional. Contrary to Dulux's position, all appear to be the type of circumstances that might arise in an ordinary case. That is, both sides have experts; the court prefers the evidence of one expert over the other; one side is successful, one side is unsuccessful. The position is made more challenging because the Magistrate did not expressly articulate what made this matter 'out of the ordinary' when compared to other similar matters.
Thirdly, as to Dulux's submission that the Magistrate was not required to give any substantive reasons once Mr Chapple allegedly conceded Mr Zurhaar's costs, that submission should be rejected. Under s 31(3)(a) of the MCCP Act, 'exceptional circumstances' must exist before the successful party may be awarded their costs. The Magistrate was required to make a finding to that effect and give reasons for doing so. Section 31(3)(a) is not qualified. In effect, even if Mr Chapple did concede Mr Zurhaar's costs, that does not displace the statutory requirements found in s 31(3)(a): the statutory regime does not contain an exception.
Furthermore, I am not satisfied that Mr Chapple's alleged concession was directly relevant to the Magistrate's decision under s 31(3)(a), which is the main thrust of Dulux's argument. In his short oral reasons, the Magistrate did not refer to Mr Chapple's alleged concession on costs. Although the fact of the alleged concession is not an 'exceptional circumstance' in and of itself, it might be expected that the Magistrate would refer to Mr Chapple's statement in his reasons if he thought it was in any way relevant to his decision. The Magistrate may have done this as a way of explaining his short reasons. The absence of any reference to Mr Chapple's alleged concession tends to suggest that Mr Chapple's statement was not relevant to the Magistrate's decision making process.
In the circumstances, I am satisfied that the Magistrate has not provided adequate reasons when making the orders he made under s 31(3)(a) of the MCCP Act. The Magistrate's reasons do not identify the relevant fact(s) that made these circumstances exceptional and why that was so. I am satisfied that the Magistrate's reasons involved a denial of natural justice under s 32(3)(b) of the MCCP Act. Insofar as it may be said that the Magistrate's reasons were adequate, the Magistrate did not take into account mandatory relevant considerations and/or considered irrelevant considerations.
Further, I am satisfied that the error is a material error of law: Stead (145), (147). The Magistrate should have, but did not, specify the relevant facts that made the present matter 'exceptional', that is, out of the ordinary and the reasons for doing so. Mr Chapple was denied an opportunity to present his case in response to those considerations, assuming they existed. If the Magistrate had required Dulux to demonstrate how this matter was out of the ordinary, then it may well have been that the Magistrate would have come to a different decision on the merits.

Conclusion

The appropriate orders are:
1.The Appeal be allowed in part.
2. The orders of the Magistrates Court on 16 November 2021 requiring Mr Chapple to pay Dulux's cost in the sum of $7,508 be set aside.
I will hear from the parties as to the orders that should be made with respect to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AW
Acting Associate to Commissioner Collins
11 AUGUST 2022