Eliezer v Sydney Water Corporation

[2021] NSWCA 300

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Eliezer v Sydney Water Corporation [2021] NSWCA 300

Hearing dates:

On the papers

Date of orders:

10 December 2021

Decision date:

10 December 2021

Before:

Gleeson JA at [1];
McCallum JA at [2];
Preston CJ of LEC [3]

Decision:

(1)   Refuse to extend time for commencing proceedings for judicial review of the decision of the Local Court (Small Claims Division) dated 24 June 2020.

(2)   Dismiss the summons filed on 15 June 2021 for judicial review of the decisions of the District Court of NSW dated 16 March 2021 and 7 April 2021.

(3)   Order the appellant to pay the first respondent’s costs of the proceedings in this Court.

Catchwords:

JUDICIAL REVIEW – decision of Local Court of NSW (Small Claims Division) – decision of District Court of NSW on appeal from Local Court – whether time to challenge Local Court decision should be extended – challenge not fairly arguable – grounds of challenge to District Court decision – no jurisdictional error or error of law on the face of record established

Legislation Cited:

Local Court Act 2007 (NSW) s 39(2)

Local Court Rules 2009 (NSW) r 2.4, r 2.5

Supreme Court Act 1970 (NSW) s 69

Uniform Civil Procedure Rules 2005 (NSW) r 59.3

Cases Cited:

Allianz Australia v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13

Boele v Rinbac Pty Ltd (2014) 88 NSWLR 381; [2014] NSWCA 451

Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58

Dyason v Butterworth [2015] NSWCA 52

Eliezer v The Council of St Andrews Cathedral School [2021] NSWCA 144

Geftlic v Merhi [2011] NSWCA 241

Jamal v Director of Public Prosecutions (NSW) [2019] NSWCA 121

Kirk v Industrial Court of NSW (2010) 239 CLR 531; [2010] HCA 1

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

Singh v Hicks and Nissan [2021] NSWCA 80

Stephens v Director of Public Prosecutions (NSW) [2019] NSWSC 761

Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369

Wishart v Fraser (1941) 64 CLR 470 at 483; [1941] HCA 8

WO v Director of Public Prosecutions (NSW) [2009] NSWCA 370

Category:

Principal judgment

Parties:

Supriya Eliezer (Applicant)
Sydney Water Corporation (Respondent)

Representation:

Solicitors:
Self-represented (Applicant)
Manion McCosker Solicitors and Attorneys (Respondent)

File Number(s):

2021/172122

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court; Local Court

Jurisdiction:

Civil; Small Claims Division

Citation:

[2021] NSWDC 66; Unreported

Date of Decision:

16 March 2021

Before:

Abadee DCJ; Assessor Harvey

File Number(s):

2020/212141; 2020/81636

HEADNOTE

[This headnote is not to be read as part of the judgment]

Ms Eliezer brought proceedings seeking to judicially review the decisions and orders of two courts: the Local Court of NSW sitting in its Small Claims Division; and the District Court of NSW. The decisions concerned an action in debt in the Small Claims Division of the Local Court by Sydney Water against Ms Eliezer for her non-payment of charges for water, sewerage and stormwater drainage services provided to Ms Eliezer’s premises. The Local Court found that Sydney Water had made out its claim and ordered the payment of the principal sum, filing fees and interest, and an award of costs. Ms Eliezer appealed against the decision of the Local Court to the District Court, which dismissed the appeal and ordered Ms Eliezer to pay costs. Ms Eliezer sought to judicially review the decisions and orders of the Local Court and District Court.

The questions for the Court of Appeal included:

Whether time should be extended to commence proceedings against the Local Court’s decision; and

Whether the District Court fell into jurisdictional error or error of law on the face of the record.

The Court dismissed the appeal and held:

In relation to (i):

(Preston CJ of LEC, Gleeson JA and McCallum JA agreeing):

One relevant consideration in considering applications for an extension of time to appeal is whether the applicant has a fairly arguable case. Ms Eliezer did not have a fairly arguable case for judicial review of the Local Court’s decision. First, the Court of Appeal cannot quash the decision of the Local Court on the grounds concerning lack of jurisdiction and denial of procedural fairness while the District Court’s decision stands. Second, the other grounds did not raise jurisdictional error or error of law on the face of the record.

In relation to (ii):

(Preston CJ of LEC, Gleeson JA and McCallum JA agreeing):

Ms Eliezer did not establish that the primary judge fell into jurisdictional error or error of law on the face of the record, or error in any of the other respects claimed in the grounds of review.

Judgment

1. GLEESON JA: I agree with Preston CJ of LEC.

2. McCALLUM JA: I agree with Preston CJ of LEC.

3. PRESTON CJ OF LEC:

The judicial decisions sought to be reviewed

4. Ms Eliezer has brought proceedings under s 69 of the Supreme Court Act 1970 (NSW) seeking to judicially review the decisions and orders of two courts, first, the decision and orders of the Local Court of NSW sitting in its Small Claims Division (Assessor Harvey) on 24 June 2020 and, second, the decisions and orders of the District Court of NSW (Abadee DCJ) on 16 March 2021 and 7 April 2021.

5. The proceedings were commenced by summons, as required by r 59.3(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), on 15 June 2021. Whilst this date was within three months of the date of the decision of the District Court, as required by UCPR r 59.10(1), it was more than three months after the date of the decision of the Local Court. The summons accordingly sought leave of this Court to extend the time for commencing proceedings challenging the decision of the Local Court, under UCPR r 59.10(2).

6. The decisions of the Local Court and the District Court concern an action in debt by Sydney Water against Ms Eliezer for her non-payment of charges for water, sewerage and stormwater drainage services provided to Ms Eliezer’s premises. Ms Eliezer entered into a customer contract for these services. Sydney Water provided the services, but Ms Eliezer did not pay the charges under the customer contract for the services. Sydney Water brought an action in debt in the Small Claims Division of the Local Court seeking payment of the charges, together with interest, filing fees and legal costs.

7. Assessor Harvey heard and determined the claim, finding that Sydney Water had made out its claim for the principal sum of $4,767.57, to which was added filing fees and interest, and an award of costs of $1,574.00, totalling $6488.57.

8. Ms Eliezer appealed against the decision of the Local Court to the District Court under s 39(2) of the Local Court Act 2007 (NSW). Although that appeal is as of right, the grounds of appeal are limited to two grounds, lack of jurisdiction or denial of procedural fairness: s 39(2).

9. Ms Eliezer’s appeal was heard and determined on the papers by Abadee DCJ, who found that Ms Eliezer had not established either the ground of the lack of jurisdiction or the ground of denial of procedural fairness and accordingly dismissed the appeal. At a later date, Abadee DCJ determined, again on the papers, Sydney Water’s application for the costs of the appeal, ordering Ms Eliezer to pay Sydney Water’s costs in a lump sum.

10. Ms Eliezer now seeks to judicially review in this Court these decisions and orders of the Local Court and District Court.

The application to extend time to challenge the Local Court’s decision

11. I will start with Ms Eliezer’s application for an extension of time to commence proceedings challenging the Local Court’s decision.

12. The Court has power, under UCPR r 59.10(2), to extend time to commence proceedings for judicial review. In considering whether to extend time, the Court is to take account of “such factors as are relevant in the circumstances of the particular case”. These include the four factors in r 59.10(3):

“(a) any particular interest of the plaintiff in challenging the decision,

(b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings,

(c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision,

(d) any relevant public interest.”

13. Other relevant considerations include those commonly referred to in applications for extension of time to appeal, such as: the length of the delay; the reason for the delay; whether the applicant has a fairly arguable case; and the extent of any prejudice suffered by the respondent to the application: Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [55].

14. In the case of Ms Eliezer’s application, a number of factors are in her favour. She has a particular interest in challenging the Local Court’s decision ordering her to pay Sydney Water the debt together with interest, filing fees and legal costs. There is no identified prejudice to Sydney Water caused by the passage of time if this Court were to extend time for Ms Eliezer to commence proceedings challenging the Local Court’s decision. The delay is around 12 months, the Local Court’s decision being delivered on 24 June 2020 and the summons in this Court being filed on 15 June 2021, which is 9 months over the three month period prescribed by UCPR r 59.10(1). Ms Eliezer’s explanation for the delay is that she first sought to appeal the Local Court’s decision to the District Court under s 39(2) of the Local Court Act. That appeal was not finally resolved until 16 March 2021 (for the substantive appeal) and 7 April 2021 (for costs). Ms Eliezer commenced proceedings in this Court within 3 months of those decisions. The delay is therefore explicable.

15. Nevertheless, there is one factor that is strongly against granting an extension of time to bring the proceedings and that is that Ms Eliezer does not have a fairly arguable case for judicial review of the Local Court’s decision. There are two reasons, which differ depending on the grounds of review.

16. First, for the grounds concerning lack of jurisdiction and denial of procedural fairness, this Court cannot quash the decision of the Local Court on these grounds while the District Court’s decision stands. Ms Eliezer appealed against the Local Court’s decision and orders to the District Court on the grounds of lack of jurisdiction and denial of procedural fairness. The District Court dismissed the appeal. This had the effect of confirming the Local Court’s orders. The legal position is that the decision of the District Court, confirming the order of the Local Court, is conclusive while it stands: Wishart v Fraser (1941) 64 CLR 470 at 483; [1941] HCA 8. As explained in Dyason v Butterworth [2015] NSWCA 52 at [34]: “Once the District Court confirmed the Magistrate’s order, its judgment operated as a judicial determination by a competent and higher authority that the Magistrate’s order was correct and ‘holds the field so long as it stands unreversed, and precludes this court making any judicial determination to the contrary’: Wishart v Fraser [1941] HCA 8; (1941) 64 CLR 470 (at 478) per Starke J”: see also Jamal v Director of Public Prosecutions (NSW) [2019] NSWCA 121 at [52]; Stephens v Director of Public Prosecutions (NSW) [2019] NSWSC 761 at [18]-[29] and Singh v Hicks and Nissan [2021] NSWCA 80 at [16]-[18].

17. In this case, subject to the availability of relief by way of judicial review of the decision of the District Court (which is considered below: see [34]ff), the decision of the District Court, dismissing Ms Eliezer’s appeal against the Local Court’s decision on the grounds of lack of jurisdiction and denial of procedural fairness, binds this Court and prevents it quashing the decision of the Local Court on the same grounds of lack of jurisdiction or denial of procedural fairness: Geftlic v Merhi [2011] NSWCA 241 at [39] and Eliezer v The Council of St Andrews Cathedral School [2021] NSWCA 144 at [69]. Here, Ms Eliezer’s proposed grounds of review of the Local Court’s decision set out in the summons would appear to include not only the grounds of lack of jurisdiction and denial of procedural fairness, but also other grounds.

18. Ground 1 asserts that:

“The Assessor’s decision does not constitute a bona fide exercise of jurisdiction because the manner in which the Assessor exercised power demonstrates bad faith, is plainly unjust, arbitrary and capricious and lacks common sense such that the outcome is not within the range within possible lawful outcomes as an exercise of that power. The manner in which Assessor exercised power is particularised in Grounds 2 to 6.”

19. The manners in which the Assessor exercised power that are particularised in grounds 2 to 6 involve, referring to the headings to the grounds, unconscionable conduct, contrary to law, jurisdictional fact-finding, bias and procedural fairness. The first ground would appear to be, therefore, that the Assessor’s exercise of jurisdiction was not bona fide because the Assessor exercised the jurisdiction in these manners. This first ground is therefore dependent on grounds 2 to 6.

20. Ground 2 is that the Assessor’s decision was unconscionable:

“The Assessor’s decision was unconscionable and therefore wrong in law because the Assessor:

(a) failed to take into account that the defendant (Eliezer) had a consumer claim within meaning of s 58 of Sydney Water Act 1994.

(b) pre-empted the defendant’s consumer claim against the plaintiff (Sydney Water) and deprived defendant of right to equitable set-off.

(c) failed to take into account the plaintiff’s conduct insisting on pursuing its claim without first accommodating the defendant’s countervailing legal rights was unconscionable”.

21. So stated, the error alleged is not one of lack of jurisdiction, but rather an allegation of error in the exercise of jurisdiction. I will deal with this ground when I deal with my second reason for why Ms Eliezer’s challenge to the Local Court’s decision is not fairly arguable.

22. Ground 3 is that:

“The Assessor’s decision was contrary to law because the decision:

(a) Legitimised and made lawful unconscionable conduct of plaintiff.

(b) Permitted and assisted plaintiff to avoid answering claim arising out of its legal obligations under Australian Consumer Law (ACL) and Customer Contract and to deny plaintiffs rights under the same.”

23. Again, this alleged error is not one of a lack of jurisdiction but rather one concerning the exercise of jurisdiction. I will deal with this ground when I return to deal with ground 2.

24. Ground 4 is that the Local Court lacked jurisdiction because of non-satisfaction of jurisdictional facts:

“The Assessor failed to identify the matters in dispute and erred in law in finding that the plaintiffs attempts to settle the matter were ‘reasonable’ thereby not complying with the criteria of jurisdiction created through rules 2,4, 2.5(4)(a), 2.5(4)(b) and 2.5(6) of the Local Court Rules 2009.”

25. This does appear to be a ground claiming lack of jurisdiction. Certainly that was the way in which Ms Eliezer categorised this ground when she raised it in her appeal to the District Court: see [61], [78]-[84] of the primary judge’s judgment.

26. Ground 5 alleges that “the Assessor’s conduct and comments give rise to a reasonable apprehension of bias”, which are then particularised. Ground 6 is that “the Assessor repeatedly intervened and engaged in bullying of the defendant throughout the proceedings rendering the hearing unfair and undermining the proper presentation of defendant’s case.” Both of these grounds claim a denial of procedural fairness. This was Ms Eliezer’s categorisation of the same grounds in her appeal to the District Court: see [62], [108]-[143] of the primary judge’s judgment.

27. This review of the proposed grounds of appeal reveals that one of the grounds (ground 4) raises lack of jurisdiction and two of the grounds (grounds 5 and 6) raise denial of procedural fairness. The first ground is not a stand alone ground but instead is dependent on the other grounds, including grounds 4, 5 and 6. To this extent, the first ground can also be categorised as, in part, a ground raising lack of jurisdiction and denial of procedural fairness. The consequence of the principle applied in Wishart v Fraser, to which I have earlier referred, is that this Court is prevented from quashing the decision of the Local Court for lack of jurisdiction or denial of procedural fairness, while the order of the District Court confirming the order of the Local Court stands. There is, therefore, no utility in extending the time to commence proceedings challenging the Local Court’s decision and orders on the grounds of lack of jurisdiction and denial of procedural fairness.

28. This leaves the two other proposed grounds (grounds 2 and 3) that challenge the exercise of jurisdiction insofar as these grounds seek to go beyond the two grounds on which the District Court determined Ms Eliezer’s appeal against the Local Court’s decision of lack of jurisdiction and denial of procedural fairness. The dismissal of the appeal by the District Court would not bar judicial review by this Court of the Local Court’s decision and orders on these other grounds: Geftlic v Merhi at [38] and Eliezer v The Council of St Andrews Cathedral School at [69], [70]. Nevertheless, this Court would only intervene if these other grounds raise jurisdictional error or non-jurisdictional error of law on the face of the record. The proposed grounds do neither.

29. The errors alleged in proposed grounds 2 and 3 are not jurisdictional errors. They do not fall into any of the examples of jurisdictional error identified in Craig v South Australia (1995) 184 CLR 163 at 177-178; [1995] HCA 58. The grounds do not allege error in relation to the statutory provisions establishing the Local Court or conferring jurisdiction in its Small Claims Division. The Local Court had power to determine the questions raised in the proceedings before it, “rightly or wrongly, even if the determination involved legal error”: WO v Director of Public Prosecutions (NSW) [2009] NSWCA 370 at [17]. As stated in Craig v South Australia at 179, “the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine”: see also Kirk v Industrial Court of NSW (2010) 239 CLR 531; [2010] HCA 1 at [67].

30. Insofar as ground 2 alleges that the Local Court failed to take into account a relevant consideration and ground 3 (perhaps) alleges that the Local Court took into account an irrelevant consideration, such errors also would not involve jurisdictional error by an inferior court: Craig v South Australia at 180 and Boele v Rinbac Pty Ltd (2014) 88 NSWLR 381; [2014] NSWCA 451 at [139]-[140], [151]. Accordingly, the errors claimed in proposed grounds 2 and 3 are not jurisdictional errors.

31. They are also not errors on the face of the record. Proposed grounds 2 and 3 raise errors that are not evident on the face of the record. It may be accepted that the face of the record includes the reasons expressed by the Local Court for its decision: see s 69(4) of the Supreme Court Act. But grounds 2 and 3 do not claim that the errors raised in those grounds appear in the Local Court’s reasons. To the contrary, the claim in ground 2 is that the Local Court failed to consider the matters specified (there was therefore no consideration of these matters in the reasons) and the claim in ground 3 is that the effect or consequence of the Local Court’s decision was to legitimise what is said to be the unlawful conduct of Sydney Water (although that was not by reason of anything said in the reasons). Establishing these grounds therefore depends on reference to material other than the reasons of the Local Court, although what that other material might be was not identified. It could possibly be the written evidence before the Local Court (such as statements of evidence and documents), the transcript of the oral evidence or the submissions made to the Local Court. If so, none of these materials would constitute the record, on the face of which error of law could be established: Allianz Australia v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13 at [16]-[19]. Accordingly, grounds 2 and 3 do not raise errors of law on the face of the record.

25. The upshot is that it is not fairly arguable that grounds 2 and 3 raise either jurisdictional errors or errors of law on the face of the record. This conclusion necessarily extends to ground 1, insofar as it depends in part on grounds 2 and 3.

26. For these two different reasons, there is no utility in extending time for Ms Eliezer to commence judicial review proceedings challenging the Local Court’s decision and orders on the grounds proposed in the summons.

The review of the District Court’s decision

34. Although Ms Eliezer seeks in the summons orders quashing both the orders of the District Court made on 16 March 2021 (dismissing the appeal against the Local Court’s decision) and 7 April 2021 (ordering costs), with one exception, the nine grounds of review all concern the substantive decision and orders made on 16 March 2021. Ground 9(c) claims that the District Court’s decision to award costs against Ms Eliezer in a lump sum was in bad faith. Except for this discrete claim, Ms Eliezer’s contention is that, if the substantive decision were to be quashed, it would necessarily follow that the costs order should also be quashed. That is to say, Ms Eliezer’s challenge to the costs order is consequential upon her challenge to the substantive order dismissing the appeal and not an independent challenge.

35. Ms Eliezer raises nine grounds of review of the District Court’s decision and order dismissing her appeal against the Local Court’s decision and orders. Some of these grounds are, in substance, the same as the two grounds Ms Eliezer raised in her appeal to the District Court against the Local Court’s decision regarding lack of jurisdiction and denial of procedural fairness. Other grounds seek to go beyond these two grounds.

36. I will first deal with the grounds that might be categorised as lack of jurisdiction or denial of procedural fairness. Starting with the ground of lack of jurisdiction, ground 5 alleges non-satisfaction of jurisdictional facts:

“His Honour misconstrued rules 2.4 and 2.5 of the Local Court Rules 2009 by interpreting that the Assessor:

a. Could proceed to give judgment without establishing compliance with above rules, that is, the criteria in those rules did not constitute jurisdictional facts,

b. Had power under section 14 of the Civil Procedure Act 2005 (CPA) to dispense with above rules.”

37. This ground was raised before the District Court and was rejected by the primary judge: at [61], [78]-[84]. I agree, for the reasons the primary judge gave, that rules 2.4 and 2.5 of the Local Court Rules 2009 do not raise jurisdictional facts, satisfaction of which is necessary to enliven the jurisdiction of the Local Court, sitting in its Small Claims Division, to hear and dispose of the proceedings brought by Sydney Water.

38. Grounds 6, 7 and 8 all raise different ways in which Ms Eliezer claims she was denied procedural fairness. Grounds 6 and 7 concern apprehension of bias of the Assessor. Ground 6 claims that the primary judge applied the wrong test for determining apprehended bias:

“His Honour erred in law in applying the test for apprehended bias to the decision of the Assessor because his Honour:

a. Engaged in subjective assessments of the plaintiff’s bias ground of appeal whereas the test for apprehended bias requires an objective assessment from the point of view of a fair-minded lay observer.

b. Misconstrued the test as requiring the plaintiff to establish bias whereas the plaintiff is only required to show that a fair-minded lay observer MIGHT apprehend that the judge MIGHT not bring an impartial mind to the resolution of the question the judge is required to decide.”

39. Ground 7 claims that the primary judge erred in law in finding that Ms Eliezer had waived objection to the apprehended bias of the assessor:

“His Honour erred in law in applying the waiver principle to the bias ground of appeal by:

a. Finding that there was an onus on ‘unrepresented plaintiff’ to complain in relation to bias during the course of the Local Court proceedings.

b. Failing to cite legal authority that establishes above onus hence the reasoning does not have grounding in law.

c. Failing to identify point in time where objections should have been taken.”

40. Ground 8 claims there was a reasonable apprehension of bias of the primary judge himself. The ground alleges that the primary judge’s decision “gives rise to a reasonable apprehension of bias and prejudgment because his Honour’s reasoning demonstrates a lack of impartiality and discriminatory treatment of the plaintiff”. The respects in which Ms Eliezer alleges that the reasoning demonstrates lack of impartiality and discriminatory treatment are then particularised.

41. Ms Eliezer had raised, under the ground of procedural fairness, both bias (partly manifested by bullying) and prejudgment in the appeal before the District Court: see at [62]. The primary judge dealt with both at [108]-[134] concerning bias and bullying and [135]-[143] concerning prejudgment.

42. Contrary to Ms Eliezer’s claim in ground 6, the primary judge did identify at [110] the correct test for apprehended bias, the “double might” test enunciated in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2005] HCA 63 at [6] of:

“if a fair-minded lay observer might reasonably apprehend that the judge may not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial.”

43. The primary judge correctly noted at [111] the steps required in order to make out whether the test was satisfied, quoting the relevant passage from Ebner at [8]. The primary judge then applied this test and these steps to determine whether the conduct of the Assessor impugned by Ms Eliezer, including the alleged bullying, might lead a fair-minded lay observer to apprehend that the Assessor might decide the case other than on its legal and factual merits. In doing so, the primary judge did not engage in a subjective assessment of Ms Eliezer’s bias ground as ground 6 claims, but rather correctly used the referent of the “fair-minded lay observer” (at [110]) or “the hypothetical or fictional fair-minded lay observer” (at [115]) in his consideration and determination of Ms Eliezer’s bias ground. I reject ground 6.

44. Ground 7 concerns whether Ms Eliezer waived her objection to the apprehended bias of the Assessor by not making a complaint at the time before the Assessor. This was a submission that had been made by Sydney Water on the appeal before the District Court in response to Ms Eliezer’s bias ground. The primary judge dealt with Sydney Water’s submission, as he was required to do, in [133] of the judgment.

45. Contrary to what is claimed in ground 7, the primary judge did not finally decide whether there was any waiver by Ms Eliezer. At the beginning of his discussion in [133], the primary judge noted that “there is force in Sydney Water’s submission that Ms Eliezer raised no complaint about bias, or bullying, by the Assessor. This gives rise to at least an arguable waiver”. The first statement was one of fact and it was correct: Ms Eliezer did not raise a complaint at the time before the Assessor about bias or bullying by the Assessor. The second statement is no more than a potential consequence of this fact, that not raising a complaint about bias or bullying at the time gives raise to an “arguable waiver”. The primary judge then discussed, in a preliminary way, whether Ms Eliezer could have raised objection to any bias or bullying of the Assessor, but this discussion was inconclusive as the primary judge found it unnecessary to decide whether there was in fact any waiver by Ms Eliezer. The primary judge said: “It is unnecessary, however, to finally decide whether there was a waiver by Ms Eliezer failing to complain about judicial bullying, in this particular respect, given the fluid circumstances of her appearing for herself.” The primary judge did observe, however, that one reason why Ms Eliezer might not have complained about bias or bullying was that she had no proper basis for such complaints, but that observation was not a finding that Ms Eliezer had waived objection to any bias or bullying by the Assessor.

46. Accordingly, ground 7 proceeds on an incorrect assumption that the primary judge did in fact decide that Ms Eliezer had waived objection to the bias or bullying of the Assessor. The primary judge did not find that Ms Eliezer bore any onus to complain in relation to bias during the hearing before the Assessor as is claimed in ground 7(a). Hence, there was no occasion for the primary judge to cite legal authority establishing any such onus or to identify a point in time when objection should have been taken, as claimed in ground 7(b) and (c). Ground 7 should be rejected.

47. Ground 8 claims the primary judge’s reasons demonstrate lack of impartiality and discriminatory treatment of Ms Eliezer, as particularised in the ground. I do not agree. The particularised aspects of the primary judge’s reasons, whether considered individually or cumulatively, do not demonstrate that the primary judge lacked impartiality or discriminated against Ms Eliezer. A number of the particulars are not an objective statement of what the primary judge actually said in his reasons, but instead editorialise what Ms Eliezer believes was implied by what the primary judge said. These implications are not available on a fair reading of the primary judge’s reasons. Reading the judgment as a whole, with an eye not finely attuned to finding error or bias in the primary judge’s language, the reasons do not reveal any lack of impartiality or discriminatory treatment of Ms Eliezer. Of course, in result, the primary judge found against Ms Eliezer on each of her grounds of appeal against the Assessor’s decision, but that does not demonstrate that the primary judge was not impartial or that he discriminated against Ms Eliezer. I reject ground 8.

48. I turn to consider the remaining grounds that cannot be categorised as involving lack of jurisdiction or denial of procedural fairness. This Court has jurisdiction under s 69 of the Supreme Court Act to judicially review the decision of the District Court only on grounds of jurisdictional error or error on the face of the record. The remaining grounds must therefore raise jurisdictional error or error of law on the face of the record.

49. The remaining grounds are, referring to the heading of the grounds, legal unreasonableness (ground 1); vexatious proceedings (ground 2); unconscionable conduct (ground 3); contrary to law (ground 4); and improper exercise of power (ground 9).

50. Two of the grounds concern the District Court’s exercise of jurisdiction, ground 1 claiming that the primary judge’s decision was legally unreasonable and ground 9 claiming that the primary judge’s decision was not a bona fide exercise of jurisdiction. However, neither of these grounds, even if made out (which I find they are not), involve jurisdictional error by an inferior court, such as the District Court.

51. Ground 1 claims that the primary judge’s decision is legally unreasonable, in the sense articulated in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18. Ground 1 claims:

“His Honour’s decision is illogical, irrational, and unreasonable because the decision lacks a rational foundation and an evident or intelligible justification and is plainly unjust, arbitrary and capricious and further, the legal unreasonableness is material to the outcome as particularized in Grounds 2 to 8.”

52. Insofar as the ground particularises the respects in which the primary judge’s decision was legally unreasonable as being those raised in grounds 2 to 8, this ground is dependent on those other grounds.

53. This type of error of law is not a jurisdictional error of an inferior court such as the District Court. Generally, depending upon any statutory constraint, making a legally unreasonable decision involves an exercise of power within jurisdiction. The District Court in this case had jurisdiction to hear and determine Ms Eliezer’s appeal against the Local Court’s decision. This jurisdiction included determining the questions raised in the proceedings “rightly or wrongly, even if the determination involved legal error”: WO v Director of Public Prosecutions (NSW) at [17] and see Craig v South Australia at 179-180 and Kirk v Industrial Court of NSW at [67].

54. An inferior court, such as the District Court, ordinarily does not fall into jurisdictional error by making a legally unreasonable decision on questions of fact or law that are within its jurisdiction to decide. The error of legal unreasonableness is not one of the accepted categories of jurisdictional error of an inferior court recognised in Craig v South Australia at 179-180 or Kirk v Industrial Court of NSW at [72].

55. Ground 1 may, however, raise an error of law on the face of the record. The error of legal unreasonableness is said to be revealed in the reasons, which by s 69(4) of the Supreme Court Act are taken to form part of the record. I do not find the primary judge’s decision to be legally unreasonable, either in the Minister for Immigration and Citizenship v Li sense or by reference to the matters raised in grounds 2 to 8. Ms Eliezer has not established, therefore, this claimed error of law.

56. Ground 9 claims that the primary judge’s decision was not a bona fide exercise of power in three ways:

“a. His Honour exercised public power for private purpose and private gain of defendant as particularised in Ground 3.

b. The judgment involved a further improper purpose being to assist the defendant (Sydney Water) and its legal practitioner to join a bankruptcy proceeding against the plaintiff.

c. His Honour exercised the discretion to grant lumpsum costs in bad faith with no evidence as to impecuniosity of plaintiff and with knowledge that the proceedings at that stage were not final.”

57. The cross reference in paragraph (a) to ground 3 is intended to pick up Ms Eliezer’s argument that she was entitled to an equitable set off of Sydney Water’s claim in debt with her claim that Sydney Water had breached the consumer contract.

58. Neither the decision of the primary judge to dismiss Ms Eliezer’s appeal (the subject of paragraphs (a) and (b)) nor the decision to award costs against Ms Eliezer (the subject of paragraph (c)) involved jurisdictional error. Ground 9 alleges errors of law that are within the jurisdiction of the District Court, not errors going to the jurisdiction of the District Court to decide Ms Eliezer’s appeal and the question of the costs of the appeal. These are not jurisdictional errors of an inferior court, as earlier explained.

59. Insofar as ground 9 raises errors of law on the face of the record, Ms Eliezer has not established that the primary judge’s decisions are not a bona fide exercise of jurisdiction in any of the ways alleged.

60. As to the substantive decision dismissing Ms Eliezer’s appeal against the Local Court’s decision, there is no evidence at all that the primary judge decided the appeal as he did in order to assist, and to afford private gain to, Sydney Water. Of course, the consequence of deciding to dismiss Ms Eliezer’s appeal is that Ms Eliezer is unsuccessful and Sydney Water is successful, so that to this extent the dismissal of the appeal would be to Sydney Water’s “private gain”, but that was not the purpose for which the primary judge exercised the power to decide the appeal. The primary judge decided the appeal in the way that he did for the reasons he gave in his judgment. Those reasons have nothing to do with assisting Sydney Water or affording it private gain.

61. As to the decision to award costs to Sydney Water, there is no evidence that the primary judge exercised the discretion to award Sydney Water costs in a lump sum in bad faith. Whether or not there was evidence of Ms Eliezer’s financial means or lack thereof and whether or not the proceedings were final does not establish any bad faith on the part of the primary judge in deciding the question of costs of the proceedings.

62. For these reasons I reject grounds 1 and 9.

63. The last three grounds concern neither the jurisdiction of the District Court to decide Ms Eliezer’s appeal against the Local Court’s decision nor the exercise of that jurisdiction. Two of the grounds concern conduct before or otherwise external to the appeal (grounds 2 and 3) and one ground concerns the consequence of the primary judge’s decision to dismiss the appeal (ground 4). None of these grounds raise jurisdictional error or error of law on the face of the record.

64. Ground 2 claims that the primary judge “failed to take into account corroborative evidence that local court proceedings commenced by the defendant (Sydney Water) against the plaintiff (Eliezer) was vexatious”. The respects in which the proceedings were said to be vexatious are then particularised.

65. The primary judge was not required to consider and decide whether or not Sydney Water’s proceedings in the Local Court were vexatious. That was not in contention on the appeal to the District Court. Ms Eliezer’s appeal against the Local Court’s decision was restricted by s 39(2) of the Local Court Act to only two grounds, lack of jurisdiction and denial of procedural fairness. Ms Eliezer framed all of her grounds of appeal to fall within these two categories. Ms Eliezer did not raise as a ground of appeal that the proceedings in the Local Court were vexatious. There was no warrant, therefore, for the primary judge to take into account or decide whether the Local Court proceedings were vexatious.

66. In any event, this ground cannot be categorised as either a jurisdictional error (it did not go to the District Court’s jurisdiction to decide the appeal) or error of law on the face of the record (the error cannot be on the face of the record, including the reasons of the primary judge, because it involves a failure to take account of the fact that the Local Court proceedings were allegedly vexatious). I reject ground 2.

67. Ground 3 concerns the alleged unconscionable conduct of Sydney Water:

“His Honour failed to take into consideration matters that were a consequence of His Honour’s finding that plaintiff ‘potentially had a consumer claim that may have entitled her to relief from payment of a specific sum of money’. In particular, His Honour erred by failing to find that in the above circumstances:

a. The plaintiff was entitled to equitable setoff.

b. The plaintiff’s (Eliezer) consumer claim and defendant’s (Sydney Water) claim arose under the same consumer contract meaning that the defendant’s claim was impeached by plaintiff’s claim under the ‘impeachment of title test’.

c. The defendant had engaged in unconscionable conduct, pursuing its claim in local court proceeding without first accommodating the plaintiff’s countervailing legal right.”

68. Again, these matters that the primary judge is alleged to have failed to consider were not matters that the primary judge was required to consider in determining Ms Eliezer’s appeal to the District Court. They were not issues in contention on the appeal, which were restricted to the grounds of lack of jurisdiction and denial of procedural fairness. The matters raised in ground 3 were not raised by Ms Eliezer as grounds of appeal before the primary judge. Hence, the primary judge was not required to consider the matters and did not err in law by failing to consider them.

69. In any event, a failure to consider the matters is neither a jurisdictional error nor an error of law on the face of the record, for the reasons I have given on other grounds. I reject ground 3.

70. Ground 4 concerns the consequence of the primary judge’s decision:

“His Honour’s decision was contrary to law because the decision:

a. Legitimized and made lawful, unconscionable conduct of defendant, its legal practitioner and unconscionability in decision of Assessor.

b. Permitted and assisted defendant to avoid answering claims arising out of its legal obligations under Australian Consumer Law (ACL) and Customer Contract and to deny plaintiff’s rights under the same.”

71. For the reasons I have given in relation to the same ground challenging the Local Court’s decision (ground 3), this ground raises neither a jurisdictional error nor an error of law on the face of the record. I reject ground 4.

Conclusion and orders

72. Ms Eliezer’s challenge to judicially review the Local Court’s decision is out of time and time should not be extended to allow her to commence proceedings to judicially review the Local Court’s decision. Ms Eliezer’s challenge to the District Court’s decision is unsuccessful. Mr Eliezer has not established that the primary judge fell into jurisdictional error or error of law on the face of the record, in any of the respects claimed in the grounds of review. The summons should be dismissed.

73. The usual costs order is that costs follow the event. The event is the dismissal of Ms Eliezer’s summons. Ms Eliezer has not raised any circumstances regarding the conduct or outcome of the appeal in this Court that would justify a departure from the usual order for costs.

74. I propose that the Court make the following orders:

1. Refuse to extend time for commencing proceedings for judicial review of the decision of the Local Court (Small Claims Division) dated 24 June 2020.

2. Dismiss the summons filed on 15 June 2021 for judicial review of the decisions of the District Court of NSW dated 16 March 2021 and 7 April 2021.

3. Order the applicant to pay the first respondent’s costs of the proceedings in this Court.

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Decision last updated: 10 December 2021