Eliezer v Sydney Water Corporation

[2021] NSWDC 66

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Eliezer v Sydney Water Corporation [2021] NSWDC 66

Hearing dates:

On the papers

Date of orders:

16 March 2021

Decision date:

16 March 2021

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraph 148

Catchwords:

CIVIL PROCEDURE – appeal from decision of Small Claim Division of an Assessor in the Local Court – judgment against plaintiff for non-payment of water, sewerage and drainage services – Assessor’s rejection of application to stay or adjourn hearing to enable plaintiff to apply to NCAT – alleged lack of compliance with requirements of Pre-Trial reviews – whether jurisdictional error established – complaints of excessive interventions by Assessor and bullying – whether denial of procedural fairness

Legislation Cited:

Civil and Administrative Tribunal Act2013 (NSW) Sch 4 Pt 5

Civil Procedure Act2005 (NSW) ss 4, 14, 56, 57, 60

Competitions and Consumer Act 2010 (Cth) Sch 2 – Australian Consumer Law s 61

Evidence Act1995 (NSW) ss 131, 144

Fair Trading Act 1987 (NSW) ss 3, 79B, 79E, 79I, 79J, 79K, 79L

Local Court Act 2007 (NSW) ss 26, 27, 29A, 30, 38, 39, 42

Local Court Practice Note Civ 1

Local Court Rules2009 (NSW) rr 2.4, 2.5

Sydney Water Act 1994 (NSW) ss 55(1), 58, 59

Uniform Civil Procedure Rules 2005 (NSW) rr 12.1, 50.4

Cases Cited:

Astley v Austrust Ltd (1997) 197 CLR 1

Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Johnson v Johnson (2000) 201 CLR 488

Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531

McClymont v Owners Strata Plan No. 12139 (2009) 74 NSWLR 404

R v T, WA (2014) 118 SASR 382

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82

Smits v Roach (2006) 227 CLR 423

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Vakauta v Kelly (1989) 167 CLR 568

Texts Cited:

Australian Institute of Judicial Administration, Guide to Judicial Conduct (3rd ed)

Category:

Principal judgment

Parties:

Ms S Eliezer (applicant)
Sydney Water Corporation (respondent)

Representation:

Solicitors:
Plaintiff appeared in person
Manion McCosker Solicitors and Attorneys for the defendant

File Number(s):

2020/212141

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Local Court

Jurisdiction:

Small Claims Division

Citation:

Unreported

Date of Decision:

24 June 2020

Before:

Assessor Harvey

File Number(s):

2020/81636

Judgment

Background

Nature of the proceeding

1. This is an appeal against a decision of Assessor Harvey of the Small Claims Division of the Sutherland Local Court on 24 June 2020. By that decision, the plaintiff, who was the defendant in the Local Court proceeding, was ordered to pay the defendant, who was the plaintiff in the Local Court proceeding, the sum of $6,488.57 within 28 days. Without disrespect, I will refer to the plaintiff as Ms Eliezer and the defendant as Sydney Water. At all times, in this proceeding and in the Local Court proceeding, Ms Eliezer has represented herself.

2. The appeal is brought under s 39(2) of the Local Court Act2007 (NSW) (‘LC Act’). By that provision, a right of appeal from a decision of the Small Claims division of the Local Court can only be brought on two grounds, being a lack of jurisdiction or denial of procedural fairness.

3. In her summons, through which this appeal was commenced on 20 July 2020, Ms Eliezer seeks not only to have Assessor Harvey’s decision set aside, but also that the proceeding below be stayed.

Procedural matters

4. In the course of this proceeding, Ms Eliezer filed three affidavits on 30 October 2020. The court seal was applied to each affidavit and times for entry for these affidavits were recorded, consecutively, as 3:42pm, 4:41pm and 4:43pm. Technically, the affidavits are irregular in form. The content of the latter two affidavits amount to documentary material intended to be ‘annexed’ or exhibited to the first of the affidavits, but that formal objection is no bar to my consideration of her application.

5. On 26 October 2020, the Judicial Registrar of the Court made the following directions:

1. The plaintiff is to file and serve written submissions by 30 November 2020.

2. The defendant is to file and serve written submissions by 18 December 2020.

3. The Summons is listed for hearing on 18 February 2021 (with an estimate of 1 day).

6. The parties complied with the Court’s directions to file and serve their written submissions.

7. By way of further observations on procedural matters, I also note the following:

1. The hearing of this appeal had been listed for 18 February 2021, but the day before, Ms Eliezer deposed to having had correspondence with staff of the Court’s registry and also the Associate to Judge Robison, indicating that she had ‘flu symptoms’ and requesting that the hearing proceed by telephone or determined ‘on the papers’;

2. On 18 February 2021, the Judge Robison vacated the listing of the hearing that day, scheduled a new date for hearing (11 March 2021) and directed Ms Eliezer to file a motion with a supporting affidavit if she sought to appear, on the next occasion, by telephone.

3. At 3:37pm on 9 March 2021 and, again, at 12:52pm on 10 March 2021, Ms Eliezer sent emails to the Court’s registry requesting that the hearing for 11 March 2021 be heard by telephone or dealt with “on the papers” since both parties had filed written submissions. She indicated that she still had “mild flu symptoms”;

4. Following Ms Eliezer’s email communication (in (c)), Sydney Water indicated that it did not object to having the hearing by telephone or determined on the papers;

5. Following Sydney Water’s communication (in (d)), I arranged for my Associate to convey to the parties my inclination to determine the appeal on the papers, but sought assurance from the parties that I was apprised of the evidence that the parties wished to rely upon. In the latter respect, I adverted to receiving the three affidavits of 30 October 2020 filed by Ms Eliezer and no evidence having been received from Sydney Water. This was by email by my Associate to the parties sent at 3:00pm on 10 March 2021.

6. At 4:23pm on 10 March 2021, Sydney Water, through its solicitor (Mr Roset) sent an email to my Associate stating that it had placed before the Court the material it relied upon and presumed Ms Eliezer had done likewise. At 4:33pm on 10 March 2021, Ms Eliezer sent an email to my Associate, referring me to three letters which, I inferred she wanted to rely upon at the hearing of the proceeding. I will return to the content (and admissibility) of those three letters later in these reasons.

7. At 4:43pm, I arranged for my Associate to send an email to the parties notifying them that the Court would proceed to determine this appeal on the basis of the parties having notified the Court of the material relied upon.

8. At 8:40am on 11 March 2021, I also directed my Associate to send an email to Ms Eliezer inviting her, if she wished, to serve any written submissions in reply to Sydney Water’s submissions (filed on 18 December 2020) but if she was to do so, they should not exceed 5 pages in length and they must be filed by 5pm, 15 March 2021. Ms Eliezer duly filed written submissions in reply, which I have considered.

9. Copies of these email communications concerning procedural matters will be enclosed within the Court’s file.

10. The principal factors leading to my decision to determine the appeal ‘on the papers’ were:

1. Ms Eliezer’s application that this was one of two appropriate measures, the other being she appear via telephone, given her inability to attend the hearing in person because of her asserted on-going ‘flu symptoms’;

2. the nature of the proceeding in this Court – an appeal by rehearing, on the limited basis of the evidence before the Local Court on 24 June 2020 – which meant that there was no contestable questions of evidence required to determine the appeal (although see paragraphs 53-56, below); and

3. the relatively small sum in dispute - even by reference to the monetary jurisdiction of the Small Claims Division of the Local Court - between the parties.

11. Being satisfied, as I was, that the parties had adequate opportunity to raise the evidence and submissions that they wished to raise, the quantum of what was in dispute did not necessarily justify or warrant the parties spending the day in court, or the allocation by the Court of judicial (and administrative) resources to conduct a hearing in Court for a day (whether that be in person or by telephone), when regard is had to ss 56, 57(1)(b)-(d) (incl) and 60 of the Civil Procedure Act 2005 (NSW) (the ‘CP Act’).

THE DISPUTE IN THE SUTHERLAND LOCAL COURT

The ambit of the dispute

12. On 13 March 2020, Sydney Water commenced the proceeding against Ms Eliezer in the Small Claims Division of the Sutherland Local Court by filing a statement of claim. The claim was in the nature of an action on a debt for $5,167.57. The debt was alleged to arise from a customer contract with Ms Eliezer, the latter being the owner or occupier of property, being unit 2, 10-12 Wayella Street, West Ryde, in respect to the supply of water, sewerage, or stormwater drainage services. Sydney Water alleged that notices demanding payment had been made of Ms Eliezer under that contract, but that she had neglected or refused to pay the outstanding monies. Particulars of the debt were expressed to be notices issued in the period 2 August 2016 to 31 March 2020. Reference was made in the statement of claim to certain provisions of the Sydney Water Act 1994 (NSW). Sydney Water claimed relief to receive payment of the debt, plus interest and fees, including solicitor’s fees.

13. On 17 April 2020, Ms Eliezer filed a Defence to the claim. She admitted both Sydney Water’s capacity to sue and her entry into a customer contract with Sydney Water for the enumerated services. But her substantive defence to the action in debt was that she had incurred the charges claimed by Sydney Water as a result of Sydney Water’s negligence. Various particulars of negligence were identified, but the effect of them was that whereas she had closed a tap, which would have stopped the water supply, that tap had failed to function.

Evidence for the parties

14. Consistent with the practice in the Small Claims Division of the Local Court, evidence was given by witness statement. For Sydney Water, it was a statement by Mr Singh. Ms Eliezer also prepared a witness statement.

Mr Singh’s evidence

15. Mr Singh was the Revenue Collections Manager for Sydney Water. He prepared a written statement dated 26 May 2020. The statement annexed, relevantly, Sydney Water’s connections policy and responsibility for maintenance of the meter tap. It also annexed the ‘customer contract’. It annexed the accounts which Sydney Water relied upon to assert its debt claim. It annexed email correspondence from Sydney Water’s solicitor and Sydney Water and Ms Eliezer.

16. Mr Singh stated that he was unaware of any approval being supplied (in writing) to discount Ms Eliezer’s property from Sydney Water’s system or any receipt of a plumber’s document evidencing an approved disconnection; adding, further, that approval for disconnection would be unlikely for a strata lot.

17. He stated that no payment had been made by Ms Eliezer in reduction of the debt since the issue of the statement of claim.

Ms Eliezer’s evidence

18. Ms Eliezer prepared a signed statement in the Local Court proceeding, dated 10 June 2020. Ms Eliezer stated that from 2016 she was away from her property at 2/10 Wayella Street (West Ryde) but before doing so had closed the meter tap. She stated that in 2019, when checking upon her property, she noticed that the numbers on the meter tap were moving rapidly. She asked Sydney Water to repair it and states that after an initial failure, a contractor came out to her property on a subsequent occasion to repair the tap. This was around August 2019.

19. Ms Eliezer stated that in October 2019, she spoke with a Sydney Water employee about water usage due to the faulty meter tap. She states that an employee agreed to investigate. In the meantime, she offered to pay fixed charges, making a fortnightly payment of $200. However, she states that the Sydney Water employee never came back to her; and, although she followed up several times with Sydney Water, no one responded to her.

20. Ms Eliezer stated that Sydney Water commenced the proceeding during the pandemic. Subsequently, she states that she signed a notice of discontinuance. She further stated that she offered to sign it but only on the basis that Sydney Water would resolve the issue of the excess water charges and not ‘refile the Statement of claim’ ie commence a new proceeding. Ms Eliezer annexed to her statement a notice of discontinuance which appears to bear her signature and was dated 1 May 2020. But the copy annexed to her statement did not affix the seal of the Local Court and I infer was not filed (as required by r 12.1 of the Uniform Civil Procedure Rules 2005 (‘UCPR’)). That inference is confirmed by Ms Eliezer’s statement that Sydney Water did not accept terms of discontinuance which Ms Eliezer had sought. I infer that the terms for the discontinuance Ms Eliezer requested included “2. The plaintiff will not refile the claim. 3. The plaintiff will resolve the dispute through ADR. 4. The plaintiff will provide to the defendant the relevant customer contract and policy and invoices.” Ms Eliezer acknowledged that Sydney Water maintained the proceeding.

21. Ms Eliezer asserted in her written statement that Sydney Water had refused to satisfactorily answer the issue of responsibility for maintenance of the meter tap, but rather had asserted, through its solicitor, that it was her responsibility.

22. Ms Eliezer regarded Sydney Water’s position as “ambiguous” and asserted that it had several particular consequences for her. First, she was “misled” into using Sydney Water’s service to repair the meter tap; and secondly, the work (apparently the repair work to the meter tap) was not “fit for purpose” in line with a consumer guarantee required by the Australian Consumer Law (‘ACL’); thirdly, Sydney Water did not follow its dispute resolution policy, such as by engaging in a genuine mediation.

Complaints about matters raised in the Pre-Trial Review in the Local Court proceeding

23. Reference was made in the Assessor’s reasons, which I will shortly address, to the matter coming before the Small Claims Division for a ‘pre-trial review’, on 1 May 2020. This, it will be recalled, was the date that there were communications between Ms Eliezer and Sydney Water about the latter’s discontinuance of the proceeding. The Assessor noted at the hearing on 24 June 2020 (at T 30) that the notice of discontinuance which appeared in Ms Eliezer’s statement was what she had offered Sydney Water, but that Sydney Water had declined.

24. In her written witness statement, Ms Eliezer referred to another pre-hearing direction made by an Assessor on 13 May 2020. This was to the effect that Sydney Water was required to produce (and provide to her) contracts and policy diagram, by 22 May 2020. Instead, Ms Eliezer stated that she only received the document on 27 May 2020. The Assessor addressed this in her reasons on 24 June. The Assessor noted that they had been sent by regular, rather than express mail and, at any rate, were publicly available. Hard copies were supplied prior to the hearing. (24/6/20, T 30).

25. In the Assessor’s reasons, reference was also made to Ms Eliezer applying for a stay of the Local Court proceeding as she had made a complaint to the Energy and Water Ombudsman (‘EWON’). But it was only on 13 May that she made that complaint. At any rate, the Assessor noted that the Small Claims Division had no power to grant a stay and determined that the matter should proceed to hearing, and adjourned the hearing to 24 June 2020.

26. Ms Eliezer also complains that she was not able to obtain a complete transcript of the pre-hearing direction of 13 May 2020, which she wanted to have in order for her to make submissions at the hearing.

The hearing on 24 June 2020 before Assessor Harvey

27. The hearing in the Local Court was conducted by telephone link. Mr Roset, a solicitor advocate (instructed externally) appeared for Sydney Water. Ms Eliezer represented herself.

28. Sydney Water relied upon Mr Singh’s witness statement and supporting documents, numbering 255 pages. (To reiterate, Mr Singh’s statement and annexures made up the preponderant part of the content of Ms Eliezer’s affidavits in this proceeding, filed on 30 October 2020 at 4:41pm and 4:43pm). Ms Eliezer relied upon her witness statement.

29. In view of the criticisms made of the Assessor by Ms Eliezer, including the extent of her interventions and alleged bullying, it is appropriate to review what occurred during the hearing with close attention to detail.

30. Near the outset of the hearing, Mr Roset indicated that the debt claim should be reduced on account of two payments by Ms Eliezer, so that it was reduced to $4,767.57.

31. Soon after that indication was supplied, Ms Eliezer applied for an adjournment or dismissal of the claim. This appeared to be on the basis of Ms Eliezer initiating her own dispute on 15 April 2019. Sydney Water’s position was that this particular dispute had been resolved. In reply, on her application for adjournment, Ms Eliezer asserted that she had made complaint to the EWON. However, the Assessor observed that Ms Eliezer had not placed before the Local Court her correspondence with the EWON.

32. There followed an exchange through which the Assessor complained that Ms Eliezer had not placed before the Court supporting documentation, and relevant legislative provisions that she wished to rely upon and indicated that if she wanted the opportunity to do so, an adjournment would be necessary, but that she would have to pay the costs of the adjournment. In response to that indication, Ms Eliezer withdrew her adjournment application (T 12).

33. When the matter proceeded further, the Assessor asked Ms Eliezer what her defence was and, specifically, asked her whether she agreed that she owed Sydney Water the fixed charges. In response to that question, Ms Eliezer refused to answer. She told the Assessor that although she was willing to participate, she did not have the ability to answer the questions the Assessor had raised of her (T 13). But then she informed the Assessor that she had already offered to pay the fixed charges. The Assessor then articulated what he understood to be Ms Eliezer’s defence, which was that Sydney Water was responsible for the defective meter stop tap (at T13-14).

34. The Assessor then invited Mr Roset, acting for a client who was a Model Litigant, to address the point identified by Ms Eliezer regarding who was responsible for the allegedly defective meter tap. Mr Roset referred the Assessor to a diagram that was part of the Connections Policy (Eliezer, 30/10/20 (filed 4:41pm), p 27) identifying that Sydney Water owned the large pipes (mains) in the street and the water meter, but the property owner was responsible for all the pipes and fittings connected to the main, including the meter tap.

35. Mr Roset submitted that Ms Eliezer had abandoned her property for a period until her return in 2019 and could not disprove that water had flowed through the meter and been used. It could not be said that the tap was leaking, but a case that the tap had been turned on or off. The Assessor articulated her understanding of Sydney Water’s position: most pertinently, that the first time that Ms Eliezer had raised the issue regarding unwanted or unwarranted water usage was in April 2019 as a basis for disputing invoices that had been rendered since 2016. Further, that although Sydney Water went out in August 2019, when Ms Eliezer had raised a dispute, to repair the tap, that was ex gratia and did not amount to an admission of responsibility. The water was going through the water meter and the tap was not leaking: if it had been the water would not have gone through the meter (T15-17).

27. Having confirmed, with Mr Roset, her understanding of Sydney Water’s position, Assessor Harvey then asked Ms Eliezer to respond (T 17). When Ms Eliezer suggested that the Assessor had ‘taken a view’ that the meter would not be going up if the meter was faulty, the Assessor told Ms Eliezer not to ‘verbal’ her. After referring to evidence that Mr Roset relied upon, the Assessor invited Ms Eliezer to submit her position on the evidence (T17-18).

28. Ms Eliezer then referred to her written statement. She submitted that Sydney Water had a guarantee of warranty. She said that Sydney Water was aware that she was not at her property. She proceeded to say that her family was in danger. This was not a matter referred to in her witness statement and prompted the Assessor to question Ms Eliezer about her submission that Sydney Water had advised her to turn off the tap (T 18-19).

29. Ms Eliezer complained that she was “totally distraught” and stated that, as with Mr Roset, who had 15-20 minutes ‘going through the whole thing’, she wanted a similar opportunity. The Assessor indicated that she would not interrupt her again; but that her earlier interruptions were intended to direct her to issues she felt needed to be addressed (T 19).

30. Ms Eliezer than submitted that her understanding was that whilst she was away, her property had been, or should have been, disconnected by Sydney Water. She said that she needed the supply disconnected “asap not to accrue any further charges”. She referred to receiving advice from Sydney Water to call Linbeck to help her check the meter tap. She indicated that Linbeck, Sydney Water’s contractor, ‘confirmed’ that the meter tap had been leaking. After ‘they’ had returned to her property on 19 August 2019, the meter reading stopped. After informing Sydney Water that the meter reading had stopped in October 2019, she said that Melanie Maroney said she would investigate but nothing more had happened before she was served with a statement of claim. She was misled into sending a free service. The circumstance that Linbeck serviced the water tap indicated that it was Sydney Water’s responsibility for the work. (T19-20). Ms Eliezer also asserted that she had asked to receive contracts, but they had not been supplied. The first time she became aware of the charges was in 2019. She was not told that there was a contract. She did not understand that the meter tap was her responsibility. She complained about the circumstances when she received the statement of claim. She said she made an offer of $2,000 to pay for all the fixed charges. She complained that Sydney Water was not trying to resolve the matter. She referred to her sending instructions to the EWON (T 20-21).

31. The Assessor then asked Ms Eliezer whether, in her witness statement, she disputed receiving the water bills between 2016 and 2019, or notified Sydney Water that her address was not 2/10 Wayella Street so that invoices could be sent elsewhere. Ms Eliezer said that she only informed Sydney Water that she was not at the property. When Assessor pressed her as to whether she disputed receiving the invoices in the period. Ms Eliezer responded “I am not here to go into these things” and disputed the relevance of the question (T 22)

32. The Assessor then summarised her understanding of Ms Eliezer’s position (at T 22), which I now reproduce:

“… it seems that you received on all the evidence, you were sent these invoices at that unit. You don’t dispute that you received the invoices and between 2016 and 2019 you did not pay the fixed charges nor did you raise a dispute with (Sydney Water) in relation to the water usage charges until after they emailed you to try to follow up a payment plan and it is only at that stage did you raise the issue in relation to the charges. Is that the –

DEFENDANT: That’s because I was not aware that these charges were implemented.

ASSESSOR: All right. Okay, is there anything else, Ms Eliezer?

DEFENDANT: I have nothing further.”

42. Thereafter, the Assessor had an exchange with Mr Roset about Sydney Water’s responsibility for repair. The Assessor identified the section in the connections policy (Eliezer, 30/10/20 filed 4:41pm, pp 21 and 26-7). Mr Roset confirmed the Assessor’s understanding that it was Sydney Water which contacted Ms Eliezer in response to her email of 15 April 2019, on an ex gratia basis, as a result of her saying that she had not disconnected the supply, so as to avoid water being wasted (T 23). There was a further exchange about the question whether the disconnection was sought or ever done. Mr Roset referred to Mr Singh’s evidence indicating that there was no approval and not likely to be any such approval for a strata unit (T 24).

43. After that, the Assessor asked Ms Eliezer whether there was anything else that she wanted to put. Ms Eliezer indicated no, but notwithstanding that, there was a further exchange as to why she should not be bound by the contract when she purchased the property. This then provoked Ms Eliezer to refer to the jurisdiction of the New South Wales Civil and Administrative Tribunal (‘NCAT’) in relation to consumer claims. The Assessor asked Ms Eliezer whether she had complained to NCAT. After providing a non-responsive answer to that question (T 25), there was a further exchange with Ms Eliezer, in which the Assessor asked her why, as at April 2019, she raised no issue about the tap and had not done anything to disconnect the water. Ms Eliezer said that Sydney Water told her to disconnect in 2016, when she left the property and she did what they told her, to ‘turn off the tap’ (T 25). When it was suggested by the Assessor that she did not appreciate that turning off the tap was not to be disconnected, Ms Eliezer referred to receiving a disconnection notice, but could not inform the Assessor when she received such notice (T 26).

44. At this point, Ms Eliezer indicated that she was not “in a good condition” any more, was under “enormous stresses” and said something, not fully transcribed, about discontinuing the matter. This prompted the Assessor to point out that Ms Eliezer had been offered a discontinuance of the proceeding but she had rejected such offer (T 26).

45. The Assessor then (at T 26-27) gave an outline of what she understood was the differences that divided the parties and in particular her understanding of Sydney Water’s case, and then asked her whether there was anything she wanted to say in response. Ms Eliezer responded by disputing that she had rejected the notice of discontinuance. She had proposed terms and it was Sydney Water who had rejected them. The Assessor disputed that submission before pointing out that Ms Eliezer had the opportunity to go through the EWON process and take other steps to resolve the dispute. She then asked Ms Eliezer if she had anything else to submit. Ms Eliezer said no (T 27).

The Assessor’s reasons for decision

46. At T 28-35, Assessor Harvey provided reasons for her decision. I have touched upon earlier the Assessor’s responses to certain procedural complaints raised by Ms Eliezer. This included (but was not limited to) a complaint about Sydney Water issuing process without having gone to the NCAT first, but the Assessor pointed out that there was no evidence to substantiate that complaint (T 31). She also pointed out the circumstances in which Ms Eliezer initially requested, but withdrew an application for an adjournment to have more time to put on evidence, such as communications with the EWON (T 31-32)

47. Moving to more substantive matters, the Assessor noted that Ms Eliezer did not press her assertion that Sydney Water failed to disconnect despite her request that it do so (T31). The Assessor then identified matters which were not in dispute: Ms Eliezer’s statutory liability for the invoices; her ownership of the property (from 2004) and the numerous invoices to substantiate the debt claim (T 32). The Assessor analysed the invoices, for what they said about the water usage. These were unremarkable until an “extraordinary blowout” in August 2019 (T 32-33).

48. The Assessor addressed the question about the tap. She accepted that there was a faulty tap, but noted that it was essential to Ms Eliezer’s case that this was the result of the negligence of Sydney Water. She rejected Ms Eliezer’s evidence, not corroborated by other evidence, that Sydney Water installed the tap, in the face of evidence that the customer was responsible for the meter tap; including its repair (T33). She also addressed Ms Eliezer’s point that it could be inferred that the tap was Sydney Water’s responsibility, given that they had sent someone around to fix it and, at any rate, she did not ever receive the contract. The Assessor’s response to these arguments were that Sydney Water’s contract indicated that in the circumstances, that service was provided ex gratia and did not betoken an assumption of liability for its repair. As to Ms Eliezer’s state of mind, that did not change her contractual obligation (T 33-34).

49. The Assessor observed that it was Ms Eliezer’s responsibility, having received invoices from 2016 to 2019 to raise an issue about any disputed amount and water use charges, but she did not complain until April 2019. These were fixed charges that were not disputed but which had not been paid (T34). The circumstance that the water user charges started small, but became large was Ms Eliezer’s responsibility. In particular, if there was a problem with the invoices, it was her obligation to address it (T 34). The Assessor emphasised that the vast majority of the monies on the invoice ($3,299) were made up of fixed term charges with relatively small water user charges. The balance ($2,000) occurred after February 2019 when the water usage was high. But there was no evidence from Ms Eliezer as to what caused the high water usage, when she was responsible for the water meter tap (T35).

50. The Assessor accordingly found that Sydney Water made out its claim for the principal sum of $4,766.57. To this sum was to be added filing fees and interest.

51. The balance of the hearing then addressed Sydney Water’s application for costs, based upon Ms Eliezer’s rejection of a genuine offer by Sydney Water. The effect of this was to ‘bump’ up the costs on the prescribed scale by 25% loading, resulting in an increase in an allowance for solicitor’s costs from $1,259.20 to $1,574. This was based on the notice of discontinuance of 1 May 2020

52. Ms Eliezer opposed that application. She referred to not having the contract documentation and her own offer of $2,000. She disputed that an offer by Sydney Water to her, whereby she would pay the outstanding debt, was not a genuine offer (T36-37). The Assessor found that the offer was genuine and ordered costs on the basis of the 25% uplift or ‘bump’. Interest was then incorporated in the amount on the principal debt.

THE APPEAL TO THIS COURT

53. In addition to placing before this Court her own witness statement and Mr Singh’s witness statement (including annexures to each respective statement), Ms Eliezer sent to the Court three letters to Sydney Water dated (in order), 18 June 2020 (unsigned copy), 8 February 2021 and 10 March 2021.

54. My very brief glimpse at the last two letters indicated that they are inadmissible in this appeal. There are at least two reasons for this.

55. First, by s 38 of the LC Act, judgments and orders of the Local Court are final and conclusive. Although ‘fresh evidence’ can be relied upon in an appeal, that is evidence that was not evidence before the Local Court, that is subject to certain constraints which are not satisfied. The briefest perusal of the letters of 8 February 2021 and 10 March 2021 indicates that they refer to events that post-date the events in this proceeding. They must necessarily be irrelevant to the issues on appeal. This brings me to the second and more fundamental point: both letters patently amount to ‘without prejudice communications’ and, accordingly are inadmissible under s 131 of the Evidence Act 1995 (NSW). I do not have regard to those letters.

56. As to the plaintiff’s letter of 18 June 2020, this letter was referred to by Ms Eliezer in argument in the Local Court (T 9). It is unnecessary to admit this attachment separately. The letter was already annexed (as pp 61-62 to Ms Eliezer’s affidavit filed on 30 October 2020 (filed at 3:42pm) and no objection was raised as to its admissibility by Sydney Water in its submissions.

57. The letter set out factual assertions. It is not necessary to repeat them. They were all ventilated in the hearing before the Assessor. The thrust of the letter was to dispute Sydney Water’s right to commence the proceeding without answering her ‘consumer issues’. She asserted a right to claim compensation from Sydney Water but, as a goodwill gesture, offered to pay it $2,000 but the dispute could only be resolved by it discontinuing the proceeding ahead of the scheduled hearing or adjourn that proceeding. If Sydney Water did not accept the offer, she would lodge a complaint with the Australian Competition and Consumer Commission and claim compensation under the ACL.

GROUNDS OF APPEAL

58. Ms Eliezer prepared her Summons and her written submissions dated 30 November 2020. Her grounds of appeal were not, as they should have been, identified in the Summons (per r 50.4 of the UCPR) but were set out in her written submissions.

59. Ms Eliezer’s written submissions not only identified the grounds of appeal, but also cross-referenced them, but some of the grounds of appeal were not elaborated in the written submissions. Thus, for example, ground 1(e) was that the Assessor “acted in bad faith by relying on technicalities to entrap the defendant”. But at paragraph 32 of Ms Eliezer’s written submissions, when reference is made to ground 1(e), all that is said to support the ground was that the Assessor did not find that Sydney Water owed any contractual obligations to her and did not mention the ACL. That argument is not a sufficient foundation for an allegation of bad faith.

60. Ms Eliezer elucidated her argument on the grounds of appeal at paragraphs 22-35 (inclusive) of her submissions. It is to this argument that I propose to focus my consideration. Ms Eliezer’s submissions in chief reflected and recognised the limited scope for appeal to this Court under s 39 of the LC Act; as the grounds of appeal fell into two categories.

61. Under the category of ‘jurisdictional error’, Ms Eliezer submitted that jurisdictional error arose through the Assessor:

1. exceeding its jurisdiction by hearing the dispute when the jurisdiction to determine the dispute was properly exercisable only by the NCAT (Grounds 1(a) and (b));

2. hearing the matter without being satisfied that procedural requirements for pre-trial reviews contained in r 2.5 of the Local Court Rules2009 (NSW) (‘LC Rules’) had been satisfied and a transcript of that review was not available (Ground 1(c));

3. reversing the onus of proof (Ground 1(d));

4. failing to consider Sydney Water’s breach of its own contractual obligations or non-compliance with the ACL) (Grounds 1(e)-(g)(incl)).

62. Under the category of denial of procedural fairness, Ms Eliezer argued that this was made out through:

1. non-compliance with the procedural requirements of the pre-trial review (ground 2(a), this being substantially the same ground as ground 1(c));

2. taking into account Ms Eliezer’s failure to call expert evidence when that was not practicable, unnecessary and would not have made a difference (ground 2(b);

3. bias (partly manifested by bullying) (ground 2(c));and

4. pre-judgement (ground 2(d))

CONSIDERATION

The Jurisdictional Error Grounds

The NCAT’s jurisdiction (Grounds 1(a)-(b)

Ms Eliezer’s argument

63. Ms Eliezer argues that the evidence showed that she had a valid ‘consumer claim’ against Sydney Water. That being so, jurisdiction to deal with that claim resided in the NCAT, under s 58 of the Sydney Water Act1994 (NSW).

64. In the face of the jurisdiction of the NCAT to deal with the dispute, it was not open, Ms Eliezer argued, to Sydney Water to commence the proceeding in the Local Court. It was a mischaracterisation to view the ‘matter’ between the parties as being Sydney Water’s money claim against her. The proper course for it was to file a cross-claim in a proceeding in the NCAT. That would have avoided the result of two potential proceedings in alternative forums. Once Sydney Water had filed its claim against her, she could not file a cross-claim, based upon the ACL or the customer contract.

65. The Assessor erred in proceeding to hear Sydney Water’s claim which, in effect, pre-empted Ms Eliezer’s consumer claim.

Consideration

66. Section 58 of the Sydney Water Act provides that the jurisdiction of the Civil and Administrative Tribunal (NCAT), as conferred under Part 6A of the Fair Trading Act 1987 (NSW), extends to the hearing and determination of a ‘consumer claim’ (within the meaning of that Part) relating to a service supplied by the (Sydney Water) Corporation under a customer contract.

67. A ‘customer contract’ is defined in s 55(1) of the Sydney Water Act, which provided that “an owner of land that is connected to a water main or sewer main owned by the Corporation is taken to have entered into a customer contract with the Corporation, on the terms and conditions set out in the relevant operating licence or licences as varied from time to time in accordance with section 59, for the provision of water supply or sewerage services, or either of them, to the land”. In her defence to the statement of claim in the Sutherland Local Court, Ms Eliezer admitted that she entered into a customer contract with Sydney Water.

68. Part 6A of the Fair Trading Act provided generally for NCAT’s jurisdiction in relation to consumer claims. The objects of Part 6A are described as providing “remedies for, and the straightforward resolution of, disputes concerning the supply of goods and services to consumers” (s 79B).

69. By s 79E of the Fair Trading Act, a ‘consumer claim’ means:

"a claim by a consumer, for one or more of the following remedies, that arises from a supply of goods or services by a supplier to the consumer (whether or not under a contract) or that arises under a contract that is collateral to a contract for the supply of goods or services--

(a) the payment of a specified sum of money,

(b) the supply of specified services,

(c) relief from payment of a specified sum of money,

(d) the delivery, return or replacement of specified goods or goods of a specified description.

(2) For the avoidance of doubt, a reference in this Part to a consumer claim includes a reference to a claim by a consumer against a supplier (for example, a manufacturer or wholesaler) who is not the direct supplier of goods or services to the consumer if the claim arises from or in connection with the supply of those goods or services by the direct supplier to the consumer.

70. I accept that Ms Eliezer potentially had available to her a consumer claim, in the sense of an entitlement arising from the supply of a service by Sydney Water under a consumer contract through which she could have sought relief form payment of a specified sum of money.

71. Section 79I of the Fair Trading Act confers standing on a consumer to apply to the NCAT for the determination of a consumer claim. Section 79J expressly conferred jurisdiction on the NCAT (there being no issue concerning the applicability of the exception in s 79K). There is a limitation period under s 79L, but Sydney Water made no submission that had Ms Eliezer brought a claim in NCAT, it would have been time-barred.

72. There is no provision under Part 6A of the Fair Trading Act which conferred upon NCAT the exclusive jurisdiction to deal with a dispute that might involve a consumer claim. To the contrary, the Local Court of New South Wales also had jurisdiction to determine the dispute. Sydney Water brought a money claim for a small amount (so small as to be in its Small Claims Division) (LC Act, ss 29A and 30(1)(a)).

70. In order to avoid the conflict of the NCAT and the Local Court exercising concurrent jurisdiction at the same time, Part 5 of Schedule 4 of the Civil and Administrative Tribunal Act2013 (NSW) (‘CAT Act’) prescribes the relations between the NCAT and courts. Schedule 4 generally concerns the Consumer and Commercial Division, which is relevantly the Division of the Tribunal that functions to deal with matters raised under the Fair Trading Act (Part 3, s 3).

71. Section 5(3) of Schedule 4 of the CAT Act generally provides that if at the time when an application was made to NCAT, such as the determination of a consumer claim, there was no issue arising under such application which was the subject of a dispute in proceedings pending before a court, the court would have no jurisdiction to hear or determine such an issue. But section 5(7) provided that if at the time when an application was made to NCAT, an issue was the subject of a dispute in proceedings before a court, the Tribunal, on becoming aware of those proceedings, ceased to have jurisdiction to hear or determine the issue.

72. Sydney Water commenced its proceeding in the Sutherland Local Court on 13 March 2020. By that date, Ms Eliezer had not brought any application for determination of a consumer claim in the Tribunal. By operation of s 5(7) of Schedule 4 to the CAT Act, had she done so after 13 March 2020, the Tribunal would not have had jurisdiction to determine that claim. Had she brought a consumer claim in the Tribunal before 13 March 2020, then prima facie, the Local Court would not have had jurisdiction to hear Sydney Water’s money claim. But this did not occur. It is not to the point that it was neither advisable nor feasible for her to file a consumer claim after Sydney Water had filed its money claim. She had the opportunity to bring the claim but did not do so.

73. Moreover, there is no evidence to suggest that Ms Eliezer has ever brought an application for determination of a consumer claim in the Tribunal even after the Local Court’s jurisdiction was ‘spent’. As I noted in my review of the hearing in the Local Court, she provided a non-responsive answer when the Assessor asked her whether complaint had been made in NCAT. Her arguments before the Assessor rose no higher than that she had a potential consumer claim and, on that account, the Local Court proceeding should be stayed to allow her to bring such claim. That would have had the effect of delaying Sydney Water’s claim against her until such time as Ms Eliezer determined to bring a claim before the NCAT. The legislative framework does not permit such course to occur.

74. The Assessor did not fall into jurisdictional error by proceeding to hear Sydney Water’s claim which, it might be noted, was the only claim that had or has ever been agitated by the parties to the proceeding. Grounds 1(a) and (b) are rejected.

Lack of compliance with pre-trial review requirements (Grounds 1(c) and 2(a))

78. Ms Eliezer argued that the provisions in Division 3 of Part 1 of the LC Rules, and notably rr 2.4 and 2.5, which concern the ‘Pre-trial review’ set forth ‘conditions precedent’ to the exercise of the Assessor’s jurisdiction. There was no evidence that those conditions were fulfilled. But the Assessor proceeded to hear the matter anyway. The transcript of the Pre-Trial Review was not available.

79. In Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531 (‘Kirk’) at [72], the plurality in the High Court instanced, as illustrations of jurisdictional error by an inferior court, the Court acting outside the limits of its functions and powers by the absence of a ‘jurisdictional fact’, disregard of a matter that the relevant statute requires be taken to account as a condition of jurisdiction (or the converse case of taking account of a matter required to be ignored); and misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case

80. Sections 26(1) (and 42) of the LC Act empower the Local Court, through its Rules Committee, to make provision for rules relating to the Court’s civil jurisdiction, relevantly concerning the practice and procedure in the court. By s 42(3), it is intended that the LC Rules are generally not to be inconsistent with the UCPR. The Court’s procedure is also regulated by Practice Notes (s 27), such as the Local Court Practice Note Civ 1.

81. The rules of the Local Court, including rules 2.4 and 2.5, which provide for ‘pre-trial reviews’ apply to a proceeding commenced in that Court on the premise that the Local Court is validly seized of jurisdiction. They are not conditions that go to the existence of the jurisdiction. If they were, it would have been expected to have been raised in Part 3 (and especially Division 2 of Part 3) of the LC Act which, as I have indicated, sets out the civil jurisdiction of the Local Court. The rules generally were servants, not a master. Ms Eliezer points to the imperative nature of the language ‘must’ under the rules as betokening the existence of a condition precedent I do not agree. Not every use of the word ‘must’ in a court rule is such that non-compliance with a requirement spells invalidity of a subsequent act. That is still less so when it comes to the matter of jurisdiction. At any rate, Ms Eliezer’s submissions neglect that the rules are capable of being dispensed with under s 14 of the CPAct 2005 (NSW), a power which applied to the Local Court (by reason of s 4 of the CP Act).

82. The further suggestion that it is a condition precedent for a hearing to proceed in the Local Court that a transcript of the pre-trial review must be made available has no merit.

83. The asserted failures to comply with procedural rules did not deprive the Local Court of jurisdiction and the extent to which any non-compliance with the rules at the Pre-Trial Review occurred did not prevent the Assessor from hearing the dispute.

84. Grounds 1(c) and 2(a) are rejected.

The onus of proof (Ground 1(d))

85. As I understand this ground, Ms Eliezer argued that the Assessor conducted herself in a way which illustrated that she had, in effect, reversed the onus of proof, or, as Ms Eliezer put it imposed the wrong onus of proof, and alternatively, she erred in drawing inferences adverse to her. Ms Eliezer cited the following examples:

1. There was no onus on Sydney Water to bring the contract or its terms to Ms Eliezer’s attention prior to the institution of the legal proceeding. Rather, the onus was on Ms Eliezer to source the relevant contract and terms;

2. There was no onus on Sydney Water to respond to Ms Eliezer’s complaint. Rather, the onus was on Ms Eliezer to infer, from Sydney Water’s silence, that the complaint had been resolved (T 18.50-19.4);

3. The onus was on Ms Eliezer, having received a disconnection notice, to find the appropriate procedure and then follow up (T 24-25).

86. Issues of onus of proof are practically assessed by reference to the pleadings. As indicated, by her Defence (paragraph 2), Ms Eliezer admitted the contract which Sydney Water sued upon for its debt claim. The only remaining issues, following Ms Eliezer’s defence, were the quantum of debt and her liability for the debt. In the way that the case in the Local Court was conducted, the only question of liability (as distinct from proof of the quantum of the money claim) arose from Ms Eliezer’s negligence defence.

87. It may seriously be doubted whether Ms Eliezer’s plea of negligence could constitute a defence to Sydney Water’s money claim, arising from a contract^[1] . That is not to say that it could not have founded a cross-claim. At any rate, Sydney Water took no point in any Reply about whether negligence was an available defence and, on that basis, the plea was heard and determined by the Assessor.

    1. See the discussion in Astley v Austrust Ltd (1997) 197 CLR 1, which supplies some assistance, by analogy, on the defence of contributory negligence to a claim for breach of contract.

88. Part of Ms Eliezer’s ‘defence’ of negligence, when considering the particulars to that plea, was that Sydney Water was responsible for the maintenance and repair of the stop tap (particular (iv) of paragraph 3 in the Defence), which duty, it was said was breached by Sydney Water (particular v). Ms Eliezer provided no particulars (which, strictly speaking she should have) as to whether that ‘duty’ rested in contract, tort or statute, nor did she articulate whether that duty was absolute, or strict or amounted only to the exercise of reasonable care. But assuming, for present purposes, that she meant that the duty arose in contract, then in order for her to sustain the defence of negligence it is implicit that her case was that the term which Sydney Water breached required the exercise of reasonable care, (whether that be express or implied) it was in her interest to prove the facts that sustained such term. She could not simply rely upon Sydney Water’s identification of the services (which she admitted), being that of ‘water supply, sewerage and/or stormwater drainage services and the imposition of charges relating to services provided’. It appears that she was suggesting that the contract also required Sydney Water to supply services in the nature of maintenance or repair. To my mind, it was not self-evident that such a term could be implied as a matter of law or even as a matter of fact. But the point is that if she was to rely upon a service of that kind in order to sustain her ‘defence’ of negligence, then in my view, it was she who carried the burden of proof the existence of the term and its breach; and not simply carried an evidentiary onus with Sydney Water ultimately carrying the persuasive burden of proof (or, more accurately, disproof).

89. Be that as it may, I am not satisfied that any erroneous determination of the onus of proof amounts to a jurisdictional error, even if it might amount to an error of law.

90. But as to the alternative complaint, that the Assessor drew inferences adverse to her from her not putting forth evidence when she should not have drawn such inferences, this is not jurisdictional error but an asserted failure in the reasoning process. That might also amount to an error of law, but that could only be an error within jurisdiction^[2] . This Court has no jurisdiction to remedy errors of law within the Small Claims Division of the Local Court. Ground 1(d) therefore fails.

    2. Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 141 [163]; and for the continued distinction between administrative tribunals and inferior courts, on the reviewability of errors of law, see Kirk at [66] – [68]

Sydney Water’s own breach of contract and non-compliance with the ACL (Ground 1(e)-(g))

91. Ms Eliezer argued that contractual obligations applied to Sydney Water and not just to her. But, she complains, the Assessor made no findings about Sydney Water owing any contractual obligations and made no findings about (nor mentioned) the ACL. This complaint is related to the one that sustains ground 1(d).

92. These grounds or sub-ground appear to amount to a complaint about a failure to give reasons, or at least adequate reasons, by failing to refer to matter which, Ms Eliezer contends, needed to be referred to.

93. I do not read the Assessor’s reasons for her decision as amounting to a rejection of her jurisdiction to consider Sydney Water’s breach of its contractual obligations or conduct that was either proscribed by or not in compliance with provisions of the ACL. There was no misapprehension or self-imposed limitation by the Assessor on her capacity to decide any aspect of the dispute.

94. Assuming, for present purposes, that the Assessor failed to give adequate reasons, that omission might amount to an error of law^[3] , even if it did, it concerned an error within jurisdiction, rather than error which goes to jurisdiction.

    3. Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 per McHugh JA at 281G

95. No submissions elaborated ground 1(e), and that is rejected.

96. As to ground 1(f), that is subsumed in the ground of procedural fairness considered (especially paragraph 124) below.

97. No submissions elaborated ground 1(g), and that is rejected.

Procedural fairness grounds

98. As indicated, ground 2(a) has been dealt with in my consideration of ground 1(c).

Taking into account Ms Eliezer’s failure to call expert evidence (ground 2(b))

The argument

99. I do not understand, and Ms Eliezer did not elaborate in her submissions what she means by contending that the Assessor imposed an ‘arbitrary case’ upon her to meet. The ground is, however, referred to in paragraph 34 of her submissions.

100. Ms Eliezer argued that the Assessor had determined that she was ‘required’ to submit expert opinion evidence (T14.4-7). This related to the issue of responsibility for repair of the tap. It was said to be erroneous, on several levels, for the Assessor to find that she needed to submit expert evidence. First, it was unnecessary. In this regard, it was wrong for the Assessor to prefer the evidence of a contractor’s diagram to a document left by Sydney Water’s contractor, Linbeck.

101. Second, it was unreasonable to expect Ms Eliezer to obtain further expert evidence during “the height of” the Covid-19 lockdown.

102. Third, any such expert opinion evidence would not have made any difference.

Consideration

103. This argument of Ms Eliezer is firstly, an inaccurate characterisation of what the Assessor said. The passage which Ms Eliezer set out occurred in the context of an attempt to elucidate an understanding of the issues and the parties’ respective positions on those issues. It was in such context that the Assessor inquired of Sydney Water’s solicitor advocate, Mr Roset, how he responded to Ms Eliezer’s contentions that Sydney Water defectively repaired the water tap and, consequently, was responsible for the charges. It was only in the course of asking that question that the Assessor mentioned that Ms Eliezer had not called an independent person or expert. That was only an observation made in passing and did not constitute a finding.

104. It is true that in her reasons, the Assessor referred (at T 33.31) to there being no evidence other than Ms Eliezer’s assertion, to support her allegation that Sydney Water installed a faulty tap. That might, implicitly, contain a reference to her not calling expert evidence. But even if that was right, that was not an impermissible line of reasoning and, even it was, would not amount to any denial of procedural fairness. The Assessor would only be drawing inferences from the facts proven in the evidence which the parties had placed before her. It is trite to observe that in the adversarial proceeding of this kind, it is the parties who decide the issues and the evidence. These are not the functions of the decision-maker. The decision-maker must do his or her best to decide the case on the basis of the evidence before him or her. Assessor Harvey did not ‘require’ Ms Eliezer to call evidence of a particular kind, or generally of any kind.

105. Ms Eliezer’s second point is that it would be unreasonable to expect her to call expert evidence, given the pandemic. But that was not necessarily self-evident and it was not something that Ms Eliezer ever sought to explain, or justify, to the Assessor. It is a common place for parties in civil litigation, where they think (or are taken to have thought) that the absence of a witness might be material to decision-making, to supply an explanation as to why it has not been possible to call such witness. Perhaps, depending on the lockdown restrictions that prevailed as at 24 June 2020 (about which there is no evidence presently before the Court), the Assessor might have accepted, as a matter of ‘common knowledge’, that such evidence could not be called (s 144 of the Evidence Act1995 (NSW)), but if that was to be so, it required some submission to that effect by Ms Eliezer. Ms Eliezer did not mention this matter.

106. Ms Eliezer’s third and final point was that calling expert evidence would not have made any difference. Ironically, this point, if it is a good one, completely undermines the primary complaint about the Assessor denying her natural justice by requiring her to call such evidence. Procedural fairness, at bottom, is designed to prevent practical injustice^[4] .

     4. Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 per Gleeson CJ at 13-14.

107. Ground 2(b) fails.

Bullying (ground 2(c))

108. Ms Eliezer complains that the Assessor engaged in bullying behaviour towards her, and disrupted her, by her interventions, to such degree as to undermine her proper presentation of her case. The instances of bullying were said to be so numerous as to permeate the entire hearing. Because of the bullying, Ms Eliezer did not have the opportunity to persuade the Assessor of a contrary view, because she did not wish to antagonise the Assessor who had the power to determine the litigation. Also the extent of disruption, or intervention, by the Assessor unduly compromised the Assessor’s advantage in objectively evaluating the evidence from a detached distance.

109. Although this was not elaborated in her written submissions, Ms Eliezer also complained that the Assessor failed to act impartially, by taking up Sydney Water’s arguments and siding with it at every stage of the hearing. I interpret this as amounting to an allegation of bias. In her written submissions in reply, Ms Eliezer emphasised that she was not relying upon actual bias, but only ostensible bias.

Consideration

110. The test for apprehended bias, as recognised by Ms Eliezer in her written submissions, is “whether 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.”^[5]

     5. Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] (“Ebner”)

111. However, at [8], the plurality in Ebner indicated the steps required to make out whether the test was satisfied. They were:

“First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.”

112. In the decision cited by Ms Eliezer in her written submissions, of R v T, WA (2014) 118 SASR 382, the Full Court of the Supreme Court of South Australia accepted that a judicial officer’s ‘excessive intervention’ in a case may be indicative of (at least) apprehended bias. The Full Court also indicated that, in that case (a criminal case, involving a judge sitting alone) such conduct might tend to show other tendencies which showed that a conviction was procured through a miscarriage of justice, being that the intervention undermined the accused’s Counsel’s presentation of the client’s case and compromised the judge’s advantage in objectively evaluating the evidence. In that case, the intervention took the form of questions and comments raised during the evidence of a witness.

113. ‘Bullying’ by a judicial officer of an advocate, or a party, or a party’s witness was not identified in that case as another species of apprehended bias, but it seems to me that, in principle, it is not dissimilar to ‘intervention’; albeit intervention of a qualitatively different kind of the type of intervention that was considered in R v T, WA. I take the concept of bullying in its ordinary meaning of overbearing behaviour which browbeats a person in a weaker position [6] . It seems to me that it can, in principle, also give rise to apprehended bias.

     6. Macquarie Dictionary Online version

112. Whether the apprehended bias arises from excessive or unwarranted interventions, or bullying, or both, it is clear that Ms Eliezer’s complaint is that the apprehended bias lies in prejudgement.

113. In Johnson v Johnson (2000) 201 CLR 488, the plurality noted (at [13]) that when ascertaining what the hypothetical or fictional fair-minded lay observer might think, whether apprehended bias is made out has to be considered in the context of ‘ordinary judicial practice’. Whether or not, in a formal sense, the Assessor was a judicial officer^[7] , she was performing judicial duties and doing so in accordance with a statutory obligation under s 56(2) of the Civil Procedure Act 2005 (NSW) to justly, quickly and cheaply identify, and ultimately determine, the real issues in dispute. Under the prevailing practice in the Small Claims Division of the Local Court, she was required to conduct the proceeding with as little formality and technicality as proper consideration of the proceeding permitted ^[8] . But being a hearing in the Small Claims Division, there were certain constraints upon the usual incidents of adversarial procedure evident in other courts: there was for example, no right in the parties to call witnesses to give evidence and no right to cross-examine ^[9] . This can attenuate the capacity of an Assessor, or Magistrate deciding cases as the evidence cannot be as meaningfully tested as it can in other courts. They administer busy lists, are always conscious of the demands of litigants awaiting their hearings but remain under an obligation to reach their decisions quickly and justly.

     7. As to which, see McClymont v Owners Strata Plan No. 12139 (2009) 74 NSWLR 404 and Schedule 2 of the LC Act 2007 (NSW)

     8. Local Court Practice Note Civ 1 paragraph [20.2]

     9. Ibid, paragraph [24.2]

114. There are also severe constraints upon the capacity of successful litigants to recoup legal costs upon the outcome of a proceeding. I consider that I can infer as a matter of common knowledge that many, perhaps most, of the litigants who appear in the Small Claims Division are unrepresented. The circumstances that the costs incurred by representation might outweigh the amount at stake and the restrictions upon the right to recover costs must, to many, make legal representation economically unviable. So if the task of an Assessor or Magistrate was not difficult enough, there is the additional factor that often they do not have before them legal practitioners who are not only trained in the law, including evidence and procedural law, but are officers of the Court with well-known ethical duties.

115. No more and no less than other represented parties, unrepresented litigants have an obligation, under s 56(3) of the Civil Procedure Act, to assist an Assessor (or Magistrate) with the discharge of onerous responsibilities. An assessor, like any judicial officer, may have an obligation to try to help alleviate the types of disadvantages that arise from a party’s status as an unrepresented litigant (including, most obviously ignorance of procedure), but nevertheless, they must remain (and be seen to remain) impartial and be conscious that they do not confer privileges upon unrepresented litigants not available to litigants who receive representation. Parties, like Ms Eliezer, who appear for themselves in the Small Claims Division of the Local Court cannot reasonably begrudge an Assessor or Magistrate interrupting their presentations where that is necessary to help them identify and resolve points raised in contention. Nor can they reasonably begrudge an Assessor or Magistrate challenging factual assertions made that are either not supported by what has been said by the party in his or her written statement (the written statement being the vehicle by which a party’s case is proven) or which are otherwise inconsistent with the evidence before the Assessor. Interventions on those bases are justified of any person who appears before an assessor as advocate, whether they are representing a party or, as in this case, is an advocate in his or her own cause.

116. I have read closely the transcript of the hearing on 24 June 2020. There is no question that the Assessor was interventionist, in the sense of (a) articulating what she understood the issues and parties’ positions were and (b) asking questions of Ms Eliezer and Mr Roset. But in these respects, I do not discern any discriminatory treatment between the Assessor’s dealings with Ms Eliezer and her dealings with Mr Roset.

117. The Assessor turned, fairly early in the course of the hearing, to Mr Roset for assistance in interpreting and responding to what he understood was Ms Eliezer’s defence, before hearing from Ms Eliezer. There was nothing wrong with her doing so. There was ‘no one size fits all’ prescribed procedure of addresses which the Assessor was obliged to follow through the hearing. As the Assessor noted, it could be argued that Sydney Water was a Model Litigant, and in that sense had elevated obligations of fairness, including the fair characterisation or construction of Ms Eliezer’s case, as Sydney Water understood it to be. Ms Eliezer did not complain then, and does not complain now, that anything Mr Roset said to the Assessor was an unfair characterisation or inaccurate characterisation of her defence.

118. It is also true that when (after the adjournment application was withdrawn), Ms Eliezer asked to interrupt Mr Roset who was at that point addressing the Court, the Assessor told her not to interrupt and invited her to ‘take notes’ and, in effect, wait until she had her turn. Even if the assessor’s language might have been somewhat curt, there was nothing improper about the substance of that indication.

119. After Mr Roset had finished what he wanted to say (at T 17), Ms Eliezer had her opportunity to address the Assessor. She started with the provocative statement that the Assessor had already taken a view about what had caused the meter to go up. Unsurprisingly, the Assessor corrected her. Ms Eliezer then proceeded to explain that the reason for her not being present on her property was that her family was in danger (T 18). Again unsurprisingly, the Assessor interrupted and challenged the assertion in view of the omission to refer to it in her written statement. There was nothing wrong about that either. But Ms Eliezer took umbrage and, effectively, asked the Assessor if she could simply present her case, impliedly perhaps, without interruption. This was how, it appeared, the Assessor interpreted her request (T 19).

120. There were, to be sure, other interruptions as well, which I do not need to go through. Those who appear before a Court, whether they are a solicitor advocate, an experienced senior counsel or a litigant in person, have no entitlement, as such, to expect that they can present argument and evidence without interruption.

121. I reject, in particular, the submission that Ms Eliezer did not have the opportunity to persuade the Assessor to a contrary view. The transcript (T 19-22) certainly features questions by the Assessor to Ms Eliezer, and some of those did not receive answers which responded to those questions. To press for answers to reasonable questions was not bullying but a reasonable attempt by an officer performing judicial duties to elicit information to enable her to discharge her statutory functions and obligations. At the conclusion of this passage, for the avoidance of doubt, the Assessor asked Ms Eliezer whether she had anything else to add, and the latter said no.

122. Contrary to Ms Eliezer’s further submission, the Assessor did not ‘take up’ or appear to ‘take sides’ with Sydney Water’s arguments (prior to delivering her reasons). She sought articulation from Mr Roset, to some degree, to help her shape her understanding of the argument. She explained (at T 17.45) that a purpose in summarising the position was to make her understand what Sydney Water was submitting so she could respond. She expressly made it plain to Ms Eliezer that nothing that was said by Mr Roset led her to form views, even telling Ms Eliezer not to “verbal” her (T 18). Overall, I find that she raised questions arising from Mr Roset’s argument for Ms Eliezer’s consideration, but she also raised for Ms Eliezer’s consideration possible inconsistencies between what Ms Eliezer was putting to her and the evidence.

123. There is no question, also, that the Assessor challenged Ms Eliezer, testing her about assertions that she had made. It appears, also, at certain points during the hearing, the transcript indicated that Ms Eliezer felt under stress or pressure. It appears that Ms Eliezer did not appreciate being asked the questions. But not all legal representatives, or unrepresented litigants, resent being asked questions. For many, the intervention may be welcomed: it gives the party, represented or not, something of an insight into the officer’s then present state of mind. Far better, many might think, that opportunity be afforded to a party, or its representative, to try to alter any expression of thought perceived as hostile to a party’s cause, then for the to sit, in silence, like the proverbial Sphinx: Johnson v Johnson at [13].

124. Overall, having read the transcript, I do not regard the fair minded lay observer as regarding the Assessor’s interruptions as anything more than vigorous attempts to ascertain issues and the proper testing of Ms Eliezer’s case, such as it was. They may have ‘disrupted’ Ms Eliezer’s presentation, in the sequence and form that Ms Eliezer may have wished to present her case, but as the transcript plainly reveals at multiple points, once the Assessor’s had been answered, the Assessor granted her the opportunity to continue with her case. In other words, there was nothing to show, and Ms Eliezer did not try to suggest, that each intervention was somehow illegitimate. Further, there is nothing objectively to sustain the contention that the Assessor was so emotionally bound up in the case as to have compromised her objectivity in deciding the case on its merits.

125. It is another thing altogether, for an Assessor to engage in bullying. Bullying by a judicial officer is treated as ‘unacceptable’ ^[10] . But bullying can be very hard to ascertain. It is easy to complain about, particularly when the person complaining of it feels stressed, or is under pressure, or, what is worse, feels that his or her argument is not being well received. Judicial officers, or other officers performing judicial duties, like assessors, may become somewhat impatient if they consider that their questions or inquiries are not being answered as fully as they expect or would like; even if they are expected to curb their impatience. They may also become impatient or frustrated where, as in this case, a litigant in the Small Claims Division seeks multiple adjournments of hearings. But to infer or accept that a complaint of bullying is made out too readily from ‘interventions’ which are not wanted by a litigant might have the consequence of deterring not only that judicial officer, but also other judicial officers (or officers performing such duties) from raising questions thought necessary to assist them to discharge their duties. There is a concern that they may thereby be generally intimidated into silence; in a way which impedes them in the performance of their functions.

     10. Australian Institute of Judicial Administration, Guide to Judicial Conduct (3rd ed) [4.1], p 19

126. The only evidence before this Court is the written transcript itself. I have no way of seeing the body language or tone of voice of the Assessor or, for that matter, Ms Eliezer.

127. In her submissions in this appeal, there is very little, if anything, which marks out the Assessor’s conduct as ‘bullying’ distinctive from Ms Eliezer’s complaints of her interruptions.

128. Contrary to what Ms Eliezer submits, it is not sufficient for a party who makes the serious allegation of bullying by an officer to state that the instances of bullying are “too numerous to list”. That is, to put the matter in the vernacular, a cop out. I note that in the case she cited in her written submissions, being R v T, WA (2014) 118 SASR 382, the appellant in that case did provide the Court with a schedule of instances of suggested inappropriate or improper interventions ([53]). To simply make a bold and generalised accusation of bullying and invite me to look at the transcript and figure out for myself the bullying is inadequate.

129. It is true that at T8-13, there is exhibited a certain level of frustration, if not impatience, expressed and a level of interruption of Ms Eliezer by the Assessor. This was in the context of Ms Eliezer flagging an application to adjourn a hearing following an earlier adjournment of the matter back in May. The Assessor was, at this point, entertaining the prospect of the same adjournment application by Ms Eliezer, being the lodgement of a complaint to the EWON. I did not regard the Assessor’s conduct as amounting to ‘bullying’.

130. I am not persuaded that the Assessor engaged in any bullying of Ms Eliezer such as might give rise to a reasonable apprehension of the fair minded lay observer.

131. As a final point, 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. Although it does not appear that she was (or has been) an officer of the Court, it could not be said that the courtroom was a completely alien environment for Ms Eliezer. She was involved in a string of cases in the Supreme Court of New South Wales, about litigation which also originated in the small claims division of the Local Court and involved a decision by a court assessor ^[11] . Ms Eliezer’s written submissions in reply indicate that there were other similar cases, not identified by Sydney Water in its written submissions, in which she made consumer complaints. Her written submissions (in chief) in this appeal extensively and, if I may say so without disrespect, impressively cite case authorities on the subject of bias, bullying and illegitimate interventions by judicial officers; leading to an inference that she had some understanding of her rights at the time she presented her case before the Assessor. 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. (As has been said elsewhere in these reasons, her failure to complain about what occurred in a pre-trial review is, I think, in a different category.) Rather, I consider that her omission to complain of bullying, her omission to complain that she could not present her case, and her omission to complain that the Assessor had compromised her advantage in objectively evaluating the evidence reflected the reality that she had no proper basis for such complaints.

     11. This was litigation against The Owners-Strata Plan No. 51682 & Ors, since at least 2017. I refer here to the cases set out in paragraph 33 of Sydney Water’s written submissions

132. I reject ground 2(c).

Pre-Judgement (ground 2(d))

The argument

135. As I understand her submissions, Ms Eliezer complains that a reasonable apprehension of bias arose through the Assessor’s failure, during the course of the Pre-Trial Review, to transfer the proceeding to a venue closer to the place of the dispute. That, it was said, gave rise to an apprehension that the venue (Sutherland Local Court) was a more favourable jurisdiction due to Sydney Water’s prior dealings and relationship to the Sutherland Local Court.

136. A reasonable apprehension of bias also was said to arise through other matters canvassed in different grounds of appeal being:

1. the Assessor’s preventing Ms Eliezer’s consumer claim being pursued in NCAT, thereby “suppressing” her complaint against Sydney Water;

2. the Assessor’s failing to find that Sydney Water also had contractual and statutory (under the ACL) obligations to Ms Eliezer;

3. Sydney Water having a private communication to a judge.

Consideration

137. A decision by the Assessor at a pre-trial review not to transfer the proceeding to a different venue could not sensibly suggest that the Assessor was unlikely to decide the case otherwise than on its merits. Further, the suggestion of partiality in this Assessor towards Sydney Water, apparently because it is something like a repeat litigant, is baseless. There was nothing to suggest any personal interest in, or association that the Assessor had in relation to Sydney Water, that put this assessor in any different category to any other Assessor or Magistrate.

138. Another problem, as adverted to by Sydney Water, that both the pre-trial review and the final hearing were conducted by telephone link. It did not matter where the Assessor was sitting. So the complaint about a selection of venue as betokening some partiality towards Sydney Water goes nowhere.

139. Yet a further problem for Ms Eliezer is that she had the opportunity to object to the Assessor deciding the case on 24 June 2020 on the basis of a partiality manifested by a prior procedural ruling rejecting an application to transfer the venue, but did not do so. I accept that in this particular respect, she waived any bias objection^[12] .

     12. Vakauta v Kelly (1989) 167 CLR 568 at 572 and 577-9; Smits v Roach (2006) 227 CLR 423 at [43]

140. The first two of other matters relied upon have been addressed. They concern the complaints about rulings, or findings, about her suppressing a complaint to the NCAT and not making findings about Sydney Water about its contractual or statutory obligations.

141. Simply because an officer makes a finding adverse to a party during a proceeding or fails to make a finding in reasons for judgment do not establish the test. If they did, then no litigious outcome which is unfavourable to a party could ever survive a complaint of apprehended bias by the losing party.

142. There is nothing in the point about a private communication. As Ms Eliezer noted in her written submission in reply, her complaint was in relation to Mr Roset ‘blind-copying’ a message to the court officer at Sutherland Shire. She acknowledged, however, that the email could not be traced. There is no sufficient communication to suggest any direct communication with the Assessor, let alone whether it was private or not.

143. Ground 2(d) also fails.

ORDERS

144. The appeal from the decision of the Sutherland Local Court on 24 June 2020, which was commenced by a summons dated 20 July 2020, is dismissed.

145. Conventionally, that would mean that Ms Eliezer would pay Sydney Water’s costs of the proceeding as agreed or assessed.

146. However, Sydney Water has foreshadowed that if it was to succeed, as it has, it wanted the opportunity to be heard to make a special application on costs, being an order for a lump sum. It shall have that opportunity.

147. In what might have regarded as a pre-emptive move, in her submissions in reply, Ms Eliezer made some submissions on costs generally. I propose to defer consideration of those submissions (which were not, in truth, submissions in reply) unless and until after Sydney Water has brought any special application for costs, at which point, Ms Eliezer will have the opportunity to reconsider what she would like to say on the matter of costs, including a response to any special application for costs that Sydney Water might bring. If however, Sydney Water does not bring any special application, I will certainly consider Ms Eliezer’s submissions on that topic, as they are contained in her written submissions in reply.

148. I make the following directions:

1. Sydney Water is to file and serve any notice of motion with supporting evidence concerning costs and a short outline of written submissions (not exceeding 3 pages, excluding attachments) by 21 March 2021;

2. Ms Eliezer is to serve any evidence in response to such application, and any written submission in response to Sydney Water’s submissions (not exceeding 3 pages, excluding attachments) by 29 March 2021;

1. Sydney Water is to serve any written submission in reply (not exceeding 2 pages) by 31 March 2021.

2. The question of costs will thereafter be determined on the papers.

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Endnotes

Amendments

25 March 2021 - Fixed typographical error

Decision last updated: 25 March 2021