Fazio v Bedford
[2016] WADC 162
•9 DECEMBER 2016
FAZIO -v- BEDFORD [2016] WADC 162
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WADC 162 | |
| Case No: | APP:7/2016 | 7 SEPTEMBER 2016 | |
| Coram: | GOETZE DCJ | 9/12/16 | |
| PERTH | |||
| 52 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | ARTURO FAZIO SHERYN LISA BEDFORD |
Catchwords: | Appeal from minor case in Magistrates Court Alleged breach of natural justice Apprehended bias Turns on own facts |
Legislation: | District Court Rules 2005 (WA) Magistrates Court (Civil Proceedings) Act 2004 |
Case References: | Fazio v McNally [2014] WASCA 79 Fazio v Westpac Banking Corporation [2014] WASCA 80 Goldsmith v Sandilands [2002] HCA 31 Heedes v Legal Practice Board [2005] WASCA 166 Heedes v The State of Western Australia [No 2] [2008] WASCA 142 Legal Practice Board v Heedes [2004] WASC 260 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
SHERYN LISA BEDFORD
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE WILSON
File No : ROC/MINOR/ 743 of 2014
Catchwords:
Appeal from minor case in Magistrates Court - Alleged breach of natural justice - Apprehended bias - Turns on own facts
Legislation:
District Court Rules 2005 (WA)
Magistrates Court (Civil Proceedings) Act 2004
Result:
Appeal dismissed
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : Not applicable
Respondent : Not applicable
Case(s) referred to in judgment(s):
Fazio v McNally [2014] WASCA 79
Fazio v Westpac Banking Corporation [2014] WASCA 80
Goldsmith v Sandilands [2002] HCA 31
Heedes v Legal Practice Board [2005] WASCA 166
Heedes v The State of Western Australia [No 2] [2008] WASCA 142
Legal Practice Board v Heedes [2004] WASC 260
- GOETZE DCJ:
Background
1 The appellant, Mr Fazio, and the respondent, Ms Bedford, were in a relationship for some eight months from August 2013. Mr Fazio alleges that they each agreed to meet one half of their living expenses and that subsequently, Ms Bedford agreed to pay him for professional services he provided to her. Mr Fazio alleges that Ms Bedford has breached these agreements by not paying him.
2 On 9 June 2014, Mr Fazio commenced a minor case claim in the Rockingham Magistrates Court seeking reimbursement from Ms Bedford in respect of her share of living expenses paid for by him and payment for his various professional services during the relationship.
3 The claim proceeded to trial on 7 December 2015 before his Honour Magistrate S Wilson. On 8 January 2016, written reasons for decision were delivered dismissing Mr Fazio's claim. Mr Fazio now appeals that decision.
The trial
4 The trial commenced with the learned magistrate stating his understanding of the nature of the claim (ts 4 and 5). Mr Fazio does not suggest any misunderstanding of the issues at trial.
5 Given that both parties were unrepresented, the learned magistrate explained how the trial would proceed. He then invited Mr Fazio and Ms Bedford to each provide an opening address (ts 8, 9 and 10). Thereafter, Mr Fazio gave evidence, followed by Ms Bedford.
6 Following the completion of evidence at around 5.40 pm, Mr Fazio asked if, given the lateness of the hour, there was a need for written submissions. The learned magistrate said 'no', but each party would have five minutes to address him by way of a brief summary and to outline anything either party wished to raise with him, including any issues of law. He also said:
It might be that you don't have a lot to say, and might be quite content to just simply rely on whatever's transpired today on your part (ts 202).
7 Mr Fazio then gave his closing submissions as follows:
(a) He was required to prove his case on the balance of probabilities, bearing in mind
the nature and cause of the action and defence, the nature and subject matter of the proceeding, and the gravity of the matters alleged.
(b) The evidence pointed to the fact of the two agreements as alleged as supported by text messages, emails and in writing.
(c) Mr Fazio essentially submitted that the learned magistrate would have to accept his claim or infer that he had an ulterior motive to collect and retain so many receipts of joint living expenses during the course of the relationship.
(d) It was necessary for the learned magistrate to assess the credibility of himself and Ms Bedford.
(e) Mr Fazio observed, without providing any details, that there were inconsistencies on the part of Ms Bedford in terms of her affidavit material on the court file and her evidence at trial.
(f) At the conclusion of his submissions, Mr Fazio said:
At the end of the day that's my claim your Honour. (ts 202 - 204).
9 The learned magistrate then heard from Ms Bedford. She said that she had told the truth. She was astonished that Mr Fazio could tell the lies he had. She said that she had never asked him to pay for anything and that whatever he did pay, he did so of his own free will and now that the relationship was over, he wanted money from her (ts 204 - 205).
Reasons for decision
10 First, the learned magistrate summarised the claim in three parts being for:
(a) food, alcohol and entertainment;
(b) various utility expenses and other charges paid by Mr Fazio at the request of Ms Bedford; and
(c) professional services provided by Mr Fazio to Ms Bedford relating to her workers' compensation and motor vehicle crash claims, together with other matters relating to Ms Bedford's finances involving superannuation, a taxation return and an application for the forbearance of mortgage and credit card payments to a bank.
11 Secondly, the learned magistrate summarized the evidence of both Mr Fazio and Ms Bedford. Thirdly, he identified the issues as outlined above and fourthly, he then proceeded to examine the credibility of the parties.
12 At [84] of his reasons, the learned magistrate found Ms Bedford to be
credible, logical and consistent
- and that any disparaging comments she made about Mr Fazio during her evidence
did not cause her to lose her ability to tell the truth.
He accepted her evidence.
13 However, at [85], the learned magistrate found Mr Fazio gave evidence which was
exaggerated and not credible and also not logical or consistent with his own stated actions.
lacking credibility, at times unbelievable and not wholly consistent with some of the documentary evidence produced and what transpired during the Relationship.
- He found that Mr Fazio's hostility to Ms Bedford
caused him to make statements that were patently untrue.
The appeal
15 Mr Fazio's notice of appeal relies upon seven grounds which can be summarised as follows:
Ground 1: reasonable apprehension of bias against Mr Fazio.
Ground 2: the decision is unsafe in that it is contrary to the sum total weight of the evidence.
Ground 3: the interlocutory processes before trial, and the trial, were conducted unfairly in that the learned magistrate:
(a) allowed inadmissible documents to remain on the court file;
(b) allowed Ms Bedford to address Mr Fazio by his former name of Arthur Heedes, which he had ceased to use from 2000;
(c) interfered with Mr Fazio's cross-examination of Ms Bedford;
(d) erred in refusing to accept certain evidence from Mr Fazio; and
(e) refused to accept written submissions from Mr Fazio after trial, but before judgment was delivered.
Grounds 4 – 7 (inclusive): various findings of fact made by the learned magistrate are unsafe, not supported by evidence and show apprehended bias.
16 By notice dated 11 March 2016, Ms Bedford advised that she did not intend to take part in this appeal.
17 On 2 August 2016, Mr Fazio filed further and better particulars of his grounds of appeal. On 28 August 2016, he swore an affidavit in support of the appeal. On 5 September 2016, he filed amended further and better particulars of his grounds of appeal.
Appeals in a minor case
18 This was a minor case. By s 32(1)(b) of the Magistrates Court (Civil Proceedings) Act 2004, there shall be no appeal against the judgment of the Magistrates Court in a minor case. However, there are exceptions, such that s 32(3) provides as follows:
Despite Part 7 an appeal against a judgment in a minor case may only be made on the grounds —
(a) that the minor case —
(i) was not within the jurisdiction of the Court; or
(ii) was not a minor case;
or
(b) that in dealing with the minor case there was a denial of natural justice; or
(c) that the judgment was beyond the Court's jurisdiction.
19 At the hearing of the appeal, Mr Fazio accepted that he can only appeal on the basis of a denial of natural justice as provided by s 32(3)(b). To this end, Mr Fazio alleged he was denied natural justice by reason that he apprehended the learned magistrate was biased against him and that this bias can be seen from an examination of the whole Magistrates Court file. Mr Fazio said that it is the sum of all complaints by him which demonstrates apprehended bias, rather than any one individual aspect of the matter viewed in isolation.
Apprehended bias
20 In Heedes v Legal Practice Board [2005] WASCA 166, Roberts-Smith JA said in respect of a reasonable apprehension of bias with the consequence of a denial of natural justice:
15 There was no dispute here as to the principles to be applied in relation to a claim of perceived or apprehended bias in judicial proceedings. It is whether the circumstances complained of would give a fair-minded and informed observer a reasonable apprehension of a lack of impartiality on the part of the Judge; that is to say, whether a fair-minded person might reasonably apprehend or suspect that the Judge has prejudged or might prejudge the case (Webb v The Queen (1993) 181 CLR 41 per Mason CJ and McHugh J at 47).
16 The axiom that justice must not only be done, but should manifestly and undoubtedly be seen to be done, is one of the most pervasive axioms of the administration of justice (R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256, 259 per Hewitt LCJ; R v Watson; Ex parte Armstrong (1976) 136 CLR 248, 263; Livesy v New South Wales Bar Association (1983) 151 CLR 288, 293 - 294).
17 As Steytler J (as he then was) pointed out in McCreed v The Queen (2003) 27 WAR 554 at [7], justice can only be done if there is in fact no bias and can only be seen to be done if there is no appearance of bias.
18 At [9] his Honour went on to say this about the 'fair-minded lay observer':
'9 What kind of person this fair-minded lay observer is, and how much he or she knows, has been the subject of some discussion in the cases. In Johnson(at 507 - 508), Kirby J referred to the many ways in which "the hypothesised bystander" is described. He said:
"Phrases that have been used include the 'lay observer' (Vakauta v Kelly (1989) 167 CLR 568 at 573, 574)), 'fair-minded observer' (Livesey (1983) 151 CLR 288 at 300; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87), 'fair-minded, informed lay observer' (Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 92), 'fair-minded people' (R v Watson;Ex parte Armstrong (1976) 136 CLR 248 at 263), 'reasonable or fair-minded observer' (Vakauta v Kelly (1989) 167 CLR 568 at 585), 'reasonable and intelligent man' (Watson (1976) 136 CLR 248 at 267), the 'parties or the public' (Re Media, Entertainment & Arts Alliance and Theatre Managers' Association; Ex parte Hoyts Corporation Pty Ltd (1994) 68 ALJR 179 at 182), a 'reasonable person' (Vakauta v Kelly (1989) 167 CLR 568 at 576), or (as has sometimes been favoured in England (Metropolitan Properties Co (FGC) Ltd v Lannon [1969] 1 QB 577 at 599) and Canada (Committee for Justice and Liberty v Canada (National Energy Board) [1978] 1 SCR 369 at 394; R v S (RD) [1997] 3 SCR 484 at 505, 507)) the somewhat quaint and circular phrase, a 'right-minded' person. Obviously, all that is involved in these formulae is a reminder to the adjudicator that, in deciding whether there is an apprehension of bias, it is necessary to consider the impression which the same facts might reasonably have upon the parties and the public. It is their confidence that must be won and maintained. The public includes groups of people who are sensitive to the possibility of judicial bias. It must be remembered that, in contemporary Australia, the fictitious bystander is not necessarily a man nor necessarily of European ethnicity or other majority traits (R v S (RD) [1997] 3 SCR 484 at 508).
The attributes of the fictitious bystander to whom courts defer have therefore been variously stated. Such a person is not a lawyer (Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No 9] (unreported, Court of Appeal (NSW), 27 November 1990) at 20, cited in Australian National Industries Ltd v Spedley Securities (In liq) (1992) 26 NSWLR 411 at 419). Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided (R v George(1987) 9 NSWLR 527 at 536, per Street CJ). Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances."
10 Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ said, in that case (at 493), that it must be remembered that "the person being observed is 'a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial' (Vakauta v Kelly (1988) 13 NSWLR 502 at 507, per McHugh JA, adopted in Vakauta v Kelly (1989) 167 CLR 568 at 584 - 585, per Toohey J)." They also said that, while the fictional observer is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice, the rules and conventions of which are not frozen in time. (See also Callinan J, at 517 - 518).'
19 The question usually arises in a situation in which there is an application that a Judge disqualify him or herself by reason of apprehension or perception of bias. This being a case in which the point is taken on appeal rather than as a preliminary point seeking disqualification, and when the argument is that the proceedings before McKechnie J involved a denial of procedural fairness by reason of a reasonable perception of bias, it is necessary for the appellant to demonstrate, applying the test I have indicated above, that the circumstances did give rise to a reasonable perception of bias.
20 As Steytler J observed in McCreed (at [16]) the test is reasonably strict and particular sensitivity may need to be shown in some cases. I would be prepared to accept that cases in which a litigant is self-represented will usually fall into that category. But that is not to suggest self-represented litigants should be entitled to rely upon unreasonable or ill-considered apprehensions or those founded upon the lack of even a rudimentary understanding of basic legal processes.
…
58 I accept that where an objection is made on the basis of apprehended bias, the 'whole of the circumstances must be considered' and the 'cumulative effect' of what transpired must be evaluated (Re JRL; Ex parte CJL (1986) 161 CLR 342 at 371; Kola v District Court of South Australia [2001] SASC 268 at [38]).
21 In Fazio v McNally [2014] WASCA 79 [43], it was said that:
The test to be applied in determining whether a judge is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to determine: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, 492; British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 [78] – [84], [132], [139].
22 This was repeated in Fazio v Westpac Banking Corporation [2014] WASCA 80 [29], where the judgment of the court went on to say that the abovementioned test:
requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that a judge might not bring an impartial mind to bear upon the issues that are to be decided: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [67]. The onus of establishing the facts upon which an allegation of a reasonable apprehension of bias is made lies on the party making it.
23 It follows that a fair-minded and informed bystander, looking at the trial before the learned magistrate, would be both reasonable and seek to be informed on at least the most basic considerations relevant to arriving at a conclusion about the magistrate's impartiality. Such bystander would found a view on a fair understanding of all relevant circumstances. Further, it is to be observed that the learned magistrate is a professional who, by training and by oath or affirmation, acts impartially and discards the irrelevant and the prejudicial.
24 This must be seen against the background of a minor case in which the court acts with as little formality as is reasonable and is not bound by the rules of practice or evidence, but may inform itself on any matter in such manner as it thinks fit – s 29 of the Magistrates Court (Civil Proceedings) Act.
25 It is for Mr Fazio to demonstrate that the circumstances of the trial give rise to a reasonable apprehension of bias. The test is reasonably strict. Some sensitivity however, needs to be allowed to him as a self-represented litigant, but not to the extent that he can rely on unreasonable and uninformed apprehensions.
Materials not before the Magistrates Court
26 The hearing of this appeal is subject to s 40 of the Magistrates Court (Civil Proceedings) Act 2004 which, relevantly, provides:
s 40(4) The District Court must decide the appeal on –
(a) the material and evidence that were before the Magistrates Court; and
(b) any other evidence that it gives leave to be admitted.
(5) Leave may only be given under subsection (4)(b) in exceptional circumstances.
27 In this particular matter, the circumstance requiring the grant of leave to receive Mr Fazio's affidavit sworn 28 August 2016 is that this appeal concerns a claimed apprehension of bias. Mr Fazio's affidavit seeks to detail that apprehension.
28 Mr Fazio deposed in his affidavit that the Magistrates Court file provided on appeal to this court is incomplete and that adverse materials of which he complains were not provided to this court for the purpose of this appeal.
29 On 2 August 2016, Mr Fazio attended at the District Court to inspect what he, wrongly, believed would be the whole of the Rockingham Magistrates Court file.
30 On 3 August 2016, Mr Fazio sent an email to the District Court regarding the lack of contents on the Magistrates Court file claiming the same to
now have an appearance of criminality in conduct.
31 It is therefore necessary to explain what happens with an appeal to this court.
32 Once an appeal notice is received in this court, the practice is that the registry of this court writes to the Magistrates Court to obtain only relevant documents from that court; not the whole of the Magistrates Court file.
33 The full history of the communications between the District and Magistrates Courts is as follows.
(a) On 8 February 2016, the District Court wrote to the Rockingham Magistrates Court:
…
Pursuant to District Court Rules 2005 (WA) r 52(3) the Magistrates Court is requested to provide the District [sic] with a copy of the following documents relating to the decision under appeal:
(a) the formal order recording the decision;
(b) the Magistrate's reasons for the decision;
(c) any transcripts of the hearings to which the decision relates;
(d) any document or other record tendered as an exhibit at the hearing to which the decision relates, together with an exhibit list;
(e) all other relevant court documents.
There is no need to certify the documents provided. If the District Court needs to obtain the original exhibits, we will make a further request.
…
(b) On 29 March 2016, a reminder letter was sent from the District Court.
(c) On 12 April 2016, a follow up email was sent from the District Court.
(d) On 13 April 2016, the Rockingham Magistrates Court provided a copy of the trial transcript by email and advised that the exhibits, reasons for decision and the formal order had been posted to the District Court that day.
(e) By letter dated 28 April 2016, the District Court requested the following documents from the Rockingham Magistrates Court:
(1) The transcript of proceedings on 8 January 2016;
(2) The initiating application, amendments thereto or applications to amend (if any); and
(3) The response filed to the initiating application and amendments related thereto (if any).
This request was complied with.
(f) On 22 June 2016, the District Court requested the Rockingham Magistrates Court to provide a copy of the audio record of the proceedings. This was provided on or about 6 July 2016.
34 Some observations can now be made. First, this court's initial request for documents from the Magistrates Court was only for certain relevant and specified copy documents, not the original materials.
35 Secondly, the fact that only relevant and specified documents were requested underscores the concept that magistrates and judges only need certain documents from a court file to determine a matter; not the whole court file. This will be further dealt with below at [47].
36 Thirdly, copy documents were initially provided as requested save for:
(a) the defence;
(b) further and better particulars of claim; and
(c) further and better particulars of defence.
37 Fourthly, various copy orders were neither requested nor provided, but they are not relevant to determination of this appeal.
38 Fifthly, I have now called for, obtained and examined, the entire Magistrates Court file.
39 Sixthly, within the documents received from the Magistrates Court is a copy of Mr Fazio's 31 written submissions filed with that court on 10 December 2015, but which were returned to him by letter under the hand of the Registrar of the Magistrates Court on 18 December 2015. Such submissions were not considered by the learned magistrate. They too are really new materials in this appeal.
40 In the circumstance of Mr Fazio claiming a breach of natural justice by way of apprehended bias or bias, I will, as a matter of exception to the usual rule, receive his affidavit sworn 28 August 2016, his submissions filed after the trial and the Magistrates Court file. I will examine all of his complaints and deal with them in these reasons. Most, but not all, matters of complaint referred to in the affidavit and the trial submissions are covered by the amended further and better particulars of the grounds of appeal. These complaints can all be examined with reference to the Magistrates Court file, where necessary.
Ground 1
41 Ground 1 of the Amended Further and Better Particulars dated 5 September 2016 is as follows:
Reasonable Apprehension of Bias by the court against the appellant/claimant.
(a) Notwithstanding the relaxed rules of The Minor Case Jurisdiction, all regard to Rules Of Evidence, practice directions, Natural Justice and longstanding established protocols and principles, simply can not be disregarded in favour of a party.
Throughout the carriage of proceedings when the respondent first made an appearance, she was allowed to communicate repeatedly in writing with the court, without copying me in. Furthermore, the court not only did not correct this ongoing error throughout the process to trial and beyond, prior to the decision formally being delivered, but didn't even send copy of such to me as would be the normal course of impartial events and natural justice. This complained of inappropriate conduct has continued on by the respondent into this appeal before the District Court, as can be seen by her email to this Honourable Court on the 7th April 2016. Juxtaposing Principal Registrar Melvilles' undated responding letter to such for which I was sent a copy, it is manifestly clear Rockingham Court erred.
Upon inspection of the appeal files on the 2nd August 2016, I did not observe any of the numerous various correspondences from the parties to the court or the court to the parties in return.
(b) The varying written communications with the courts and affidavits lodged by the respondent are poisonous diatribe at best, disingenuous fraud at worst and have been executed by way of sniper shot. They contain perjury, offensive allegations, touch on facts not into evidence and touch upon irrelevant collateral issues, have no probative value and at best, are highly prejudicial. Notwithstanding they are inadmissible both in form and as to the rules of evidence, historically they would be have been immediately removed from the file and returned. Instead they wrongfully remained on the file at Rockingham to allow the poisoning of the decision makers' mind. The judicature are supposed to be blindfolded upon commencement of impartially hearing a case to be determined on its own facts, this manifestly did not occur in this instance. Registrar Dyer and Magistrate Wilson repeatedly refused to entertain requests to have such struck from the records and removed from the files on said grounds.
(c) Registrar Dyer and Magistrate Wilson actively sought to keep me from obtaining copies of the offending inflammatory material that remained on the file by their own hand, by way of General Order 25 dated 12th November 2014, refusing my reasonable request in the circumstances to inspect the file. This order is not on the appeal files but attached as ASF2 in my affidavit dated 28 August 2016. Prior to this they granted counsel for the respondent full access to the file. Their minds and their actions have the reasonable formed apprehension of bias as far back as then, twelve months or so before the eventual trial.
(d) The trial date was set down and subsequently aborted at the scheduled commencement of such without prior notice to me but with advance notice to the respondent, on 2 prior occasions.
(e) Registrar Dyer and Magistrate Wilson repeatedly referred to and allowed the defendant to file documents naming me as Arturo Fazio formerly Arthur Heedes. The proceedings were commenced in my legal name of Arturo Fazio only, which was my birth name back in 1964, changed by Deed Pool in 1967 to my abusive stepfather's name and formerly changed back to my birth name by me in 2000, 14 years before I even met the defendant. The name change was irrelevant and had no probative value and in any event, the documents should not have been accepted for filing or remained on the court file. Again applications to have such struck from the record were refused.
(f) In other unrelated proceedings involving Arturo Fazio as the claimant and iiNET as the named defendant in matters 866/2014 and 1056/2014 also contemporaneously held in the Rockingham Court with this appealed matter, Magistrate Wilson also made the negative finding against Arturo Fazio and detrimentally transferred the matter to the Perth Magistrate Court for the sole benefit of the defendant to purportedly call witnesses, without a scintilla of evidence of who might be called. The passing of time since that decision has now shown his reasoning also to be wrongly founded upon a clouded apprehension of bias, as the trial has concluded on the 30th August 2016 and no witnesses were called and no witness statements were ever done over the two years preceding.
42 In summary, ground 1(a) alleges that Ms Bedford communicated in writing with the court, but did not serve copies all of her writings on Mr Fazio. That was not corrected by the court. However, court staff cannot be expected to monitor Ms Bedford and ensure that she served copies of all documents on Mr Fazio. Likewise, court staff do not routinely send copies of documents filed by one party to any other party. Certainly, these would not be the tasks of a magistrate. Ground 1(a) must fail.
43 By ground 1(b), Mr Fazio complains Ms Bedford's writings were not removed from the file and that they are prejudicial to him.
44 On appeal, Mr Fazio complained that he 'had a gut feeling' that the learned magistrate formed a bad opinion of Mr Fazio after reading the court file as invited to do so by Ms Bedford at the conclusion of the trial when she submitted to the learned magistrate that:
I just want the truth to be known about this man, and have everything on the record, and I do ask you to give special attention to all my affidavits and my words. Everything I have said, you know, is my absolute truth, and I just want you to pay special attention to everything that's there and hope that this never happens to any more people by Mr Fazio (ts 205).
45 Ms Bedford's two affidavits sworn 8 August 2014 and 20 March 2015 are the only documents to have been specified by Mr Fazio in his grounds of appeal as containing material adverse to him – see [77] below. In his after trial submissions, he also complained about her affidavits sworn 29 April 2015 and 10 August 2015 - see [192] and [193] below.
46 However, at trial, neither Ms Bedford nor Mr Fazio sought to tender into evidence any of her affidavits. None of these affidavits were in evidence in the trial.
47 A reasonable bystander would be informed at least of the basic consideration by which magistrates and judges base their decisions: that is, they do so only on the oral evidence and the exhibits tendered in the course of the trial and not upon any other extraneous matters, including that which might be contained on a court file, but not tendered into evidence. Further, a reasonable bystander would be informed of the need for magistrates and judges to give transparent reasons for decision, including details as to why findings have been made.
48 As to ground 1(b), it should be observed first that Ms Bedford requested the learned magistrate to read the file after the closing of evidence and during her submissions at the conclusion of the trial.
49 Secondly however, and contrary to Ms Bedford's request, the written reasons provided by the learned magistrate for his decision are based solely on oral evidence given during the course of the trial and on documentary material tendered into evidence during the course of that trial. The reasons do not rely on any adverse commentary or materials from Ms Bedford as contained in 'the record' or her 'affidavits' on the court file, but not tendered as an exhibit in the trial. The reasons are transparent and detailed as to the oral evidence and the documentary material tendered into evidence.
50 Thirdly, Mr Fazio only had a 'gut feeling' that the learned magistrate formed a bad opinion of him. The 'gut feeling' came from his perception that the learned magistrate had read the court file, when it is not apparent that he did so. Mr Fazio has not pointed to anything tangible on the part of the learned magistrate in this regard. He has not shown by ground 1(b) why a fair-minded and informed observer would form a reasonable apprehension of lack of impartiality on the part of the learned magistrate. This cannot amount to a reasonable apprehension of bias.
51 There are additional reasons to reject ground 1(b).
52 By his affidavits sworn 29 August 2014 and 7 April 2015, Mr Fazio sought to have the offending affidavits 'struck from the record'. On appeal, he said that he orally requested the learned magistrate to strike various offending documents from the file. He did not say when he did this, but whenever it was that he did so, he said that the learned magistrate simply replied 'that's done with'. In other words, the magistrate showed that he would pay no regard to such adverse materials. This must have been an oral request before trial, as such request is not apparent in the trial transcript.
53 At the hearing of the appeal, Mr Fazio acknowledged that he is sufficiently aware of court procedures to know that if he wished to have had Ms Bedford's affidavits struck from the court file, then he should have formally applied to do so.
54 Mr Fazio well knew that if he wanted Ms Bedford's adverse materials removed from the court file then, the onus was on him to make the appropriate application by chamber summons rather than to make an oral request or a passing reference to the problem in an affidavit. He did not make any such application.
55 It was also accepted on appeal by Mr Fazio that the contents of a court file are not part of the evidence in a trial. He well understood that if a party wishes to have some document from the court file brought into evidence in a trial, then it is necessary for that party to tender such document into evidence as an exhibit in the trial as part of that party's case: see Legal Practice Board v Heedes [2004] WASC 260 [25] and Heedes v Legal Practice Board [61].
56 It was also made clear during the trial that the learned magistrate was not intending to resort to the court file. For example, he said he was not going to pull the court file apart to seek out a proposed exhibit from the court file (exhibit 7; ts 56). He wanted a fresh copy from Mr Fazio.
57 Further, from his comments after the close of evidence, but before the parties' closing submissions, the learned magistrate again made it clear that he was only intending to rely on the oral evidence and the exhibits tendered into evidence that day, as to which, see [6] above.
58 Ground 1(b) must fail.
59 By ground 1(c), Mr Fazio claims a breach of natural justice by way of bias against him as far back as some 12 months prior to trial by reason of the refusal of permission for him to examine the court file. He said in his affidavit sworn 29 August 2016 that this refusal
goes direct to the apprehension of bias issue and complained of conduct above.
60 A search of the Magistrates Court file reveals that Mr Fazio's request to peruse the court file was, at first, refused by Magistrates Court order extracted 12 November 2014. He was advised, as an alternative procedure, to seek to inspect Ms Bedford's disclosure documents pursuant to r 33 of the Magistrates' Court (Civil Proceedings) Act Rules 2005, because he would then have access to those disclosure documents.
61 However, on 14 November 2014, the learned magistrate who made the subject order himself determined, without further request from Mr Fazio, that he should recall that order by reason of Mr Fazio being a party to the proceedings. Mr Fazio's request to inspect the court file was then granted. He was notified of this.
62 Further as to ground 1(c), Mr Fazio complains that Ms Bedford's solicitors were give full access to the court file. This complaint needs to be properly understood.
63 Ms Bedford claimed she was never served with any court documents, such that Mr Fazio obtained a default judgment against her. Her solicitors, who are officers of the court, were later given permission to search the court file for the purpose inspecting documents to enable Ms Bedford to be properly informed when making application to set aside the default judgment and to seek to defend the claim. Mr Fazio complains about this. Such a search is a reasonably regular occurrence in the daily workings of courts.
64 The complaints in ground 1(c) are without merit.
65 By ground 1(d), Mr Fazio complains that two earlier trial dates were aborted without notice to him, but with notice having been given to Ms Bedford. This is not correct.
66 An inspection of the court file reveals that on 7 October 2014, the trial was listed for hearing on 3 February 2015. The trial was vacated on 3 February 2015, in the presence of both parties, when directions were made for the filing of pleadings and discovery of documents. At the same time, a trial date of 8 June 2015 was provided, but again, this was vacated on 8 June 2015, in the presence of both parties, so that Mr Fazio could file further and better particulars of his claim and provide copies of his disclosure documents by 7 July 2015. The time for him to comply with this order was later extended on 15 July 2015 and then, on 18 August 2015, the trial was listed for hearing on 7 December 2015.
67 This complaint in ground 1(d) is without merit.
68 By ground 1(e), Mr Fazio complains that in various writings on the court file, Ms Bedford referred to Mr Fazio by his former name of Arthur Heedes, which, Mr Fazio said, the court 'allowed'.
69 However, this is not something which the court allowed. It is something which Ms Bedford did herself. Mr Fazio did nothing about it. The same comments made at [53] – [54] above equally apply here.
70 A search of the file confirms that, in various documents, Ms Bedford did refer to Mr Fazio as being formerly known as Arthur Heedes.
71 Mr Fazio complains at [16] of his submissions filed after the hearing of this appeal that the use and publication of his former name Arthur Heedes can only have been designed to impugn his character. He says this follows from a decision of 'the Court of Appeal as far back as 2005'.
72 The citation to the relevant case is Heedes v The State of Western Australia [No 2] [2008] WASCA 142, in which it was said at [92] that
the purpose of the questioning (relating to Mr Fazio's former surname) could only have been to impugn his character by putting to him that he had changed his name to avoid his creditors.
73 The factual scenario in that case related to a prosecutor in a criminal trial cross-examining Mr Fazio about his alleged avoidance of creditors under his former name. However, it was not the change of name which impugned Mr Fazio's character. Rather, it was the reason for that change, namely the suggestion that Mr Fazio had sought to avoid his creditors by doing so. The criminal case was, of course, before a jury, whereas in the present matter, the trial was conducted before the learned magistrate, who is trained to put such prejudicial matters out of mind when determining the issues.
74 For these reasons and also for the same reasons as set out in respect of ground 1(b) above, this complaint is without merit.
75 By ground 1(f), Mr Fazio complains that in unrelated proceedings, the same learned magistrate made a negative finding against him in another court action involving Mr Fazio when the magistrate transferred that other action from the Rockingham Magistrates Court to the Perth Magistrates Court, apparently for the convenience of the other party's witnesses. At trial of that other action in August 2016 at Perth, the other party did not call any witnesses. These would be witnesses had not filed witness statements. Mr Fazio complains that this transfer was a negative finding against him and reveals bias, but he did not explain why. It is however, a fairly routine procedure to transfer a trial from one venue to another, especially when that transfer might be for the geographical convenience of the majority of intended witnesses. Without any reasoning to explain his apprehension of bias on this topic, Mr Fazio cannot succeed on this ground.
76 Grounds 1(a), (b), (c), (d), (e) and (f) all lack substance, both individually and collectively.
Ground 2
77 Ground 2 of the Amended Further and Better Particulars dated 5 September 2016 is as follows:
The decision is prejudicially unsafe on the total weight of the admitted exhibits/tendered evidence.
(a) The complained of documents in Ground 1, namely informal and irrelevant affidavits from the defendant plus documents naming me as Arthur Heedes, ought not to have remained on the file to be referred to or even seen by the decision maker. In particular affidavits of Ms Bedford dated 8th August 2014 and 20th March 2015 contain unsigned statements, vexatious material, blatant lies and have no probative value whatsoever and should have been struck out or not even filed at all;
(b) Magistrate Wilson failed to give proper regard to and apply the appropriate weight if any weight at all, to the 125 plus (emphasis added) receipts retained throughout the relationship period of 8 months and exhibited by the claimant at trial. Further to such in his reasons for decision, the learned Magistrate did not even proffer any alternative reasoning or inference as to why they were even retained from the outset;
(c) Absolutely No weight or consideration whatsoever was given to the unchallenged evidence from both parties, that the claimant was in extreme financial difficulties himself right from the commencement of the relationship and was unable to afford to fund 2 households. The reasonably necessary deliberation of why someone would keep that amount of receipts for over 18 months to trial, juxtaposed with why I would onerously pay for supporting the defendant when I could not even afford to meet my own financial commitments as evidenced, beggars belief;
(d) Magistrate Wilson at paragraph 108 of his written reasons for decision embarrassingly and pivotally got the evidence wrong, which underpins the apprehension of bias against the claimant and thus making the decision unsafe. The text messages from the defendant to the claimant containing admissions and promises to repay the claimed monies owed, pivotally occurred on the 20th and 23rd March 2014, 4 weeks prior to my heart attack on the 21st April 2014 and 5 weeks before she sought to and ultimately did terminate the relationship on the 28th April 2016. (Emphasis Added) Magistrate Wilson neglects to recite that it was my unchallenged evidence that I believe the defendant and claimed monies owed, caused me the heart attacks on the 21st April and 28th April in the first place. The pressure I placed upon the defendant to repay the money as evidenced and correctly recognised by Magistrate Wilson, happened 4 weeks before my first heart attack thus making the 'context' Magistrate Wilson relies upon, to be borne out of an apprehension of bias or deliberately contrived and twisted to favour the defendant. Further, when one juxtaposes all of this with the email evidence of Ms Bedford being Exhibit 12 dated earlier in the day of 28th April 2014, both the finding of fact and conclusion arising from such are unfathomable, nonsensical and embarrassing. This error alone is of such magnitude, from said elucidation all other reasoning emanating from such is wrongly founded and cast into questionable light, amounting to an unsafe decision and miscarriage of justice. Further to such he chose to believe the perjured testimony of Ms Bedford as per page 144 of the transcript where she said 'There was a text message I sent at the end of the relationship because I wanted to know what – like what does he think I owe him?' The text messages were sent 5 weeks beforehand as evidenced, not at the end!! Juxtapose page 152 of the transcript where she testifies 'I could have done it all myself but he went ahead and did it without – unsolicited or unasked for' with the text message that shows that to be blatant perjury where she is thankful for such and promises to pay for such, as per her word;
(e) Magistrate Wilson gave no weight, consideration or even a mention to the collaborated fact of the defendant, that I ended a relationship with a wealthy socialite because I couldn't afford to remain in such, (emphasis added) which overlapped with the commencement of the relationship with the defendant. The Magistrate ignored the evidence of the defendant/respondent that she fully confirmed such thus ignoring the principle of 'once bitten, twice shy'. In further support, the Magistrate did not consider the evidence that I had ended 2 x 2 year relationships previously due to money issues. See pages 12, 13, 141 and 148 of the transcript;
(f) Hindsight being a wonderful thing, later born out in the written reasons for decision by Magistrate Wilson and his mindset, he erred in the exercise of his discretion to refuse certain evidence exhibits tendered by the claimant which countervail and go straight to favourable findings of fact to the defendant, such as my letter to her father requesting the monies see page 154 of the transcript where Ms Bedford states 'well you have seen the letters that have been sent to my father' as just an example. Of course the letter was not allowed as an exhibit, so how did he see it?
78 Ground 2 in the original appeal notice simply recited:
The decision is unsafe on the sum total weight of the admitted exhibits/tendered evidence.
79 As such, the original ground 2 merely alleged error which is not appealable by s 32(1)(b) of the Magistrates Court Act 2004. However, ground 2 in the amended further and better particulars of appeal now recites that the decision is 'prejudicially' unsafe, presumably to bring it within s 32(3)(b) of the Magistrates Court Act, in so far as a breach of natural justice is concerned. The amended ground 2 now includes grounds 2(a) - (f).
80 At face value, the amended ground 2 still merely alleges error on the part of the learned magistrate. It is not sufficient to overcome s 32(1)(b) and bring the appeal within s 32(3)(b) by a general heading using the expression 'prejudicially unsafe'. Rule 51(3) of the District Court Rules requires specificity in the grounds of appeal so as to identify what is said to be prejudicially unsafe.
81 Grounds 2(a) – 2(f) supposedly particularize how the learned magistrate's findings are said to be prejudicially unsafe. However, Mr Fazio has not identified how each subparagraph of ground 2 is said to be prejudicially unsafe. There is therefore a failure to demonstrate how each of subparagraphs 2(a) – (f) are appealable. However, I will deal with those matters in an endeavour to allay Mr Fazio's fears of prejudice against him.
82 The amended ground 2(a) repeats ground 1(a). Further comment is not required.
83 By ground 2(b), Mr Fazio alleges that the learned magistrate paid insufficient regard to his 125 plus receipts of expenditure and did not give any reason as to why Mr Fazio kept such a large number of receipts.
84 Mr Fazio's submission at trial, and on appeal, was that he kept the receipts by reason of the alleged agreement with Ms Bedford that she would meet her share of their living expenses. The retention of receipts must necessarily post-date the alleged agreement and to that end, the fact of retention cannot prove the earlier entry into the agreement concerning living expenses. True it is that the retention is consistent with the alleged agreement, but the provision of 125 plus receipts of expenditure adds very little or nothing to the credibility or otherwise of Mr Fazio's oral evidence as to the entry into the alleged agreement.
85 Further as to ground 2(b), the learned magistrate, in addition to [84] and [85] of his reasons set out above at [page 5], said:
101. The Claimant in his evidence maintains that within about a week of meeting the Defendant they had not only entered into a personal relationship but had agreed to the terms of an enforceable contract that would see the parties share equally the cost of all jointly incurred food, alcohol and entertainment for their entire relationship. I do not accept this evidence of the Claimant, notwithstanding his prior experiences in other relationships, to be plausible or credible. I accept the evidence of the Defendant that she is not that naïve to have agreed to such a proposal after such a short period of knowing the Claimant or for that matter any other man.
102. The evidence of the Claimant did not reveal any detail of the terms of the agreement including how, when and on what terms the sharing of the cost of the jointly incurred food, alcohol and entertainment would occur and was vague, incomplete and in the very most general terms. I do not accept the evidence of the Claimant is plausible that he simply threw all the shopping receipt dockets into a box at his house to later sort out with the Defendant when he became aware the Defendant would not or could not honour her side of the agreement to pay her half of the food, alcohol and entertainment by either standing back from the check out or saying she would short [sic] it out later and then saying she would pay when she received settlement of her civil claims. It defies logic why the Claimant would continue to incur the debt he did in those circumstances when this arrangement was so fundamental to him entering the Relationship.
103. I find the Defendant from her evidence to be financially frugal. I accept and find the Defendant did not agree to the Claimant purchasing some $2021.66 in alcohol over eight months for which she would be responsible for half or about $60.00 per fortnight when she had limited income. I also accept the evidence of the Defendant and find some of the shopping receipt dockets produced by the Claimant were paid for by the Defendant. I accept and find the Claimant identified one docket she paid for by reference to her credit card statement. I accept the evidence of the Defendant that in regards to alcohol the Claimant was the big drinker as is evidenced by the receipts he produced for alcohol he purchased.
104. I do not accept the evidence of the Claimant that the Defendant purchased nothing during the Relationship. That evidenced contradicts his own evidence the Defendant went shopping during the week while he was at his house. I do not accept the evidence of the Claimant that the Defendant survived on dips during the week when he was not at her home. The Claimant complained the Defendant ate only fruit and vegetable and products from health food shops whilst he ate junk food. I accept the evidence of the Defendant that she did shop and buy healthy food during the week and made healthy meals for the joint consumption of the Claimant and her at weekends.
105. I accept the evidence of the Defendant and find the Defendant was never spoken to by the Claimant at the time from when the Relationship first commenced or at any other time about equally sharing the cost of the jointly consumed food, alcohol and entertainment. I also accept and find the Defendant is wise enough not to have entered into such an arrangement with the Claimant. I accept the Defendant wanted to be loved and courted by the Claimant but did not expect to be lavished by him.
86 The alleged agreement as to living expenses was purely oral. It was not evidenced in writing, either in whole or in part.
87 The learned magistrate had to reach his decision based on the oral evidence of Mr Fazio and Ms Bedford. It was for the magistrate to decide whose evidence and what evidence he accepted and rejected. He could have accepted part of a witness' evidence and rejected other parts of that same witness' evidence. It was a matter for him to decide on the evidence given at trial.
88 The learned magistrate had the opportunity and advantage of seeing and hearing both Mr Fazio and Ms Bedford give their evidence and be cross-examined. He made his findings of fact after hearing their evidence. The learned magistrate not only rejected Mr Fazio's evidence, but he accepted Ms Bedford's evidence. He was entitled to do so for the reasons he gave.
89 The magistrate's reasoning is transparent in its detail. The findings are explained and they are reasonably supported by evidence referred to in the reasons of the learned magistrate. The findings are logical when regard is had to the accepted and rejected evidence.
90 In an appeal, the findings made by the fact finder on issues of credibility should remain undisturbed unless there are compelling reasons showing clear error by that fact finder.
91 Ordinarily, an appeal court should be cautious in overturning a fact finder's decision based on the credibility of witnesses because the fact finder has the opportunity and advantage of seeing and hearing from the witnesses in person. An appeal court does not have that opportunity and advantage.
92 In response to the rejection of his evidence, Mr Fazio submitted that the learned magistrate was necessarily compelled to then infer some other reason as to why he kept receipts for an eight month period. However, once the learned magistrate found a lack of credibility on the part of Mr Fazio and did not accept his evidence concerning entry into the alleged agreement, it was not necessary for the learned magistrate to then go further and infer any reason or ulterior motive for keeping receipts.
93 There was however, evidence from Ms Bedford that Mr Fazio kept receipts in his upstairs bedroom in archive boxes for two purposes (ts 144). First, she said he did so for a tax audit. Secondly, she said that she herself kept shopping receipt dockets, which Mr Fazio took from her for Shop-A-Dockets (ts 184), being shopping vouchers on the reverse side of receipt dockets by which discount shopping can be achieved. It was therefore open to the learned magistrate to consider, and if appropriate to do so, to have found discount shopping for his own benefit as being the reason for Mr Fazio keeping shopping dockets, which in the circumstances, may not have all been his own.
94 Whether or not the learned magistrate failed to have sufficient regard to the receipts, as complained of in ground 2(b), is not to the point. In this appeal, it is simply not open to Mr Fazio to establish error. What Mr Fazio is required to do is show apprehended bias or bias against him. He is required to point to circumstances which would give a fair-minded and informed observer a reasonable apprehension of a lack of impartiality on the part of the learned magistrate. There needs to be some indicator of reasonable apprehension or suspicion that the learned magistrate might have prejudged the case or that he in fact did so. Mr Fazio has not provided such an indicator by ground 2(b).
95 As to ground 2(c), Mr Fazio complains that the learned magistrate failed to give weight to the unchallenged evidence that he was in financial difficulties from the commencement of his relationship with Ms Bedford and could not fund two households. This too, is merely a complaint of error.
96 Mr Fazio also complains that he would not support Ms Bedford when he could not even afford to meet his own financial commitments. However, he did not give evidence that he could not meet his own financial commitments. He said he had his own financial problems (ts 43), but that is a different concept falling short of the claims that he could not meet his own financial commitments. His evidence was that he could not afford the additional burden of maintaining Ms Bedford (ts 21).
97 However, Mr Fazio also said in the course of his evidence-in-chief:
So it's always been my practice to take money out for that particular – in advance. Like, if I was going to spend the weekend with her, I would get money out during the week, $500, $1000 or whatever, and if I had to get more money out during the week, I – I would try to make an entity against that on my mobile phone in the notation of it on there … (ts 30).
98 Further, Mr Fazio's evidence was that in September 2013, he spent slightly over $1,000 on a weekend away with Ms Bedford.
99 At face value, this evidence from Mr Fazio contradicts his claimed reason for entry into the alleged agreement with respect to household expenses. On this evidence, the learned magistrate had reason to reject Mr Fazio's evidence that he could not afford to fund two households in August 2014, support Ms Bedford, meet his own financial commitments and that he had his own financial problems.
100 Mr Fazio gave evidence that by Christmas 2013, the burden of incurring living expenses on Ms Bedford's account became too much for him to bear (ts 51).
101 Further, Mr Fazio said:
Things were getting bad after Christmas. Her father then came to the party – 300 bucks a month he was giving – he was paying her. She – he probably paid too – too much payment. It still wasn't enough with the pressures. I then arranged a meeting with her father and had – and we discussed this at length over lunch (ts 60).
102 On 11 February 2014, Mr Fazio sent a text message to Ms Bedford's father requesting lunch to discuss finances and thereafter, Ms Bedford's father began to pay Ms Bedford $300. Mr Fazio said he
was getting shirty – arguing – I – I was using the word 'burden' quite regularly in our conversation. Things came to a head.
103 Mr Fazio also said that it was after his heart attack on 21 April 2014 that he and Ms Bedford had a discussion in which Mr Fazio said he would not be able to continue to maintain her (ts 68).
104 Mr Fazio claimed that he and Ms Bedford often had 'heated arguments' over finances throughout the relationship (ts 21). Mr Fazio also said:
It was foremost in my mind, given the history, and it was certainly foremost in the defendant's mind because it was a matter of pride that she paid her way, she was self-sufficient, and the amount of times I've heard, 'The Bedford name, we always pay our way', and would recite along the same ways as her sister. Throughout the relationship – all the way through to April it was incessant (ts 22).
105 The 'history' to which Mr Fazio referred in this passage was his previous two relationships, as to which, see [146] – [147] below.
106 Mr Fazio said he entered the alleged agreement as to household expenses within about a week of the commencement of the relationship in August 2013. However, on the evidence, it was open to find that it was later at Christmas 2013 when Mr Fazio could no longer afford to fund two households. Christmas was, of course, four months after the alleged entry into the agreement. Finances may have further worsened for Mr Fazio by February and again in April 2014 after his heart attack.
107 Ground 2(c) must fail. The same comments as made at [94] above apply equally to ground 2(c).
108 By ground 2(d), Mr Fazio submitted that the learned magistrate at [108]:
of his written reasons for decision embarrassingly and pivotally got the evidence wrong, which underpins the apprehension of bias against the claimant and thus making the decision unsafe …
109 Complaint is made in ground 2(d) about [108] of the learned magistrate's reasons. His reasons at [101] – [105] inclusive are set out above at [85].
110 At [106] - [108] of his reasons, the learned magistrate continued:
106. I accept the evidence of the Defendant and find the Claimant offered to assist her in seeking from her banks forbearance from payment of her mortgage and credit cards and to access her superannuation funds due to hardship in early 2014 as she was finding her funds depleting and finances a bit tight. I further accept the evidence of the Defendant and find there was no discussion with the Claimant about her being charged for his services to assist her. The Claimant maintains he made it clear to the Defendant that she would have to pay him to assist her. There was no evidence from the Claimant as to what the terms of the agreement were including the hourly rate, when payment would be due and what disbursements would be incurred. I do not accept the Retrospective Tax Invoice of 24 June 2015 issued by the Claimant to the Defendant for $5,048.75 is demonstrable of any agreement with the Defendant. That invoice was issued some 12 months after the Claimant issued the claim in these proceedings. I reject that invoice by the Claimant and do not accept it is reflective of any agreement or arrangement entered into with the Defendant but is a document produced as a matter of convenience by the Claimant to bolster his claim against the Defendant. I accept the Claimant assisted the Defendant in respect to the claim made for the refund of medical expenses she incurred and for the forbearance of the payment of her mortgage and credit cards but I do not accept there was any agreement or arrangement for the Defendant to be charged for the Claimants services.
107. I do not accept the evidence of the Claimant that he agreed with the Defendant for the payment by her of disbursements incurred by the Claimant in preparing matters to assist the Defendants lawyer and seek a refund for the Defendant for medical expenses within a matter of a week or so of meeting the Defendant. Apart from such a proposition being ludicrous that a person who does not hold a law degree and had very limited knowledge of the cases the Defendants lawyer was dealing with could provide any legal assistance to the lawyer, it is more ridiculous for the Claimant to suggest the Defendant should pay a further fee or disbursement for someone else to work on her civil case. I accept and find the Claimant did assist the Defendant obtain a refund of medical expenses paid by her and associated with her civil claims but I do not accept the Claimant ever discussed with the Defendant that she should pay for disbursements for the assistance he rendered to her in that regard. I repeat my finding as to the utility of the Retrospective Tax Invoice from the Claimant to the Defendant of 24 June 2015 as not being reflective of any agreement by the Defendant to pay the Claimant for any assistance rendered.
(d) at [15] and [16] of her affidavit, Ms Bedford denied promises to pay Mr Fazio for professional services and the fact that Mr Fazio provided professional services. However, this was qualified by [17] that Mr Fazio is not engaged in any profession. At trial, she denied any agreement to pay, but she accepted that Mr Fazio provided services to her. There is nothing of merit in this.
191 At [23] of Mr Fazio's after trial submissions, he complained about Ms Bedford's affidavit sworn 20 March 2015, which was not tendered in evidence, in that:
(a) the annexures to her affidavits naming Mr Fazio by his former name Arthur Heedes are designed to impugn his character and that they have no probative value. The learned magistrate however, has not relied on this; and
(b) at [49] of her affidavit, Ms Bedford said that she always supported herself. Mr Fazio sought to contradict this. First, he did so by reference to her owing another man $1,200. He cross-examined her about this at trial (ts 169 - 170). Ms Bedford agreed she repaid this money during the course of her relationship with Mr Fazio. He also cross-examined her about her father paying her $300 per week from February 2014. Ms Bedford agreed that she received such payments. The learned magistrate was aware of these matters. They do not assist Mr Fazio.
192 At [24] of his after trial submissions, Mr Fazio referred to Ms Bedford's affidavit sworn 29 April 2015, which was not tendered in evidence, and as to which:
(a) at [60], Ms Bedford deposed that Mr Fazio knew she would seek financial hardship relief in April 2014 and that he had removed documents from her home, downloaded the hardship application form from the internet and completed the application for her. Mr Fazio complained that, at trial, Ms Bedford admitted that she provided him with information for that purpose. There is no express inconsistency between these two propositions. Ms Bedford signed the application forms herself;
(b) as to [71], Ms Bedford deposed that she never requested Mr Fazio to provide professional services or discussed an agreement or payment of any kind. Mr Fazio says that this is contradicted by her text messages dated 20 and 23 March 2014 referred to at [131] – [132] above. I have already commented on this at [133] - [145] above;
(c) at [79] – [80], Ms Bedford said she paid all her household bills, with the exception of two paid by Mr Fazio. These payments seem to refer to costs incurred by various utilities. Mr Fazio says that this claim by Ms Bedford was proven false by evidence at trial. However, he has not identified what evidence and, if it is the 125 plus receipts (exhibit 1), then, it needs to be remarked that those receipts are in respect of:
• alcohol/receipts
• miscellaneous food, groceries and food/meat/miscellaneous
• fuel, food entertainment
• Woolworths, Coles, IGA, Gilberts and others.
Within exhibit 2, there are two further accounts from Synergy dated 23 September 2013 and 24 October 2013. This seems to be consistent with [80] of Ms Bedford's affidavit. The mere existence of receipts does not identify who paid for the items to which they relate to or by whom the items were shared;
(d) as to [82], Ms Bedford deposed that the relationship was off and on over the eight month period. Mr Fazio says this is a significant deviation from Ms Bedford's evidence of a relationship of a few months. Nothing turns on this; and
(e) as to [92], Ms Bedford deposed that she had always supported herself, even in times of recent financial hardship. Mr Fazio says this is patently false, but she did not qualify this as during her relationship with Mr Fazio. Further, she did pay many expenses herself as will now become clear.
193 At [25] of his after trial submissions, Mr Fazio referred to Ms Bedford's affidavit sworn 10 August 2015 and as to which:
(a) at [7], Ms Bedford acknowledged that Mr Fazio paid for some food, but said that she also paid for food and has annexed various credit card transactions to her affidavit which clearly indicate that, during the relevant period, she paid various utility expenses, water and council rates, telephone bills, food, alcohol, medical insurance, other insurance and many other expenses.
These credit card statements were not part of the evidence before the learned magistrate, but had they been, then, they may well have been used by the learned magistrate to discredit Mr Fazio's claim that he paid for all joint household expenses;
(b) as to [11], Ms Bedford talks about the entry into the relationship with Mr Fazio following his two prior relationships and his internet advertising of his availability for a relationship and says that she was deceived by him pretending to be someone he is not. She also comments on Mr Fazio's prior relationships and how she met him on an internet service.
Mr Fazio took objection to this and said that he was the one who was deceived because Ms Bedford contacted him from his internet advertisement and that it was she who was disappointed with his lack of financial resources, such that it was she who preyed upon him until he could no longer provide for her following his heart attacks in April 2014. This does not assist to determine whether there were agreements as alleged or not; and
(c) as to [23], Ms Bedford says, amongst other things, that Mr Fazio did not indicate that he was having any financial problems. Mr Fazio said that this is a delusion as to her knowledge of his financial problems. Nothing turns on this.
194 There is nothing in Mr Fazio's after trial submissions which assists him in this appeal.
Mr Fazio's affidavit sworn 28 August 2016
195 In his affidavit sworn 28 August 2016, Mr Fazio complained of documents not having been sent from the Rockingham Magistrates Court to the District Court. Mr Fazio says:
6. It is my genuinely held belief that a person or persons from the Rockingham Magistrates Court acting out of actuated bias, personal dislike or worse towards me, is deliberately withholding incriminating evidence or redacting the file as such in order to hinder or prejudicially affect my appeal. My belief is founded upon the inexplicable missing materials from the files, no notation whatsoever as to restricted access throughout the files plus several requests by The District Court just to receive by delay, what has been supplied.
196 The history of communications between the District Court and the Magistrates Court is detailed at [33] above. The Magistrates Court file has now been provided in full. There is nothing on the file to advance Mr Fazio's complaints.
197 In his affidavit, Mr Fazio alleges that the learned magistrate wrongly used information from the court file to become biased in his determination of this minor case claim. As previously noted, there is nothing in the learned magistrates' reasons for decision which might suggest that the learned magistrate reached his decision on anything other than the evidence and the exhibits in the trial before him. His reasons are transparent and confined to the evidence at trial.
198 If however, Mr Fazio wishes documentary material not referred to in the trial, but on the court file, to be part of the reasoning for the learned magistrate's decision then, he would do well to reflect on par 15 of his own affidavit sworn 29 August 2014 and annexure ASF4 thereto, being a facsimile transmission sent by him on 26 May 2014, in which he attests to 'the founding merits of my claim', but fails in the six pages thereof to refer to the entry into the alleged agreements which underpin his minor case claim. The learned magistrate has not relied on this document.
199 Mr Fazio has also complained about Ms Bedford's facsimile transmission to the court dated 11 March 2016 referring to Mr Fazio continuing to stalk her on the night of 5 March 2016. He then explains where he was that night, being well after the delivery of judgment in this matter on 8 January 2016. That night has no relevance to either the learned magistrate's reasons or to this appeal.
200 Mr Fazio also complains that in Magistrates Court files, being action numbers 855/2014 and 1056/2014, he was denied access by the Magistrates Court to inspect such files in which he was the plaintiff. Whatever the reasons for those denials, they have nothing to do with this appeal or if they do, then Mr Fazio has not sought to explain those reasons in any way.
201 Mr Fazio also complains that following delivery of judgment on 8 January 2016, he was approached by two police officers regarding a cold review in a murder enquiry. He alleges that the police had been told prior to judgment being delivered in his minor claim case that Mr Fazio had lost this case. He says this amounts to actual bias by the learned magistrate, but nothing more is provided by him.
202 Mr Fazio also complains that the learned magistrate was swayed by correspondence to the court from Ms Bedford, correspondence to the court from a witness in other litigation involving Mr Fazio, but not concerning Ms Bedford, such that there was actual bias on the part of the learned magistrate.
203 It is beyond the capacity of this court to resolve the truth in what Mr Fazio says about the police or about other litigation involving Mr Fazio. Whatever steps the police may have taken and whatever may have been said in other litigation cannot be examined in this appeal, without any or any proper evidence. Mr Fazio has not sought to provide any details.
Written submissions after appeal
204 Mr Fazio complains at [16] in his submissions after appeal that the learned magistrate suppressed evidence of text messages dated 11 and 13 February 2014 between Mr Fazio and Ms Bedford's father (ts 60 – 62).
205 A perusal of the transcript indicates that Mr Fazio referred to these text messages, but then, the learned magistrate asked what the arrangement was that Mr Bedford had with Ms Bedford. Mr Fazio told the magistrate what Mr Bedford was going to pay to Ms Bedford from February 2014. Mr Fazio then said that he himself did not have any arrangement with Mr Bedford. Mr Bedford began making payments to Ms Bedford of $300 per month. This seems to have been the gist of these text messages, which was not disputed. This does not advance Mr Fazio's case. This does not deal with entry into the agreements. It certainly does not have any relevance to the agreement as to the sharing of expenses from August 2013. It is also difficult to understand what relevance it has to entry into an agreement for professional services in March 2014.
206 Mr Fazio claims that it was bias that led the learned magistrate to not accept emails, faxes and texts sent from himself to Ms Bedford prior to him commencing legal action against Ms Bedford (ts 74 – 75), but there does not seem to have been any attempt by Mr Fazio tender these documents into evidence.
207 In this regard, Mr Fazio complains that the learned magistrate did not receive evidence at trial about Ms Bedford overturning the default judgment he had obtained against her. He claimed this was by reason of apprehended bias by the magistrate against him. However, the learned magistrate simply indicated that the judgment had been overturned, was not part of the action before him and there was no need for evidence about it.
208 Mr Fazio then said there was a text message dated 12 June 2014 at 6.46 am about Ms Bedford's reading glasses which was relevant to the default judgment. Mr Fazio indicated that the text message would have significance later in the trial (ts 70 and 71), but he did not further deal with it at any time during the course of the trial. That is his problem.
209 Mr Fazio further complains at [16] in the submissions after appeal that the learned magistrate did not consider Ms Bedford's demand that Mr Fazio be tested for a sexually transmitted disease at the commencement of their relationship to be part of the alleged agreement to share expenses. The fact of the requirement for the test itself was not in issue. It was however quite open to the learned magistrate to find that such test had nothing to do with any agreement.
210 Mr Fazio complains at [17] of his submissions after appeal that:
The affidavit of August 2014 bears a decision bearing the name of Justice Roberts Smith the only evidentiary causal link to the offensive and inflammatory finding at paragraph 98 of [the learned magistrate's] reasons for decision [sic].
211 However, that is not correct. Roberts-Smith JA was not involved in any of the judgments exhibited to Ms Bedford's affidavit sworn 8 August 2014. Those judgments are:
(a) Fazio v The City of Fremantle [No 2] [2013] WADC 147.
(b) Fazio v McNully [2014] WASCA 79.
(c) Fazio v Westpac Banking Corporation [2014] WASCA 80.
(d) Legal Practitioners Board v Heedes [2004] WASC 260.
212 The so-called evidentiary causal link referred to by Mr Fazio given in evidence at trial by Ms Bedford was that Mr Fazio had claimed that to her that:
He did investigative work for Justice Ben Robert Smith [sic] (ts 137).
213 Ms Bedford also referred to this in her affidavit sworn 20 March 2015, however this affidavit was not tendered into evidence at the trial.
214 Roberts-Smith JA was, of course, a member of the Full Court in Heedes v Legal Practice Board referred to at [54] above.
215 Here, I should note that I was counsel for the Legal Practice Board, both in its prosecution against Mr Fazio and in his appeal from that prosecution. Prior to the hearing of this appeal, my associate communicated with Mr Fazio and advised him that I would be the appeal judge. Mr Fazio responded:
… I believe justice can best be served by Judge Goetze hearing the matter and as such, I will not be making application for him to recuse himself in any event.
Conclusion
216 Clearly, Mr Fazio is disappointed that the learned magistrate rejected his minor case claim. However, he has had his opportunity to bring that claim. He was unsuccessful. He now accepts that the decision can only be appealed on the ground of a denial of natural justice, in this case, being either apprehended or actual bias against him by the learned magistrate.
217 Mr Fazio's amended grounds of appeal, both individually and collectively, his affidavit and his submissions, both oral and written, in support of the appeal grounds and the Magistrates Court file do not demonstrate any bias or apprehended bias.
218 This appeal should be dismissed.
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