Genovese v Mills Brand Pty Ltd
[2020] WADC 20
•20 FEBRUARY 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: GENOVESE -v- MILLS BRAND PTY LTD [2020] WADC 20
CORAM: GLANCY DCJ
HEARD: 20 NOVEMBER 2019
DELIVERED : 20 FEBRUARY 2020
FILE NO/S: APP 50 of 2019
BETWEEN: HERCOLE PIETRO GENOVESE
Appellant
AND
MILLS BRAND PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE TAVENER
Citation: GENOVESE v MILLS BRAND PTY LTD
File Number : MID/MINOR/499/2018
Catchwords:
Courts and magistrates - Procedural fairness - Whether the magistrate gave the appellant a reasonable opportunity to present his case - Whether the magistrate was actually biased - Whether there was a reasonable apprehension of bias
Legislation:
Australian Consumer Law
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Result:
Appeal upheld in part
Matter remitted to Magistrates Court for rehearing before different magistrate
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | Not applicable |
Case(s) referred to in decision(s):
Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38
Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571
De Alwis v The State of Western Australia [No 2] [2015] WASCA 42
Defendi v Szigligeti [2019] WASCA 115
Frigger v Murfett Legal Pty Ltd (No 2) [2017] WADC 7
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Googe v Spoljaric [2017] WADC 99
Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338
International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; 240 CLR 319
J v Lieschke [1987] HCA 4; (1987) 162 CLR 447
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48, 244 CLR 427
Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; 37 WAR 149
Multicultural Affairs v Jia [2001] HCA 17; 205 CLR 507
Nobarani v Mariconte [2018] HCA 36; 92 ALJR 806
R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] 88 CLR 100
R v Watson; ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248
Shrestha v Migration Review Tribunal [2015] FCAFC 87; (2015) 229 FCR 301
Smart v Albuquerque [2011] WASCA 231
Smart v Prisoner Review Board (WA) [2012] WASC 48
Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141
The Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383
Warren v Coombes (1979) 142 CLR 531
GLANCY DCJ:
Introduction
This is an appeal from a decision made in the Midland Magistrates Court on 29 May 2019 dismissing a claim relating to a piece of welding equipment which the appellant purchased from the respondent in June 2013 at a cost of $354.27. It is not in dispute that the welder worked when it was used soon after purchase in June 2013 but that when it was next used in July 2016, it operated briefly and then ceased to operate. At that time it was outside the 12 month guarantee period.
The appellant claimed that the statutory rights arising under the Australian Consumer Law (sch 2) Competition Consumer Act 2010 (Cth) mean that he is entitled to a replacement or refund and compensation for any reasonably foreseeable damage.
Appeal to the District Court
Section 40 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCP Act) provides that a party to a case that is not a minor case may appeal to the District Court from a judgment of the Magistrates Court.
Where an appeal is from a case which proceeded as a minor case, the appeal is subject to s 32 of the MCCP Act.
Section 32(3) of the MCCP Act provides that a party to a minor case who is dissatisfied with the judgment of the court in the case may appeal only 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.
A 'minor case' is a case coming within the meaning of s 26 of the MCCP Act. That section defines 'minor case' as a claim within the jurisdiction of the court where the value of the claim or of the relief claimed is not more than the minor case jurisdictional limit and the claimant has elected to have the claim dealt with under the minor cases procedure. The minor case jurisdictional limit is presently $10,000: s 3 of the MCCP Act.
Where an appeal is brought on the grounds set out in s 32(3) of the MCCP Act then pt 7 of the MCCP Act applies. Part 7 deals with appeals generally.
In this case the appellant appealed on the grounds that:
1.the magistrate erred in sitting in the criminal jurisdiction when the matter was a civil matter concerning a 'Consumer/Trader Claim'; and
2.the magistrate was biased and denied the appellant natural justice. The appellant's notice of appeal sets out eight reasons why that is said to be so.
Given the appeal raises a denial of natural justice and an error in jurisdiction, pt 7 of the MCCP Act applies.
An appeal must be commenced within 21 days of the decision complained of: s 40(3) of the MCCP Act. It is not in dispute that the appeal was commenced within time.
The hearing of the appeal is not a hearing de novo. Section 40(4)(b) of the MCCP Act requires the court to proceed on the basis of the record and considering any new evidence which it may give leave to be adduced.
Litigants in person
In dealing with the appeal I have been cognisant of the fact that both parties appeared before the magistrate in person. While the respondent took no part in the appeal the appellant again appeared in person. There are well established principles which govern the way in which courts should approach matters where there is a litigant in person. Those principles were set out by Gething DCJ in Googe v Spoljaric [2017] WADC 99 [13] - [15]. In summary, they are:
1.a litigant in person should be afforded some latitude and the documents in which he articulates his case should be approached with some flexibility: Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J);
2.the court needs to be careful to ensure that if a litigant in person has a case, it is not denied because of a poorly expressed document or submission: Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338 [21] (Beech J); and
3.at the same time, the court must ensure that any latitude given does not work an injustice to the other party: Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (judgment of the court).
Those principles governed the way in which I approached this matter.
Powers of the court on appeal
Section 43 of the MCCP Act sets out the court's powers in dealing with an appeal. Relevantly, it provides as follows:
43.Appeal court's powers
1.This section applies to a court (the appeal court) that is dealing with an appeal under section 40, 41 or 42 against an order or judgment of another court (the lower court).
2.The appeal court may ascertain what material or evidence was before the lower court in any manner that it considers sufficient.
…
7.The appeal court may -
(a)confirm, vary or set aside all or a part of the lower court's judgment;
(b)give any judgment and make any order that the Magistrates Court could have given or made;
(c)order a new hearing in, or trial of, the case to be held in the Magistrates Court;
(d)order the Magistrates Court to enter judgment in favour of a party;
(e)make an order as to the costs of the appeal and as to the costs in the Magistrates Court and, in an appeal to the Court of Appeal, as to the costs in the District Court;
(f)make any orders that are necessary as a result of other orders it has made.
No application to adduce further evidence in this appeal was made by the appellant. I have therefore determined the appeal on the evidence which was before the magistrate.
Ground 1 - error as to jurisdiction – abandoned at hearing
The appellant's notice of appeal contended that the magistrate erred in determining the matter in the exercise of the criminal rather than the civil jurisdiction.
In support of that submission the appellant relied on the title page of the magistrate's reasons for decision. Under the heading 'jurisdiction' on the title page are the words 'Magistrates Court of Western Australia (Criminal Jurisdiction)'.
At the hearing of the appeal the appellant indicated that he wished to abandon that ground of appeal. That was an appropriate concession given:
1.the case number allocated to this claim in the Magistrates Court which is also set out on that title page is 'MID/MINOR/499/2018';
2.all other court documents filed in the proceedings, including the initiating document (the appellant's Form 6) identify the case as a matter brought as a minor case pursuant to the MCCP Act;
3.it is clear from his reasons for decision that the magistrate was well aware that he was exercising his civil jurisdiction. He referred to the appellant's statutory claim on the warranty and to the statutory rights that a purchaser is entitled to when there is a major failure in the good purchased (magistrate's reasons for decision [3]). There is no reference to criminal law or the criminal standard of proof anywhere in the judgment.
Ground 2 - denial of natural justice
The appellant contends that the magistrate was biased and denied him natural justice by:
1.having regard to evidence which was provided by the respondent after the hearing but which was not provided to the appellant and to which the appellant was thus not given an opportunity to respond;
2.paying no regard to the appellant's written submissions regarding the Australian Consumer Law; and
3.agreeing to make the respondent's written submissions available to him but failing to do so thereby depriving him of the opportunity to respond to those submissions.
Before turning to the issues raised by the appellant it is necessary to set out in some detail the facts of the matter and the procedural history of the litigation in the Magistrates Court.
Factual background
The facts giving rise to the dispute between the appellant and the respondent are not in dispute. They are:
1.in 2013, the appellant purchased from the respondent, a firm registered and based in New South Wales but selling its goods over the internet, a welder for the sum of $354.27. The welder was on sale, discounted from its usual purchase price of $1,299. The welder was under warranty for a 12 month period;
2.the welder was shipped to the appellant in Western Australia in July 2013;
3.the appellant used the welder for about five minutes when it was received. It worked without incident. It was then packed away until it was next used, some three years later, in mid 2016;
4.on that occasion it functioned for a period of 20 minutes and then stopped working;
5.the appellant had a company called Gentronics inspect the welder. (Gentronic's report became exhibit 2 in the Magistrate's Court hearing.) That report says that on inspection the technician found that the capacitator on the main board had catastrophically failed;
6.the appellant returned the welder to the respondent in July 2018. The respondent examined the welder and also formed the view that the problem lay with the capacitator. However, the respondent did not accept that there was a manufacturing defect with the welder. Rather, the respondent took the view it was likely that either the way in which the welder had been stored, or a faulty extension cord with which it had been used, had caused the capacitator to fail;
7.the respondent communicated its view to the appellant and offered to repair the capacitator at the appellant's cost. The respondent also informed the appellant that it could not guarantee that the welder would work even after the repair to the capacitator had been carried out;
8.the appellant informed the respondent that he did not wish for it to carry out the repairs and instructed it to return the welder to him;
9.on 26 July 2018 the respondent sent an email to the appellant informing him that it would replace the welder; and
10.the respondent says that the email of 26 July 2018 was sent in error and that at no stage did they agree that the warranty extended beyond the 12 month period. The respondent says that the fact that the email of 26 July 2018 was sent in error was communicated to the appellant, shortly after 26 July 2018.
Procedural history
An examination of the Magistrates Court file and the Magistrates Court transcript reveals the history of this matter to be as follows:
1.the appellant lodged his claim in the Magistrates Court on 6 March 2018 seeking relief on the basis of the Australian Consumer Law;
2.the respondent entered an appearance on 18 April 2018;
3.on 6 September 2018 the respondent sent a chronology and other documents to the court but as they had not been provided in the correct format the documents were rejected by the registry. On the file is a letter from the court to the respondent dated 10 September 2018 returning to it the documents which had not been provided in the proper format and requesting that they be resubmitted in the proper format;
4.the respondent was granted leave to appear by telephone at the hearing which was scheduled for 29 March 2019;
5.the hearing took place in the Magistrates Court in Midland on 29 March 2019. The respondent did not appear;
6.at the hearing the magistrate, having referred to the respondent having been granted leave to appear by telephone, and having considered only the appellant's materials, had the following exchange with the appellant:
His Honour: They haven't made that arrangement. Nor have they responded to our request to - they have been granted leave, you're right. But they haven't responded to our request to file their defence in the proper form. So what needs to happen today, is you need simply to persuade me - - -
Genovese Mr: Yes.
His Honour: - - - that you are entitled to that order. So what we will do is - - -
Genovese Mr: So I've got a full list of - - -
His Honour: No. Sorry. What we will do is this. We will ask you to take the oath. And then you can simply go through what you want to say, primarily with your documents.
Genovese Mr: All right.
His Honour: And that should be it. Then I will look at these documents and make a decision. It's not a hard matter.
(NB: spelling error of Genorvese in transcript corrected to Genovese);
7.after reading the email of 26 July 2018 which was tendered by the appellant the magistrate made the following comment:
Mr Genovese it's - I don't know whether you can make a case any stronger than that, quite frankly. It's still the same issue, I still want to think about it;
8.at the conclusion of the hearing on 29 March 2019 the magistrate indicated that he would deliver his decision on 12 April 2019;
9.on 1 April 2019, the magistrate contacted the respondent by telephone and spoke with someone who identified herself only as 'Michelle'. The conversation between them is recorded in the transcript. The transcript records that the magistrate:
a.informed Michelle that he would tell her what the appellant had said during the hearing and give her an opportunity to reply;
b.informed Michelle that the chronology which the respondent had provided to the court, albeit in the wrong form, had been put to Mr Genovese;
c.requested that the material be put in the correct form and provided again to the court;
d.indicated that 'if worst came to worst' he'd still read the materials which had been provided;
e.informed Michelle that the appellant had given evidence that he had received an email from the respondent dated 26 July 2018 in which the respondent agreed to replace the item and to send it to him at its expense;
10.the transcript reveals that Michelle then informed the magistrate that that email of 26 July 2018 had been sent in error by a customer service agent and that there was never an intention on the part of the respondent to replace the welder. She said 'and then I think the next email after that they had advised of the error as well'. She said that the intention had been simply to return the welder to him at the respondent's expense;
11.the following exchange then took place between Michelle and the magistrate:
His Honour: Okay. That's fine. I just wanted to raise that with you because that was - everything else is really not in dispute on the papers, but if you can just simply write in something, put it in the correct document - - -
….., Ms: Yes.
His Honour: - - - and what I will do is I will make an order that you do that, say within two weeks - - -
….., Ms: Yes
His Honour: - - - and then I will adjourn the matter for decision two weeks after that.
….., Ms: And then two weeks after that.
His Honour: Yes.
….., Ms: All right.
His Honour: And you will get a copy of these orders. But that's what I'm looking at, for you to formally provide that information, which you've already provided about the chronology, and your response to the fact that there was the offer for the new replacement. And if you could put that - what you have just told me in a formal document.
….., Ms: Yes.
His Honour: Okay.
….., Ms:Okay. Okay. No worries. I will get that organised and sent over. Because - yes. The (indistinct) has been returned to us and it has been inspected by our technician.
His Honour: Any - - -
….., Ms:And - yes. There was no manufacturing defect found with it, so - - -
His Honour: Okay. that's fine.
….., Ms:- - - I can - yes. I can have all of that put in writing to you. I will attach the form that has been emailed to me and have that to you within two weeks. Was that right?
His Honour: That's right. That's right.
….., Ms:Yes. Okay. No worries. You will get that in the next few days, actually.
His Honour: Yes. That's great I just need your explanation then I can do that. Then I can process the matter from there or deal with the matter from there.
….., Ms:Yes. And - so then will I get a call again or are you just going based off the documents that I provide? Will there be another hearing or - - -
His Honour: It will be on the document. It will be on the documents because, again, there's a question of how much time you need to allocate. If you put your response in, I can make a decision on that basis and then you will get a copy of the written decision.
12.the magistrate then made the following orders:
1.Reserved date of 12 April 2019, vacated.
2.Defendant to file and serve chronological document and response to email dated 26 June 2018, [sic] by 15 April 2019.
3.Reserved decision adjourned to Monday 29 April 2019 at 9.30 am Midland Court 24 Spring Park Road, Midland.
13.on 4 April 2019 the respondent filed a 13 page document which was said to contain its written submissions including results of the warranty inspection. That document is stated to come from 'Michelle C, Customer Resolutions Representative Mills Brand';
14.at the hearing on 29 April 2019 the magistrate informed the appellant that the decision was ready, following which the appellant indicated to the magistrate that he had not been served with the documents as required by order 2 of the orders made 1 April 2019;
15.in reply the magistrate informed the appellant that the respondent had provided him with a copy of the email of 26 July 2018, and informed him that a subsequent email had been sent to the appellant saying the earlier email (i.e. the email of 26 July 2018) was a mistake and it did not intend to replace the item. He then said to the appellant:
And they maintain that it was - so it came down to this, Mr Genorvese [sic], I'm happy for you to adjourn it for you to get more - you to be served the material, because I've - yes, anyway. The material they've served me indicated that they never indictated they will replace your item. They've offered to fix it, but you declined and they agreed to send it back to you. Their report also says that it was capacitor's [sic] catastrophic failure.
They say the issue is not a manufacturing issue. It was due to corrosion on the circuitry which caused the capacitor [sic] fail. The welder would still turn on. They offered to replace the capacitor [sic], however the applicant requested the item be returned to him. In the emails they accept there was a mistake about - in this second email to you, the later email, the only email you showed me - - -
…
They never intended to replace it. The defendant also maintained the power plug of the extension cord used by the applicant was a possible cause of problem. So they say it's not a manufacturing fault.
…
It was accepted the email sent on - the next day, the only one you showed me, was - had the incorrect information. Had incorrect information, including that the item was going to be replaced. They never intended to do that. Your difficulty is this - and I'm happy to adjourn it for you to get that material - but this is your difficulty: It was well out of warranty when you sought it. They never extended the warranty. They have done their best to fix it. You've declined. You wanted a new one. You're not entitled to a new one. You chose to have the item returned to you. That is it.
15.Mr Genovese and the magistrate then had the following exchange:
Genovese, Mr: No. I didn't say I wanted a new one. But they offered to replace it.
His Honour: Well, a replacement is the same thing as a new one.
Genovese, Mr: Yes. Yes. Well, that was their offer.
His Honour: No. They said they never made that offer.
(NB: spelling error of Genorvese in transcript corrected to Genovese);
16.the hearing progressed with the magistrate telling the appellant that the welder was outside the warranty period and that the appellant would have to show him why the warranty extends beyond that 12 month period. In response the appellant informed the magistrate that he was not relying on the 12 month warranty but on the statutory warranty provided by the Australian Consumer Law;
17.the magistrate then said that he would adjourn the matter until 27 May to allow the appellant to deal with the point he wanted to make in relation to the statutory warranty. Before doing so the magistrate said:
I know the story.
…
They've asked you to pay $280. You've declined. They have never accepted your warranty. The only way there's - you're going to be successful is if you can show me why the warranty extends longer than 12 months;
18.the magistrate delivered his decision on 29 May 2019 dismissing the appeal.
The magistrate's reasons for decision
In his reasons for decision the magistrate noted that the interstate respondent was not able to be contacted at the time of the hearing but subsequently provided material for consideration by the court. He said that the chronology was not in dispute and that the appellant had been permitted more time to provide additional material. He referred to the fact that the appellant had the welder inspected by Gentronics, which had found that the capacitator on the main board had catastrophically failed. He referred to a purchaser's entitlement under the Australian Consumer Law to have a replacement or refund for a 'major failure' and compensation for any reasonably foreseeable loss and damage.
The magistrate then turned to the question of whether there had been a major failure. In doing so he said the welder had worked when it left the factory, the fact that it was not used for three years raised questions of its storage and subsequent use and referred to the point raised by the respondent that, based on the photographic evidence, the plug of the long extension cord showed damage at the non-welder end leading to the respondent claiming that it appeared not to have been used on a protected circuit. The reasons for decision conclude as follows:
10.The welder failed, some three years after its purchase, due to a problem with its capacitor [sic]. On the material, that failure was not a manufacturing fault but more likely due to the manner of its storage and the use of a non-conforming extension cord.
Findings
11.The applicant's claim was outside the warranty period offered by the defendant and the defendant did not extend the warranty.
12.On balance, the court is not satisfied that the welder was properly stored or used and, further, the failure to operate was not due to a manufacturing fault.
Procedure on a minor case
The MCCP Act provides that the primary object of the court when dealing with a minor case is to attempt to bring the parties to a settlement acceptable to all the parties: s 27(1). The court may, at any stage in the proceedings, do all things and take such steps as it considers to be appropriate to achieve that primary object: s 27(2).
In dealing with a minor case the court is to act with as little formality as the court thinks is reasonable: s 29(3) of the MCCP Act. When dealing with a minor case the court is not bound by the rules or practices as to evidence but may inform itself on any matter in such manner as it thinks fit: s 29(4) of the MCCP Act.
The Magistrates Court is a busy court and often, as was the case here, the value of the claim is very small and the parties are often unrepresented. The intention of the minor case procedures is to allow flexibility in the way in which such cases are conducted with a view to resolving them without resort to contested litigation and without great expense.
Given the scope accorded to the court to inform itself as it sees fit, it was open to the magistrate to take evidence from the respondent by telephone in the hearing. It was also open to the magistrate to do so after he had earlier indicated to the appellant that the hearing was concluded and the next step was the delivery of the judgment in circumstances where it came to his attention after the hearing that the respondent had intended to participate and also had had its materials returned to it because they had not been filed in the correct format.
Procedural fairness
Notwithstanding the flexibility of approach permitted to a magistrate in dealing with a minor case, whatever approach was taken by the magistrate, it is axiomatic that the magistrate was obliged to afford procedural fairness to the appellant.[1]
[1] Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, 589; TheCommissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383, 396; J v Lieschke [1987] HCA 4; (1987) 162 CLR 447, 456; International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; 240 CLR 319 [54]; Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 [194]; Shrestha v Migration Review Tribunal [2015] FCAFC 87; (2015) 229 FCR 301 [37].
In order to determine whether the magistrate failed to do so, it is first necessary to identify the content of the requirements of procedural fairness.
The fundamental requirement of procedural fairness is that a party is given a reasonable opportunity to be heard. In effect that means ensuring that the parties are given a reasonable opportunity to present their case by evidence, information and submissions: Defendi v Szigligeti [2019] WASCA 115, [47].
As the Court of Appeal stated in Defendi v Szigligeti [48]:
The requirements of procedural fairness are not fixed and immutable. Procedural fairness is directed to avoid practical injustice, and what is necessary to avoid practical injustice will depend upon the circumstances. The application of the requirements of procedural fairness to a court requires analysis of the procedures of the court, and the legislation and rules which govern them.
(footnotes omitted)
I have already set out the provisions of the MCCP Act which govern how a minor case is to be dealt with.
The magistrate is required to exercise the powers of the court on a minor case in a manner which ensures the proceedings are conducted fairly and in a way in which ensures that the parties to the proceedings have a sufficient opportunity to present their respective cases.
While not the usual course of litigation, it is not impermissible to receive further evidence or to hear further submissions after a hearing has concluded. Indeed being somewhat flexible in the way the hearing is conducted is perhaps to be expected where a magistrate is dealing with a minor case with unrepresented parties who are perhaps not familiar with the procedures involved in litigation.
Communicating with one party in the absence of the other as occurred in this case is somewhat unusual and perhaps best avoided. However, given the flexibility afforded to the court in dealing with minor cases, doing so does not automatically amount to a denial of procedural fairness.
What was necessary, having taken that course he did, was for the magistrate to ensure that the appellant knew and understood the substance of what had been said by the respondent and had sufficient opportunity to deal with what had been said against him.
In this case, I find that the magistrate communicated the essence of the respondent's position to the appellant. The magistrate told the appellant that the respondent had claimed that it had offered to replace the faulty welder in error in its email of 26 July 2018 and that the respondent had formed the view, following an examination of the welder and a photo showing damage to the extension cord with which it had been used, that the reason for the welder ceasing to function was either, that it had been stored incorrectly or that it had been used on an unprotected circuit.
However, on 1 April 2019 the magistrate ordered the respondent to file and serve its material by 15 April 2019 and it is apparent from the transcript of the hearing of 29 April 2019 that at the time of the hearing the respondent had not served it upon the appellant. Accordingly, the magistrate indicated that he would have the respondent's materials provided to the appellant and allow the appellant time to file additional material in reply.
The appellant contends that despite the magistrate agreeing to provide the respondent's materials to him, he never in fact received them. While I have no affidavit in which the appellant deposes to that fact, I have seen nothing on the court file to suggest to the contrary and, allowing some leeway for the fact that the appellant is a litigant in person, I am prepared to accept his statement to that effect made from the bar table.
It is also clear from the transcript of 29 April 2019 that at that time the magistrate had formed the view that he knew the facts of the case and only required the appellant to identify for him 'which warranty he was relying on. He said:
All you need to do is send me a note saying which section and which Act you're relying on to extend it past the 12 months warranty, which is clearly stated in their material.
The difficulty with that approach was that the appellant was endeavouring to rely on the provision of the Australian Consumer Law which entitles a consumer to claim a remedy from a retailer if the product does not meet the consumer guarantee that the goods are of acceptable quality even when the manufacturer's warranty has expired. In this case the appellant was claiming that the problem with the product constituted a 'major failure' which would have entitled him to ask for a replacement or refund: see Australian Consumer Law particularly s 54 and s 260.
Determining whether the appellant was entitled to rely on the consumer guarantee under the Australian Consumer Law would have required the magistrate to consider whether the appellant had established, on the balance of probabilities, that:
1.the welder was not of 'acceptable quality' (s 54). To be of 'acceptable quality' a product must:
(a)be safe, lasting, with no faults;
(b)look acceptable; and
(c)do all the things someone would normally expect them to do;
and
2.the problem with the welder was a 'major failure' (s 260). A product has a 'major failure' when:
(a)it has a failure which would have stopped someone from buying it;
(b)it is significantly different from the sample or description;
(c)it is substantially unfit for its common purpose and cannot easily be fixed within a reasonable time;
(d)it does not do what it was asked for and can't easily be fixed within a reasonable time; or
(e)it is unsafe.
In his oral submissions the appellant stated that had he been given the opportunity to do so, he would have cross‑examined Michelle and that he would have taken issue with the respondent's assertions that the circuit on which the welder was used was unprotected and that it had been stored incorrectly and that these things caused it to cease to function. This was not a matter about which he had given evidence as the possibility that these things had caused the welder to fail has not been put to him in the course of his evidence.
It is clear that there was a contest on these issues between the parties. The appellant led evidence as to the cause of the failure of the welder. He should have been permitted to cross-examine the respondent's witness as to the basis for her evidence concerning the cause of its failure. He should also have had an opportunity to give evidence about how the welder was stored and used.
The appellant was not permitted to do so and, as a result, was denied procedural fairness.
Even where a failure to afford procedural fairness is identified, not every departure from the rules of procedural fairness will entitle an aggrieved party to an order for a retrial. Such an order would only be made when the error has deprived the party of the possibility of a successful outcome: Defendi v Szigligeti [59], Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141, 145, 147; Nobarani v Mariconte [2018] HCA 36; 92 ALJR 806 [38]; Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; 37 WAR 149 [15], [73], [250].
Given the differences in the parties' opinions about the cause of the welder's failure, and the fact that a manufacturing defect might amount to a major failure and give rise to rights under the Australian Consumer Law, I find that the appellant was deprived of the possibility of a successful outcome.
Bias
The respondent also contends that the magistrate failed to afford him natural justice or procedural fairness because he was biased against him. He submitted that the bias can be seen from the fact that orders made on 1 April 2019 vacating the date for delivery of the reserved decision and allowing the respondent to file and serve a chronology and a response to the email dated 26 July 2018 is so completely inconsistent with the views of the magistrate expressed to the appellant at the conclusion of the hearing on 29 March 2019. I have set those comments out in [23] above.
As to the issue of alleged actual bias, in Stephens v Stephens [2010] FamCA 184; (2010) 43 Fam LR 106 [22], Strickland J observed:
An allegation of actual bias is a very serious matter. Allegations of actual bias are uncommon and actual bias is rarely found by courts. For a judicial officer to be disqualified, it is usually sufficient to establish a reasonable apprehension of bias. Where actual bias exists, reasonable apprehension of bias will also exist. It is therefore generally considered unnecessary for allegations of actual bias to be considered or determined.
The test for actual bias requires that the party alleging that bias exists show that the mind of the decision maker was so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Such an allegation must be distinctly made and clearly proved: Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; 205 CLR 507, [36], [69], [72] and [127].
Actual bias requires an inquiry into the actual thought processes of the decision maker. It is the actual state of mind of the judicial officer which is in issue where actual bias is alleged: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48, 244 CLR 427 [33] and [67].
Actual bias will exist where the decision maker has prejudged the case against a party or acted with such partisanship or hostility as to show that the decision maker had his or her mind made up against that party and was not open to persuasion: Minister for Immigration and Multicultural Affairs v Jia [36] and [72].
While the magistrate's comments made on 29 March 2019 about the strength of the appellant's case would, not surprisingly, have led the appellant to understand that he would succeed in his claim, the magistrate was not bound by the views he expressed at that time. Coming to a view which was different from that earlier expressed does not, of itself, reveal bias.
In considering whether the magistrate was actually biased against the appellant I have had regard to the entirety of the transcript of the various hearings before the magistrate and the way in which this matter proceeded generally. Having done so, I am not satisfied that the magistrate displayed any actual bias against the appellant.
The appellant has not established the ground of appeal raising actual bias.
The appellant also complains that the magistrate's conduct gave rise to a reasonable apprehension of bias.
In R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] 88 CLR 100, 116 Dixon CJ, Williams, Webb and Fullagar JJ observed of bias based on prejudgment:
But when bias of this kind is in question, as distinguished from a bias through interest, before it amounts to a disqualification it is necessary that there should be strong grounds for supposing that the judicial or quasi judicial officer has so acted that he cannot be expected fairly to discharge his duties. Bias must be 'real'. The officer must so have conducted himself that a high probability arises of a bias inconsistent with the fair performance of his duties, with the result that a substantial distrust of the result must exist in the minds of reasonable persons.
In R v Watson; ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248, 262, the High Court expressed the principle to be that:
a judge should not sit to hear a case if in all the circumstances the parties or the public might reasonably suspect that he was not unprejudiced and impartial.
The relevant test was stated by the Court of Appeal in Smart v Albuquerque [2011] WASCA 231 [9] (McLure PA, Buss and Mazza JJA) as follows:
The test to be applied in determining whether a judge should be disqualified for apparent 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 [11]. The majority in that case pointed out that in applying the test two things need to be remembered:
[T]he observer is taken to be reasonable; and 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' [12].
(footnotes omitted)
In judging whether there is a reasonable apprehension of bias, it should be assumed that the lay observer would base his or her opinion on a fair assessment of the judicial officer's conduct in the context of the trial as a whole: De Alwis v The State of Western Australia [No 2] [2015] WASCA 42 [70] (McLure P, with whom Buss & Mazza JJA agreed).
Having reviewed the entirety of the transcript and the court file and bearing in mind the flexibility given to the magistrate in dealing with a minor case, I am also not satisfied that the fair minded observer might reasonably apprehend that the magistrate was anything other than impartial in his conduct of the case.
The appellant has not established the ground of appeal raising apprehended bias.
Conclusion
I have found that there was a failure to afford procedural fairness to the appellant in the conduct of his minor case which has deprived the appellant of the possibility of a successful outcome. Ground 2 was therefore upheld in part.
I will therefore make the following orders:
1.the appeal be upheld on the ground of denial of procedural fairness; and
2.the matter be remitted to the Magistrates Court for rehearing before a different magistrate.
I make no order as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CH
Associate to Judge Glancy19 FEBRUARY 2020
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