Guissine v Silver Top Taxi Service Pty Ltd (No 2)
[2016] VSC 515
•1 September 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2016 00683
| NATAN GUISSINE | Appellant |
| v | |
| SILVER TOP TAXI SERVICE PTY LTD (ACN: 004 213 969) | Respondent |
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JUDGE: | Zammit J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 August 2016 |
DATE OF JUDGMENT: | 1 September 2016 |
CASE MAY BE CITED AS: | Guissine v Silver Top Taxi Service Pty Ltd (No 2) |
MEDIUM NEUTRAL CITATION: | [2016] VSC 515 |
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JUDICIAL REVIEW AND APPEALS — Rule 77.06 Supreme Court (General Civil Procedure) Rules 2015 — Appeal from Associate Judge — Application for leave to appeal from Magistrates’ Court of Victoria under s 109 Magistrates’ Court Act 1999 (Vic) — Order 58
— Whether question of law — Whether appeal grounds arguable — Appeal dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | In person | |
| For the Respondent | Mr S Lowry | Kenyon and Ahmet |
HER HONOUR:
Introduction
By notice of appeal dated 27 May 2016, Natan Guissine (‘the Appellant’) seeks an order that the orders dated 13 May 2016 made by Associate Justice Derham be set aside. The single ground of appeal is:
None of appellant arguments and facts relevant to this case were taken into account by Associate Justice Derham without explanation of reasons why they are wrong.[1]
[1]Notice of appeal dated 27 May 2016.
Silver Top Taxi Service Pty Ltd (ACN 004 213 969) (‘Respondent’) commenced proceedings in the Melbourne Magistrates’ Court to recover outstanding debts owed by the Appellant.[2] On 27 January 2016 the learned Magistrate ordered that the Appellant pay the Respondent $4,818.13 in damages plus $5,962.00 in costs and deliver all taxi driver equipment within 14 days.
[2]Magistrates’ Court complaint dated 15 August 2015.
The Appellant appealed the Magistrate’s final order pursuant to s 109 of the Magistrates’ Court Act 1999 (Vic) (‘the Act’). The Appellant filed an amended statement of grounds of appeal in this Court on the day of the hearing before the Associate Judge on 15 March 2016 (‘amended statement’).
The Associate Judge had before him three affidavits affirmed by the Appellant in support of the Appellant’s appeal; dated 7 March 2016; 29 March 2016; and 30 March 2016. His Honour also had two affidavits sworn by Thinh Nguyen on behalf of the Respondent, dated 11 March 2016 and 14 April 2016. The Respondent also relied upon an outline of submissions dated 26 April 2016. The same materials were relied upon in this current appeal along with the Respondent’s further submissions dated 2 August 2016.
The Associate Judge also had before him transcript of the hearing of the Magistrates’ Court on 27 January 2016.[3]
[3]Appellant’s affidavit affirmed 3 March 2016 (exhibit C).
Unfortunately the transcript of the hearing in the Magistrates’ Court on 27 January 2016 is incomplete. The affidavit of Thinh Nguyen sworn 14 April 2016 confirms that the hearing of the matter in the Magistrates’ Court commenced on the morning of 27 January 2016 and continued in the afternoon. Counsel for the Respondent informed the Court that it was his recollection that the hearing commenced at approximately midday. The transcript ceases at the luncheon adjournment and resumes at 3.50 pm. Mr Nguyen deposes that he was in court for the entire day on 27 January 2016 and that the hearing recommenced at approximately 2 pm after the luncheon adjournment and that the transcript omits what was said in the Magistrates’ Court between approximately 2.00 pm and 3.50 pm. Mr Nguyen provides his observations for this period throughout his affidavit sworn 14 April 2016. I note that no issue was taken by the Appellant in this regard.
At the hearing before the Associate Judge the Respondent submitted that the Appellant’s amended statement did not identify a question of law and that the Appellant did not have an arguable case on appeal and accordingly the appeal should be dismissed pursuant to r 58.10(8) of the Supreme Court Rules.
On 6 May 2016, the Associate Judge heard the appeal, and the Respondent’s application for it to be dismissed pursuant to r 58.10(8) of the Rules.
On 13 May 2016 the Associate Judge delivered judgment, finding that the notice of appeal did not identify a question of law on which the appeal could be brought, and the Appellant did not have an arguable case on appeal. Orders were made dismissing the appeal with costs fixed in the sum of $5,502.80 (‘orders’). The Associate Judge gave reasons[4] for the orders (‘reasons’).
[4]Guissine v Silver Top Taxi Service Pty Ltd [2016] VSC 225 (‘Guissine’).
Appeal pursuant to s 109 of the Act
An appeal lies under s 109(1) of the Act on a question of law, from a final order. An appeal on a question of law from a final order of the Magistrates’ Court to the Supreme Court under s 109(1) of the Act is an appeal strictly so called, not a rehearing.[5] On appeal from the Magistrates’ Court, this Court is not entitled to interfere with the decision of the Magistrate unless satisfied that the Magistrate acted on a wrong principle of law, misapprehended the facts or made a wholly erroneous assessment of the relevant issue. There is a strong presumption in favour of the correctness of the decision appealed from and the general rule is that the decision should be affirmed unless the court is satisfied that the decision is clearly wrong.[6]
[5]Carter v Revel (1991) 13 NVR 229, 240.
[6]Urban No1 Co-operative Society Ltd v Kilavus [1993] 2 VR 201.
The Associate Judge referred to the decision of Kaye J in Fiorelli Properties Pty Ltd v Professional Fence Makers Pty Ltd where his Honour said:
[i]t is necessary for the Appellant to be able to identify a relevant error of law, made by the Magistrate, before it is entitled to relief from this Court.[7]
[7]Guissine [2016] VSC 225 [13] citing Fiorelli Properties Pty Ltd v Professional Fence Makers Pty Ltd [2011] VSC 661 [43].
It is sometimes said that the Appellant must also show that the Appellant will suffer an insubstantial injustice if the decision is allowed to stand.
Pursuant to r 58.10(8) of the Rules, on the hearing of the application for directions the Associate Judge will dismiss the appeal if satisfied that: a) the notice of appeal does not identify sufficiently or at all a question of law on which the appeal may be brought; b) the Appellant does not have an arguable case on appeal or to refuse leave would impose no substantial injustice, or; c) the appeal is frivolous, vexatious or otherwise an abuse of process of the Court.
The Evidence
Before considering the Associate Judge’s reasons in detail, it is necessary to summarise the evidence before the Associate Judge and any applicable law.
In addition to the affidavit material the Appellant gave evidence before the Associate Judge from the bar table. I make no criticism of the Appellant or the Associate Judge’s decision to allow evidence to be given in such a manner in circumstances where clarification was required and the Appellant was self-represented. In summary:
a) the Respondent commenced legal proceedings in the Magistrates’ Court as a result of an outstanding debt with the Appellant;
b) the Appellant and Respondent entered into an agreement, the network affiliation agreement (‘the agreement’). The Appellant admitted signing the agreement,[8] and
[8]Affidavit of Thinh Nguyen sworn 14 April 2016 at [1].
c) the agreement contained the following information:[9]
[9]A signed copy of the agreement was not tendered but a blank copy was exhibited to Mr Nguyen’s affidavit sworn 11 March 2016 at exhibit TN1.
Background
a. This agreement is made in accordance with the Transport (Taxi-cab) Regulations 2007 (Vic)
b. This agreement may be terminated by either party, on 14 days written notice.
Agreed terms
Compliance
1.The affiliate must ensure he/she complies with all legal obligations enforced during the term of this agreement required for driving a taxi cab in Victoria, including but not limited to, the obligations set out in the Transport Act 1983 (Vic); Road Safety Act 1986 (Vic) …
2.The affiliate agrees he/she holds Victorian taxi-cab affiliate accreditation, and will comply with any conditions, restrictions or other limitations that may be imposed from time to time by the licensing authority.
3.The affiliate acknowledges that he/she has read, and agrees to the terms of, the disciplinary procedures as provided for in the STTS affiliate handbook.
Fees
5.The fees (inclusive of GST) for the affiliate payable under this agreement are:
$561 network fee, per 28 days; and
$600 depot bond fee, payable at the time this agreement is entered into; and
$44 annual equipment fee, payable at the time this agreement is entered into and each year thereafter; and
$55 camera rental fee if applicable.
Under termination of this agreement, the depot fee, bond or balance after any appropriation to clear debts owed to STTS is refundable subject to section 6 (c) of this agreement …
Equipment
6. The affiliate acknowledges and agrees that:
a.He/she will adhere to any conditions imposed by STTS relating to maintenance for their communications equipment (mobile data terminal, two-way radio, GPS equipment, cab charge EFTPOS equipment and camera equipment where applicable) owned by STTS loaned to the affiliate (equipment) under the terms of this agreement;
b.He/she will be liable for additional fees of $100 (inclusive of GST) to cover loss by fire, theft …; and
c.At the conclusion of this agreement to return the Equipment to STTS in good condition. In the event the equipment is not in good condition …
In the current appeal, the Appellant stated: ‘I am very fluent in English, I wasn't so fluent like I am, I can speak today’.[10] During the hearing, I stated that this was the first time that the Appellant had raised the possibility that, due to language barriers, he may not in fact have fully understood the agreement.[11] I noted that such an argument did not appear in the partial transcript of the hearing before Magistrate Smith, in the Appellant’s own affidavits in support of the appeal from Magistrate Smith, in Mr Nguyen's affidavits or in the transcript of the hearing before the Associate Judge.[12]
[10]T21, lines 3 and 4.
[11]T30, lines 20-23.
[12]T32, lines 16-22.
At the hearing in the Magistrates’ Court, the Appellant submitted that:
a) the fees were unfair and unlawful;[13]
[13]Ibid [20].
b) by entering the agreement the Appellant became affiliated with the Respondent and received all the benefits pursuant to the agreement;
c)
the Appellant’s peak service license authorised him to operate his taxi from
3 pm to 7 am the following day;[14]
[14]Ibid [21].
d) the Appellant refused to pay the depot fee after a certain time and the Respondent terminated the agreement (by disconnecting the Appellant’s equipment from the central computer) and demanded the return of the equipment installed in the Appellant’s cab; and[15]
e) the Appellant referred to the Respondent not offering the Respondent’s equipment for sale and failing to provide a price list for services.
[15]Ibid [6].
The Respondent agrees it did not offer its equipment for sale as it was not for sale and in any event would be of no use to the Appellant as it required regular maintenance and software updating, particularly to the Respondent’s network service.
By way of defence the Appellant asserted that:
a) the agreement interfered with his rights as a sole trader and that he was deprived of freedom of choice;
b) he received unfavourable treatment by the Respondent prior to and after entering into the agreement;
c) the Appellant entered into the agreement under economic duress;
d) the Respondent failed to disclose the details of the depot fee;
e) the Respondent made pre-contractual representations that were false and misleading;
f) the Respondent failed to offer the Respondent’s equipment for sale and failed to provide a price list for its services;
g) the Appellant was unlawfully required to brand his taxi vehicle with Silver Top Taxi; and
h) the Appellant alleged that he should not be required to pay the Respondent’s depot fee at all, or in the alternative that the maximum booking fee of $2.20 shown on the passenger fare sticker applied to the Respondent. The Appellant asserted that the Respondent relied on the same correlation between the maximum booking fee and the depot fee charged under the agreement.
In the course of the hearing, the Magistrate considered the passenger fare sticker.[16] Counsel for the Respondent explained to the Magistrate that the passenger fare sticker is signage designed to provide passengers with information as to the maximum fares that will be charged by the taxi operator at different times of the day and for various ‘extras’, such as ‘booking fee’.
[16]Appellant’s affidavit affirmed 30 March 2016 (exhibit A).
The parties agreed at the hearing before the Magistrate that affiliation by taxi operator with a network service provider was compulsory under the law.[17] The Appellant and the Respondent understood that was the requirement at the time of the hearing. The Magistrate asked counsel for the Respondent to identify the regulation or legislation that imposed that requirement. After the luncheon adjournment, counsel for the Respondent informed the Magistrate that the governing legislation did not include a specific requirement for a taxi operator to be affiliated with a network service provider, but if a taxi operator wished to enjoy the infrastructure and benefits of a network service provider then the practical reality was the taxi operator must be affiliated with one.
[17]Ibid [9].
Mr Nguyen’s evidence now is that the legislation changed in 2014 so as to permit taxi operators to run their own network service.[18] Operating a network service is costly and involves the receipt and dispatch of bookings, the provision of communication services, the provision of a global positioning system for taxis, the maintenance of information management systems, vehicle branding, record keeping services for GPS data and the development of a complaints handling service. The Respondent is a network service provider. As such the act of providing a ‘taxi cab network service’ with reference to the Transport (Compliance and Miscellaneous) Act 1983 (Vic) includes the receipt and dispatch of bookings, the provision of communication services, the provision of global positioning systems (‘GPS’) for taxis, the maintenance of information management systems, vehicle booking, record keeping services for GPS data and the development of a complaints handling service.[19]
[18]Ibid [13].
[19]Ibid [12].
At the hearing the Magistrate, having been provided some information by counsel for the Respondent, determined there was no specific requirement for the Appellant to be affiliated with a network as discussed, a belief held by both parties at the commencement of the Magistrates’ Court hearing. Having considered the relevant legislation the Magistrate found that:
a) the law as it is written now does not require affiliation, but that it may be desirable for a taxi operator to affiliate;
b) there was nothing compelling the Appellant to affiliate with the Respondent; and
c)
the Respondent offered to provide a network service for a fee — the depot
fee — and the Appellant was at liberty to accept that service and the terms set out in the agreement, or choose another network service provider with which to affiliate, if he so desired.[20]
[20]Ibid [16].
During the hearing before the Associate Judge, the Appellant produced a document entitled ‘Licence Conditions — Transport Act 1983’ (‘Licence Conditions’). As at January 2011 when the agreement was signed by the Appellant these were the relevant licence conditions for a licence holder, defined as ‘the person to whom the taxi-cab licence is issued’. The vehicle is defined as the vehicle specified in the taxi-cab licence. There was no dispute that the Appellant was a licence holder and the taxi he was operating in 2011 was the vehicle specified in the licence. General conditions (4.6) of the Licence Conditions states:
4. The vehicle …
(4.6) must at all times be operated under radio control from a depot approved by the Victorian Directorate for the receipt and dispatch of bookings for taxis licensed to operate within the Metropolitan Taxi Cab Zone and must be fitted with a fully operational Global Positioning System linked to that depot.
Clause 4.6 of the Licence Conditions reveals that in order to operate a taxi lawfully in Victoria in 2011, it had to be operated amongst other things, under a radio control for an approved depot, such that operated by the Respondent. This issue is at the heart of the Appellant’s complaint. Even though the Magistrate proceeded on an incorrect basis in relation to the ‘compulsory affiliation’, it does not assist the Appellant in the appeal before the Associate Judge and in the current appeal.
In relation to the allegations of false and misleading pre-contractual representations, the Magistrate asked the Appellant to explain what was said to him prior to or at the time of signing the agreement that turned out to be false or misleading. The Appellant referred to the Respondent failing to offer the Respondent’s equipment for sale, and failing to provide a price list for his services. The Respondent agrees that it did not offer its equipment for sale and as for the price list, the fees charged by the Respondent for its services are set out in the agreement. The Appellant admitted at the hearing that he was aware of these fees when he signed the agreement, but submitted at the hearing that they were unfair and unlawful.[21]
[21]Ibid [20].
The Magistrate accepted that even if the Respondent failed to offer its equipment for sale, it was not required to do so and the Respondent’s charges for its services were set out in the agreement. Accordingly, the Magistrate considered that the Appellant could not have been misled or deceived about these matters.[22]
[22]Ibid [21].
Mr Nguyen notes that other than the matters in the preceding paragraphs, the Appellant was unable to identify any representation that was made to him at, or prior to, the time he entered into the agreement.[23]
[23]Ibid [22].
In relation to the issue of interference by the Respondent to the Appellant’s rights as a sole trader, the Appellant made submissions to the Magistrate, including, that he was precluded from purchasing the Respondent’s equipment and was required to pay a depot fee that exceeded the $2 booking fee identified on the passenger fare sticker. The Magistrate considered the submission and accepted the Appellant’s evidence that he operated the business as a sole trader.[24]
[24]Ibid [25].
In relation to the branding of the Appellant’s taxi vehicle with Silver Top Taxi’s branding, the Magistrate determined it was acceptable for the Respondent to require the Appellant to brand his taxi if the Appellant was to subscribe to the Respondent’s network.
In relation to the allegations of economic duress, the Magistrate found it was acceptable for the Respondent to set out the terms upon which it was prepared to offer its services and the Appellant accepted those terms. He could have rejected those terms. The Appellant also investigated affiliation with another network.[25]
[25]Ibid [28].
The Associate Judge’s reasons
His Honour commenced by setting out the facts underlying the dispute in the proceeding in the Magistrates’ Court.
In the reasons the Associate Judge noted that the Appellant was self-represented at the hearing and that:
It is a frequent consequence of self-representation that the Court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.[26]
[26]Guissine [2016] VSC 225 [4]-[5] citing Neil v Nott (1994) 68 ALJR 509, 510 (citations omitted).
A review of the transcript of the hearing before the Associate Judge confirms that His Honour applied the principles set out by Samuels JA in Rajski v Scitec Corporation Pty Ltd.[27]
[27][1986] NSWCA 1, 14.
His Honour noted:
What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant’s intelligence and understanding of the case. The judge cannot be the advocate of the self-represented litigant, for the role of the judge is fundamentally different to that of an advocate. The judge must maintain the reality and appearance of judicial neutrality at all times and to all parties. The assistance must be proportionate in the circumstances — it must ensure a fair trial and not afford an advantage to the self-represented litigant.[28]
[28]Guissine [2016] VSC 225 [17] (citations omitted).
His Honour then went on to discuss the applicable law and appeal principles pursuant to s 109(1) of the Act and the operation of r 58.10 of the Rules. Of note at [16] His Honour noted:
A high degree of certainty must be present before an Associate Judge should act under r 58.10(8). In Cohen v Accounts Control Management Services Pty Ltd, Vickery J accepted that, in applications under this rule, there are parallels with the operation of Order 23 of the Rules and the well-established observations of the High Court on the way in which summary dismissal applications ought to be approached. Were an application made under Part 4.4 of the Civil Procedure Act 2010, the test would be whether the appeal had no real prospect of success. Be that as it may, nothing turns on the difference in this case because, for the reasons set out below, I am satisfied that the appeal is bound to fail.[29]
[29]Ibid [16] (citations omitted).
His Honour then referred to the affidavit material filed and relied upon by the Appellant and Respondent. His Honour accurately noted that the Appellant’s affidavit sworn 7 March 2016 in support of his claim was a mixture of evidence, assertion and submission. His Honour made the same comments in relation to the affidavits filed on behalf of the Respondent. His Honour noted that the basis upon which the Appellant sought to appeal the Magistrate’s final order dismissing his application pursuant to s 109 of the Magistrates’ Court Act was difficult to understand.
His Honour coherently summarised the Appellant and Respondent’s evidence and submissions from [20] to [31] of his reasons. This included identifying the basis upon which the Appellant appealed to this Court. His Honour identified the following submissions made by the Appellant:
a) the Magistrate fell into error in law in neglecting to consider the circumstances that existed between the parties, prior to the Appellant entering a contract and finding that the contract was legally entered into;[30]
[30]Ibid [20] citing Appellant’s affidavit, 7 March 2016 [5], [17]-[19], [29], [34].
b) that the depot fee makes the contract unfair and voidable and that it was illegal for the Respondent to threaten him that a failure to become an affiliated driver would mean his business could not survive;[31]
[31]Guissine [2016] VSC 225 [20] citing Appellant’s affidavit, 7 March 2016 [6], [7], [21].
c) the Respondent ought provide a list of services and the associated fees to drivers, rather than having an ‘all up amount that is due and payable as a depot fee’;[32]
[32]Guissine [2016] VSC 225 [20] citing Appellant’s affidavit, 7 March 2016 [16].
d) the Respondent never disclosed what fees would form part of the depot fee and the Respondent had its own licensed taxis that did not pay depot fees. Accordingly, this renders the contract unenforceable and impedes taxi drivers’ autonomous rights as self-employed sole traders;
e) taxi drivers are forced to use the Respondent’s expensive electronic equipment to operate within the affiliated network of taxis;[33]
[33]Guissine [2016] VSC 225 [20] citing Appellant’s affidavit, 7 March [8]-[15], [38].
f) the agreement goes against fair trade and common business practice;[34]
g) the Appellant’s status as a self-employed sole trader means that he is legally able to undertake autonomous and independent business decisions unburdened by others. He alleges the Respondent abused this right through the requirement that he be compulsorily affiliated and that the Respondent had no right to force drivers to pay a depot fee by law and there is no correlation between affiliated drivers and the payment of a depot fee;[35] and
h) it was never disclosed by the Respondent that it charged the same depot fee to drivers of peak service taxi cabs (licensed to operate between 3 pm and the following 7 am) as it did for full service taxi cabs (which could operate 24 hours per day, seven days per week).
[34]Guissine [2016] VSC 225 [20] citing Appellant’s affidavit, 7 March [32], [35].
[35]Guissine [2016] VSC 225 [21] citing Appellant’s affidavit, 7 March [8]-[19], [28], [36].
His Honour then summarised the Respondent’s submissions as follows:
a) the passenger fares sticker exhibited to the Appellant’s affidavit is supplied by the Taxi Services Commission and is fixed to each taxi operated under the Respondent’s network. It provides passengers with information as to the maximum fares that will be charged at different times of the day and for various extras, such as booking fees and an airport rank fee. There is no correlation between the $2 booking fee and the depot fee that is charged under the agreement;
b) the Magistrate considered the passenger fares sticker;
c) the Respondent relied upon the agreement as the source of the obligation on the Appellant to pay the depot fees and the Magistrate accepted that he was contractually obliged to pay them because of the terms and conditions of that agreement;
d) while the parties at the hearing before the Magistrate were under the belief that affiliation by a taxi operator with a network service provider was compulsory under the law, the Magistrate having been provided with legislation concluded that it did not include a specific requirement for a taxi operator to be affiliated with a network service provider but if a taxi operator wished to enjoy the infrastructure and benefits of a network service provider, then the practical reality was that the taxi operator must be affiliated with one. The Magistrate concluded that such an operator was to maintain the types of systems that are provided by network service providers. These are costly and involve the receipt and dispatch of bookings, the provision of communication services, the provision of a global positioning system for taxis, the maintenance of information management systems, vehicle branding, record keeping services for GPS data and the development of a complaints handling service, and;
e) the Magistrate accepted that the Respondent was not required to offer its equipment for sale to the Appellant. The price list for services is set out in the agreement along with the various fees payable. For this reason, the Appellant could not have been misled or deceived about these matters. At the Magistrates’ Court the Appellant did not identify any other representation made to him at or prior to the time he entered into the agreement.
His Honour referred to the Magistrate’s reasons which were delivered at the conclusion of the hearing as follows:
a) that the Appellant should not have signed the contract if he did not wish to be bound by it;[36]
[36]Guissine [2016] VSC 225 [31] citing Amended statement [8].
b) the equipment is the property of the Respondent;
c) there was a risk that the contract was not in his best interests, but he signed it regardless of this;
d) affiliation is compulsory by law;[37]
[37]Guissine [2016] VSC 225 [31] citing Amended statement [9].
e) it was open to the Appellant to employ someone else or change his working hours to take advantage of the depot fee he was paying;[38]
f) the depot fee was necessary to be paid as the Respondent needs to track jobs as part of its business;[39] and
g) charging a booking fee is according to the regulations.[40]
[38]Guissine [2016] VSC 225 [31] citing Amended statement [10].
[39]Guissine [2016] VSC 225 [31] citing Amended statement [11].
[40]Guissine [2016] VSC 225 [31] citing Amended statement [12].
The Associate Judge held that:
It is common ground between the parties that at the Magistrates’ Court hearing, and in this Court, that the Appellant voluntarily and knowingly entered the Agreement and was aware of the consequences, particularly, the requirement for payment of the depot fee.[41]
[41]Guissine [2016] VSC 225 [7].
The Appellant’s Grounds of Appeal
The Associate Judge then considered the grounds of appeal in the amended statement. His Honour quite rightly noted that it was difficult to discern any question of law or valid ground of appeal from the amended statement. He referred to the Respondent’s submission in its written outline of submissions and said:
The appellant’s Amended SOG commences with 7 consecutively numbered paragraphs on the first page thereof (preliminary items), and then the numbering restarts at 1 and propositions – possibly intended to be ‘grounds’ – continue with numbering from 1 to 3, and then 8 to 12, omitting numbers 4-7 from a consecutive sequence ... This outline addresses each proposition numbered 1-3 and 8-12 for completeness, although each does not appear to articulate a separate ‘ground’ of appeal.[42]
[42]Silver Top outline of submissions dated 26 April 2016 at [7].
His Honour then went through each ground in the same order as the Respondent in its outline of submissions. He noted:
the Respondent’s Outline of Submissions then seeks to extract discrete grounds or questions of law and to deal with them. I can do no better, and set out below each ground identified by the Respondent, with its submissions and my comment.[43]
[43]Guissine [2016] VSC 225 [34].
His Honour then went through each of the grounds individually noting the Respondent’s submissions.
It is convenient at this stage to consider each of the grounds along with the Associate Judge’s reasons and conclusions.
The grounds are on the whole incomprehensible. For example,
‘ground’ 1 in the amended statement is ‘this case is not about debt owed by the appellant to the respondent’. ‘Ground’ 2 is ‘the subject of this case is whether or not actions of the respondent were legal before contract was signed and whether or not actions of the respondent were legal before contract was signed and whether or not actions of the respondent were legal at time when contract was signed’. I will not go through each ground as articulated in the amended statement but agree with the Associate Judge that on review of the grounds and the transcript of the hearing before the Associate Judge, the Respondent’s summary of the Appellant’s grounds are a generous interpretation and it was appropriate and certainly there was no prejudice to the Appellant’s interest that such a course was taken. It would have been open to the Associate Judge to have dismissed the appeal on the basis that the grounds themselves are incomprehensible and did not identify or articulate a question of law.
I will refer to the grounds stated in the Associate Judge’s reasons. I will however include the grounds as stated in the amended statement, as it demonstrates the difficult task the Associate Judge had trying to discern any meaningful question of law. I will adopt the numbering in the Associate Judge’s reasons and the summary of the grounds.
Ground 1 ‘this case is not about debt owned by the appellant to the respondent’. His Honour characterised this ground as ‘the contracting parties are completely separate businesses’. His Honour considered that this was not a question of law. I agree that this is an assertion and on no basis can this be considered a question of law.
Ground 2 ‘the subject of this case is whether or not actions of the respondent were legal before contract was signed and whether or not actions of the respondent were legal at time when contract was signed’. His Honour characterised this ground as ‘the contracting parties have equal business rights’. His Honour concluded that this was not a question of law. His Honour went on to say:
It appears that the appellant’s primary contention under this ground is that he was deprived of choice at the time of signing the agreement, and there was no price list provided to him.
His Honour found that the price list was set out in the agreement and it was open to the Magistrate to find that the Appellant freely chose to enter into the agreement and that he did so being aware of the Respondent’s charges. His Honour concluded that this was not a question of law and that there was evidence before the Magistrate to make the finding of fact that the Appellant chose to enter into the agreement and was aware of the Respondent’s charges at the time of entering into the agreement.
The ground fails to identify what precontractual actions, if any, were illegal and on what basis it can be said they were unlawful. There is no evidence that the Respondent failed to disclose the price list or fees due from the applicant under the agreement to the Respondent. The ground must fail.
Ground 3 ‘making his decision on case that the Magistrate did not took in proper consideration circumstances mentioned in #2’. His Honour characterised this ground as ‘the Appellant was precluded from buying equipment’. His Honour concluded that this was not a question of law and that in any event the Appellant failed to identify any fact or authority on which he relied in support of the allegation that the Respondent was obliged to offer its equipment for sale, and/or that the Appellant had the right to purchase it. I agree that this is not a proper question of law. Further, for the reasons set out in relation to ground 2, the Magistrate did consider the agreement and the price list that was contained in it.
Ground 4 ‘the Magistrate’s decision was based on views that contract is legal because it was signed and there no need to look on circumstances prior contract signing’.
Ground 5 ‘this Magistrate’s position led to the grounds of decision announced at court hearing’.
Ground 6 ‘the first ground – “you shouldn’t sign contract´ - could be named something like business consultancy advice. Contract was signed and circumstances which were precede contract signing should become a part of court investigation at hearing for facts establishment’.
Ground 7 ‘The second ground – “equipment is theirs” looks like true, but it is true only if it is not connected to business relationships by contract parties…’ This ‘ground’ continues over the next three-and-a-half pages.
The Associate Judge did not analyse ‘grounds’ 4 to 7. Having read those numbered paragraphs, I find that they do not articulate ‘grounds’ for appeal. Those purported grounds do not make sense and it is not for the Associate Judge to try to derive some meaning to the grounds. While allowances need to be made for a self-represented person who does not have any legal training, it is unfair to expect the Respondent or the Associate Judge to make some sense or endeavour to distil whether there is a question of law buried in fundamentally impenetrable grounds such as grounds 4, 5, 6 and 7.
Ground 8 ‘the Magistrate stated that “contract could be bad for you, but you sign it”. The Magistrate based this reason for decision only on fact of contract signing. No one contract elements became the subject of an investigation at hearing. The Magistrate’s ignore[d] duress from the respondent side on the appellant through illegal threat not to affiliate his business, obvious unfairness of contract which incorporated so called ‘depo fee’ charges. These are grounds to recognise contract void. That approach led to the wrong conclusion about the nature of dispute between parties and wrong reason for decision’. His Honour characterised this ground as: ‘the Magistrate stated that ‘contract could be bad for you, but you sign it’.
His Honour’s reasons in relation to ground 8 were as follows:
The Appellant uses the word duress, but then refers to an illegal threat not to affiliate his business. He fails to identify how the Respondent exercised duress over him in entering into the Affiliation Agreement. As set out at paragraph 28 of Mr Nguyen’s affidavit, there was also no evidence of duress found at the hearing. It was accepted by the learned Magistrate, however, that the Respondent was free to offer its services on its usual terms and conditions, and the Appellant was free to accept or reject those terms.[44]
[44]Guissine [2016] VSC 225 [34(d)].
There was no evidence before the Magistrate of what constituted the economic duress. The Magistrate accepted that the Respondent was free to offer its services on the said terms and conditions and that it was open to the Appellant to accept or reject those terms. The Associate Judge’s conclusion is sound.
The Appellant has had three opportunities to identify the duress it is said he was subjected to by the Respondent. The Appellant failed to understand and therefore articulate the nature of any duress that may have existed. There is no evidence of undue influence or unconscionability. There is no evidence of compulsion by the Respondent, or pressure by the Respondent which may have induced the Appellant to enter into the agreement. I agree with the Associate Judge, that there is no proper question of law and even if a question of law could be discerned relating to the doctrine of economic duress, there is no factual basis in support.
Ground 9 ‘The Magistrate stated that “compulsory affiliation is in law and law is law”. Compulsory affiliation is non-commercial category. It is administrative category. In it’s administrative qualities compulsory affiliation in no way can affect commercial interest of the affiliated business. Affiliated businesses keep their business and financial independence in full. In this case compulsory affiliation is used by the respondent to intervene the appellant’s business and financial interests though establishment of ‘depo fee’ instead of generally accepted business practice. From this point of view the reason for decision is wrong’. His Honour characterised this ground as: ‘the Magistrate stated that “compulsory affiliation is in law and law is law”’.
I will set out His Honour’s reasons in relation to Ground 9 in full given the confusion that surrounded the issue of compulsory affiliation:
The Magistrate stated that ‘compulsory affiliation is in law and law is law’ - It was agreed by the parties at the hearing that the law required affiliation by taxi operators with a Network Service Provider, but this was not accepted by the learned Magistrate. The consideration and analysis that followed resulted in a finding that affiliation was not necessary, but may have been desirable, and the Appellant chose to affiliate with the Respondent on its terms. In fact, at the hearing before me on 6 May 2016, the Appellant tendered without objection the licence conditions applicable to his licence when the Agreement was entered into. The licence conditions, which were not before the Magistrate, clearly showed that in 2011, when the Agreement was entered into, the taxi vehicle —
... must at all times be operated under radio control from a depot approved by the Victorian Taxi Directorate for the receipt and dispatch of bookings for taxis licenced to operate within the metropolitan Taxi-cab Zone and must be fitted with fully operational Positioning System equipment linked to the depot.
It thus appears from the submissions of the Appellant that the assumption upon which the parties proceeded before the Magistrate were correct, and there was at the time of the Agreement a requirement that the Appellant be affiliated with a network service provider. It follows that the compulsion on the Appellant was a product of his licence conditions and not of any economic duress of which he is entitled to lay at the feet of the Respondent. I therefore do not propose to enter into the vexed area of the law of economic duress.[45]
[45]Ibid [34(e)].
The Associate Judge not only considered the evidence before the Magistrate but also allowed additional material to be put into evidence by the Appellant. The license conditions provided by the Appellant clarified the issue that there was a requirement that the Appellant be affiliated with a network service provider. Accordingly, the requirement for affiliation was not one in any way associated with duress. Further, as noted by His Honour the Appellant was ultimately always free to accept or reject the terms of the agreement and enter into the agreement.
At the centre of the Appellant’s grievance at the Magistrates’ Court, before the Associate Judge and in the current appeal is the fact that the Appellant considered that as a self-employed sole trader he had the right to make business decisions and accordingly he should not be required to enter into an agreement of which he had no real bargaining power or ability to negotiate terms. The Appellant repeatedly referred to the ‘ministerial order’ for ‘compulsory affiliation’ and how it impacted on his business rights.[46] He considered that compulsory affiliation resulted in him having to sign the agreement or a like agreement with any other approved network service provider such as the Respondent, for services which he did not require or derive any benefit from. The Appellant was firm in his view that a fair system would have been for him to pay for the passenger booking fee he charged for each successful booking. That is, each time a passenger used the Respondent’s network to book a taxi and the booking was referred to the Appellant and the Appellant charged the passenger a fee for the taxi service, that the $2.00 fee should be given to the Respondent.[47]
[46]T4 lines 27-31, T5 lines 1-16.
[47]T14, lines 4-8.
The difficulty is that in January 2011 when the Appellant wanted to operate a taxi, he had no choice but to comply with the licence conditions as they were. The agreement he entered into with the Respondent was not forced upon him by the Respondent. In practical terms he may be right in saying there was no real choice, but the Respondent lawfully offered to the Appellant its services for the sum set out in the agreement. It was the Appellant’s choice to enter into the agreement. There was no evidence of misleading or deceptive conduct by the Respondent. There was no ‘duress’ in a legal sense by the Respondent. The Appellant could have refused to enter into the agreement. The Appellant knew the terms of the agreement before he signed the agreement. I appreciate the Appellant may be frustrated by the circumstances imposed by the licence conditions but that is not a basis upon which he can now say that there has been some unlawful conduct by the Respondent. Even if his assertion is correct that there was no real choice as all the network service providers imposed the same terms on taxi operators that is not an issue that bears on his appeal from the Magistrate’s Orders. The Magistrate’s Orders arise out of a claim for debt based on an agreement between the Appellant and Respondent, an agreement that was freely entered into by the Appellant.
Ground 10 ‘The Magistrate in return of my statement that I am working only at nights and receive no service from the respondent stated: “employ somebody or change your working hours”. The subject of Court investigation must be business relationship of contract parties, but this was not the case. This Magistrate’s reason for decision has qualities of business advice. Thus it is wrong’. His Honour characterised this ground as: ‘the Magistrate stated “employ somebody or change your working hours”’.
His Honour found that the comment of the learned Magistrate was immaterial to the findings of fact upon which His Honour based the decision at the hearing. His Honour did not consider that it was offered as business advice to the Appellant or that it was a relevant consideration taken into account. His Honour concluded that it was not a question of law. His Honour’s conclusions are again sound and do not demonstrate any error. The Magistrate and the Associate Judge correctly focused on the parties’ legal obligations and rights under the agreement.
Ground 11 ‘The next reason for decision was ‘depot fee’ is because: Silver Top needs to track jobs and this is difficult and perform equipment maintenance. This reason for decision is wrong because each business must pay for it’s own business activity. As taxi-cab operator I am paying by myself my business expenses. As taxi-cab operator I an [sic] not in need to track my jobs. Tracking jobs is the respondent’s business activity. The respondent can’t forced operators to pay for it’s job. The respondent must cover costs for its business from it’s own money. Difficulty of tracking jobs done by affiliated to the respondent taxi-cabs is no judicial grounds and thus can’t be used as reason for decision. Plus the respondent uses mobile transport data software which tracking taxi-jobs automatically. This is waving away the difficulty topic. Any operator can take responsibility for equipment maintenance if operator owns it’. His Honour characterised this ground as: ‘Reason for decision is wrong because each business must pay for its own business activities’.
His Honour agreed with the Respondent’s submissions that there was no suggestion at the hearing that the Appellant should bear the Respondent’s costs of its activities and that the Magistrate only relied on the parties’ obligations under the agreement. Accordingly His Honour concluded that the learned Magistrate did not fall into error and that this was not a question of law. Again there is no further evidence or submission to suggest that the Magistrate fell into error. Furthermore, this cannot be considered a question of law.
Ground 12 ‘The Magistrate’s reason for decision: ‘booking fee is in regulation’ is true only when taken out off the respondent and appellant business relationship. That is a matter of facts that when taxi-cab driver/operator is doing hire job from the street the respondent is not a part of this job and thus booking doesn’t apply. But when job is allocated to taxi-cab through the respondent’s radio dispatch system booking fee applies and $2 booking fee belongs to the respondent. Existence of booking fee and regulation in no way could be interpreted as justification of ‘depo fee’. This reason for decision is also wrong’. His Honour characterised this ground as: ‘Existence of booking fee in regulation in no way could be interpreted as justification of “depot fee”’.
His Honour considered that the Appellant’s understanding of the booking fee and the passenger fare sticker is misconceived. He found that there was no correlation between it and the depot fee charged by the Respondent. His Honour considered that the learned Magistrate relied only on the parties’ obligations under the agreement and therefore did not fall into error. Furthermore, this is not a question of law.
I would agree with the Respondent’s submissions and His Honour’s adoption and conclusion in relation to ground 12. Further the Appellant’s submissions ask the Court to only consider his right as a sole trader in the absence of legislation and regulations that governed the taxi industry in January 2011. The Appellant now seeks to impose terms into the agreement, specifically, fees that the Appellant considers are fair. Ultimately, the Appellant signed and understood the terms of the agreement. He said that the network service agreements offered by other service providers were the same. He had investigated other options and decided to affiliate with the Respondents, albeit he now says he did so begrudgingly. He may consider the payment to the Respondent should have been commensurate with successful bookings but that is not the agreement he willingly entered into to.
His Honour concluded:
The Respondent submitted that the analysis of the questions of law advanced by the Appellant, and the grounds of appeal, showed that the Appellant had failed to identify:
(a) any principle(s) of law upon which the learned Magistrate acted in error;
(b) how the learned Magistrate misapprehended the facts, and which fact his Honour is said to have misapprehended; and/or
(c) how the learned Magistrate made a wholly erroneous assessment of the case, or any fact or matter at the hearing.
In consequence, it was submitted by the Respondent that the Appellant has failed to identify sufficiently, or at all, a question of law, or an arguable case for appeal. Accordingly, the appellant’s appeal should be dismissed. I have to agree.[48]
[48]Guissine [2016] VSC 225 [35], [36].
His Honour accordingly found that it was appropriate to dismiss the appeal pursuant to r 58.10(8) of the Rules.
Notice of appeal dated 27 May 2016
Rule 77.06 provides a mechanism for an interested person to appeal a determination of an Associate Judge. The appeal is by way of a rehearing, rather than a hearing de novo.[49]
[49]Oswal v Carson [2013] VSC 355 [11].
An appeal from an Associate Judge to a Judge is not confined to errors of law or process.[50] In order to succeed on appeal, the Appellant must demonstrate that the Associate Judge made a legal, factual or other discretionary error.[51]
[50]Fox v Percy (2003) 214 CLR 118; Hou v Westpac Banking Corporation [2015] VSCA 57.
[51]Glass v Chief Examiner & Ors [2015] VSC 29 [2].
Rule 77.06.9 of the Rules sets out the powers of a Judge hearing an appeal, including:
(1) On an appeal referred to in Rule 77.06, a Judge of the Court shall have all the powers of the Court constituted by an Associate Judge.
The basis for the appeal of the Associate Judge’s order and reasons is that it is submitted that the Associate Judge failed to consider the Appellant’s submissions and facts and that his Honour’s reasons did not adequately explain his path of reasoning.
I reject the Appellant’s contention. His Honour carefully considered the evidence and submissions before the Magistrate. The transcript reveals that His Honour also provided the Appellant with an opportunity to expand upon the grounds in the amended statement and provide further material to the Court in support of his appeal. While His Honour in effect adopts the Respondent’s submissions in relation to the grounds, where appropriate he provided additional reasons as to why he did not consider the purported ground to be a proper question of law.
Existence of a question of law is the subject matter of an appeal itself pursuant to
s 109(1) of the Act. It is essential that the question of law said to have been erroneously decided is identified exactly.
It is not always easy to draw a distinction between questions of fact and questions of law. On the whole, the Appellant’s grounds in the amended statement make little sense or are attacks on the Magistrate’s findings. The grounds in the amended statement are difficult to understand and confusing to the extent that it was difficult for the Respondent and the Associate Judge to know precisely what, if any, basis there was for the individual grounds. The amended statement is a largely impenetrable document.
I consider that the Associate Judge gave the most liberal interpretation to the grounds endeavouring where appropriate to assist the Appellant in formulating and understanding any possible question of law which may have been buried within the Appellant’s amended statement. The Associate Judge allowed the Appellant to file and serve and rely upon the amended statement on the day of hearing. The Appellant’s amended statement is manifestly defective and fails on the whole to raise any question of law. Where a ground may have amounted to something akin to a question of law — such as an attack on the findings of fact which in some circumstances may be a question of law — the Associate Judge concluded that there was the requisite evidence before the Magistrate to make the relevant finding of fact. More specifically, the Associate Judge held that there was requisite evidence for the Magistrate to determine that that the Appellant signed the agreement and knew of the terms of the agreement upon signing it. I consider the Appellant was aware of the terms of the agreement, including the fees, at the time he signed it.
In my view, the Appellant’s ground of appeal that the Associate Judge did not explain or provide adequate reasons is misconceived. It is essential for reasons to enable an understanding of why and how a decision is reached. There is a clear path of reasoning and attempt to analyse the Appellant’s submissions and grounds.
In summary, the Appellant’s arguments were given due consideration and taken into account fully in the appeal before the Associate Judge. I do not consider there was any error or failure by the learned Associate Judge and this appeal must therefore be dismissed.
It is appropriate subject to any submissions the parties make, that the Appellant pay the Respondent’s cost of this appeal.
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