Harradine v District Court of South Australia
[2012] SASC 96
•12 June 2012
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
HARRADINE v DISTRICT COURT OF SOUTH AUSTRALIA
[2012] SASC 96
Judgment of The Honourable Justice Blue
12 June 2012
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - HEARING - GENERALLY
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - BIAS - APPREHENSION OF BIAS
Minor civil action heard in Magistrate’s Court – action dismissed by Magistrate – plaintiff sought review of Magistrate’s decision in District Court – District Court Judge heard application for review and affirmed Magistrate’s decision.
Plaintiff seeks judicial review of decision of District Court Judge.
(1) Whether reasonable apprehension of bias on part of Judge – whether reasonable apprehension that Judge had biased aversion to finding Magistrate in error or to impugning defendant’s story and credit.
(2) Whether plaintiff was afforded procedural fairness by way of fair hearing – whether failure on part of Judge to give adequate reasons and if so whether constituted denial of procedural fairness – whether Judge not ruling on plaintiff’s application to adduce new evidence constituted denial of procedural fairness – whether Judge not inviting plaintiff to cross-examine defendant or not otherwise testing defendant’s evidence constituted a denial of procedural fairness.
Held:
(1) No reasonable apprehension of bias on part of Judge – no reasonable apprehension that Judge had biased aversion to finding Magistrate in error – no reasonable apprehension that Judge had biased aversion to impugning defendant’s story and credit.
(2) Plaintiff not afforded procedural fairness by way of fair hearing – a failure to give adequate reasons does not constitute denial of procedural fairness – Judge’s failure to rule on application to adduce new evidence where new evidence highly relevant to central issue and failure to test defendant’s evidence concerning fundamental issues in dispute where case turns on credibility constituted denial of procedural fairness – Judge’s decision dismissing the review quashed.
Magistrates Court Act 1991 (SA) s 38; Local and District Criminal Courts Act 1926 (SA) 152a, referred to.
Attorney-General (NSW) v Quin (1990) 170 CLR 1; Chow v Director of Public Prosecutions (2002) 28 NSWLR 593; Craig v South Australia (1995) 184 CLR 163; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Jarratt v Commissioner of Police (NSW) (2005) 224 CLR 44; Johnson v Johnson (2000) 201 CLR 488; Kioa v West (1985) 159 CLR 550; Papps v Police (2000) 77 SASR 210; Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; Samuels v Maple (1992) 165 LSJS 114; Smits v Roach (2006) 227 CLR 423; Wainohu v New South Wales (2011) 243 CLR 181, considered.
HARRADINE v DISTRICT COURT OF SOUTH AUSTRALIA
[2012] SASC 96Judicial Review
BLUE J: Mr Harradine purchased from Kessner Trailers Pty Ltd a pair of “rocker” springs for his trailer. They turned out to be the wrong springs. They broke as a result, causing consequential damage to the trailer.
Mr Harradine sued Kessner Trailers by way of a minor civil action in the Magistrates Court. A Magistrate heard the trial and dismissed the action.
A District Court Judge heard Mr Harradine’s application to review the matter and affirmed the judgment of the Magistrate.
Mr Harradine seeks judicial review of the Judge’s decision. The Attorney‑General was granted permission to intervene and make submissions in opposition to the relief sought by Mr Harradine. Kessner Trailers was given notice of these proceedings and elected not to make submissions.
The issues are:
1.was Mr Harradine afforded procedural fairness by way of a fair hearing?
2.was there a reasonable apprehension of bias on the part of the Judge meaning that Mr Harradine was not given procedural fairness?
Background facts
Kessner Trailers manufactures a range of trailers and supplies spare parts.
In 2006, Kessner Trailers manufactured a four-wheeled, 12 x 6 foot trailer subsequently registered as “YGP-554” (“the Trailer”). In January 2008, Mr Harradine purchased the Trailer second-hand from a previous owner.
In September 2008, the five-leaf spring supporting one of the rear wheels of the Trailer broke. Mr Harradine was working as a teacher and residing at Pipalyatjara in the remote north western corner of the State (near the borders of the Northern Territory and Western Australia).
On 11 September 2008, Mr Harradine telephoned Kessner Trailers and spoke to Mr Kessner. Two or three telephone conversations took place. The content of the discussions was hotly disputed. It is common ground that the upshot was that Kessner Trailers sold a pair of rear springs known as “rocker” springs to Mr Harradine and delivered them to his carrier.
On 11 September 2008, Mr Harradine sent two emails to Mr Kessner confirming payment of the purchase price into Kessner Trailers’ bank account and suggesting that Mr Harradine collect the springs directly from Kessner Trailers’ supplier to ensure that they arrived in time for him to leave on a trip from Pipalyatjara to Adelaide.
Upon receipt at Pipalyatjara, Mr Harradine fitted the springs to the Trailer and set off on a trip to Adelaide with 700 kilograms of scrap metal loaded on the Trailer.
Along the way, both rear springs broke, causing consequential damage to the Trailer and allegedly damage to the differential of Mr Harradine’s four wheel drive vehicle.
In November 2009, Mr Harradine issued a claim in the Magistrates Court against Kessner Trailers for negligence or breach of an implied warranty of fitness for purpose, claiming damages of $3,056.88. The action was a “minor civil action” governed by section 38 of the Magistrates Court Act 1991 (SA) (“the Act”). The parties were not entitled to be represented by legal practitioners.[1]
[1] Magistrates Court Act 1991 (SA) section 38(4).
The trial before the Magistrate
On the pleadings and at the trial, aside from the content of the telephone conversations on 11 September 2008, the facts were generally common ground. It was common ground that:
1.a tandem trailer usually has as part of its suspension a dual arm rocker assembly (attached to the trailer body) between the front and rear wheels on each side which pivots like a see-saw;
2.the size of the wheels will affect the longitudinal measurements of the springs;
3.a “rocker roller” suspension accommodates vertical displacement of the spring under load by horizontal movement of the spring via a loop at the outer end of the spring sliding on a bush attached to the trailer body;
4.a “rocker” suspension accommodates vertical displacement by horizontal movement of the spring via rotational movement at the elbow of each of the dual arms of the rocker spring assembly at the inner end of the spring;
5.a “rocker” spring installed on a trailer with a rocker arm designed for a “rocker roller” spring would not accommodate horizontal movement of the spring and would ultimately break under repeated load and flexing;
6.there were two or three telephone conversations between Mr Harradine and Mr Kessner on 11 September 2008;
7.Kessner Trailers supplied to Mr Harradine a pair of “rocker” springs which Mr Harradine installed on the Trailer;
8.the Trailer in fact required “rocker roller” springs;
9.the new springs broke on the trip to Adelaide because they were the wrong springs for the suspension of the Trailer.
There was a fundamental dispute about the content of the conversations on 11 September 2008. Kessner Trailers’ case was that:
1.Mr Kessner knew on 11 September 2008 that trailers manufactured in 2006 might have been made before or after the changeover from “rocker” suspensions to “rocker roller” suspensions;
2.during the conversations Mr Kessner identified the dichotomy between a “rocker” and a “rocker roller” spring and Mr Harradine identified his spring as a “rocker” spring;
3.the longitudinal measurements of a “rocker” spring were “totally and utterly” different to the longitudinal measurements of a “rocker roller” spring and Mr Harradine gave to Mr Kessner measurements which denoted a “rocker” spring and not a “rocker roller” spring;
4.Mr Kessner described the difference in shape between the outer ends of a “rocker” and a “rocker roller” spring, saying that a “rocker” spring has a small circular ring at each end and a “rocker roller” spring has a small circular ring at one end and a large oval ring at the other end;
5.Mr Kessner could not send a photo of the two different types of springs to Mr Harradine or receive a photo from Mr Harradine of the old spring because Mr Harradine did not have or say he had email access;
6.Mr Kessner informed Mr Harradine that, if the “rocker” springs he was sending were not the correct springs, Mr Harradine should return them and Mr Kessner would send a pair of “rocker roller” springs instead.
Mr Harradine’s case was that:
1.Mr Kessner did not refer to a dichotomy between two different types of springs or to “rocker roller” springs at all;
2.Mr Kessner did not advert to the possibility that the Trailer might have a “rocker roller” suspension;
3.Mr Harradine did not identify his old springs as “rocker springs”;
4.Mr Kessner said or implied that the length of a single type of spring may vary and asked Mr Harradine for the measurements of the old springs, and Mr Harradine gave the measurements to Mr Kessner;
5.Mr Kessner did not describe different end shapes at all;
6.Mr Kessner knew that Mr Harradine had both email access and a telephone number and could have sent a photo of the old springs if asked;
7.there was no discussion about the possibility that the springs being sent could be the wrong ones.
There was also an issue of whether Mr Harradine was guilty of contributory or causative negligence in fitting the “rocker” springs to the Trailer when he should have noticed that they were different to his old “rocker roller” springs.
The trial proceeded by Mr Harradine first being sworn and the Magistrate asking questions of him. During his evidence, the Magistrate asked a number of questions of Mr Kessner as issues emerged.
Mr Kessner was then sworn and was asked questions by the Magistrate. During his evidence, the Magistrate asked a number of questions of Mr Harradine as issues emerged.
Mr Harradine tendered the two emails of 11 September 2008. Mr Kessner tendered a tax invoice dated 12 September 2008 which contained a rough diagram of a spring and two measurements. He also tendered an email dated 9 July 2010 from SA Trailer to Mr Kessner attaching diagrams of a “rocker roller” spring (with measurements) and a “rocker spring” (without measurements). The parties had not made discovery to each other.
In addition to evidence supporting his case as summarised above, Mr Kessner gave evidence that:
1.Mr Harradine gave to him measurements consistent only with a “rocker” spring and that Mr Harradine must have measured them incorrectly (although at another point he said that Mr Kessner gave to Mr Harradine the measurements of the “rocker” spring and that Mr Harradine did not give any measurements to Mr Kessner);
2.Mr Harradine told him that his were “rocker” springs (although at another point he said Mr Harradine could not answer this question and did not know what type of suspension it was);
3.he would have exchanged photographs of the springs with Mr Harradine if Mr Harradine had had email and that Mr Harradine told him he did not have a phone (although at another point he said that he faxed the tax invoice containing a diagram of the springs with measurements to Mr Harradine).
Mr Kessner gave evidence of the conversations from his recollection to such a degree that the Magistrate ultimately observed in his reasons that he did not believe Mr Kessner could remember the conversations in the detail which he had given.
Mr Harradine submitted to the Magistrate that there were internal inconsistencies in Mr Kessner’s evidence and his evidence was inconsistent with the emails he had received from Mr Harradine and the fact that Mr Kessner recorded Mr Harradine’s phone number on the tax invoice.
The trial was completed within about one and a half hours. The Magistrate delivered an ex tempore judgment. The Magistrate dismissed Mr Harradine’s claim. The essence of his reasons is set out in the following two paragraphs:
[6]I am satisfied … that if Mr Harradine had asked the right questions of Mr Kessner he would have received accurate information from him. It is possible that because Mr Harradine didn’t appreciate that there were two different types of leaf springs that the only information provided was the length of the springs. It may have been that Mr Harradine did not ask the proper questions of Mr Kessner and Mr Kessner did not appreciate that Mr Harradine required advice concerning the type of springs that needed to be purchased.
[7] Because Mr Harradine does not remember the questions that he asked and the answers that he got and because I am satisfied that Mr Kessner would have answered any questions put to him accurately, I cannot be satisfied that it was apparent to Mr Kessner that Mr Harradine was relying upon him to determine what springs Mr Harradine required.
The District Court review
Mr Harradine filed in the District Court an application to review the decision of the Magistrate. The grounds on which the review was sought included:
1.the Magistrate applied the wrong approach in finding it was not proved that Mr Kessner knew Mr Harradine was relying on him;
2.the Magistrate erred in not affording Mr Harradine the opportunity to cross‑examine Mr Kessner given that Mr Kessner’s evidence was internally and externally inconsistent and improbable;
3.the Magistrate did not make sufficient inquiry to determine the issues of credit and fact between the parties or sufficiently test Mr Kessner’s evidence.
The review hearing extended over approximately three and a half hours. The Judge commenced the hearing by asking questions of Mr Harradine and occasionally of Mr Kessner (similar to the manner in which the Magistrate had conducted the hearing at trial). During this phase of the hearing:
1.Mr Harradine tendered an extract from the catalogue of the manufacturer of the springs used by Kessner Trailers, Industrial Engineers and Spring Makers (“IESM”). The catalogue showed the dimensions of the relevant “rocker” and “rocker roller” springs as being identical to each other (737 mm in total length divided into 318 mm and 419 mm). The Judge marked the IESM catalogue extract for identification and deferred a decision whether to admit it into evidence.
2.Mr Harradine complained that the Magistrate had not made any factual finding on the conflicting evidence concerning the content of the telephone calls, nor made a credibility finding concerning Mr Kessner’s evidence, nor permitted or invited Mr Harradine to cross‑examine Mr Kessner. The Judge accepted that this was potentially erroneous but put to Mr Harradine that the real issue was whether cross‑examination would have made a difference to the result.
3.Mr Harradine identified apparent inconsistencies in Mr Kessner’s evidence before the Magistrate (some of which are referred to above).
The Judge then decided to take Mr Harradine’s statements to that point, and from then on, as evidence, and said that he would do likewise with Mr Kessner. At that point, the review became a hearing de novo.
Mr Harradine completed his evidence. He gave similar evidence to the evidence he had given before the Magistrate, as summarised above.
The Judge invited Mr Kessner to give evidence. He gave evidence concerning the conversations with Mr Harradine to similar effect to that given before the Magistrate, except that it became clear that he did not recall the content of the conversations and was reconstructing them based on his usual practice. Mr Kessner gave evidence as follows:
1.Mr Kessner would have told Mr Harradine that Kessner Trailers had changed from a “rocker” to a “rocker roller” suspension.
2.Mr Harradine gave him the measurements of his spring, which clearly indicated a “rocker” spring because the measurements of “rocker” and “rocker roller” springs are “totally different”. If Mr Harradine had given him the correct measurements, Mr Kessner would have been able to identify which type of suspension was on his trailer.
3.Mr Kessner would have asked Mr Harradine to describe the appearance of the suspension and would have asked him whether it had a small eye at both ends or a small eye at one end and a larger oval eye at the other end.
4.If Mr Kessner had perceived that there was some uncertainty about which were the correct springs, he would have told Mr Harradine not to fit the springs unless he was certain that they were correct and to inform him of any such uncertainty, as Kessner Trailers would have to replace them if they were incorrect.
5.Mr Kessner asked Mr Harradine if he could ring him back and Mr Harradine responded that he was in the midst of getting a satellite phone and Mr Harradine could only ring Mr Kessner from the school.
6.The next day Mr Kessner faxed the invoice to Mr Harradine with the diagram and measurements of the “rocker” spring to make sure that Mr Harradine’s spring was a “rocker” spring.
Mr Harradine made submissions to the Judge about why Mr Kessner’s evidence should be rejected and referred to the apparent inconsistencies in Mr Kessner’s evidence.
The Judge delivered an ex tempore judgment. He dismissed the application for review. He observed that Mr Harradine may be correct in his submission that the Magistrate applied an incorrect test. He made his own finding, effectively accepting Mr Kessner’s version of the conversations in preference to that of Mr Harradine. The Judge said:
The core issue is whether the supply of the wrong spring was the fault of the respondent and constituted a breach of contract.
I am satisfied, based on all the information before me, including submissions which I have received as evidence, that the incorrect spring was supplied as a result of misinformation supplied to Mr Kessner by the applicant, and further that it was supplied on the basis that it should not be fitted unless it turned out to be the correct spring. The supplied spring was obviously different to the fractured spring and the others on the trailer. When describing the spring on the telephone and then later when he fitted it upon it being freighted to him, the applicant was not alert to the difference.
Judicial review
Mr Harradine seeks judicial review of the Judge’s decision on two alternative grounds:
1.the Judge failed to afford to Mr Harradine procedural fairness by way of a fair hearing;
2.there was a reasonable apprehension of bias on the part of the Judge meaning that Mr Harradine was not afforded procedural fairness.
Subject to any valid legislative exclusion, judicial review is available in respect of decisions of the District Court if the appropriate grounds are made out.[2] A party affected by a decision of a court or other judicial decision maker must be afforded a fair and unbiased hearing and, if not, then an order in the nature of certiorari will lie to quash the decision upon judicial review.[3]
[2] Craig v South Australia (1995) 184 CLR 163.
[3] Aronson Dyer & Groves Judicial Review of Administrative Action (4th ed, 2009) [7.05]; De Smith’s Judicial Review of Administrative Action (4th ed, 1980) at 156; Kioa v West (1985) 159 CLR 550; Chow v Director of Public Prosecutions (2002) 28 NSWLR 593.
Section 38(8) of the Act provides that a decision of the District Court on a review is final and not subject to appeal. The Act does not exclude judicial review of such a decision. A clear manifestation of intention is required to exclude judicial review.[4] The Attorney-General does not contend that judicial review is excluded by the Act.
[4] See eg Jarratt v Commissioner of Police for New South Wales [2005] HCA 50; (2005) 224 CLR 44.
It is important to bear in mind that judicial review is not concerned with the substantive merits of the decision, but with the fairness of the procedure leading up to the decision.[5]
[5] See eg Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1.
In relation to the first ground (fair hearing), Mr Harradine contends that the Judge:
(a) failed to rule on his application to adduce further evidence;
(b)failed to afford him the opportunity to cross-examine Mr Kessner or alternatively failed to test Mr Kessner’s evidence himself;
(c)failed to give adequate reasons for dismissing the review.
In relation to the second ground (unbiased hearing), Mr Harradine contends that a fair-minded observer would have reasonably apprehended that the Judge displayed:
(a)an aversion to impugning Mr Kessner’s story and credit;
(b)an aversion to finding that the Magistrate erred.
It is convenient to address these contentions in reverse order.
Minor civil actions
Before turning to Mr Harradine’s contentions, it is desirable to consider the nature of a trial of a minor civil action and of a review pursuant to section 38 of the Act.
Nature of trial
The trial before and the judgment of the Magistrate are not the subject of these judicial review proceedings. However, the general nature of a trial before a magistrate impacts indirectly on the role of a judge on a review.
Section 38(1) of the Act provides:
The following provisions are applicable to the trial of the minor civil action:
(a)the trial will take the form of an inquiry by the Court into the matters in dispute between the parties rather than an adversarial contest between the parties;
(b) the Court will itself elicit by inquiry from the parties and the witnesses, and by examination of evidentiary material produced to the Court, the issues in dispute and the facts necessary to decide those issues;
(c) the Court may itself call and examine witnesses;
(d) the parties are not bound by written pleadings;
(e) the Court is not bound by the rules of evidence;
(f) the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
The concept of a minor civil action (then known as a “small claim”) was introduced in 1974 by amendments to the Local and District Criminal Courts Act 1926 (SA). Specifically, section 152a(1) introduced into that Act provided:
A court, in hearing and determining a small claim, shall not be bound by the rules of evidence but may inform itself upon any matter relating to the claim in such manner as it thinks fit.
In 1991, the Magistrates Court Act was enacted to replace those provisions of the Local and District Criminal Courts Act which applied to local courts. Section 38(1) was enacted in its present terms. Section 38(1) is much more explicit and detailed than section 152a(1) of the old Act.
In 1974, when section 152a was proposed to be introduced into the old Act, the then Attorney‑General said in his second reading speech:
Our system of administration of justice is designed to sift carefully truth from falsehood, sound reasoning from fallacious reasoning, right from wrong. This is admirable and necessary. But it is too time consuming and therefore expensive to be a satisfactory way of dealing with small claims …
If, therefore, persons with small claims need to have the opportunity of bringing them to court, it is necessary to devise a nice simple system, admittedly second best and admittedly less thorough than is necessary for more important and complex matters, but for those very reasons less expensive. It is necessary to have procedures for small claims in which some of the rules and protections which one legal system provides are sacrificed to the necessity of relating the cost to the amount involved in the case.
In 1991, when the Magistrates Court Bill was introduced into Parliament, the then Attorney-General said in his second reading speech:
Clause 33 contains provisions relating to minor civil actions (small claims). The Court should attempt a negotiated settlement. If that is not successful, the Court is to conduct an inquiry on a more informal basis.
By referring to an “inquiry by the Court” in contradistinction to an “adversarial contest between the parties”, Parliament was invoking the distinction between an inquisitorial and adversary system. As understood in Australia as at 1991, an inquisitorial system was used in civil and criminal matters in various countries in Europe (including France, Germany and Italy).
Under an inquisitorial model, the judge performs an active role in determining the issues, witnesses and scope of the evidence, while under an adversarial model the parties determine these matters.[6] Under an adversarial model, one party calls and examines a witness and the other party cross‑examines the witness. Under an inquisitorial model, witnesses tell their own story in narrative form and then the principal questioning is undertaken by the judge. The parties are then permitted to ask questions of the witness through the judge in a supplementary manner (the parties invite the judge to put specific questions or, more frequently, the judge directs the witness simply to answer the question as formulated by the party or permits the party to put the question directly to the witness).[7]
[6] W Zeidler, “Evaluation of the Adversary System: As Comparison, Some Remarks on the Investigatory System of Procedure” (1981) 55 ALJ 390; G E P Brouwer, “Inquisitorial and Adversary Procedures – a Comparative Analysis” (1981) 55 ALR 207; G L Certoma, “The Accusatory System v. The Inquisitorial System: Procedural Truth v. Fact?” (1982) 56 ALJ 288; G Osbourne, “Inquisitorial Procedure in the Administrative Appeals Tribunal – A Comparative Perspective” (1982) 13 F L Rev 150.
[7] Zeidler at 396; Brouwer at 215; Certoma at 289.
In a matter which turns on which of two competing witnesses is accepted as telling the truth (about a fact of which they both give direct evidence), both models involve each witness’s evidence being tested by questioning. The difference is the identity of the (principal) questioner.
The provisions in section 38(1) of the Act evince a general intention that a magistrate is to proceed broadly in accordance with the inquisitorial model as opposed to the adversarial model. In particular, a magistrate is obliged to inquire actively into the facts and issues.
Review by District Court
Section 38(6) of the Act provides:
The District Court (constituted of a single Judge) may, on the application of a party dissatisfied with a judgment given in a minor civil action, review the matter.
Section 38(7) governs the hearing of a review. Ordinarily, the parties are not entitled to be represented by a legal practitioner on a review.[8] Section 38(7) also provides:
[8] Magistrates Court Act 1991 (SA) s 38(7)(a), s 38(4).
(b)the Court may inform itself as it thinks fit and, in doing so, is not bound by the rules of evidence;
(c)the Court may, if it thinks fit, re-hear evidence taken before the Magistrates Court;
(d)in determining the matter, the Court may –
(i) affirm the judgment; or
(ii) rescind the judgment and substitute a judgment that the Court considers appropriate; or
(iii) if the review arises from a default judgment or summary judgment, rescind the judgment and –
(A)substitute a judgment that the Court considers appropriate, or
(B)remit the matter to the Magistrates Court for hearing or further hearing;
(e)in hearing and determining the review, the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
It can be seen that several of the provisions which apply to a trial under section 38(1) also apply to a review under section 38(7): the court is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms; the court is not bound by the rules of evidence; and generally a party is not to be represented by a legal practitioner. On a review of a judgment of a magistrate following trial,[9] the District Court does not have the option of remitting the matter back to the Magistrates Court for rehearing but must, if it rescinds a magistrate’s judgment, substitute its own judgment.
[9] Contrast the position if the judgment was a default or summary judgment.
The provisions of section 38(7) in the context of section 38 as a whole and in particular section 38(1) suggest that the following principles apply to a review by a District Court judge of a minor civil action.
1.The review is not in the nature of an appeal stricto sensu.
2.The review is not necessarily a hearing de novo in that the Court is entitled to have regard to the evidence adduced before a magistrate and “may” rehear that evidence.
3.The review is not necessarily an appeal by way of rehearing in that it is a “review” (not an “appeal”), the Court may inform itself as it thinks fit, the Court must act according to the substantial merits of the case and the Court may rehear evidence without being confined by the “fresh evidence” rules which apply to appeals by way of rehearing.
4.The Court can tailor the nature of the hearing to the circumstances. In a case where the review will not turn on findings of fact or credibility of witnesses, the Court might simply have regard to the evidence adduced before a magistrate and a magistrate’s findings of fact. In a case which does turn on disputed issues of fact or credibility, the Court might simply proceed to hear the evidence afresh.
5.If the District Court concludes that a magistrate made an error vitiating the judgment and had not made findings of fact necessary to determine the matter, it will be necessary for the Court itself to hear the evidence relevant to those findings of fact (as it does not have power to remit the matter for rehearing).
6.To the extent that the Court does itself hear evidence, it should proceed in a similar manner to that provided by section 38(1), namely adopting the form of an inquiry by the Court rather than an adversarial contest between the parties. This is because section 38(7) provides that the Court may inform itself as it thinks fit and also because it would be incongruous if the District Court were to adopt a radically different approach to the hearing to that required to be adopted by a magistrate at first instance given that there is no power of remitter.
Procedural fairness: an unbiased hearing
Mr Harradine contends that the Judge conducted the hearing of the review in a manner giving rise to a reasonable apprehension of bias. A party is not regarded as being afforded natural justice or procedural fairness if the decision maker is biased or if there is a reasonable apprehension that the decision maker is biased.[10]
[10] Aronson Dyer & Groves Judicial Review of Administrative Action, (4 ed, 2009) [7.05], [9.05], [9.285]; De Smith’s Judicial Review of Administrative Action, (4th ed, 1980) at 156, 248; Chow v DPP (2002) 28 NSWLR 593.
There is a reasonable apprehension of bias if a fair‑minded lay observer might have reasonably apprehended that the decision maker might not bring an impartial and unprejudiced mind to the resolution of the question he or she was required to decide.[11]
[11] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11]; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [8].
Mr Harradine identifies the bias reasonably apprehended in this case as:
(a)an aversion to finding that the Magistrate erred;
(b)an aversion to impugning Mr Kessner’s story and credit.
It is important to observe that Mr Harradine does not suggest that there was any connection or relationship between the Judge and the Magistrate or Mr Kessner.
Alleged Defence of Magistrate’s decision
Mr Harradine contends that:
(a)the Judge showed disdain for Mr Harradine’s application that new evidence be admitted;
(b)the Judge showed disdain for Mr Harradine’s submissions in relation to cross-examination;
(c)the Judge was generally defensive of the Magistrate’s conduct of the trial and reasons for judgment;
(d)the Judge generally displayed a dismissive attitude towards the review.
In examining the conduct by a judicial officer of a hearing, it is important to appreciate that a judicial officer frequently tests both evidence and submissions by putting contentions to a witness or party respectively by way of “Socratic dialogue”. Normally, it will be apparent when a judicial officer is adopting this process and, when it is, a fair-minded observer would understand that the judicial officer has not adopted the contentions put to the witness or party as final conclusions.
In relation to the IESM catalogue, the Judge initially put to Mr Harradine that the review did not involve starting again with the evidence. Ultimately, the Judge did not rule on the admission of the catalogue or refer to it in his reasons. Mr Harradine complains that these matters evidence disdain by the Judge. A fair-minded lay observer would not have regarded the Judge’s conduct as displaying disdain for the new evidence.
The Judge repeatedly put to Mr Harradine that he was prepared to accept that the Magistrate erred in not inviting Mr Harradine to cross‑examine Mr Kessner,[12] but that the issue on review was whether cross-examination was capable of affecting the result. The Judge did not address Mr Harradine’s submissions in relation to cross‑examination in his reasons for judgment. Mr Harradine complains that these matters evidence a disdain by the Judge for his submissions concerning cross‑examination. A fair-minded lay observer would not have regarded the Judge’s conduct as displaying disdain for Mr Harradine’s submissions about cross-examination.
[12] My construction of s 38(1) above is that a magistrate does not have an obligation to invite or permit cross-examination provided the magistrate him or herself questions the witness.
The Judge put to Mr Harradine that he needed to demonstrate error by the Magistrate capable of affecting the result, which Mr Harradine contends evidenced bias in favour of the Magistrate’s decision. However, this was superseded by the second phase of the review, in which the Judge himself heard evidence from the parties and formed his own views independently of the Magistrate. Mr Harradine also contends that the Judge was not critical of the test applied by the Magistrate. However, in a number of passages, the Judge said that the Magistrate probably formulated the wrong test, and went on to say that the question was whether the Magistrate ultimately reached the wrong conclusion. A fair-minded lay observer would not have regarded the Judge’s conduct as displaying that he was defensive of the Magistrate.
The Judge made observations on the apparent uncommerciality of the parties engaging in a trial and review; the need for some time constraints on the hearing of the review; and the nature of the minor civil claims jurisdiction as involving expedited justice. However, the review before the Judge occupied three and a half hours (120 transcript pages) compared to the trial before the Magistrate which occupied one and a half hours (46 transcript pages). The reality is that the Judge listened to Mr Harradine’s submissions, did not overbear him[13] and did not prevent Mr Harradine from making his substantive submissions. A fair‑minded observer would not have considered that the Judge displayed a dismissive attitude towards the review.
[13] Contrast the manner of questioning criticised by the High Court in Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 at [30].
A fair‑minded observer would not have reasonably apprehended that the Judge had an aversion to finding that the Magistrate erred or might be biased in defence of the Magistrate generally.
Alleged Defence of Mr Kessner
Mr Harradine contends that the Judge:
(a) refused to entertain that Mr Kessner was not telling the truth, denied Mr Harradine the right to impugn Mr Kessner’s credit and avoided jeopardising Mr Kessner’s credit;
(b)did not explore or consider inconsistencies in Mr Kessner’s evidence;
(c)questioned Mr Harradine with greater vigour and less sympathetically than Mr Kessner.
In relation to entertaining that Mr Kessner was not telling the truth, Mr Harradine refers to passages in the transcript concerning whether Mr Harradine had (to the knowledge of Mr Kessner) a phone number, email, or facsimile number. The Judge said that he would shrink from making a finding that Mr Kessner was lying unless it was manifestly obvious; that Mr Harradine’s submissions were a flimsy basis on which to brand Mr Kessner a liar; and that Mr Harradine’s submissions related only to peripheral matters. By and large, apparent inconsistencies in Mr Kessner’s evidence were not explored by the Judge. While these matters are relevant to the question of whether Mr Harradine was afforded procedural fairness by way of a hearing, a fair-minded observer would not have considered that the Judge had an aversion to impugning Mr Kessner’s story and credit such that he might be biased in favour of Mr Kessner by reason of these matters.
I consider that the Judge did not question either Mr Kessner or Mr Harradine with vigour or unsympathetically. The Judge’s questions of each witness were equally gentle. A fair-minded observer would not have considered that the Judge might be biased in favour of Mr Kessner by reason of a comparison between the two sets of questioning.
Holistic assessment
I have read the transcript carefully in light of each of Mr Harradine’s detailed submissions. I am satisfied that, considering all of the matters raised by Mr Harradine collectively, a fair‑minded lay observer would not have reasonably apprehended that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question he was required to decide by reason of an aversion to finding that the Magistrate erred or to impugning Mr Kessner’s story and credit.
Waiver
In light of my conclusion, it is not necessary to consider whether Mr Harradine waived[14] his right to complain of bias by taking no objection prior to the delivery of the ex tempore judgment to the Judge proceeding with the review hearing. Given that Mr Harradine is a layperson and that the Judge delivered his judgment half an hour after the conclusion of the hearing, it is doubtful that the doctrine of waiver would have application in this case in any event.
[14] See Smits v Roach [2006] HCA 36; (2006) 227 CLR 423.
Procedural fairness: a fair hearing
Mr Harradine contends that the Judge:
(a) failed to give adequate reasons for dismissing the review;
(b)failed to rule on Mr Harradine’s application to adduce new evidence;
(c)failed to afford Mr Harradine the opportunity to cross-examine Mr Kessner or alternatively failed to test Mr Kessner’s evidence himself.
Adequacy of reasons
Mr Harradine contends that the Judge’s reasons were inadequate in that he gave no reasons why he preferred Mr Kessner’s account over that of Mr Harradine and did not address the apparent inconsistencies in Mr Kessner’s evidence concerning the conversations.
I assume in favour of Mr Harradine (without deciding) that it would have constituted an error of law if the Judge had not provided adequate reasons for judgment[15] and that a duty to give reasons is an inherent part of performance of the judicial function itself (and not merely derived from susceptibility to, and confined to decisions subject to, appeal).[16]
[15] See Papps v Police (2000) 77 SASR 210 at [23]-[33] per Gray J (Olsson J and Wicks J agreeing).
[16] See Wainohu v New South Wales[16] (2011) 243 CLR 181 at [54]-[58] per French CJ and Kiefel J and [92], [104]-[109] per Gummow, Hayne, Crennan and Bell JJ.
It is not necessary to decide in this case whether a failure to give any reasons at all on a review under section 38(7) is capable of giving rise to judicial review. Nor is it necessary to consider an extreme case in which reasons are so manifestly inadequate that they are equivalent to giving no reasons at all. This is because procedural fairness is directed at the hearing as opposed to the determination. An order on judicial review in the nature of certiorari is not available merely on the ground that the reasons for decision of a judge on a review pursuant to section 38(7) are assessed as being objectively inadequate.
New evidence: the catalogue
Mr Kessner gave evidence before the Judge that the lengths of the “rocker” and “rocker roller” springs were “totally different”. He also gave evidence before the Judge that Mr Harradine gave him measurements which clearly indicated a “rocker” spring and, if Mr Harradine had given him the correct measurements, Mr Kessner would have been able to identify that his trailer needed “rocker roller” springs. Exhibit D3, which was before the Judge as part of the Magistrates Court file, was a set of diagrams tendered by Mr Kessner which showed a “rocker roller” suspension with measurements but a “rocker” spring suspension without measurements.
On its face, the IESM catalogue demonstrated that Mr Kessner’s evidence and his case were incorrect; that the lengths of the springs for “rocker” and “rocker roller” suspensions were identical and that the tender of exhibit D3 by Mr Kessner was objectively misleading. Mr Harradine tendered the catalogue for these purposes relatively early in the review hearing.
The Judge marked the catalogue for identification and deferred ruling whether he would receive it. He said “I haven’t made up my mind whether I will accept this as fresh evidence”.
After marking the catalogue for identification and reserving the question of its admission, the Judge himself embarked on hearing evidence from Mr Harradine and Mr Kessner. The Judge did not subsequently during the hearing rule on admission of the catalogue nor did he refer to it in his questioning of Mr Kessner or in his reasons for judgment.
Mr Kessner’s evidence about the different lengths of “rocker” versus “rocker roller” springs went to the heart of the case. Kessner Trailers pleaded in its Affidavit of Defence that Mr Harradine gave to Mr Kessner measurements of his old springs which denoted a “rocker” spring as opposed to a “rocker roller” spring and Mr Kessner gave evidence before the Judge to this effect. If in fact the two measurements were identical, it would have destroyed a substantive part of Kessner Trailers’ case on the conversation.
Given that the catalogue was highly relevant to a central issue in the case, that the Judge failed to rule on its admission, that the Judge gave no indication that he was prepared to act on it and did not in fact take it into account and that the catalogue was capable of affecting the result, I consider that there was a denial of procedural fairness to Mr Harradine by reason of the failure to rule on its admission.
Testing of Mr Kessner’s evidence
Mr Harradine contends that he was not afforded by the Judge the opportunity of having Mr Kessner’s evidence concerning the contents of the telephone discussions tested.
Right to cross-examination
Mr Harradine contends that he had a right to cross‑examine Mr Kessner and because he was self-represented the Judge had an obligation to inform him of the existence of that right and invite him to cross‑examine Mr Kessner.
I assume in favour of Mr Harradine (without deciding) that a party under an adversarial system has a right of cross‑examination. Mr Harradine contends that this right applies at the hearing of a minor civil action under section 38(1) and a review under section 38(7) of the Act. I reject that contention for the following reasons.
1.Section 38(1)(a) expressly provides that a trial before a magistrate is to take the form of an inquiry by the Court rather than an adversarial contest and thereby invokes the inquisitorial process.
2.Under the inquisitorial model, a party does not have a right to cross‑examine but rather may suggest questions to be put by the Court or may seek permission to put questions directly to a witness.
3.Section 38(1)(c) expressly requires the Court to “itself elicit by inquiry from the parties and their witnesses” the issues and the facts necessary to decide them.
4.Section 38(1)(c) empowers the Court to itself examine witnesses.
Testing of evidence by the Judge
Mr Harradine contends that, if there is no cross‑examination, the Judge has an obligation to question a witness himself or herself.
On a trial before a magistrate where the determination depends upon a credit assessment of two witnesses giving direct evidence of a contested issue of fact, a magistrate is under a positive duty pursuant to section 38(1) to inquire into those facts and to elicit by inquiry and examination those facts. A magistrate is not prevented by section 38(1) from permitting the parties to cross‑examine the witnesses for that purpose. If such cross‑examination does not occur, it is incumbent on the magistrate to question the witnesses to test their story concerning the contested fact upon which the determination of the dispute depends.
In those reviews in which a judge hears evidence afresh and the determination depends upon an issue of contested fact of which two witnesses give direct conflicting evidence, the same principles must apply to the review under section 38(7). In those circumstances, it is incumbent on a judge to question the relevant witnesses to test their stories in the event that that testing is not undertaken by the parties themselves. Otherwise there can be no real judicial determination.
The position is illustrated by analogy with a quite different circumstance, namely an appeal from a decision of a magistrate following a trial of a criminal matter in which cross-examination does occur of the witnesses. In Samuels v Maple,[17] two police officers gave evidence that the defendant swore at them, assaulted one of them, and resisted arrest. The defendant and three friends gave evidence denying this. The Magistrate dismissed the charges because “[she had] no way of determining what really did occur”. Jacobs J held that the Magistrate had failed to discharge her judicial duty, thereby vitiating the verdict of acquittal. Jacobs J said:[18]
One side or the other was either not telling the truth, or at the very least, was guilty of gross exaggeration and distortion. In such circumstances, it is the duty of a fact‑finding tribunal to submit the evidence to very close and careful scrutiny and analysis, in an attempt to resolve the deceptive appearances of truth…
There can, of course, be no doubt that if, at the end of the day, when the evidence has been subjected to such analysis and scrutiny, the court is still left in doubt as to where the truth of the matter lies, then the person charged must be given the benefit of the doubt. Jurors are so directed every day. But that does not absolve the tribunal of fact from its responsibility to test and analyse the evidence in order to arrive at the truth of the matter if it can.
[emphasis added]
[17] (1992) 165 LSJS 114.
[18] Ibid at 116-117.
Mr Harradine’s complaint is that, given that he was not invited to cross‑examine Mr Kessner, the Judge himself did not question Mr Kessner concerning the apparent internal and external inconsistencies in Mr Kessner’s versions of the telephone conversations of 11 September 2008. Mr Harradine contends that these were evident in Mr Kessner’s evidence before the Judge (and the Magistrate) and in any event all but one were identified by Mr Harradine in his submissions to the Judge. The apparent inconsistencies comprised the following.
1.The apparent external inconsistency between Mr Kessner’s evidence to the Judge that the dimensions of a “rocker” spring and “rocker roller” spring are totally different and the IESM catalogue which demonstrated that the dimensions were in fact identical.
2.The apparent internal inconsistency in Mr Kessner’s evidence between saying to the Judge (and the Magistrate at one point) that Mr Harradine gave measurements to Mr Kessner, and saying to the Magistrate at one point that Mr Harradine gave no measurements to him but he gave measurements to Mr Harradine.
3.The apparent internal inconsistency in Mr Kessner’s evidence between saying to the Judge at one point that he could not telephone Mr Harradine, and at another point saying to the Judge that he sent the tax invoice (containing a diagram and measurements) by facsimile.
4.The apparent external inconsistency between Mr Kessner’s evidence to the Judge that Mr Harradine did not have a telephone and the tax invoice made out by Mr Kessner which recorded Mr Harradine’s phone number.
5.The apparent internal inconsistency in Mr Kessner’s evidence between saying at one point to the Magistrate that Mr Harradine told him that the suspension was a “rocker” suspension, and at another point saying to the Magistrate that Mr Harradine did not know what type of suspension it was.
The Judge did not put to Mr Kessner these apparent inconsistencies in his evidence. The mere fact that a judge on a review does not inquire into every single potential inconsistency in a party’s evidence, however trivial, does not give rise to a conclusion that the judge has not performed his or her judicial function or afforded procedural fairness to the other party. On the other hand, in a case turning on credibility and factual findings, if the judge does not inquire into (or invite cross‑examination on) potential inconsistencies in a party’s evidence concerning matters central to the fundamental issue in dispute, prima facie the judge does not perform his or her judicial function and does not afford procedural fairness to the other party.
In the present case, the central issues in the case included discussion (if any) on the topics:
·which one of two different incompatible types of suspension, namely a “rocker” suspension or a “rocker roller” suspension the Trailer might contain;
·whether there was a difference in the measurements between a “rocker” and “rocker roller” spring and whether Mr Harradine gave to Mr Kessner measurements apposite to a “rocker” as opposed to “rocker roller” spring.
The potential inconsistencies identified by Mr Harradine during the hearing of the review (leaving aside the issue of electronic communication) related directly to these central issues. In those circumstances, it was necessary that Mr Kessner be questioned concerning those potential inconsistencies by the Judge (in the event that Mr Harradine was not invited to cross‑examine).
Taking into account the failure of the Judge to rule on the admission of the IESM catalogue and to inquire into the apparent inconsistencies in Mr Kessner’s evidence as to central aspects of Kessner Trailer’s case, in all of the circumstances the Judge did not discharge his judicial function and did not afford procedural fairness by way of a fair hearing to Mr Harradine.
Discretion to grant a remedy
The mere fact that Mr Harradine was not afforded procedural fairness does not necessarily entail the grant of a remedy. There is a discretion whether or not to grant a remedy and it is also necessary to consider whether, if a remedy is granted, the appropriate remedy is an order in the nature of certiorari.
There is a real prospect that, if the Judge had ruled on the admission of the IESM catalogue and had questioned Mr Kessner concerning the apparent inconsistencies in his evidence, the result of the review may well have been different. Given the finding which the Judge did make accepting Mr Kessner’s evidence in preference over Mr Harradine’s evidence, it is appropriate that I exercise the discretion to grant a remedy and that the remedy be an order in the nature of certiorari quashing the decision dismissing the review.
Conclusion
I quash the decision of the Judge on the review. I propose to set aside the orders made by the Judge and direct the Court to hear and determine the review according to law. I will hear the parties as to the precise relief.
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