Hollis v Pitt
[2022] WADC 38
•13 MAY 2022
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: HOLLIS -v- PITT [2022] WADC 38
CORAM: LONSDALE DCJ
HEARD: 29 NOVEMBER 2021
DELIVERED : 13 MAY 2022
FILE NO/S: APP 40 of 2021
BETWEEN: STEVEN JEFFREY HOLLIS
Appellant
AND
SUZANNA PITT
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE M CRAWFORD
File Number : MID/MINOR/797/2020
Catchwords:
Appeal from decision of a magistrate - Minor case claim - Whether denial of natural justice - Whether party entitled to legal representation
Legislation:
Legal Profession Act 2008 (WA), s 5(3)
Magistrates Court (Civil Proceedings) Act 2004 (WA), pt 4, s 3, s 26(a), s 29(3), s 29(4), s 30, s 30(1), s 30(2)(b), s 30(4)(b), s 30(4)(c), s 30(5), s 30(6), s 30(7), s 30(8), s 30(9), s 32, s 32(1)(b), s 32(2)(a), s 32(3), s 40, s 40(2), s 44(1), s 44(2), s 44(2)(d)
Result:
Appeal dismissed
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Ms A D Gimisis |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | Hall & Wilcox |
Case(s) referred to in decision(s):
Alvaro v Fraser & Downsborough Designers Pty Ltd (1990) 20 ALD 762
Dincer v Giancristofaro [2015] WADC 49
Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Jones v Darkan Hotel [2014] WASCA 133
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Neil v Nott (1994) 121 ALR 248
Nobarani v Mariconte [2018] HCA 36; (2018) 265 CLR 236
Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148
Re v Burton; Ex parte Lowe [2003] WASCA 306
Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116
Stead v State Government Insurance Commission (1986) 161 CLR 141
Tobin v Dodd [2004] WASCA 288
Van der Wal v Harris [1961] WAR 124
Wilson v Lesteri [2011] WADC 120
LONSDALE DCJ:
Introduction and overview
On 3 September 2018, the respondent crashed into a motor vehicle belonging to the appellant, causing it damage.
The respondent was insured. Following the crash, she advised the appellant of her insurer's details. For reasons which it is unnecessary to canvas, the appellant declined to deal with the insurer. Instead, the appellant commenced proceedings against the respondent directly.
The appellant lodged his claim as a minor case claim pursuant to pt 4 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (the MCCP Act). The form reveals the appellant was seeking $10,000 in damages.[1]
[1] Magistrates Court File (MCF), page 46.
By the time of the hearing the appellant had already arranged for the vehicle to be repaired.[2]
[2] MCF, page 6.
In written submissions filed in advance of the hearing, the appellant outlined a claim for the actual cost of repairs. He submitted that the vehicle had unique features making an assessment of damages on the basis of its pre‑market value inappropriate.[3]
[3] MCF, pages 17 - 27; ts 64, ts 68.
The respondent's position was that damages should be assessed on the pre‑accident market value of the vehicle, less its salvaged cost.
The pre-accident market value of the vehicle was considerably less than the total cost of the repairs undertaken by the appellant.[4]
[4] MCF, pages 29 - 33, 43 - 44.
The hearing proceeded before his Honour Magistrate M Crawford who awarded the appellant $2,900 in damages (plus interest and costs). This amount represented what the learned magistrate considered to be the approximate pre-accident value of $3,000 less $100 for salvage costs.[5]
[5] MCF, page 1.
The appellant appeals against the award of damages.
Leave to appeal out of time
The last date for filing a notice of appeal was 3 June 2021.
The appellant's notice of appeal was filed on 17 June 2021 and was therefore filed out of time. In a sworn affidavit, the appellant provided a satisfactory explanation for the delay.[6] As the delay was only short and there was no prejudice to the respondent, I granted leave for the appellant to appeal out of time.
[6] Appellant's affidavit sworn 11 June 2021.
The issues in this appeal
The primary issue raised by the appellant is whether damages should have been awarded based on the actual cost of repairs rather than the vehicle's pre‑accident market value.[7]
[7] MCF, page 72; ts 14.
The relevance of the appellant as a litigant in person
The grounds of appeal are set out in the appellant's notice of appeal and are augmented by the submissions filed in support of it. Both the notice of appeal and the submissions are wordy and not easy to follow. However, I am mindful that the appellant is not a lawyer and was self‑represented. I must make due allowance to ensure that his rights have not been 'obfuscated by [his] own advocacy': Neil v Nott (1994) 121 ALR 248, 150. I must be alert to the possibility that 'beneath inadequately expressed and often irrelevant material there may lurk an arguable case' whilst ensuring fairness to the other party:Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10]; Tobin v Dodd [2004] WASCA 288 [15].
I have attempted to do justice to the appellant's case by paraphrasing the grounds of appeal, as best I can, thus to express his contentions in as favourable a light as possible. I have done this, being mindful of the need to ensure that any latitude given to the appellant does not deprive the respondent of her right to procedural fairness and a fair hearing: Nobarani v Mariconte [2018] HCA 36; (2018) 265 CLR 236 [47]. As my review of the proceedings did not detect other potential grounds of appeal, the issue of any unfairness to the respondent does not arise.
The appellant's notice of appeal
Ground 1 challenges the characterisation of the appellant's claim as a 'minor case claim' because the respondent had been 'represented' by a lawyer at the hearing - a situation which the appellant says he did not consent to. The appellant asserts that, because the respondent was assisted by a law graduate at the hearing, this was tantamount to her being legally represented and breached the provisions of the MCCP Act concerning the right to be represented.
Grounds 2 - 6 are pleaded under the rubric of a denial of natural justice but vary in their particulars.
Ground 2 asserts that the appellant was denied natural justice because the respondent did not serve him with the affidavit of assessor Johnny Roberts until 4 May 2021; he asserts he had insufficient time to prepare a response before the hearing on 13 May 2021. This ground further asserts that the learned magistrate 'curtailed' the appellant's verbal submissions by indicating that he would rely on the appellant's written submissions filed in advance of the hearing and that he was given insufficient time to make closing submissions.
Ground 3 asserts that the appellant was denied natural justice because the learned magistrate rejected the appellant's claim that there had been damage to the body of the car (as opposed to only the tow bar). The appellant complains that (as it was never in issue that there was damage to the body of the vehicle) the learned magistrate ought to have given him the opportunity to address that issue.
Ground 3(b) asserts that the appellant was denied natural justice because the learned magistrate found the appellant's claim based on the cost of repairs to be unreasonable.
Ground 4 asserts that the appellant was denied natural justice because the learned magistrate approached the assessment of damages based on the market value of the appellant's vehicle rather than a vehicle of the same or substantially the same value.
Ground 5 asserts that there was a denial of natural justice because the learned magistrate did not properly consider the failure of the insurance company to respond to the appellant's demands for the payment of the repairs to the vehicle.
Ground 6 asserts that both the appellant and his wife had health issues which the learned magistrate had failed to consider and had denied him natural justice by displaying bias (towards himself and his wife).
The hearing before the learned magistrate
The appellant was self-represented at the hearing in the Magistrates Court and he did not seek leave to be represented by counsel.
At the commencement of the hearing, the respondent sought leave for a law graduate to be present to assist her.
The learned magistrate conducted an inquiry into the appellant's familiarity with legal proceedings. After that inquiry was conducted, the appellant agreed that the respondent could have a law graduate present.[8] The learned magistrate made it plain that the law graduate would not have a speaking role. The appellant did not object to the making of the order.
[8] MCF, pages 71, 75; ts 13, ts 17.
Before hearing any evidence, the learned magistrate explained the rules of court and the procedure to the appellant.[9]
[9] MCF, pages 76 - 80; ts 19 - ts 22.
The appellant gave evidence himself and then called two witnesses - his wife Nicole Hollis and his father Terry Hollis. The appellant's evidence addressed the condition of the vehicle prior to the accident and the cost of repairs subsequently undertaken. The appellant submitted documentation evidencing the cost of the repairs.
Mrs Hollis gave evidence about ownership of the vehicle and some evidence as to its characteristics.
Terry Hollis, who had been employed in the motor trade industry for many years (but had retired in 2017) gave opinion evidence concerning the characteristics of the vehicle and its cost of replacement. Mr Hollis Senior estimated the value of the vehicle to have been around $6,000.[10]
[10] MCF, page 126; ts 68.
The respondent did not give evidence herself but called the witness Johnny Roberts, a licensed motor vehicle assessor, to give expert evidence as to the market value of the vehicle and its salvaged cost. Mr Roberts' opinion was that the pre-accident value was $2,300 and the salvage cost would be $100.[11]
[11] MCF, page 131; ts 76.
The appellant cross‑examined Mr Roberts and challenged his opinion - largely on the basis that Mr Roberts had failed to consider the unique features of the appellant's vehicle, namely various modifications and improvements that had previously been undertaken to it.
The learned magistrate's findings
The learned magistrate accepted that the appellant had incurred the costs of the repairs claimed, but found he was not entitled to claim all of those costs.[12]
[12] MCF, page 164; ts 106.
The learned magistrate found that the correct basis for the assessment of damages was the market value of the vehicle less its salvaged cost. His Honour rejected the appellant's submission that damages should be assessed on the actual cost of repairs.
The learned magistrate stated he preferred the evidence of Mr Roberts to that of Mr Hollis Senior,[13] finding Mr Roberts to have been a detached and objective witness.[14] The learned magistrate concluded, having regard to Mr Roberts' opinion and the fact that the appellant had undertaken various improvements to the vehicle, that $3,000 was a fair assessment of the vehicle's pre‑accident value.
[13] MCF, page 160; ts 102.
[14] MCF, page 162; ts 104.
The right of appeal from a judgment of the Magistrates Court
It is common ground that leave to appeal from a decision of the Magistrates Court in civil proceedings can only be granted in the circumstances set out in s 40 of the MCCP Act.
Section 40 of the MCCP Act provides:
(1)A party to a case that is not a minor case may appeal to the District Court against -
(a)any order made by the Magistrates Court in the course of proceedings in the case; or
(b)the judgment of the Magistrates Court in the case.
(2)An appeal against the judgment of the Magistrates Court in a case that is a minor case is subject to section 32.
(3)An appeal cannot be commenced more than 21 days after the date of judgment, unless the District Court gives leave to do so.
(4A)The appeal must be conducted in accordance with rules of court made by the District Court.
(4)The District Court must decide the appeal on -
(a)the material and evidence that were before the Magistrates Court; and
(b)any other evidence that it gives leave to be admitted.
(5)Leave may only be given under subsection (4)(b) in exceptional circumstances.
(6)Subsection (4) does not prevent the District Court from dealing with an appeal against a decision of the Magistrates Court to admit or refuse to admit any evidence.
If this case is a minor case, then, by virtue of s 40(2) of the MCCP Act, s 32 applies to this appeal.
Relevantly, an appeal against a minor case (where the court was constituted by a magistrate) lies to the District Court in the circumstances prescribed by s 32(1)(b), s 32(2)(a) and s 32(3) of the MCCP Act which read:
(1)Except as provided by this section, no appeal lies against -
…
(b)the judgment of the Court in a minor case.
(2)If a party to a minor case is dissatisfied with the judgment of the Court in the case then -
(a)if the Court was constituted by a magistrate - an appeal lies against the judgment under Part 7 and, subject to subsection (3), Part 7 applies to the appeal; or
…
(3)Despite Part 7 an appeal against a judgment in a minor case may only be made on the grounds -
(a)that the minor case -
(i)was not within the jurisdiction of the Court; or
(ii)was not a minor case;
or
(b)that in dealing with the minor case there was a denial of natural justice; or
(c)that the judgment was beyond the Court's jurisdiction.
Section 32(3) of the MCCP Act thus limits the grounds upon which an appeal against a judgment in a minor case can be made to cases of jurisdictional error or a denial of natural justice. An appeal based on an error of fact or law is therefore not permitted.
Ground 1 - was the case a 'minor case'?
Section 26(a) of the MCCP Act defines a minor case as follows.
(a)a claim within the jurisdiction of the Court where -
(i)the value of the claim or of the relief claimed is not more than the minor cases jurisdictional limit; and
(ii)the claimant has elected to have the claim dealt with under the minor cases procedure.
The minor cases jurisdictional limit is $10,000. Here, the value of the relief claimed was $10,000 and therefore not more than the minor case jurisdictional limit. Also, the appellant had elected to have his claim heard as a minor case by filing a 'Form 4 Minor Case Claim'.[15] The two conditions for the characterisation of the claim as a minor case have therefore been satisfied.
[15] MCF, page 46.
The appellant's assertion that the case was not a minor case claim is confusing. Had the appellant thought that his case was not a minor case, he could have filed a 'General Procedure Claim' under pt 4 of the MCCP Act seeking in excess of the $10,000 he was claiming.
It appears that the appellant's real contention here is that, because the respondent was allowed 'legal representation' in the proceedings, the case (which started out as a minor case) had transmogrified into one that was not a minor case.
The issue whether legal representation is permissible in a minor case requires an analysis of the provisions of the MCCP Act relating to the right to representation.
Provisions relating to the right to legal representation in civil proceedings in the Magistrates Court
Section 44(1) of the MCCP Act provides that a party to civil proceedings in the Magistrates Court has a right to appear before the court. Section 44(2) of the MCCP Act provides that the entitlement of a party to appear under this section may be performed by a legal practitioner.
Section 44(2)(d) of the MCCP Act permits the court to grant leave for representation by a person who is not a legal practitioner.
The right to be represented in a minor case, is limited by s 44(2) which is to be read subject to s 30(2)(b) of the MCCP Act, which relevantly provides:
…
(2)Despite section 44(2), a party to a minor case is not entitled to be represented before the Court but -
…
(b)any party may be represented by an agent with the leave of the Court given under this section.
It is plain from the foregoing that a person is not entitled to be represented in a minor case but may be represented by an agent with the leave of the court.[16]
[16] Except with the leave of the court in consumer trader/claims: s 30(5) of the MCCP Act.
The term 'agent' is defined in s 30(1) of the MCCP Act as 'a legal practitioner or any other person'.
The court may grant leave for a party to be represented by a legal practitioner if all parties agree: s 30(4)(b) or if satisfied that it is in the interests of justice: s 30(4)(c).
In considering whether to give leave for a party to be represented by an agent, the court must have regard to the provisions of s 30(6) ‑ s 30(8) which provide:
(6)If it appears to the Court that it should give leave for a party to be represented by an agent, the Court -
(a)if a particular agent is proposed for its approval, must satisfy itself that the proposed agent has sufficient knowledge of the issue in dispute and is vested with sufficient authority to bind the party; and
(b)may give leave subject to any reasonable conditions needed to ensure that none of the other parties will be unfairly disadvantaged as a result.
(7)If the Court gives leave subject to conditions, the entitlement of a party to be represented by an agent is subject to compliance with those conditions.
(8)The Court may revoke leave for a party to be represented by an agent if the agent does not conduct himself or herself in a proper manner when representing the party.
The questions that arise for consideration here are first, whether the respondent was 'represented by a legal practitioner' and whether that was in contravention of s 30.
Alternatively, was the respondent 'represented' by an 'agent who was not a legal practitioner' in contravention of s 30. In either case, as I understand the appellant's submission, it is said that leave should not have been granted.
The appellant's submission hinges on a submission that the law graduate was a legal practitioner. This issue is answered in part by reference to the definition of legal practitioner in s 3 of the MCCP Act. 'Legal practitioner' is therein defined as 'an Australian legal practitioner within the meaning of that term in s 5(3) the Legal Profession Act 2008'. Section 5(3) of the Legal Profession Act provides that an 'Australian legal practitioner is an Australian lawyer who holds a current local practising certificate or a current interstate practising certificate'.
The person assisting the appellant was a law graduate and was not admitted. It follows she could not have had a practising certificate. She was therefore not a legal practitioner. Consequently, there is no basis for the appellant's assertion that the respondent was 'represented' by a legal practitioner.
A law graduate could only appear as an agent who was not a legal practitioner with the leave of the court (to be exercised having regard to s 30(6) - s 30(8) of the MCCP Act). The learned magistrate granted leave for the law graduate to be present but did not grant leave for her to advocate on behalf of the respondent. It follows that she was not given leave to represent the respondent and there could be no contravention of s 30.
I observe that it would have been open to the learned magistrate to grant leave to the law graduate to represent the respondent, but in fact he did not do so.
In my view, by permitting the law graduate to be present to assist the respondent but denying her a speaking role, the learned magistrate was attempting to do justice to the interests of both parties. The orders made by the learned magistrate resulted in no prejudice to the appellant.
Furthermore, even if the law graduate was impermissibly given leave to represent the respondent, the judgment would not be invalidated: s 30(9) of the MCCP Act.
Ground 1 has no merit.
Grounds 2 - 6 and the principles of natural justice in the context of a minor case in the Magistrates Court
The onus is on the appellant to establish he was denied natural justice: Jones v Darkan Hotel [2014] WASCA 133 [31].
The principles of natural justice as they apply in the context of minor cases are stated in Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148, (Newnes JA, Pullin JA agreeing) where the court said [54] - [55], [57] - [59]:
54I have mentioned that the case was brought under the minor cases procedure of the Magistrates Court. It is necessary to say something about that procedure. It is evident that the minor cases procedure is intended to provide a speedy, informal and inexpensive process for the resolution of claims not exceeding $10,000. To that end, the Act provides that the court is to act with as little formality as it thinks reasonable and is not bound by the rules of evidence but may inform itself as it thinks fit: s 29(3), (4). Unless the court otherwise directs, all proceedings are to be held in private (s 29(1)) and the parties are not entitled to legal representation (s 30). Ordinarily, the only costs allowable to a successful party are court and service fees, and the costs of enforcing a judgment: s 31.
55An unsuccessful party has no right of appeal on the merits. Section 32 of the Act provides that an appeal against a judgment in a minor case may only be made on the grounds that:
(a)the case was not within the jurisdiction of the court or was not a minor case;
(b)in dealing with the minor case there was a denial of natural justice; or
(c)the judgment was beyond the court's jurisdiction.
…
57It is trite law that the principles of natural justice require that a party be given a reasonable opportunity to present their case. However, what is necessary to satisfy that requirement in a particular case cannot be determined in the abstract but only in the context of the case. Thus, as Brennan J pointed out in J v Lieschke (1987) 162 CLR 447, while the principles of natural justice apply to courts:
That is not to say that the content of the principles of natural justice to be applied by a court take no account of the nature of the jurisdiction to be exercised. The nature of the proceedings, the powers to be exercised and the prescribed rules of procedure may affect the extent to which a plenary right to be heard may be qualified, even in curial proceedings. (456)
58See also, for example, R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546, 552-553; Koia v West (1985) 159 CLR 550, 584 585. The requirements of natural justice in this case are therefore to be viewed in the context of the minor case procedure of the Magistrates Court.
59It is also important to bear in mind that while the appellant was entitled to a reasonable opportunity to present her case, the court was not required to undertake the 'impossible task' of ensuring that the appellant took the best advantage of the opportunity: see Sullivan v Department of Transport (1978) 20 ALR 323, 343.
There are two substantive requirements for the rules of natural justice. First, the decision‑maker must give an opportunity for the person whose interests will be affected adversely by the decision to be heard. Secondly, that the decision‑maker be a person who is disinterested and unbiased. In Re v Burton; Ex parte Lowe [2003] WASCA 306 [63], the court elucidated the requirements for establishing a breach of natural justice.
The rules of natural justice have two substantive requirements: first, that a decision-maker give an opportunity to be heard to a person whose interests will be affected adversely by the decision; and, secondly, that the decision-maker be a person who is disinterested or unbiased in the matter to be decided. These two rules are called respectively the 'hearing rule' and the 'bias rule'. It is sometimes suggested there is a third rule required by natural justice ‑ the 'no evidence' rule - which requires that the decision be based upon logically probative evidence. See, for example, the grounds for review available under the Administrative Decisions (Judicial Review) Act (Cth), s 5(1)(h), s 5(3), and s 6(1)(h), s 6(3). However, the third suggested rule is not universally acknowledged to be part of the general law of natural justice. In this application, we are only concerned with the hearing rule.
The following observations of the Court of Appeal in Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116 [51] are relevant to how the rules of procedural fairness should be applied in the context of the minor case jurisdiction.
It is trite law that the rules of procedural fairness are not fixed or immutable. Procedural fairness is directed to avoid practical injustice and what is necessary to avoid practical injustice will depend upon the particular circumstances: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37]. In a curial setting there is no absolute right to have an action heard and determined on its merits. What the rules of procedural fairness require is that each party be provided with a reasonable opportunity to be heard: International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 [54], [88], [141]. And what is a reasonable opportunity is to be judged nowadays not solely by reference to the interests of the parties but also having regard to the wider interest of other litigants waiting to have cases heard and the public interest in the proper and efficient use of the scarce public resources of the court: see Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; Brocx v Hughes [96]. What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources: Sali v SPC Ltd (1993) 67 ALJR 841, 844 (Brennan, Deane, McHugh JJ) cited with evident approval in Aon (French CJ) at [26] - [27]. Moreover, as between parties to an action what constitutes a reasonable opportunity to be heard must be judged having regard to the effect of undue delay, including the stress and costs caused by having litigation hanging over a defendant's head for an undue period: see Aon [102].
In this case, the appellant had filed extensive submissions in advance of the hearing (12 pages long) and made extensive oral submissions.[17] It is apparent from the learned magistrate's comments that he had read the appellant's written submissions. Plainly, the learned magistrate also listened to the appellant's oral submissions and engaged with the appellant's arguments. There is no evidence that at any stage of the proceedings the appellant was denied the right to be heard.
[17] MCF, page 153; ts 95.
Close examination of the grounds as a whole, reveal that the appellant's claim of a denial of natural justice is really a challenge of the learned magistrate's findings on either a factual or legal basis. An appeal on the merits, whether they be factual or legal, is not permissible in an appeal against a decision in a minor case: Re v Burton; Ex parte Lowe [62], [87]; Alvaro v Fraser & Downsborough Designers Pty Ltd (1990) 20 ALD 762, 766.
Ground 2 - was the appellant denied natural justice because he had insufficient time to respond to the expert report of the assessor?
The appellant complains that he did not receive the assessor's report in sufficient time to meet the respondent's case. If that were the case, then there would be a plausible argument that he had been denied natural justice. However, the appellant's proposition cannot be accepted. The appellant must have been aware of the assessor's conclusions (even if he had not seen the full report) as early as March 2021 because the appellant sought to respond to that opinion in his submissions dated 6 March 2021.[18] The hearing was on 13 May 2021.[19] The appellant therefore had ample time to obtain evidence to respond to that opinion by seeking out his own expert and to prepare questions for cross‑examination.
[18] MCF, page 17; ts 99.
[19] MCF, page 157; ts 99.
I would observe that there is no obligation of disclosure in the minor cases jurisdiction. There were no orders for the exchange of witness statements. There was no requirement for the respondent to have disclosed the report prior to the hearing.
The absence of any obligation for the parties to disclose witness statements is consistent with the requirements of the MCCP Act generally. Section 29(3) and s 29(4) require that the court is to act with as little formality as the court thinks is reasonable and so is not bound by rules of practice as to evidence.
Further, the burden of proving the claim was on the appellant. The appellant could have sought his own independent expert evidence but did not do so.
At the hearing the appellant did not complain that he had had insufficient time to consider the report and he has not demonstrated any impermissible prejudice.
The appellant is an engineer. He presented as intelligent and articulate.[20] Although the appellant had no legal training, he was able to articulate his case well. He was familiar with the subject of his claim and was able to mount a credible challenge to the expert in cross‑examination.
[20]MCF, page 161; ts 103.
Although the learned magistrate did not give the appellant further time to lodge submissions, there was no unfairness. By the end of the hearing, the issue (which was a very narrow one) was clear. The appellant had filed extensive written submissions in advance of the hearing. He made oral submissions in opening.[21]
[21] MCF, page 143; ts 85.
The hearing lasted for the best part of the day. The appellant gave evidence as to the accident and the repairs he had undertaken. He produced some documentation to support his submissions as to the value of the vehicle and called two witnesses, his wife, Nicole and father, Terry.
The learned magistrate said that he was giving the appellant leeway. Nevertheless, late in the afternoon, the learned magistrate gave the appellant a 'hurry along'.
The appellant said he would have liked to have addressed the court in writing, given that the submissions he had filed were 'old' submissions. I understood him to mean that his written submissions predated him receiving Mr Roberts' report. However, ultimately when the learned magistrate asked him whether he was 'done', the appellant responded 'yes. Okay.' He did not press for more time to make submissions.[22]
[22] MCF, page 100; ts 42.
There is no merit in the submission the appellant was denied natural justice. The learned magistrate was entitled to confine the arguments within reasonable bounds. The appellant had ample opportunity to present his case by the provision of extensive written submissions supplemented by oral submissions.
Had the learned magistrate adjourned the matter further, this would have been inconsistent with one of the main objectives of the minor case jurisdiction, namely the efficient use of the scarce resources of the court.
The appellant's claim to have been denied natural justice on the basis of him having an inadequate opportunity to respond to the issues raised by the assessor is devoid of merit.
Ground 2 is dismissed.
Ground 3 - was the appellant denied natural justice because the learned magistrate denied the claim on a basis not relied on by the respondent at the hearing?
Ground 3 challenges the learned magistrate's finding that the damage to the vehicle was not as extensive as the appellant had claimed and that the cost of repairs was unreasonable due to the age of the car.
In coming to this conclusion, the learned magistrate relied in part on some photographs tendered by the appellant at the hearing. The appellant contends that the learned magistrate placed too much reliance on photographs that showed little damage to the vehicle.
Ground 3 involves little more than an assertion that the learned magistrate had made errors of fact and/or law. An appeal based on an error of fact or law is not a permissible ground of appeal.
Ground 3 fails.
Ground 4 - was the appellant denied natural justice because the learned magistrate assessed damages on the market value of the vehicle rather than the cost of reasonable repairs?
The learned magistrate relied upon the opinion of the assessor, Johnny Roberts who gave evidence as to the pre-accident value of the vehicle.
The appellant had the opportunity to present his case, call his own evidence and to cross-examine Mr Roberts. There is no basis for submitting he was denied natural justice because he was not given a fair hearing.
Ground 4 really involves an assertion that the learned magistrate made errors of fact and/or law. Neither an error of fact nor an error of law is a permissible basis for appeal.
Ground 4 is dismissed.
Ground 5 - was the appellant denied natural justice because the learned magistrate ignored the fact that the insurance company had not responded to the appellant's demands?
The appellant contends that the insurance company had failed to respond to his demands, so he chose to repair the car himself. The appellant asserts that the learned magistrate denied the appellant natural justice by ignoring the actions of the insurance company.
This ground does not express a denial of natural justice by a breach of either the hearing or the bias rule. Nor does this ground reveal any other permissible ground of appeal.
Ground 5 has no merit.
Ground 6 - was the appellant denied natural justice by the magistrate displaying bias towards him?
The appellant submits that, at the commencement of the hearing, the learned magistrate had made comments which displayed bias and thus he was denied natural justice.
The appellant bears the onus of proving that there has been bias or a reasonable apprehension of bias: Dincer v Giancristofaro [2015] WADC 49 [79].
Actual bias can be proven where it is shown that the tribunal has prejudged the issues in the case or has acted with partisanship or hostility towards a party: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 [36], [72].
To establish that there is a reasonable apprehension of bias, the appellant would need to point to what it was that led the magistrate to decide the case other than on its factual or legal merits. He would then need to identify the connection between the evidence of apprehended bias and how that caused the tribunal to deviate from deciding the case on the merits: Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [8].
The appellant complains that the learned magistrate's bias is apparent from the exchange where the learned magistrate asked the appellant questions concerning his familiarity with legal proceedings.[23]
[23] MCF, pages 63 - 64; ts 5 - ts 6.
After the appellant told the learned magistrate he had been involved in a number of different legal proceedings, (albeit in other jurisdictions) the learned magistrate observed:[24]
[T]he more I'm feeling you might be the most knowledgeable person at the bar table when it comes to the law.
[24] MCF, page 64; ts 6.
In my view, the learned magistrate's comment was a dry one, but it hardly evinced any bias.
The appellant also sought to rely on the learned magistrate's reasons for making adverse findings against the appellant:[25] the learned magistrate said:
I am uncomfortable with Mr Hollis' evidence for a number of reasons and generally prefer the evidence of the assessor in relation to these matters. Firstly, most of his answers to questions were lengthy and sometimes contradictory. For example, when dealing with the question of whether the defendant should have a paralegal sit next to her in this matter, I inquired as to Mr Hollis' experience in court and asked him how many matters he had been a part to. Particularly when he used phrases such as 'McKenzie friend', I asked him the question.
And he referred to two matters that - well, he referred, I should say, to the Family Court and the SAT without saying how many matters he was involved. And I repeated the question, and he began describing and trying to explain away the number of matters he had been involved in. The reality is he ultimately conceded that he had been involved in a large number of matters, not just in this court, but clearly from what he said, in many other jurisdictions, at least - well, certainly two other jurisdictions, namely, the Family Court and the State Administrative Tribunal.
That said, he still remains a litigant in person. Secondly, even on the issue of ownership as mentioned, his answers and that of his wife were lengthy and, at times, meandering; starting with the suggestion that he was the owner, that he lost his licence from points, and then he put it in his wife's name. Then his wife was the owner of the wagon. Then they were both the owner of the wagon. Thirdly, he conceded properly that he did babble a bit.
That's certainly true. His wife tried to keep him on the straight and narrow to an extent. Fourthly, his answers tended to be legalistic, for example, talking about tortious behaviour, and self-serving to an extent. Having said that, he was articulate and intelligent with his evidence. Fifthly, he could not even recall the details of the vehicles in front of him, not that that really matters. Obviously, he's not independent in this matter, being a party to the action.
[25] MCF, page 161; ts 103.
The appellant cited the case of Wilson v Lesteri [2011] WADC 120 in support of the bias argument. However, Wilson v Lesteri case is readily distinguishable. In that case, the learned magistrate had acted on external knowledge of other claims that were not identified during the hearing and had made comments about Mr Wilson's behaviour, suggesting that the learned magistrate was prejudiced against him and had prejudged the issues.
In the present case, the learned magistrate's questioning of the appellant's prior litigation history was, in my view, an attempt by the learned magistrate to gauge the appellant's familiarity with the legal proceedings. Plainly, his Honour did so to ensure that he was affording him a fair hearing. The fact that the appellant's answers to those questions were the subject of comment by the learned magistrate did not evince actual bias - nor could it be said there was reasonable apprehension of bias. The learned magistrate was entitled to state his reasons for rejecting the appellant's evidence. His Honour's comments did evince a judgment about the appellant's credibility, but displayed neither actual bias nor a reasonable apprehension of bias.
Conclusion
In any event, not every denial of procedural fairness will result in a grant of relief. Relief will only be granted where there is a possibility of a successful outcome: Stead v State Government Insurance Commission (1986) 161 CLR 141, 145, 147; Nobarani v Mariconte [38].
The fundamental proposition raised in this appeal is the correct method for assessing damages of a damaged chattel. Given that the cost of repairs was more than three times the pre‑accident value, the learned magistrate was correct to conclude that the correct method for the assessment of damages was on the basis of pre-accident value less salvaged costs: Van der Wal v Harris [1961] WAR 124.
It follows that, even if there was a denial of natural justice, it would have made no difference to the outcome.
The appeal must be dismissed.
Orders
I make the following orders:
1.The appeal is dismissed.
2.I will hear the parties as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JS
Associate to the Judge
9 MAY 2022
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