Horsman v Carpo Holdings Pty Ltd - [2014] WADC 151

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: HORSMAN -v- CARPO HOLDINGS PTY LTD [2014] WADC 151

CORAM: BOWDEN DCJ

HEARD: 31 OCTOBER 2014

DELIVERED : 5 NOVEMBER 2014

FILE NO/S: APP 69 of 2014

BETWEEN: BARRY STANLEY HORSMAN
Appellant
AND
CARPO HOLDINGS PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE SMITH
File No  :GE DOUG 119 of 2013

Catchwords:

Refusal of application for adjournment - Bias

Legislation:

Disposal of Uncollected Goods Act 1970
District Court Rules 2005
Magistrates Court (Civil Proceedings) Act 2004

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: In person
Respondent: Mr D L Armstrong

Solicitors:

Appellant: Not applicable
Respondent: D L Armstrong

Case(s) referred to in judgment(s):

Bennett v Councillor [2001] WASCA 342
Chong -v- The City of Mandurah [2013] WASC 470
Lewis v The State of Western Australia [No 2] [2008] WASCA 155
Manonai v Burns [2011] WASCA 165
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597
Myers v Myers [1969] WAR 19
R v Greer (1992) 62 A Crim R 442
Sekyere-Boakye -v- Whitney [2013] WASC 147
Touma v Saparas [2000] NSWCA 11

BOWDEN DCJ: This appeal is from a magistrate's decision to refuse to adjourn the hearing of an application under the Disposal of Uncollected Goods Act 1970.

The history of the matter

The history of this matter is somewhat protracted.
Carpo Holdings Pty Ltd (Carpo) is a registered proprietor of land at 89 Anderson Street, Geraldton. Boss Logistics WA Pty Ltd (Boss) is a company that at one stage was in possession of part of the land. Mr Horsman was a director of Boss and is the person who gave possession of the disputed goods to Carpo.
By a notice dated 21 November 2012 Carpo notified its intention to make an application under the Disposal of Uncollected Goods Act 1970.
On 28 February 2013 Carpo made an application to the court for an order to dispose of goods in their possession pursuant to the Disposal of Uncollected Goods Act. That application named Mr Horsman as the respondent and was duly served on him.
On the 18 March 2013 Mr Horsman filed an application to strike out Carpo's application. Carpo's response was filed on 8 April 2013. The strike out application was mentioned in the Magistrates Court on 16 April 2013 and adjourned to 8 July 2013.
Mr Horsman then made an application to dismiss Carpo's action which was filed on 25 June 2013.
On 8 July 2013 Mr Horsman's strike out and dismissal application were both dismissed. Carpo's application was adjourned to a date to be fixed and subsequently listed for mention on 28 January 2014.
At the mention on the 28 January 2014 Carpo's application was adjourned to 11 February 2014 for a trial listings hearing.
On 11 February 2014 at the trial listings, the matter was adjourned to 25 March 2014 for trial.
On 25 March 2014 Mr Horsman appeared in person and his then lawyer Mr Chimonis appeared by way of a telephone link. A conflict developed between Mr Horsman and Mr Chimonis and at one stage Mr Horsman told the court that Mr Chimonis was not representing him. Mr Chimonis however applied to adjourn the trial as he said counsel was not available for three weeks and said he would have counsel appear if the adjournment was granted. Mr Horsman also applied for Magistrate Lawrence to disqualify himself. The trial was adjourned to 22 April 2014 and Magistrate Lawrence disqualified himself from presiding over the matter in the future.
On 8 April 2014 the hearing date of 22 April 2014 was adjourned administratively to 16 June 2014 due to the unavailability of magistrates in Geraldton to deal with the matter on 22 April 2014.
On 16 June 2014 Mr Horsman's then lawyer advised the court in writing that his serviced were terminated. Mr Horsman appeared in person and applied to adjourn the proceedings on the basis that he had sacked his lawyer Mr Chimonis, who retained his file. Mr Horsman did not file any affidavit in support of his application to adjourn nor was there an affidavit from Mr Chimonis or any counsel, nor did he provide any details of the material that he claimed had been sent to Mr Chimonis which were required to defend the application.
Mr Horsman's application to adjourned was opposed by Carpo on the basis they wanted the goods removed promptly and the trial had previously been adjourned on Mr Horsman's application and there was no apparent defence to the application.
Mr Horsman's application to adjourn the proceedings was dismissed and the trial proceeded. Mr Horsman walked out the court having deliberately chosen not to participate in the proceedings despite being urged by the magistrate to stay and put his defence.
The trial then proceeded and the orders appealed from were made. Those orders included orders that Carpo was authorised to sell or dispose of the goods at the Geraldton property in accordance with the Disposal of Uncollected Goods Act and that Carpo be paid reasonable storage charges and the costs in connection with the sale and that the goods may be sold by public auction or private treaty.
On 27 June 2014 Mr Horsman appealed against the decision. The matter was set down for a directions hearing on 19 August 2014.
On 7 July 2014 Mr Horsman filed a document, subsequently treated as an application for a stay of execution.
On 11 July 2014 the stay application was mentioned and adjourned to 21 July 2014.
On 21 July 2014 the stay application was adjourned to a directions hearing of 19 August 2014.
On 23 July 2014 the court received a request for Mr Horsman to urgently early list the stay. This was done.
On 25 July 2014 the court heard Mr Horsman's stay application and it was dismissed.
On 19 August 2014 a directions hearing for the appeal was held, and lawyers then acting for Mr Horsman filed a notice that they were no longer acting. Mr Horsman made a written request that the directions hearing be adjourned. The directions hearing proceeded and the appeal was listed for 31 October 2014.

The appeal

An appeal must be conducted in accordance with the District Court Rules2005 and the District Court must decide the appeal on the material in evidence that was before the Magistrates Court: Magistrates Court (Civil Proceedings) Act 2004 (Magistrates Court Act) s 40(3)(b) and s 40(4)(a).
The appeal is by way of a rehearing. The Magistrates Court Act allows the court to strike out any ground of appeal if there is no reasonable basis for it or it does not have a reasonable prospect for success or if it has a reasonable prospect of success no miscarriage of justice would occur by striking it out: (s 43(4)(5)).
Pursuant to District Court Rules r 51(3) the grounds of appeal must not merely allege the appealable decision is against weight of the evidence or wrong in law but specify the particulars relied upon to demonstrate the decision was against the weight of evidence and the specific reasons why it is wrong in law.
The grounds filed by Mr Horsman do not comply with r 51(3).
As argued Mr Horsman's appeal grounds are that he has suffered a miscarriage of justice as:
1.The learned magistrate erred in granting an adjournment on the basis that:
(i)he did not have legal representation; and
(ii)he did not have the paperwork necessary to enable an effectual defence.
2.The learned magistrate was biased against him.
Although the issue of bias was not raised before the magistrate, I granted leave to include it as a ground of appeal and will deal with that issue.

Ground 1 - Refusal to adjourn

The legal principles applicable to appeals from a decision not to grant an adjournment were recently summarised in Chong -v- The City of Mandurah [2013] WASC 470 [44] (Edelman J) and Sekyere-Boakye -v- Whitney [2013] WASC 147 [18] – [21] (Hall J). The principles can be summarised as follows:
Adjournments are not available merely for the asking: R v Greer (1992) 62 A Crim R 442, 448.
The fact that a defendant is unrepresented cannot of itself amount to a miscarriage of justice. The question must be whether it was fair to proceed in the circumstances: Chong -v- The City of Mandurah.
The decision to grant or refuse an adjournment is a discretionary one. The correctness of such a decision can only be challenged on the usual grounds for interfering with a discretionary decision: Lewis v The State of Western Australia[No 2] [2008] WASCA 155; (2008) 37 WAR 483 [40].
Where the refusal to adjourn would result in serious injustice to one party an adjournment should be granted unless, in turn, this would mean serious injustice to the other party: Myers v Myers [1969] WAR 19.
An appellate court will not interfere with a discretionary order of this sort unless there is strong reason for believing that an injustice has resulted: Bennett v Councillor [2001] WASCA 342 [22]. Appeals have failed in circumstances where the appellant was unable to establish that the refusal gave rise to an injustice: Chong -v- The City of Mandurah.
It is fundamental to the administration of justice that persons are given the full opportunity to present their case. The refusal of an adjournment may amount to a denial of procedural fairness if it is likely to deny a party a reasonable opportunity to present his or her case: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 [40] and Touma v Saparas [2000] NSWCA 11 [27]. See also Manonai v Burns [2011] WASCA 165.
It cannot be said Mr Horsman was denied a reasonable opportunity to present his case or to obtain legal representation. He knew from 8 April 2014 that the hearing was to take place on 16 June 2014. He had a period of approximately 10 weeks to prepare his case. He terminated the services of his lawyers on 16 June 2014 and he had the opportunity on that date to put his case before the court, but he chose to walk out.
Mr Horsman did not provide any reasonable explanation as to why alternate lawyers had not been engaged. He previously applied to the court to adjourn the trial on 25 March and knew at least since that date that he would need new lawyers.
Mr Horsman cannot simply attend on the date fixed for trial, ask for an adjournment on the basis that he has terminated his lawyer's services and say that the trial should not go ahead because he is unrepresented. He had ample time to organise lawyers. If he could not organise his affairs in such a manner that the lawyers were able to represent him on either the first or second trial date then further adjourning the trial would achieve nothing. There was a real possibility that the court would be in the same position on a third trial date, namely that Mr Horsman would be unrepresented.
Mr Horsman says that by not granting the adjournment it meant he had to proceed without having the documents necessary to support his claim. He argued this before the magistrate and said he had sent the documents to the lawyers and had not kept copies of them.
At the hearing of the appeal Mr Horsman was unable to produce any documents claiming they were with his new lawyers.
The documents have still not been produced and there is no basis upon which the court can conclude that the absence of those documents contributed to some form of miscarriage of justice.
It was fair in the circumstances of this case for the trial to proceed. The parties were entitled to have the matter determined by the court at the earliest practical date. The community has an interest in the courts speedily resolving issues and using their resources efficiently and economically. The continual remand of matters from one hearing date to another is counter‑productive to that end.
To not grant an adjournment would have resulted in an injustice to the respondent, the injustice being the failure to resolve an issue, as soon as practical, they had asked the court to determine.
Mr Horsman argues essentially that there was a miscarriage of justice because he had arguable issues to raise in opposition to the respondent's application and those issues were raised by him on 8 July 2013 when his strike out application and application to dismiss the respondent's claim was heard before Magistrate Lawrence.
Mr Horsman urges me to consider the transcript of those proceedings. The transcript was not material or evidence before Magistrate Smith and leave is required, which is only to be granted in exceptional circumstances, before it can be considered on the appeal: Magistrates Court Act s 40 (4), s 40(5). I grant leave for that material to be used on the appeal.
Mr Horsman appeared unrepresented on 8 July 2013 and put a variety of arguments to Magistrate Lawrence in support of his various applications. His arguments related to his possession of the goods, his occupation of the property and the deregistration and reregistration of Boss
The arguments Mr Horsman presented to Magistrate Lawrence on 8 July 2013 could have been presented to Magistrate Smith on the hearing of the respondent's claim on 16 June 2014.
Mr Horsman had the opportunity on that date to give evidence under oath and to make whatever arguments he wished. He chose not to present the arguments and chose to absent himself from those hearings. He cannot now claim that he did not receive procedural fairness when he walked out from those proceedings.
Mr Horsman has not shown that he had a fairly arguable defence to the application and there is no evidence to show that the learned magistrate erred in granting the adjournment or that if he did there has been any miscarriage of justice.
For those reasons I would dismiss the grounds of appeal based on the learned magistrate's refusal to grant an adjournment.

Ground 2 - The allegation of bias

At the hearing of the appeal Mr Horsman alleged that the magistrate was biased against him. This was not a ground that was raised before the learned magistrate. Mr Horsman said that it was not until after the refusal to grant an adjournment that he realised the learned magistrate had dealt with a misconduct restraining order that he had brought against parties connected with the respondent.
Mr Horsman indicated that he had transcript disclosing the magistrate's involvement and wished to put that before the court. When he was asked why it had not been presented before as it should have been, Mr Horsman explained that he was a truck driver not a lawyer. He applied to adjourn the appeal proceedings to enable the transcript to be put before the court.
That application was opposed by Mr Armstrong on the basis this ground was not raised before the magistrate and that to grant that adjournment for 14 days would result in the matter being further delayed.
I am aware that where bias is said to arise from a prior relationship between the parties, it is relevant to know what was its duration, intensity and nature and how much time has passed since its existence: S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1998) 12 NSWLR 358; McCreed v The Queen [2003] WASC 275. However, I decline to further adjourn these proceedings to allow that transcript to be produced.
Mr Horsman said ,from the bar table, he first became aware of the bias issue some three or four weeks after 16 June 2014 and yet he failed to make any application to amend the grounds of appeal or to provide the transcript which he had obtained and he says shows bias.
There is a need for finality to litigation. The courts cannot conduct litigation on the basis that hearing dates are set and on the day of the hearing or shortly before a party dismisses his lawyer then argues that the hearing should not proceed because he is unrepresented, then on the second hearing date applies again to adjourn partly on the basis that he is unrepresented and then when the adjournment is refused appeals and at the appeal says he has relevant documents in the possession of his lawyer that he wishes to present but did not bring them along and the matter should be further adjourned.
To allow this to occur diminishes the efficiency of the administration of justice. I decline to further adjourn these proceedings to allow that transcript to be produced.
I did however allow Mr Horsman to present his other grounds of bias which were that bias was established from:
(a)the attitude displayed by the learned magistrate in the hearing of the adjournment application;
(b)the fact that the learned magistrate did not consider the application for the adjournment; and
(c)the fact that the learned magistrate had already made his mind up that he was not going to give an adjournment.
I treat Mr Horsman's submissions as an argument of reasonable apprehension of bias rather than apparent bias because the former is easier to establish.
The onus of establishing the facts upon which an allegation of a reasonable apprehension of bias is upon the party making it.
The test to be applied in determining whether a judicial officer is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the question the judicial officer is required to decide: Johnson v Johnson (2000) 201 CLR 488, 492.
It is to be remembered that the observer is taken to be reasonable and the person being observed is a professional judicial officer whose training, traditional and oath or affirmation require them to discard the irrelevant, the immaterial and the prejudicial: Smolarek v Roper [2009] WASCA 124.
An objective assessment of the connection between the circumstances said to give rise to the apprehension of bias and the assertive conclusion that the judicial officer might not bring an impartial mind to bear upon the issues that are to be decided is required: Michael Wilson and Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427; D v B [2014] WASC 196.
Mr Horsman referred specifically to page 29 of the transcript and the following exchange:
Horsman, Mr: Well, your honour, this has been going on for quite some time, as you are well aware …
His Honour: Well, I am aware, which is why it should be put to bed once and for all, I would have thought. Anyway, go ahead.
A number of things are immediately apparent from that exchange. Firstly, it was Mr Horsman that brought up the fact that the matter had been going on for some time and secondly, whilst acknowledging that fact the magistrate told Mr Horsman to proceed with his application. No reasonable apprehension of bias can be established from that exchange.
Mr Horsman says that the learned magistrate did not consider the application for an adjournment. The transcript (page 43) shows this is incorrect.
His Honour:       Well, you just want an adjournment, do you?
Horsman, Mr:    If that's at all possible (indistinct).
His Honour:       If it's at all possible. Of course it's possible I will consider your application, I will hear from Mr Armstrong first.
The magistrate then proceeded to hear Mr Horsman's application. It is nonsense to say that the application was not considered. The magistrate not only considered the application but deal with it.
Mr Horsman also says that the learned magistrate had made up his mind that he was not going to grant an adjournment (presumably Mr Horsman is submitting that the magistrate made up his mind before hearing submissions). That seems to me to be a submission based on the fact that an adjournment was refused. I have read the transcript, there is absolutely no basis that one could reach a conclusion that the learned magistrate had made up his mind before hearing and considering the submissions made that an adjournment would not be granted.
When asked if there were any further passages of the transcript that he wished to draw my attention to, Mr Horsman referred to submissions made by Mr Armstrong at page 45 of the transcript. Mr Armstrong's submission cannot be any evidence of bias against the magistrate.

There is nothing advanced by Mr Horsman that establishes any basis for an apprehension of bias.
I dismiss all grounds of appeal and make the following orders.
1.The appeal be dismissed.
2.Mr Horsman pay the costs of the appeal.
3.There be liberty to apply.