Makucha v Brian Tucker and Associates Pty Ltd

[2005] NSWCA 397

CITATION:	Makucha v Brian Tucker & Associates Pty Ltd [2005] NSWCA 397
HEARING DATE(S):	31/10/05
JUDGMENT DATE:	22 November 2005
JUDGMENT OF:	Handley JA at [1]; Tobias JA at [2]; Hunt AJA at [3]
DECISION:	1. Leave to appeal against the orders of Master Malpass is granted 2. In lieu of the orders made by the master (1) The appeal to the Supreme Court by Paul Makucha against the orders made by Magistrate O’Shane in the Local Court in proceedings 1188/02 is allowed (2) The order made by the magistrate refusing leave to Mr Makucha to amend his Grounds of Defence is set aside, and leave is granted to Mr Makucha to file amended Grounds of Defence within twenty-one days from the date of this judgment (3) Mr Makucha is ordered to pay the costs of the application to amend (4) All other orders made by the magistrate (including the order for costs on the first day of the hearing) are set aside, and the matter is otherwise remitted to the Local Court to be determined by a differently constituted Court (5) Brian Tucker & Associates Pty Ltd is ordered to pay the costs of the appeals to the Supreme Court before the master and to this Court, and (if eligible) it is to have a certificate under the Suitors’ Fund Act 1951.

CATCHWORDS:	Denial of procedural fairness - magistrate continues hearing after citing defendant for contempt and directing Sheriff’s officers to arrest and remove him from the court and place him in the cells - ruling that the defendant did not intend to participate further in the hearing - ruling not open on the evidence - order striking out defendant’s Grounds of Defence and refusal to grant leave to amend - issue to be added by proposed amendment already being litigated by both parties - no objection by plaintiff to amendment - refusal based on failure of defendant to amend in the early stages of the litigation - State of Queensland v JL Holdings Pty Ltd (1997) 186 CLR 146 applied.
LEGISLATION CITED:	Local Courts Act 1982 Suitors’ Fund Act 1951
CASES CITED:	Ainsworth v Burden [2005] NSWCA 174 Cropper v Smith (1889) 26 Ch D 700 at 710 House v The King (1936) 55 CLR 499 Ketteman v Hansel Properties Ltd [1987] 1 AC 189 Makucha v Brian Tucker & Associates [2005] NSWSC 164 Nominal Defendant v Cameron (Court of Appeal, 2 August 1988, unreported) State of Queensland v JL Holdings Pty Ltd (1997) 186 CLR 146
PARTIES:	Paul Makucha (claimant) Brian Tucker & Associates Pty Ltd (opponent)
FILE NUMBER(S):	CA 40404/05
COUNSEL:	B W Walker SC/E G Romaniuk (claimant) P J Griffin (opponent)
SOLICITORS:	Hicksons (claimant) Newnhams (opponent)

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 012743/04
LOWER COURT JUDICIAL OFFICER:	Master Malpass

40404/2005

HANDLEY JA
TOBIAS JA
HUNT AJA

Tuesday 22 November 2005

MAKUCHA v BRIAN TUCKER & ASSOCIATES PTY LTD

Headnote

The claimant was the defendant in civil proceedings in the Local Court being heard by Magistrate O’Shane. The opponent was the plaintiff in those proceedings. The plaintiff claimed payment for surveying fees carried out for the defendant. The liquidated claim was a common money count for money payable for work done. The defendant sought to argue that the work done was defective. His Grounds of Defence, which he had himself drafted, did not expressly plead the defective nature of the plaintiff’s work either as a defence to the proceedings or (perhaps more appropriately) as a cross-claim, although they did allege that the work had been carried out by the plaintiff using incompetent persons causing the defendant financial loss, and that the plaintiff’s work was negligent or reckless. They were couched in terms which were offensive to the plaintiff. At the commencement of the hearing, counsel for the plaintiff asked questions relating to complaints made by the defendant in relation to the quality of his work, indicating that he was aware that this was in issue. The magistrate ruled that the Grounds of Defence did not constitute a pleading as to defective, negligent or reckless work.

Without any complaint or application being made by counsel for the plaintiff, the magistrate struck out the Grounds of Defence and refused leave to amend to pleading to identify the defective nature of the work expressly as an issue, relying solely on the fact that the defendant had not amended when leave to do so had been granted in the early stages of the proceedings.

HELD: The magistrate’s exercise of her discretion miscarried, and the amendment is allowed.

State of Queensland v JL Holdings Pty Ltd (1997) 186 CLR 146 applied

During the first day of the hearing, the defendant was represented by counsel, whose cross-examination of the plaintiff’s principal witness was criticised by the magistrate on a number of occasions. She rejected a number of questions to which no objection had been taken. During the course of the day, the defendant himself wrongly attempted to take a part in the conduct of the proceedings, notwithstanding that he was legally represented. On each occasion, the magistrate reacted to his conduct in an inappropriately adversarial way.

On the second day, which was some time later, the defendant appeared unrepresented. He informed the magistrate that he wanted to make submissions to her that she was biased, and to apply for an adjournment until the transcript of the previous day’s hearing was available for that purpose. He had ordered the transcript three weeks earlier, but it was not yet available. The magistrate refused to allow him to make submissions, and refused the adjournment.

Although the defendant made it clear that he wished to apply to the Supreme Court in relation to the magistrate’s bias, he refused to accept that he was withdrawing from the case. The magistrate did not inform the defendant that she would proceed with the hearing in his absence if he left for that purpose. The defendant continued to deny that he did not wish to proceed with the case. The magistrate “cited” the defendant for contempt and called the Sheriff’s officers, who at the magistrate’s direction arrested and removed the defendant from the court and placed him in the cells. The magistrate ruled that the defendant did not intend to participate further in the hearing, she continued with the hearing in the necessary absence of the defendant, and she gave judgment to the plaintiff on its claim. She then formally charged the defendant with contempt.

: (1) There was no basis in the evidence for the magistrate’s ruling that the defendant did not intend to participate further in the hearing of the case. Such an interpretation was wholly unreasonable.

(2) The magistrate had denied the defendant procedural fairness.

(3) The judgment for the plaintiff is set aside, and the matter is remitted to the Local Court to be determined by a differently constituted Court.

-------------------------

40404/2005

HANDLEY JA
TOBIAS JA
HUNT AJA

Tuesday 22 November 2005

MAKUCHA v BRIAN TUCKER & ASSOCIATES PTY LTD

Judgment

1 HANDLEY JA: I agree with Hunt AJA.

2 TOBIAS JA: I agree with Hunt AJA.

3 HUNT AJA: The claimant, Paul Makucha, was the defendant in civil proceedings in the Local Court being heard by Magistrate O’Shane. The opponent, Brian Tucker & Associates Pty Ltd, was the plaintiff in those proceedings. The plaintiff was claiming payment for surveying fees carried out for the defendant in relation to the construction of a single level car park and a carwash facility. The liquidated claim was a common money count for money payable for work done. The defence to that claim was a matter which attracted considerable argument during the course of the hearing before the magistrate, to which reference is made later. The magistrate gave judgment for the plaintiff for $18,319.25, together with interest and costs of $7,000 and the costs of an unsuccessful arbitration.

4 The matter comes to this Court by way of an application for leave to appeal from Master Malpass, who dismissed an appeal from the magistrate’s judgment for the plaintiff. That appeal was brought pursuant to s 73 of the Local Courts Act 1982, which provides an appeal to the Supreme Court for a party in the Local Court in order to correct errors of law made by a magistrate.

The points of law

5 The point of law nominated before the master was that the magistrate had denied the defendant procedural fairness by proceeding to hear and determine the case against him in his absence, as he had been arrested and removed from the court for contempt by order of the magistrate during the hearing. It was argued that the magistrate had failed to warn him that the hearing would proceed in his absence. The master held that it was open to the magistrate to come to the view that the defendant did not intend to participate further in the hearing of the case before her. He said that it appeared to him that a warning that the case would proceed in his absence would not have made any difference: Makucha v Brian Tucker & Associates [2005] NSWSC 164 at [28], [32].

6 The original summons for leave to appeal from the decision of the master argued that a serious injustice had been done in the Local Court, the proceedings miscarried and there had not been a trial according to law. That application, which appears to have been drafted by a lawyer, was signed and filed by the defendant in person. The defendant subsequently obtained legal representation, and the errors of law made by the magistrate of which complaint is made have been enlarged. In addition to the original grounds argued before the master, the defendant also claims that the magistrate erred in law by striking out the defences he had pleaded and in refusing him leave to amend; she failed to give him an opportunity to make submissions in support of his applications to the magistrate to disqualify herself for bias and for an adjournment; she failed to give any reasons for her rejection of both applications which indicated that she had considered any of the matters he had raised; and she did not inform him that, notwithstanding the charge of contempt, he had the right to seek the exercise of her discretion to permit him to continue to appear during the hearing of the claim against him.

7 There was no objection taken by the plaintiff to the enlargement of the errors of law raised in this present appeal, and the circumstances of the case (as will become apparent from this judgment) justify the additional issues being raised. It will be unnecessary to deal with every one of those issues. It is, however, necessary to describe the proceedings before the magistrate in some detail.

The proceedings before the magistrate

8 Both parties were represented by counsel on the first day of the hearing. The proceedings were conducted on the basis of witness statements. Counsel for the plaintiff nevertheless stated at the outset that, in the light of the defendant’s statement which had been served, he wished to take his first witness (Mr Tucker) to allegations which had been made by the defendant concerning the quality of the work done. Mr Tucker said that there had been a disagreement between the defendant and himself when the work was completed as to the accuracy of some of the measurements made. He said that the defendant had subsequently alleged that the work had been either poorly or negligently performed. This allegation had been made in a conversation which took place between the defendant and Mr Tucker some twelve months before the hearing in the Local Court. This issue of the quality of the work done to which the additional evidence of Mr Tucker led by his counsel was directed is of importance to the events which occurred later that day.

9 There were a number of incidents during the course of the first day’s hearing. Whilst Mr Tucker was giving his evidence in relation to this disagreement with the defendant, he disputed that the measurements he made were wrong. The transcript in the Local Court records an unidentified speaker saying:

Excuse me, I’d like to hand up —

The magistrate said something in reply, which is noted in the transcript as being “not transcribable”. It is obvious from what happened later that it was the defendant himself who had spoken.

10 When Mr Tucker was being cross-examined in relation to the quality of the work done by counsel appearing for the defendant, it was apparent that counsel was experiencing some difficulty in coming to the point of his cross-examination, and the magistrate interrupted the cross-examination on a number of occasions to ascertain where it was leading. There had been no objection to the cross-examination by counsel for the plaintiff, but the magistrate’s interruptions in the early stages of the hearing appear on their face to have been justified as attempts to bring the issue out into the open so that the case could proceed more expeditiously.

11 The magistrate then rejected a number of questions by counsel for the defendant to which no objection had been taken by the somewhat more senior counsel appearing for the plaintiff. Their rejection was perhaps as a result of the continuing difficulties experienced by counsel in coming to the point. Some of the objections which the magistrate took herself were justified on the basis that multiple questions were being asked at once, but objections she took to other questions would have been far better left to counsel for the plaintiff to take if he thought that the questions were unclear. Counsel for the plaintiff took only one objection, and that objection was correctly upheld by the magistrate.

12 As the cross-examination progressed, counsel for the defendant asked Mr Tucker a technical question to which he replied that he would have to refer to certain plans. At this stage, the defendant himself either did or said something, and the magistrate asked his counsel to restrain his client. The defendant said:

If it please the Court, I was only trying to be helpful.

The magistrate replied:
Sir, you are not. You’ve got lawyers here who are presenting your case. Take a seat in the back there.
As counsel for the plaintiff and the magistrate briefly discussed the stage the proceedings had reached, the defendant said:
Would you like me to take it back?
The reference to “it” is unclear. The following exchange took place:
HER HONOUR: (Name of counsel for the defendant), is your client by any chance addressing the bench?
DEFENDANT: I didn’t hear what your Honour was —
HER HONOUR: Take him outside.
DEFENDANT: Please forgive me. I didn’t hear what you said. I’m only trying to help.
HER HONOUR: Take your client outside and have a little chat to him sir.
DEFENDANT: I’m not a boy.

13 The cross-examination was resumed. The transcript does not reveal whether that there was any break before that resumption for the directed “little chat” to take place. The purpose of the resumed cross-examination was reasonably clear, despite the difficulties counsel had in getting to the point. It was to allege that the surveys carried out by the plaintiff were defective, and that the defendant had been obliged to have additional work done at some cost as a result of the defective work done. The transcript at this stage shows constant interventions by the magistrate, some of them being justified on the basis that the cross-examination was at times very repetitive, but generally, so far as a transcript can reflect the way in which words are said, the interventions give the strong impression that the magistrate was irritated by the cross-examination of the defendant’s counsel and that she was intent in taking control of that cross-examination. There were no objections by counsel for the plaintiff to any of these questions, and in particular there were no complaints made that the quality of the plaintiff’s work was not in issue in the case.

14 At an advanced stage of the cross-examination, and after an adjournment, the magistrate took counsel for the defendant to task in relation to the Grounds of Defence which had been filed. She expressly recognised that the document containing those grounds must have been drafted by the defendant himself, and not by any lawyer, and she proceeded to criticise it at length, and in strong terms, for the way in which it was expressed. The criticisms as to the drafting were justified, as the grounds were in places expressed in a manner which was offensive to the plaintiff. Having made those criticisms, however, and in order to keep the proceedings on track, the issue should have moved on to whether the plaintiff had been fairly apprised of the nature of the defence to be raised at the hearing. That is the whole purpose of pleadings. It was unnecessary for the magistrate to prolong her criticism that the defendant was not an expert pleader and that he should not have used offensive language.

15 The magistrate then intervened once more to reject the cross-examination directed to the issue of defective workmanship, despite the absence of any objection on behalf of the plaintiff that no such issue had been raised. It is clear that the Grounds of Defence did not expressly plead the defective nature of the plaintiff’s work either as a defence to the proceedings or (perhaps more appropriately) as a cross-claim, but the document did contain the following statements:

[…] the monies claimed by the Plaintiff are not fair and reasonable in the circumstances of the Plaintiff using incompetent, unqualified and unsupervised persons for such works, […] which has caused the Defendant financial loss of employing other persons […] and delayed the development.
[…] the Defendant is not entirely sure of the exact nature of the reasons why errors in the “survey grid” of the Mascot Site were made and/or not discovered and corrected and/or brought to the attention of the Defendant in accordance with the Plaintiff’s duty of care and fiduciary duty.
[…] the Defendant has made payment to the Institute of Surveyors NSW Inc for the sum of $19,000.00 as claimed by the Plaintiff pending the Defendant’s damages and expenses being determined due to the Plaintiff’s […] negligent or reckless works.

16 It was open to the magistrate to criticise the way these allegations were pleaded, but (particularly as she knew that the document had been drafted by the defendant himself, and not by a lawyer) it was an excessively technical interpretation of the document to say, as she did, that the pleading did not even refer to defective work, and to rule that it “is not a pleading as to defective, negligent […] or reckless work. It is not a pleading to that effect”.

17 When the magistrate was criticising the terms of the Grounds of Defence to which she had taken objection, she said:

That [the document containing the Grounds of Defence] wouldn’t have been drawn by the defendant himself would they?
COUNSEL FOR THE DEFENDANT: I think that’s entirely possible your Honour.
HER HONOUR: It certainly sounds like it.
DEFENDANT: Madam. Surveying is an act of … [not transcribable] …
HER HONOUR: (Name of counsel for the defendant), I’ll be calling the sheriffs in a minute.
COUNSEL FOR THE DEFENDANT: Yes, I’m instructing my solicitors to —

18 Nothing more was said, and the cross-examination was briefly resumed although not without further interruptions by the magistrate. Then, again without any complaint or application being made by the plaintiff, the magistrate said that she would strike the offending paragraphs out of the Grounds of Defence on the basis that they were “not a proper pleading”. That ruling meant that the defendant was left with only denials that the plaintiff had undertaken the work in a proper and competent manner and that the work had been done pursuant to any agreement between the parties.

19 Counsel for the defendant immediately sought leave to amend the pleading to identify the defective nature of the work expressly as an issue, on the basis that the substance of the dispute between the parties had already been made clear. The magistrate repeated that no such issue of defective workmanship had been pleaded, and commented that no legal representative “should even walk into court with those sorts of pleadings in hand”. That comment directed to counsel was unnecessarily offensive. The criticism of the pleading as poorly drafted may have been a valid one, but it was no answer to the defendant’s application to amend the pleading.

20 Despite the absence of any opposition to the application to amend, the magistrate asked why she should amend the pleadings “at this late stage”. Counsel for the defendant asked for a short adjournment so the matter could be discussed. The magistrate agreed to a short adjournment, but said:

Yes you can and let me say this to you whilst you, before you go out there and start having such discussions, you better think about it very carefully because I can assure you I’m thinking about taking certain action in respect of this matter myself and I will take the opportunity myself to check on a couple of matters.
The magistrate did not explain what action she was contemplating.

21 An amended defence was offered when the parties returned to court. The magistrate said:

I didn’t give you leave to amend the pleadings. In fact I specifically asked why I should give you leave to amend the pleadings. I can’t say that I’ve actually heard a cogent argument put forward […].
The magistrate pointed out that leave to file an amended defence had been given during the preliminary stages of the matter. Counsel drew the magistrate’s attention to the additional evidence called by the plaintiff as to the complaints concerning the competency of the work done, reminding her that both parties were aware that this issue was in dispute.

22 The application to amend was nevertheless refused. The magistrate reaffirmed her decision to strike out all but two paragraphs of the Grounds of Defence, neither of which referred to defective workmanship (see par [18] supra). She gave no further reason for refusing the amendment sought, but she did suggest that amendments to the two remaining paragraphs would be considered. The matter was stood over part-heard to a date to be fixed but, before the adjournment and without any application by the plaintiff, the magistrate made an order for the costs of the day (and not merely the costs of the pleading issue) in favour of the plaintiff.

23 On the resumed hearing, the defendant appeared in person, and he handed to the magistrate a letter he had written to the Chief Magistrate which, so far as is apparent from the transcript, sought to have the magistrate “removed from hearing this matter on the basis of bias”, and an adjournment of the hearing. The magistrate said that there was no good reason stated as to why she should disqualify herself, to which the defendant responded that he was unable to make submissions without a transcript of the previous day’s hearing.

24 An argument was put to this Court by the plaintiff that, as the defendant had failed to apply for a transcript until three weeks before the adjourned date, he could not complain of the absence of a transcript. To suggest that someone seeking the transcript of a half-day’s hearing should have been aware that it would not be available within three weeks surprises me, and it would no doubt be astonishing to a litigant who is appearing in person. It was also suggested that the defendant should have obtained advice from his counsel for the first day’s hearing, but it has not been shown that counsel remained in the case after that day’s hearing. There is every indication that he did not. I do not regard the defendant’s complaint that he was unable to make submissions as to the magistrate’s bias without a transcript as an unreasonable one.

25 The remainder of the proceedings in the defendant’s presence needs to be set out in full:

HER HONOUR: Well, I can indicate to you, Mr Makucha, that there’s certainly first of all no basis for an adjournment of this matter and, secondly, no basis for me to disqualify myself, I can assure you of that.
DEFENDANT: That’s in your opinion, magistrate.
HER HONOUR: So I am informing you, Mr Makucha, that the matter will proceed today.
DEFENDANT: It won’t.
HER HONOUR: Just stop there for the moment.
DEFENDANT: It won’t.
HER HONOUR: Just stop there, please.
DEFENDANT: Because under the rules of natural justice —
HER HONOUR: Just stop there, please. I will stand the matter down very shortly to allow you some time to consider your position. You will have 15 minutes and then we will resume and the matter will proceed.
DEFENDANT: It won’t.
HER HONOUR: Thank you.
DEFENDANT: Because if you choose —
SHORT ADJOURNMENT
HER HONOUR: Just take a seat there, please, Mr Makucha. Yes, Mr Linegar, where did we get up to on the last occasion?
LINEGAR: On the last occasion, your Honour, we were proceeding —
HER HONOUR: Just take a seat, please, sir.
DEFENDANT: Could I just ask one question? Are you proceeding with this case?
HER HONOUR: Yes, we are.
DEFENDANT: Well, I’d like to make the following statement to the Court.
HER HONOUR: Just take a seat, please.
DEFENDANT: No, no, before
HER HONOUR: I’m sorry, Mr Makucha, please take a seat.
DEFENDANT: I ask leave of the Court and you’re the presiding magistrate to allow me to make the following statement.
HER HONOUR: No, I’m not allowing you to make a statement at this point, just take a seat, please, we are proceeding.
DEFENDANT: Well then can you advise me when —
HER HONOUR: Just take a seat, please.
DEFENDANT: When I will be able to address you?
HER HONOUR: If you’ve got something to put to me in terms of the proceedings you can ask me a question but I don’t want a statement from you.
DEFENDANT: Well, you have offended the rules of natural justice where you have become a judge in your own cause, that is not permitted.
HER HONOUR: Just take a seat, please.
DEFENDANT: Two, the way you bias the evidence or the point of defence you have clearly created a situation which would not permit the introduction of this evidence, could you just hand it up?
HER HONOUR: No, just keep it to yourself.
DEFENDANT: Which proves the wrongdoing by the Tucker parties, okay. Now, I will not be proceeding without the transcript and the hearing of bias against yourself will take first precedent.
HER HONOUR: Just take a seat, please, Mr Makucha. Just take a seat, please, sir.
DEFENDANT: Thank you.
HER HONOUR: Yes, thank you. Mr Linegar?
LINEGAR: Yes, your Honour, the stage we were at was that Mr Tucker was being cross examined so I’d be proposing to have Mr Tucker resume his seat in the witness box and be cross examined.
HER HONOUR: Fine, thank you. Thank you, Mr Tucker, up to the witness box.
DEFENDANT: Excuse me, I am not proceeding and I will make an application to the Supreme Court.
HER HONOUR: You’re withdrawing your defence, are you?
DEFENDANT: No, you’re not permitting me the —
HER HONOUR: Just stop there, please.
DEFENDANT: You have changed —
HER HONOUR: Just step down, please, sir. Just stop there, please, Mr Makucha.
DEFENDANT: You have changed and struck out my points of defence. You have created bias. I have no transcript. It is improper for you to force this matter to go on because I read a letter dated 24 May, 2002 —
HER HONOUR: Just stop there, please. I do not want to hear any statement from you. You indicated to the Court just a moment ago that you are not proceeding, is that correct?
DEFENDANT: Well, I don’t know how you will interpret —
HER HONOUR: I just want to clarify what you’ve said to the Court. You made the statement —
DEFENDANT: Don’t verbal me.
HER HONOUR: You are not —
DEFENDANT: Don’t verbal me.
HER HONOUR: Mr Makucha —
DEFENDANT: Please, don’t verbal me. I am not a lawyer.
HER HONOUR: Just answer my question, please, are you indicating —
DEFENDANT: Are you refusing an adjournment so that the transcript —
HER HONOUR: Yes, I have already indicated there will be no adjournment, the matter is proceeding.
DEFENDANT: So you do not permit me to have a transcript so that we can have a hearing, why are you chewing your pen and playing it like that.
HER HONOUR: Call the sheriffs, please, court officer.
DEFENDANT: For what purpose?
HER HONOUR: Just answer this question, Mr Makucha.
DEFENDANT: Why are you calling the sheriff?
HER HONOUR: Just answer this question, Mr Makucha. Have you — did you make a statement to the Court that you are not continuing with these proceedings?
DEFENDANT: I have made the statement to the Court that I require clarification regarding the transcript which will not be available —
HER HONOUR: I have indicated to you that the matter is proceedings. There will be no adjournment today, I’ve indicated that to you.
DEFENDANT: You will not permit time sufficient to have the transcripts available, is that right?
HER HONOUR: I am saying to you that there will be no adjournment of these proceedings today, they will continue. Now, you made the statement to the court a short time ago that you are not continuing. Are you indicating that you are withdrawing?
DEFENDANT: No, I don’t know what you’re trying to trick me into putting on the record because I don’t know what the rules state and given that what I observed I don’t know what’s going on here.
HER HONOUR: So in that case you’re prepared to —
DEFENDANT: I seek your advice, can you please clarify and advise me, you’ve called for the sheriff.
HER HONOUR: I’m sorry, Mr Makucha, it’s not my function to give you advice.
DEFENDANT: No, but, hold on, am I being entrapped so as that you ask a leading question, the leading question is “Are you withdrawing the case?”. I’m not withdrawing the case, I need the transcripts. You’re refusing time for the transcripts to be available. You have called for the sheriff because I saw you playing the flute with the Bic pen in your mouth. Now, I can hardly see that that’s a reason to call a sheriff. I’m a serious man.
HER HONOUR: Right, Mr Makucha, I’m about to in fact cite you for contempt.
DEFENDANT: For why?
HER HONOUR: Your behaviour in the face of the Court.
DEFENDANT: Madam —
HER HONOUR: I am indicating to you that this matter is to proceed and —
DEFENDANT: Well, I will not proceed, I cannot proceed. I cannot proceed. What is the reason you cite me for contempt?
HER HONOUR: Is the Court to understand that —
DEFENDANT: What am I contempt to —
HER HONOUR: Just you listen to me.
DEFENDANT: Please explain, this is a serious matter.
HER HONOUR: Just you listen to me, Mr Makucha.
DEFENDANT: I take this Court very seriously.
HER HONOUR: Is the Court to understand that you do not wish to put any cross examination to Mr Tucker?
DEFENDANT: Magistrate, I have stated to you I do not understand the rules, the Court rules.
HER HONOUR: That’s not my question and it doesn’t give an answer to the question I asked. Is the Court to understand that you do not wish to put any cross examination to the witness, Mr Tucker?
DEFENDANT: I want to know why, before I go to that issue I would like to be advised by you why I’m in contempt of Court?
HER HONOUR: Your behaviour, I’ve just indicated, thank you, Mr Makucha —
DEFENDANT: But my behaviour —
HER HONOUR: I don’t intend to enter into any argument with you about that.
DEFENDANT: My behaviour being what, what have I done?
HER HONOUR: So far you haven’t done anything, that’s the problem.
DEFENDANT: Well, madam, it’s by your own statement I haven’t done anything wrong.
HER HONOUR: You’ve done plenty wrong already, Mr Makucha.
DEFENDANT: I don’t think so.
HER HONOUR: I’m asking you whether you —
DEFENDANT: But I want to know what I’m in contempt of. You have a duty to advise me. I feel intimated, harassed and molest by having the sheriff called and for you to tell me that I am in contempt and refusing to tell me what I’m in contempt of. Please tell me, my behaviour is impeccable.
HER HONOUR: Take a seat.
DEFENDANT: I speak the language of Australia correctly.
HER HONOUR: Take a seat, please, and are the sheriffs coming up, court officer – fine. Mr Linegar, in the circumstances I don’t know what application you would make to the Court but quite clearly the defendant has indicated that he doesn’t intend to proceed.
LINEGAR: That certainly seems apparent now, your Honour.
DEFENDANT: Are you going to have me arrested?
HER HONOUR: Quiet, please, sir. Carry on, please, Mr Linegar.
LINEGAR: My application in circumstances where the defendant has indicated he does not wish to —
DEFENDANT: That’s not correct.
LINEGAR: — proceed with the case when it’s offered to him is —
DEFENDANT: That is not correct.
HER HONOUR: Quiet, please. Take a seat, please.
DEFENDANT: That is not correct.
HER HONOUR: Take a seat, please.
DEFENDANT: That is not correct. I have sought that this —
HER HONOUR: Quiet —
DEFENDANT: — to have this evidence handed up and you have not accepted it.
HER HONOUR: Quiet and take a seat, please, take a seat.
DEFENDANT: You’ve called the sheriffs, I’m cited for contempt and I refuse to agree with you that I have been contemptuous of the Court. Now, I’m intimidated.
HER HONOUR: Sheriff, remove this defendant, please, to the cells. I have cited him with contempt in the face of the Court. Please remove him from the Court.
I’ll have an urgent transcript, please, court officer, of the discussion that’s taken place in the court room this morning and I mean urgent, extremely urgent.

26 A short time later, an unidentified person (who appears to have been a solicitor) appeared before the magistrate and asked her to inform him what had happened so that he could speak to the defendant in the cells. The magistrate said:

I cited him with contempt. It is a civil claims matter. By his conduct he in the view of the Court interfered with and attempted to obstruct the administration of justice in that he refused to accept rulings of the Court that the matter would proceed on a part-heard basis today, he having given no clear and legally sustainable reasons for an application to the Court first of all to disqualify herself [ sic ] and secondly, to adjourn the proceedings.
Having called on the proceedings, having indicated that the proceedings were to continue and the plaintiff having called his witness the defendant then informed the Court that he was not going to proceed with matters. However, he refused to withdraw from the Court and continued in an argumentative and discourteous manner towards the Court.
The concern of the Court was that by his behaviour he was interfering with due process and a warrant is being typed up now, prepared now. I will have him brought back to the Court to be properly cited and certainly I will be prepared to adjourn the matter to enable him the opportunity to take some legal advice in respect of the matter.

27 Later that day, when the defendant was represented by a solicitor (Mr K Stidwill, of the Legal Aid Commission), the magistrate formally charged him with contempt, as follows:

HER HONOUR: […] Between 10.10 am and 11 am on 30 July, 2004 at Downing Centre Local Court 5.3 did show contempt in the fact of the Court by conduct both active and inactive which amounted to an interference with and obstruction to or had a tendency to interfere with or obstruct the due administration of justice. Particulars are you did by constant interjection and statements of intentions refuse to accept the proper rulings of the Court to continue to hear proceedings in civil claims matter file number 1188/02.
You did state that you would not proceed to hearing of the matter but, however, refused to inform the Court what was your position on the hearing. You did by repeated interjection of the Court and of opposing counsel attempt to interfere with and obstruct the proceedings from continuing.
You did by repeated querulous argument attempt to interfere with and obstruct the proceedings from continuing. You did by repeated statements of intention to appeal to the Supreme Court attempt to interfere with and obstruct the proceedings from continuing and by such means did interfere with and obstruct the due administration of justice.
The defendant replied:
DEFENDANT: Why don’t I just apologise to the Court if I’ve done something wrong, I didn’t mean to.
The magistrate responded:
HER HONOUR: Mr Stidwill, would you just take him outside and give him some further advice about his manner before the Court, thank you.
On the defendant’s return, Mr Stidwill said that his client wished to purge his contempt:
STIDWILL: Well, he wishes to offer an apology to the Court to purge his contempt if the matter can be resolved today, your Honour, if you’re prepared to accept that today.
HER HONOUR: Well, the point is this: He made very concerted attempts to interfere with the proceedings continuing and, indeed, once I cited him and had him removed from the Court I proceeded in his absence and judgment was entered for the plaintiff. The Court was satisfied in the absence of the defendant who stated not once but several times that he was not proceeding with the matter but however refused to withdraw his defence and refused to inform the court as to his position but it was not a minor matter as far as the Court is concerned. There was a major obstruction on his part to interfere with the proceedings. It is not as if, as sometimes occurs, he abused the bench, he had some things to say to the bench but that was not the concern of the bench. It was his repeated attempts to ensure that the proceedings did not continue today that found the contempt, the citation for contempt.
STIDWILL: Well, obviously your Honour has been unsuccessful ultimately in that endeavour, the matter having been resolved in his absence, and, as I say, if your Honour’s not prepared to accept — to allow him to purge his contempt today then I’d ask you to stand the matter over.

Denial of procedural fairness

28 The issue to be determined in relation to this point of law is whether it was open to the magistrate to come to the view that the defendant did not intend to participate further in the hearing of the case before her, thus justifying the continuation of the proceedings after the defendant had been arrested and removed from the court for contempt by her order. This is the issue on which the plaintiff succeeded before the master.

29 It is clear beyond any doubt that the defendant was determined to wait for a transcript and to have his complaint that the magistrate was biased determined before the matter proceeded. However, none of the many statements made by the defendant during the long interchange with the magistrate on the second day of the hearing could reasonably be interpreted as unequivocally stating that, if he could not have his complaint determined first, he would take no further part in the proceedings. It was very properly conceded by the plaintiff in argument in this Court that the most which could be identified in support of the magistrate’s finding was equivocal even when taken in isolation.

30 The only such statement directly identified was:

I am not proceeding and I will make an application to the Supreme Court.
The context denies any suggestion that the defendant did not intend to take any further part in the proceedings. When the magistrate asked the defendant if he was “withdrawing [his] defence”, the defendant (when he was finally permitted to make a submission) asserted that it was “improper” for the magistrate “to force this matter on”. When the magistrate asked him to clarify his statement that he was “not proceeding”, the defendant asked her whether she was refusing an adjournment. The magistrate replied that there would be no adjournment and that the matter was proceeding. The magistrate repeated that ruling, and she said once more that the proceedings would continue.

31 After the magistrate had called for the Sheriff, she again asked the defendant whether, by his statement that he was “not continuing” (he had actually said that he was “not proceeding”), he was indicating that he was “withdrawing”. The defendant complained that he did not know what the magistrate was “trying to trick [him] into putting on the record”. He asked whether he was being “entrapped” by her question, and he added:

I’m not withdrawing the case, I need the transcripts. You’re refusing time for the transcripts to be available.
The magistrate informed the defendant that she was about to cite him for contempt for his behaviour in the face of the court. She repeated that the matter was to proceed, and the defendant said:
Well, I will not proceed, I cannot proceed. I cannot proceed.

32 The defendant was at this time repeatedly asking the magistrate to explain why she had sent for the Sheriff and why she intended to cite him for contempt but, other than the non-specific answers “your behaviour in the face of the Court” and “you’ve done plenty wrong already”, there was no explanation given. When counsel for the plaintiff made an application “in circumstances where the defendant has indicated that he does not wish to proceed with the case when it is offered to him”, the defendant repeated, four times, “That is not correct”. With the fourth such statement, he was removed from the court by Sheriff’s officers at the direction of the magistrate.

33 The fact that English was unambiguously not the defendant’s first language is made very apparent from the sound-recorded transcript, and it was therefore unfortunate that the magistrate attempted more than once to force the word “withdraw” on him when he continually made it clear that he wanted the allegation of bias determined first, without accepting that he was withdrawing from the proceedings completely. It is significant that the magistrate never informed to the defendant that she would proceed even if he left to go to the Supreme Court. It cannot be assumed that he would have anticipated that she would proceed. It is pure speculation that it would have made no difference if she had informed him of her intention, particularly if she had accompanied such a statement (as would have been appropriate) with an explanation that his rights on appeal would not be prejudiced by continuing to participate in the hearing (see par [38] infra).

34 With due respect to the master who held otherwise, I am satisfied that it was not open to the magistrate to come to the view that the defendant did not intend to participate further in the hearing of the case before her. In my opinion, such an interpretation of the whole of the interchange is wholly unreasonable and without any basis in the evidence. The magistrate’s reasoning which she progressively disclosed — in the subsequent exchange with counsel for the plaintiff (when she informed him that she wished to call him and his solicitor as witnesses in the contempt prosecution), in her explanation to the solicitor who asked what had happened so that he could interview the defendant in the cells, and in the charge as it was later read to the defendant — is inconsistent with any fair reading of that transcript.

35 It is obvious that the defendant behaved badly, and that he would not cooperate. His twice repeated reference to the magistrate chewing a BIC pen and playing it like a flute was insolent, and it warranted a warning to behave. It was the first of these references which appeared to lead to the magistrate’s call for the Sheriff’s officers. But it was hardly contempt in the face of the court.

36 The defendant’s general behaviour, however, appears to have been the result of an erroneous belief that he was entitled to have his claim of bias determined before the proceedings were further infected by that bias and of an understandable concern as to the fairness of a judicial officer who, without complaint or application by his opponent, strikes out his pleadings, both refuses leave to amend on what was patently a technical point and orders the costs of the day’s proceedings against him without having determined the merits of the claim. Almost every time the day before when the defendant quite wrongly sought to take part in conducting the proceedings although still legally represented, the magistrate made it clear that she would use the full force of the law to keep him quiet. The next day, he was unrepresented, and the threats continued. A litigant in person is always out of his or her familiar territory in court. Such a person quite naturally feels outgunned when the other party is legally represented. Litigants in person should not be treated as adversaries of the judicial officers whose task is to hold the balance between the parties.

37 The magistrate’s behaviour illustrated in par [25] supra, when the defendant was unrepresented, was quite inappropriate. Her general attitude towards the defendant was well illustrated in the transcript recorded in par [27] supra, at the time (after he was formally charged with contempt) the defendant said “Why don’t I just apologise to the Court if I’ve done something wrong, I didn’t mean to”. The magistrate directed the solicitor then appearing for him to take him outside and to give him “some further advice about his manner before the Court”. It is difficult to imagine how the defendant could have uttered those words in a manner which was offensive or otherwise inappropriate. It is true that his statement was only a conditional apology, and it would perhaps have been insufficient if there had indeed been a contempt. But the magistrate’s response was wholly inappropriate.

38 The exercise by the magistrate of a little tact from the beginning of the defendant’s conduct to which she took exception would have gone a long way. It would have been very easy during the second day’s hearing for the magistrate, instead of being adversarial, to have explained to the defendant in simple terms that the plaintiff was entitled to have the claim heard to its conclusion, and that the defendant would have his right to appeal later from any unfavourable decision on whatever ground may be available to him, including the allegation of bias.

39 None of this is intended to preclude the contempt charges from proceeding but, as the prosecution is now in the hands of the Director of Public Prosecutions, no doubt careful consideration will be given to whether the fault for what happened lay entirely with the defendant.

40 In the circumstances outlined, the defendant was denied procedural fairness by the decision of the magistrate to continue with the hearing of the plaintiff’s case in his absence. I would therefore grant leave to appeal from the master’s decision dismissing his appeal, and uphold the appeal. Orders should be made setting aside the judgment ordered by the magistrate and remitting the matter to the Local Court to be determined by a differently constituted Court.

Consequential orders sought

41 The defendant has sought a number of consequential orders (see par [6] supra). It is, in my view, appropriate to deal with his complaint that the magistrate erred in law by striking out the defences he had pleaded and in refusing him leave to amend.

42 In my opinion, the magistrate's decision to strike out the paragraphs in the Grounds of Defence to which she took objection was justified, but only if the application to amend was allowed at the same time. The paragraphs to which the magistrate objected did identify the issue of defective workmanship as the defence which the defendant wished to raise, but as pleadings they failed to raise it in a proper manner. Those paragraphs were also gratuitously offensive, and the defendant was not entitled to use the pleadings in order to attack the plaintiff in the way these paragraphs did. The defendant should have been ordered to pay the costs of the application to amend.

43 The basis for the magistrate’s refusal to grant the amendment appears to have been solely the fact that the defendant did not amend when leave to amend had been given during the preliminary stages of the matter (see pars [19]–[22] supra). This is apparent from the comment she made in relation to the judgment of Kirby P in Nominal Defendant v Cameron (Court of Appeal, 2 August 1988, unreported) — the only authority to which she had been referred:

I’m always quite fascinated by the superior courts evoking that wonderfully emotive term ‘justice’. Justice delayed is justice denied. They always seem to forget to add that in I notice, when they’re dealing with pleadings and forever allowing practitioners in particular, to run backwards and forwards to court for literally years on end playing ducks and drakes.

44 Nominal Defendant v Cameron was hardly the best case for counsel for the defendant to have cited to the magistrate in the circumstances, as not only was it unreported but also only two judges referred to the issue of amendment, each stating a different approach. Kirby P followed the longstanding authority of Cropper v Smith (1889) 26 Ch D 700 at 710, in which Bowen LJ said:

Now, I think it is a well established principle that the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with the rights. Speaking for myself, and in conformity with what I have heard laid down by the other decision of the Court of Appeal and by myself as a member of it, I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace. […] It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything in case is a matter of right.

Samuels JA, however, referred to the then recent decision of the House of Lords in Ketteman v Hansel Properties Ltd [1987] AC 189, in which Lord Griffiths (at 210) said that another factor which must be weighed in the balance was the need for legal business to be conducted efficiently, and that there will be cases in which justice will be better served by allowing the consequences of the negligence of the lawyers to fall on their own heads rather than by allowing an amendment at a very late stage of the proceedings. Hope JA did not find it necessary to express any opinion on the matter.

45 The magistrate appears to have been unaware of the High Court’s firmly expressed view since Nominal Defendant v Cameron that the principles stated in Cropper v Smith remain applicable to amendments: State of Queensland v JL Holdings Pty Ltd (1997) 186 CLR 146 at 154-155. Having reaffirmed the views expressed in Cropper v Smith, the majority judgment in the JL Holdings case said:

Justice is the paramount consideration in determining an application such as the one in question. Save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out and raising an arguable defence, thus precluding the determination of an issue between the parties.

See also Ainsworth v Burden [2005] NSWCA 174 at [51]–[58].

46 In the present case, the “real matter in controversy” was unarguably whether the plaintiff’s workmanship was defective. Both parties were prepared to litigate that issue, and no adjournment was necessary to enable the case to proceed on that basis. The magistrate's reliance solely on case management requirements, in the face of an obvious need to amend the pleadings in order to conform with the issues which both parties were prepared to litigate, was erroneous. The exercise of the magistrate’s discretion therefore miscarried. In any event, the refusal of the leave to amend was, in the circumstances, so unreasonable and plainly unjust that I would draw the inference that the magistrate failed to exercise the discretion she had to allow or refuse an amendment: House v The King (1936) 55 CLR 499 at 505.

47 I would therefore set aside the magistrate’s order refusing leave to amend, and order that leave to amend the Grounds of Defence be granted, the amended Grounds of defence to be filed within twenty-one days from the date of this judgment.

48 In those circumstances, it is unnecessary to consider further the failure of the magistrate (i) to give the defendant an opportunity to make submissions in support of his applications for her to disqualify herself for bias and for an adjournment, (ii) to give any reasons for her rejection of those applications which indicated that she had considered any of the matters he had raised, and (iii) to inform him that, notwithstanding the charge of contempt, he had the right to seek the exercise of her discretion to permit him to continue to appear during the hearing of the claim against him.

49 I would order the plaintiff to pay the costs of the appeal to the master and to this Court, and (if eligible) it is to have a certificate under the Suitors’ Fund Act 1951.

Proposed orders

50 1. Leave to appeal against the orders of Master Malpass is granted.

2. In lieu of the orders made by the master:

1. The appeal to the Supreme Court by Paul Makucha against the orders made by Magistrate O’Shane in the Local Court in proceedings 1188/02 is allowed.

2. The order made by the magistrate refusing leave to Mr Makucha to amend his Grounds of Defence is set aside, and leave is granted to Mr Makucha to file amended Grounds of Defence within twenty-one days from the date of this judgment.

3. Mr Makucha is ordered to pay the costs of the application to amend.

4. All other orders made by the magistrate (including the order for costs on the first day of the hearing) are set aside, and the matter is otherwise remitted to the Local Court to be determined by a differently constituted Court.

5. Brian Tucker & Associates Pty Ltd is ordered to pay the costs of the appeals to the Supreme Court before the master and to this Court, and (if eligible) it is to have a certificate under the Suitors’ Fund Act 1951.

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