Mazzeo v Nomikos - [2006] SADC 31

District Court of South Australia
(District Court Administrative Appeals Tribunal: Minor Civil Review)
MAZZEO v NOMIKOS
Reasons for Decision of His Honour Judge Tilmouth (ex tempore)
20 March 2006
PROCEDURE - JUDGMENTS AND ORDERS - IN GENERAL
Magistrate gave interlocutory judgment dismissing Plaintiff's application for summary judgment. Plaintiff appeals on grounds of bias and Magistrate allowing legal representation for the other party.
Held: Issue of apprehension of bias not proceeded with.
Magistrate's dismissal of application upheld.
Magistrates Court Act 1991 (SA) ss3, 38(4), referred to.
Antoun V Queen [2006] MCA 1, applied.
Magistrates Court (Civil) Rules 1992 (SA) ss 11, 13(4), discussed.

MAZZEO v NOMIKOS
[2006] SADC 31

This is an appeal from an interlocutory judgment[1] of Mr Johansen SM delivered on 12 October 2005, where he made orders dismissing the appellant’s application as it then was for summary judgment against the defendant, to strike out the defendant’s defence and counterclaim and in which he made consequential orders that the defendant, Mr Nomikos, give full discovery of documents within four weeks of that date.
[1] Section 3 of the Magistrates Court Act 1991 defines a judgment to include “an interlocutory judgment or order.
Although the magistrate dismissed the gravamen of the application by Mr Mazzeo, he nevertheless made orders in his favour for costs of $25.
There are a number of issues on appeal which may be summarised as follows. Firstly, it is claimed by Mr Mazzeo that by reason of things said and done on of the day of the hearing, as well as in other applications beforehand, that the Magistrate had indicated a predisposition against Mr Mazzeo’s case and perhaps a bias in favour of Mr Nomikos[2].
[2] Refer generally to Antoun v The Queen [2006] HCA 1.
The evidence said to give rise to a reasonable apprehension of bias lies in the fact that when Mr Mazzeo objected to legal representation on behalf of the defendant in a small claims hearing, the Magistrate regarded it as “a waste of time”, and when Mr Mazzeo pursued an application that Mr Johansen disqualify himself, at one stage it appears that the Magistrate responded with words to the effect “I’m fed up with your courtroom antics”.
Mr Nomikos has accepted that these expressions were used, but it is not apparent at all to the Court, whether those statements were justified, because the Court has before it no transcript of those proceedings. Before making any findings about them, the Court would necessarily have to hear evidence, including evidence from the solicitor who represented the defendant, who is not available to give evidence today.
The other issue of substance is that Mr Mazzeo objected to the defendant having legal representation. In the result, the defendant was allowed to be represented at the interlocutory hearing, but it is quite unapparent why the Magistrate made an order enabling that to take place. Once again there is no transcript of the hearing in relation to this and it appears that the application was dealt with fairly quickly.
Nevertheless, the Magistrate was required under s38(4)(a)(iii) of the Magistrates Court Act to form an opinion: “that the party would be unfairly disadvantaged if not represented by a legal practitioner.” There are no reasons of the Magistrate indicating why he may or may not have formed that view, and in that event, it is difficult for the Court to make a ruling in the absence of evidence from the parties about what took place in that aspect of the hearing.
Moreover, under the Magistrates Court (Civil) Rules 1992 the Magistrate was also required pursuant to Rule 13(4) in deciding whether a party would be unfairly disadvantaged in a minor civil action if not represented by a legal practitioner within the meaning of s38, to have regard to whether the party has a judgment in his or her favour in the action, or if the party will suffer undue expense or inconvenience in attending, if the party is unable to attend due to ill health and any other proper cause exists.
It is not evident at all that the Magistrate considered, still less exhausted those requirements, before making a decision in this matter. In the end result however, whether Mr Mazzeo made out his appeal on the basis that the Magistrate had prejudged the matter to the point of bias requiring him to be disqualified, the proceedings would be a nullity and have to be reheard. Further, if the Magistrate erred in the application of s38 of the Act in granting legal representation to one party and not the other, given the general policy of the Act for there be no representation or equal representation, that probably would also have amounted to a procedural irregularity resulting in the matter being remitted, although no final decision needs to be made upon that.
In the result Mr Mazzeo has accepted that if he wishes to pursue the bias point, or if he wishes to pursue the point concerning the inappropriate application of s38, the hearing would have to go into evidence. That would require this Court to adjourn the matter so that evidence could be presented and cross-examination could be properly undertaken, which seems a rather futile exercise since the trial of the litigation itself underlying this interlocutory application, would be heard in March in the Magistrates Court anyway.
In that situation, Mr Mazzeo has taken the sensible and practical course of asking me to deal with the appeal on the basis that those matters should be ignored and that it is better from the point of view of both parties for the trial to proceed, bearing in mind the long history of interlocutory litigation in this matter already. Mr Nomikos is also of the same view. In that situation, the court passes no judgment upon the matters of bias. Although what was apparently said raises questions, they cannot be resolved without going into evidence on the matter.
All the same, it must be said that when it comes to considering whether or not one party should have legal representation at the expense of the other party, a course which is against the general tenor and policy of the Act, a Magistrate should turn his or her mind to the requirements of the section and the Rules of Court referred to above, and should proceed to make an affirmative finding one way or the other in the terms thereof. Brief reasons should ordinarily be given supporting such a ruling, particularly where legal representation is to be allowed.
To do otherwise is to create the impression in the party unrepresented, of unfairness and it of course puts the appeal Court in a difficult position in assessing the merits. The failure to furnish reasons requires the Court to take the unnecessarily tedious and time consuming task of trying to piece together by taking evidence, what happened in the Court below, which is plainly undesirable.
In the result then, we are left with the appeal on the merits. The problem for Mr Mazzeo is that the application for summary judgment was bound to be dismissed, because he is suing for work performed. On the pleadings it is alleged that work was performed in an unsatisfactory manner. Therefore he would have to go into evidence to prove his level of damages and in that situation, it being for relevant purposes an unliquidated claim, the Court could on no view of the facts, have been justified in making an order for summary judgment.
When it came to the application to dismiss the defendant’s defence and counterclaim, that was wholly dependent upon the Magistrate’s assessment of the failure of the defendant to comply with discovery orders in the past, and whether or not those failures to comply had reached the point where the only effective and proper remedy in the interests of justice was to dismiss the defence and counterclaim.
As to that aspect of the matter, the Magistrate observed after hearing the defendant’s legal representative, that the defendant had not only given the majority of discovery, but there were two reports outstanding which the defendant was waiting for. Although not clear entirely, it seems tolerably apparent that the problem with the provision of those reports related to finding qualified people who might be able to give them and getting an adequate response. Whether that was the case or not, the Magistrate duly weighed the matter, and considered the proper remedy in all the circumstances was to allow the defendant one last chance to provide full discovery of documents, within four weeks of 12 October 2005.
Mr Mazzeo has been unable to identify any other documents or class of documents which might have been handed to him, and given that the Magistrate turned his mind to and weighed the merits of the matter and made the order, I cannot see there was any error in him doing so. In any event, exercising what discretion this Court has on appeal to consider the matter afresh, which I now do, it would have been a large step to put the defendant out of court in relation to his defence. Further it would have been contradictory and if not somewhat awkward to allow the case to go ahead on the basis that Mr Mazzeo still had to prove his claim in the manner indicated above, when the issues of proof of that would be inherently related to the issues raised in the defence as to the adequacy of the workmanship.
In that situation, I think it would have been highly artificial to allow the claim to proceed on one limb but not to proceed on another inter-related limb, so to speak.
In those circumstances, the orders made by the Magistrate were, on the merits, correct and an order is made accordingly affirming those orders and dismissing the appeal.
Mr Mazzeo, also contended that when he was granted costs of $25 for the hearing before the magistrate on 12 October, that was plainly inadequate. Mr Mazzeo was quite right that to suggest that an order for costs in the Magistrates Court could go beyond strict orders relating to legal fees or legal disbursements. I note that under the Magistrates Court (Civil) Rules 1992 that court is entitled, where a person had been prejudiced by the default or neglect or delay in non-compliance with the Act or the Rules of the court, to make an order for compensation to be made for the prejudice, damage or loss.
It is not so clear whether or not the failure to comply with the Act or the Rules also encompasses orders of the Court, although that matter need not be decided now it would be an odd situation where a person could flout the orders of the court and in appropriate circumstances, but the other party could not gain an order for compensation. For the present purpose I read Rule 11 as enabling an order to be made in favour of Mr Mazzeo on account of the default in complying with previous orders for discovery made in his favour.
On the other hand, as already noted, Mr Mazzeo lost the bulk of his application, that of summary judgment and dismissal of the defence and counterclaim. Ordinarily one would have expected an order to be made against him, rather than in his favour.
In those circumstances, it seems to me that the Magistrate must have made an order balancing those two considerations, even though there is nothing in the papers expressing that. It appears he decided that the default of the defendant was sufficiently serious to make an order in favour of Mr Mazzeo, in circumstances where ordinarily he could have expected one against him.
In those circumstances, considering the matter afresh, I do not feel that the order for costs of $25 is inappropriate or inadequate.
As for the costs of the hearing today, Mr Mazzeo’s main complaint was the question of the conduct of the Magistrate which, for very sensible and practical reasons, is not pursued. In the absence of the Court being able to make a determination about the merits, it would be wrong to penalise either party in costs on that account. Otherwise Mr Mazzeo’s appeal on the merits of the orders, stood to be dismissed for the reasons given above, and ordinarily he could expect a costs order adverse to him on that contingency.
However, as against that, there has been the fact of the confirmation from the defendant, that a prima facie case has been made out relating to the conduct of the Magistrate and in those circumstances, I feel, doing as best one can in the circumstances, the appropriate order would be “no order as to costs”.