Naumovic v Freytag
[2022] SADC 117
•23 September 2022
District Court of South Australia
(Civil: Minor Civil Review)
NAUMOVIC v FREYTAG
[2022] SADC 117
Judgment of his Honour Judge Slattery
23 September 2022
ADMINISTRATIVE LAW - JUDICIAL REVIEW
Application for review of a decision of a Magistrate.
Held:
Application dismissed. The decision of the learned Magistrate affirmed.
Magistrates Court Act 1991 (SA) s 38(6) and (7), referred to.
Charisteas v Charisteas and Ors [2021] HCA 29; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 ; Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd. (2006) 229 CLR 577 ; Johnson v Johnson (2000) 201 CLR 488 ; Rowe v Bishop (No 1) [2022] SADC 58; R v Magistrates' Court at Lilydale; Ex parte Ciccone [1973] VR 122 , discussed.
Smits v Roach (2006) 227 CLR 423 ; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; Isbester v Knox City Council (2015) 255 CLR 135 ; S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358; Franklin v Minister of Town and Country Planning [1948] AC 87; Ranger v Great Western Railway Co (1854) 5 HL Cas 72; R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256; R v Molesworth (1898) 23 VLR 582 ; Re Rener (1898) 4 ALR 65; Board of Education v Rice [1911] AC 179; Errington v Minister of Health [1935] 1 KB 249; [1934] All ER Rep 154; R v Birmingham Justice [1970] 3 All ER 945; [1970] 1 WLR 1428; Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475, considered.
NAUMOVIC v FREYTAG
[2022] SADC 117Minor Civil Review
On 12 August 2021, Magistrate Forrest delivered a judgment on a claim in defamation brought by Mr Justin Freytag against Mr George Naumovic. Mr Freytag sought an award of damages. His Honour’s judgment[1] comprised 298 paragraphs over 46 pages. This was a claim brought in the Civil (Minor Claims) Jurisdiction of the Magistrates Court. The hearing of the claim progressed over four hearing days, 17 June 2020, 18 June 2020, 17 March 2021 and 18 March 2021. The transcript of the evidence comprises 241 pages and there are multiple exhibits.
[1] Unpublished judgment dated 12 August 2021.
This is an application for review of the decision of the learned Magistrate. An application for review is governed by s 38(6) and (7) of the Magistrates Court Act and those subsections provide:-
(6)The District Court (constituted of a single Judge) may, on the application of a party dissatisfied with a judgment given in a minor civil action, review the matter.
(7) The following provisions apply to such a review by the District Court:
(a) subject to paragraph (ab), the right of a party to be represented by a legal practitioner at the review will be determined in accordance with subsection (4);
(ab) if, in the case of a review that relates to a minor civil action in respect of a transferred proceeding within the meaning of Part 3A of the South Australian Civil and Administrative Tribunal Act 2013, a party was represented by a legal practitioner at the proceeding, then the party may be represented by a legal practitioner at the review by the Court;
(b) the Court may inform itself as it thinks fit and, in doing so, is not bound by the rules of evidence;
(c) the Court may, if it thinks fit, re-hear evidence taken before the Magistrates Court;
(d) in determining the matter, the Court may—
(i) affirm the judgment; or
(ii)rescind the judgment and substitute a judgment that the Court considers appropriate; or
(iii)if the review arises from a default judgment or summary judgment, rescind the judgment and—
(A)substitute a judgment that the Court considers appropriate; or
(B)remit the matter to the Magistrates Court for hearing or further hearing;
(e) in hearing and determining the review, the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
I heard this review on 19 April 2022 and for the reasons which follow, I would dismiss the application for review. I have reached this decision after my review of all of the exhibits, the transcript and his Honour’s reasons for decision.
I affirm the decision of the learned Magistrate.
The notice of review grounds comprise some 30 paragraphs. In substance, the appellant challenges the findings of liability made by the learned Magistrate as well as the assessment of damages made by his Honour. It is appropriate that I consider each of the grounds of review in light of the submissions that have been put to me, the contents of the materials before the learned Magistrate and his Honour’s decision.
It is appropriate that I briefly summarise the minor civil action. The full content of that summary is to be found in [2]-[17] inclusive of his Honour’s judgment.
The claim of Mr Freytag concerns an allegation that he was defamed in an email published by Mr Naumovic to a number of persons on 2 January 2018. In that email Mr Naumovic alleged about Mr Freytag:
“I would allege that Freytag is a habitual liar and at best lies by omission.”
The email was initially received by the solicitor for Mr Freytag who was instructed in relation to an earlier proceeding brought by Mr Naumovic against Mr Freytag in the Magistrates Court (PAUCI-17-52). That earlier proceeding did not continue after an order had been made by the Court for Mr Naumovic to provide security for costs and his failure to provide the security as ordered. Those proceedings were therefore stayed.
Mr Freytag pleaded that this publication carried the defamatory imputation that he:
1.Is a dishonest person;
2.Deliberately deceives people on a regular basis;
3.Is a liar;
4.Has no regard for, or deliberately chooses to disregard the truth.
In his defence, Mr Naumovic admitted the authorship and publication of the email but denied the alleged imputation and pleaded defences of:-
1.Truth;
2.Qualified privilege;
3.That the publication was an expression of an honest opinion;
4.Triviality.
In his defence, Mr Naumovic further pleaded that:-
12.4 The Defendant will allege that the plaintiff has made false statements about the State Government, the Federal Government and to the Coober Pedy community and the public and media outlets namely Today Tonight and InDaily in regards to the EDL power deal.
12.5 The Plaintiff has no less than nine times made false and defamatory statements.
There is some history concerning what is described as the EDL power deal. A power purchase agreement (PPA) was settled between the Coober Pedy District Council and an electricity provider called Energy Development Limited (EDL). It is not necessary that I descend into the detail of that agreement. Suffice that there are some within the Coober Pedy community who challenge the provenance and efficacy of that agreement, particularly concerning the prices required to be paid for electricity in the Coober Pedy township. It was the responsibility of the Coober Pedy District Council to ensure the provision of electricity supply to the town and it did so as part of its responsibility to manage the civic affairs of the Coober Pedy township. It may be accepted that the controversy amongst townspeople about this agreement continues, largely unabated.
In his defence of the claim of Mr Freytag, Mr Naumovic called his former wife, Ms Walsh, Carolyn Molnar, Slobodan Despinic, Haralambos Brellas, Jordanis Angelidis and Peter Pantellis to give evidence. In his case, Mr Freytag gave evidence and called a second witness.
In July 2016 Mr Freytag was elected to the Coober Pedy Council. A matter before the Council prior to that time was the need to secure a supply of electricity for the town. There were many interested groups of people in the town who had differing views. One of them was called the Coober Pedy Concerned Residents Group and Mr Naumovic and his ex‑wife, Ms Walsh, and Ms Molnar were members of that group. This group of residents opposed the EDL proposal and as its spokesperson, Mr Naumovic made his views very well known to both the mayor and the chief executive officer of the Council. Notwithstanding this opposition, the Council entered into the contract with EDL and soon afterwards Mr Naumovic became more highly critical of those people who were then members of the Council and who had formed part of the majority deciding to agree to the engagement with EDL. After his election, Mr Freytag comprised part of that group of people.
The learned Magistrate found, and I agree, that Mr Naumovic was convinced that in the course of making the decision to enter into the contract with EDL, a number of people on Council had conspired in some unstated way to conceal the truth from members of the Coober Pedy community about what had occurred in the contracting process. He thought that in the process and in the Council there were operative conflicts of interest which prevented persons from participating in either discussions or in the decision‑making. He made his feelings publicly and privately known as did the other members of his concerned residents’ group. The relationships between a number of the citizens within Coober Pedy deteriorated and became very strained. This was particularly the case in the relationship between Mr Naumovic and Mr Freytag. The manifestation of this deterioration was that a number of public statements were made by them about each other.
In the proceeding before the learned Magistrate, Mr Naumovic pleaded a defence of truth and so the burden was upon him to satisfy the learned Magistrate that Mr Freytag had lied about the matters about which he had alleged to have lied. The learned Magistrate found that notwithstanding his sincere belief, Mr Naumovic was not in a position to lead any evidence to justify an assertion of lying against Freytag. As an example, he did not call police officers alleged to have been lied to by Freytag. The learned Magistrate found at [30] that there was “…no evidence, or insufficient evidence, to prove the making of the alleged lies by Mr Freytag…”. The learned Magistrate was correct in this view.
The learned Magistrate also found at [32] that Mr Naumovic had formed the view that, objectively, the only explanation justifying the Council in making this decision to enter into the PPA was because the decision‑makers were either incompetent or dishonest or both. He extrapolated his disappointment and his anger into a form of belief. This affected his assessment of a statement made by Mr Freytag in support of the resolution to agree to the PPA. Conversely, Mr Naumovic formed the same view of Mr Freytag if Mr Freytag did not condemn the decision to resolve to enter into the PPA. This devolved to a view formed by Mr Naumovic that Mr Freytag’s conduct could only have been a lie designed to conceal his role and the role of others in the decision to agree to the PPA (at [33]).
Mr Naumovic did not and could not accept that Mr Freytag held an honest opinion about the wisdom of the Council entering into the PPA. This merely compounded his anger because he formed the view that any statements made by Mr Freytag in relation to his honest belief, were more examples “…of his lie…” and were statements made by Mr Freytag knowing that they were false. This further compounded Mr Naumovic’s belief that Mr Freytag was therefore an habitual liar. That view was shared by Ms Walsh and Ms Molnar (at [33] and [34]). The learned Magistrate held at [35]:-
[35] Ms Walsh and Ms Molnar have lost any sense of objectivity and balance with respect to their opinions concerning Mr Freytag and his actions, especially of course, his honesty. It is my belief that Mr Naumovic, Ms Walsh and Ms Molnar have become so committed to the notion that virtually any statement made by Mr Freytag relating in any way to the PPA and the ramifications of the Council’s arrangement with EDL, is a knowingly false statement, that they are for practical purposes, incapable of allowing for the possibility that any particular statement made by Mr Freytag was an expression of honest, but possibly mistaken belief.
This view of the learned Magistrate was explained at [36]-[39] of his Honour’s judgment:
[36] Ms Walsh’s evidence included an affidavit which she had sworn on the 9th of June 2020 for the purpose of this action. The affidavit is, effectively a submission. It comprises considerable opinion and hearsay evidence. It includes the following:
“14. The plaintiff is not only a liar, he is a pathological liar that continually lies about the defendant and the conduct of the District Council of Coober Pedy and its Administration. The Plaintiff has an incentive to repeatedly lie about the Defendant to the Police because he is involved in covering up the actions of the former Council in the negotiation and execution of the EDL PPA when he is fully apprised of the facts that dispute what he is saying in public”
[37] At a later point Ms Walsh deposed:
“54. I will establish through my testimony at trial that not only is the Plaintiff an habitual liar, he is a malicious premediated liar who has and continues to make a habit of lying about the Defendant, lying to the Coober Pedy Community and the wider public on several fronts”
[38] Ms Walsh then identified seventeen occasions or topics which she said would establish at trial that Mr Freytag was an habitual liar. I note that the number of such alleged instances had risen from nine, when Mr Naumovic filed his Defence on 10th January 2019, to seventeen by the time Mr Walsh swore her affidavit.
[39] Significant parts of the of the testimony of Ms Walsh and Ms Molnar was not evidence as that term is generally understood but was in fact statements of opinion or unsolicited submissions or arguments against Mr Freytag and his claim.
The learned Magistrate found that as well as failing to call the relevant witnesses to prove that Mr Freytag had lied to the police, Mr Naumovic relied on secondary evidence or hearsay evidence which was not admissible as proof of any fact. He found that Mr Naumovic appeared incapable of leading any evidence in an admissible form to discharge the onus upon him. In this finding the learned Magistrate was correct.
Conversely, the learned Magistrate found that Mr Freytag was a credible witness and any inconsistency between his evidence and some of the independently verifiable objective facts were not sufficient to lead to a conclusion that he was not a witness of truth.
The learned Magistrate made findings at [45] to [48] as follows:
[45] My impression of Mr Freytag is that he is genuinely disappointed in the turn of events in which he has become embroiled following his election to Council in June 2016. It is to be remembered that the issue of the relationship between the Council and EDL was already contentious before Mr Freytag became a Councillor.
[46] The extracted partial transcripts of the meeting of the 2nd December 2015 shows that even as early as that date Mr Naumovic had adopted a confrontational attitude in respect of those persons, which at that stage did not include Mr Freytag, he perceived to be less than supportive of his views in relation to EDL.
[47] However once Mr Freytag had an official role to play following his election to Council he also quickly became subject to Mr Naumovic’s criticisms. I believe that Mr Freytag was effectively bewildered to be subjected to the various accusations, complaints and investigations which seemed to snowball in the second half of 2016 and beyond.
[48] I have no reason to doubt the honesty and sincerity of Mr Naumovic, Ms Walsh and Ms Molnar but I do believe that their evidence was strongly influenced by their resolute, although in my view unjustified, negative opinions of Mr Freytag. This has undoubtedly impacted on their views and opinions but that is of little significance because it is the determination of facts, not views and opinions, which are vital. I reiterate that with respect to findings of fact the issue for Mr Naumovic was not, for the main part, one of credibility of his evidence and that of his witnesses, but the absence of evidence of the nature required to prove the facts important to his case.
On my reading of the transcript of the evidence before the learned Magistrate and of the other evidentiary material, the learned Magistrate was justified in reaching all of these conclusions. They are all based on a thorough review of the evidence led and I consider that they are correct.
I turn then to the review grounds.
The grounds of appeal are divided into a number of parts. The first group of complaints make allegations about the conduct of the learned Magistrate during the proceedings. There are 12 grounds set out. In summary, the effect of these grounds is that the learned Magistrate conducted the trial unfairly to Mr Naumovic or that the process of the trial itself was unfair to Mr Naumovic. He complains about District Council not being a party to the proceedings but being given leave to be represented by solicitors at the hearing. He alleges bias but in some unspecified way. No grounds of bias are set out and I reject that ground. I would also reject the alleged grounds of unfairness generally. The District Council appeared at the hearing connected with a particular application for the production of documents. It was entirely within his Honour’s discretion and in my view it was appropriate to allow the Council to be legally represented. Having reviewed the whole of the transcript, the exhibited documents and the reasons of the learned Magistrate, I am satisfied that the learned Magistrate conducted the hearing pursuant to the requirement of s 38 of the Magistrates Court Act and the criticisms of the learned Magistrate made by Mr Naumovic are unsupported. They are without any basis.
I am also satisfied that the learned Magistrate considered the whole of the evidence before him. The length and content of the reasons for decision provided by the learned Magistrate reflect the care with which the learned Magistrate conducted the matter and considered all of the arguments put to him. I am satisfied that the learned Magistrate took into account all of the submissions made to him and was not distracted by any form of concerns notice issued by a council insurer. His Honour considered all of the evidence led in support of the defence of Mr Naumovic and I consider that he correctly assessed that evidence. This includes the paucity of any appropriate evidence led by Mr Naumovic. His Honour accepted that Mr Naumovic was genuine in his beliefs but led no evidence in support of the position which he pleaded as a defence.
The second group of complaints allege that the learned Magistrate failed to provide procedural fairness to Mr Naumovic. The first ground in this group is that he alleges there was a refusal by the learned Magistrate of an application to issue a subpoena directed to the District Council of Cooper Pedy. On my review of the material, I consider the learned Magistrate was justified in this and all of the decisions he made about the District Council of Cooper Pedy. Mr Naumovic then complains that he was denied procedural fairness because the learned Magistrate refused to issue a subpoena to the plaintiff to produce documents. I consider that this ground is without merit and is baseless. There was a discovery obligation upon Mr Freytag and there is no evidence that Mr Freytag did not fulfil his discovery obligation. Then it is alleged that Mr Naumovic was denied procedural fairness concerning production of the defendant’s list of documents and supplementary documents until Ms Walsh gave her evidence. I consider that, again, there is no basis for this criticism and it is wrong. Then, Mr Naumovic complains about the content of [280] of the judgment of the learned Magistrate concerning the evidence given by Ms Walsh. Further complaints are made about the findings of the learned Magistrate at [152] and [252]. These criticisms relate to the failure by Mr Naumovic to call evidence and the position of the learned Magistrate due to this paucity of evidence. They are not a basis to allege any failure to provide Mr Naumovic with procedural fairness.
The next group of complaints allege that the learned Magistrate erred in rejecting the defendant’s defences. The first related to the defence of justification and the defence of contextual truth. These are set out at paragraphs 18, 19 and 20 of the grounds of review. I have considered each of those grounds. I am satisfied that the learned Magistrate did not err in rejecting the defendant’s defences. I am satisfied that the learned Magistrate did consider the evidence of Mr Peter Pantelis and so much is apparent from the content of the learned Magistrate’s decision. The learned Magistrate was in a position where he could assess the evidence of the defendant’s witnesses. His Honour did so as part of his judicial function. No error is disclosed. The orders made by the learned Magistrate in relation to disclosure do not evidence any failure to provide for procedural fairness. I am satisfied that the learned Magistrate did take into account the alleged defence of contextual truth and I refer in particular to the discussion at and leading to [288] of the learned Magistrate’s decision.
On the topic of qualified privilege, his Honour found at [236] that qualified privilege does not apply. His Honour found at [237]-[241] that even though Ms Burton, the solicitor representing Mr Freytag, may have had an interest in receiving the information (in this email), none of the other recipients of the email had any such interest. In the prior proceeding, leave had been given to join the council but had not been pursued. The learned Magistrate found that Mr Naumovic had mis‑stated or overstated the facts of the matter and that it had not been established that any of the copied recipients had an interest or apparent interest in having the information contained within the emails. His Honour also found at [242] as follows:
[242] Additionally I hold the following views relevant to the defence of qualified privilege:
1. The defamatory imputations carried by the published matter are exceptionally serious.
2. The allegation that Mr Freytag was an habitual liar and at best lies by omission were not proven facts.
3. It was not appropriate for the matter complained of to be published. I do not accept Mr Naumovic’s assertions, that it was appropriate and necessary to publish the email as a response to the Defence filed in the earlier action. The proper course if Mr Naumovic wished to dispute matters raised in the Defence was to file a Reply. In the overall context of the relationship between the parties I believe that Mr Naumovic’s primary intention in publishing the email, and in particular by providing it to the cc’d recipients, was to embarrass Mr Freytag and effectively disparage him to those recipients.
On that basis, his Honour found that Mr Naumovic was actuated by malice.
Following those findings of the learned Magistrate, it is unnecessary to consider paragraph 20 of the application for review because the defence of honest opinion and triviality have no part to play.
The next group of grounds is described as other matters that give cause for grounds of review. It is alleged that the learned Magistrate took into account matters that were pleaded in an earlier action. That is incorrect. His Honour had regard to a number of matters in the earlier action in order to inform himself of the veracity or otherwise of allegations within the existing action about that action. They were matters of fact and not matters of evidence.
It is then alleged that the learned Magistrate displayed an apprehended bias in favour of the plaintiff because he favourably commented upon the plaintiff throughout the judgment but was harsh upon the defendant. In its decision in Charisteas,[2] the High Court has recently dealt with the question of apprehended bias. The Court held as follow:
Apprehended bias
[11] Where, as here, a question arises as to the independence or impartiality of a judge, the applicable principles are well established,[3] and they were not in dispute.
The apprehension of bias principle is that "a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide".[4] The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial – that it is conducted by an independent and impartial tribunal.[5] Its application requires two steps: first, "it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits"; and, second, there must be articulated a "logical connection" between that matter and the feared departure from the judge deciding the case on its merits.[6] Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.[7]
[12] As five judges of this Court said in Johnson v Johnson,[8] while the fair-minded lay observer "is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice".
[2] Charisteas v Charisteas and Ors [2021] HCA 29.
[3] Ebner (2000) 205 CLR 337 at 344-345 [6]-[8]; Concrete (2006) 229 CLR 577 at 581-582 [3], 609 [110]; Smits v Roach (2006) 227 CLR 423 at 443-444 [53]; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at 437 [31]; Isbester v Knox City Council (2015) 255 CLR 135 at 146 [21]; CNY17 (2019) 268 CLR 76 at 88 [21], 98-99 [57].
[4] Ebner (2000) 205 CLR 337 at 344 [6]; Concrete (2006) 229 CLR 577 at 609 [110].
[5] Ebner (2000) 205 CLR 337 at 343 [3], 344-345 [6]-[7], 348 [22]-[23], 362 [79]; Concrete (2006) 229 CLR 577 at 609-610 [110]-[111].
[6] Ebner (2000) 205 CLR 337 at 345 [8]; see also 350 [30].
[7] Ebner (2000) 205 CLR 337 at 345 [8], 350 [30]; Concrete (2006) 229 CLR 577 at 609-610 [110]-[111]; CNY17 (2019) 268 CLR 76 at 88 [21], 98-99 [57].
[8] (2000) 201 CLR 488 at 493 [13] (footnote omitted), quoted in Concrete (2006) 229 CLR 577 at 609-610 [111]. See also S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 at 378-381.
On the topic of ordinary judicial practice, the court said at [13] as follows:
[13] Ordinary judicial practice, or what might be described in this context as the most basic of judicial practice, was relevantly and clearly stated by Gibbs CJ and Mason J in Re JRL; Ex parte CJL9 in 1986 by adopting what was said by McInerney J in R v Magistrates' Court at Lilydale; Ex parte Ciccone in 1972:[9]
"The sound instinct of the legal profession – judges and practitioners alike – has always been that, save in the most exceptional cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party. Once the case is under way, or about to get under way, the judicial officer keeps aloof from the parties (and from their legal advisers and witnesses) and neither he nor they should so act as to expose the judicial officer to a suspicion of having had communications with one party behind the back of or without the previous knowledge and consent of the other party. For if something is done which affords a reasonable basis for such suspicion, confidence in the impartiality of the judicial officer is undermined."
[9] [1973] VR 122 at 127. Now reflected in Australasian Institute of Judicial Administration Inc, Guide to Judicial Conduct, 3rd ed (2017) at 19-20 [4.3].
The decision of McInerney J in R v Magistrates Court at Lilydale; Ex Parte Ciconne[10] is also instructive on other aspects of this application. McInerney J further held as follows:
In Franklin v Minister of Town and Country Planning, [1948] AC 87; [1947] 2 All ER 289, Lord Thankerton (AC), at p. 103, referred to "the standard of even-handed justice which the law requires from those who occupy judicial office". He added: "The reason for this clearly is that, having to adjudicate between two or more parties, he must come to his adjudication with an even mind, without any inclination or bias towards one side or the other in the dispute. As Lord Cranworth, LC, says in Ranger v Great Western Railway Co (1854) 5 HL Cas 72, at p. 89; [1843-60] All ER Rep 321: 'A judge ought to be, and is supposed to be, indifferent between the parties. He has, or is supposed to have, no bias inducing him to lean to the one side rather than the other. In ordinary cases it is a just ground of exception to a judge that he is not indifferent...'."
In the present context, therefore, as Lord Thankerton pointed out and in Franklin's Case, supra, the proper significance of bias is to denote a departure from the standard of even-handed justice. A judge must be vigilant to see that he does not depart from the standard of even-handed justice. It is important also that he does not present the appearance of departing from that standard. For even if justice is in fact and in law done, the moral authority of the judgment is impaired if the judgment was given in circumstances which might reasonably give rise, in the minds of reasonable men, to suspicions that justice was not in fact done. If such suspicions arise, public confidence in the administration of justice is shaken. Consequently it has always been regarded as "not merely of some importance, but of fundamental importance, that justice should not only be done but also be manifestly seen to be done"--to quote the well-known words of Lord Hewart, LCJ, in R v Sussex Justices; Ex parte McCarthy, [1924] 1 KB 256, at p. 258; [1923] All ER Rep 233, at p. 234. And to quote another statement of Lord Hewart from the same case: "Nothing is to be done which creates even a suspicion [and I interpolate--'among reasonable people'] that there has been an improper interference with the course of justice."
Long ago Madden, CJ, pointed out in R v Molesworth (1898) 23 VLR 582 (reported sub. nom. Re Rener (1898) 4 ALR 65, at pp. 66-7), that it is not possible to protect any tribunal from the suspicion of those "people and not by any means a few, who from impetuosity, a weak sense of justice, recklessness or want of technical understanding, attribute every legal decision which they do not like to the bias or personal proclivities of the judge or jury". Such persons may be, as Madden, CJ, recognized, "respectable and fair after their capacity, but not necessarily reasonable persons". What the law therefore is concerned to ensure is that there should not be grounds for a reasonable suspicion that a proper hearing and a proper determination has not been accorded to the parties.
Certain rules of conduct for judicial officers have, therefore, been evolved over the centuries to ensure firstly that they "act in good faith and listen fairly to both sides" (Board ofEducation v Rice, [1911] AC 179, at p. 182; [1911-13] All ER Rep 36, at p. 38), and secondly that they do not appear to act unfairly, as, for instance, by taking evidence or representations from or hearing the submissions of one party behind the back of the other: see Errington v Minister of Health, [1935] 1 KB 249; [1934] All ER Rep 154; R v Birmingham Justice, [1970] 3 All ER 945; [1970] 1 WLR 1428, at p. 1433G (per Lord Parker, CJ) and at p. 1434 (per James, J). And of course no judicial officer should so act as to give any ground for suspicion that there has been any secret dealing or arrangement between himself and one of the parties.
The instances I have given are not to be taken as exhaustive. It is impossible to formulate any set number of tests which will be applicable in the infinite variety of circumstances that may exist: see Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475, at pp. 503-4; [1964] ALR 517, in the judgment of Kitto J.
[10] Ibid at pp 126-127.
Merely favourably commenting upon a plaintiff in a judgment is not a basis for an allegation or a finding of apprehended bias. The question of apprehended bias must in the ordinary course, arise during the course of the proceedings and arise from the conduct of the learned Magistrate. No such allegation is made. The second assertion is that the learned Magistrate gave a particular weight and credibility to evidence given by the plaintiff in Exhibit P3. The question of the weight and the assessment of the credit to be given to the evidence in an exhibit is a matter for the learned Magistrate. That is not an example of the learned Magistrate acting with apprehended bias. The third is that in the course of the judgment, the learned Magistrate made excuses for the plaintiff’s conduct throughout the trial about the formulation of his claim. Having read the judgment of the learned Magistrate and having considered the relevant passages in the transcript of the trial, there is no basis that I am able to identify which meets the assertion of excuses having been made for the plaintiff’s conduct during the trial. There is no evidence that I have been able to detect and none is alleged of such conduct by the learned Magistrate. It is then alleged that the learned Magistrate did not remain neutral during the trial and complaints are made about the findings that the learned Magistrate made, including of the malice of Mr Naumovic. On my reading of the material, such findings were open to the learned Magistrate and it was appropriate and necessary for the learned Magistrate to make those findings.
The next group of complaints concerns the judgment on the application to set aside a summons to witness and the reasons provided on 22 May 2020. Those reasons do not form part of the judgment of the learned Magistrate and are therefore not before this court on this application for review. If it was necessary for those matters to be reviewed, then that must be the subject of a separate application by Mr Naumovic.
The final group of complaints relate to the damages awarded. It is alleged that the learned Magistrate was erroneous in his assessment of the damages being the maximum amount claimable in the minor civil section. It is said that they were not proportional or rational to the alleged harm sustained by the plaintiff. It is again alleged that the learned Magistrate displayed an apprehended bias at [291] and engaged in improper conduct. The learned Magistrate said at [291] as follows:
DAMAGES
[291] Mr Freytag limited his claim for damages to $12,000.00 being the maximum amount claimable in a minor civil action. If he had sued in the general jurisdiction or in a higher court there is little doubt that his general damages would have been assessed in an amount significantly in excess of $12,000.00. He may also have been entitled to aggravated damages having regard to the manner in which Mr Naumovic conducted his defence of the claim.
Finally, Mr Naumovic alleges that the learned Magistrate erred in the assessment of interest and other costs.
I am satisfied that there is no basis to challenge the assessment of damages made by the learned Magistrate. Merely because this was the maximum amount claimable in the minor civil jurisdiction does not mean that these damages were not otherwise claimable. I am satisfied they are proportional and they are rational. They reflect the harm sustained by the plaintiff.
There is no basis to allege the learned Magistrate egregiously displayed an apprehended bias at [291] of his judgment. I am satisfied that the observations there set out by the learned Magistrate are justified and are correct. It is suggested that in making such a finding, improper pressure has been placed upon Mr Naumovic. No basis is made out.
In any event, there is no basis to allege an apprehended bias because the reasonably informed observer would accept and agree with the findings of the learned Magistrate at [291]. I have made my own calculation of the assessment of interests, fees and other costs. I consider that the calculation of interest (in this instance being pre-judgment interest) is assessed at the correct rate. I am satisfied that the learned Magistrate was justified in awarding the filing fee, the trial fee, the attendance fee and the cost of the concerns notice. I am satisfied therefore that the total calculation of damages, costs and interest in the sum of $15,140.00 made by the learned Magistrate at [297] is correct. There is no basis to interfere with the exercise of the discretion of the learned Magistrate.
In those circumstances I affirm the decision of the learned Magistrate. I dismiss the application for review.
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