| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : RANKILOR -v- CIRCUIT TRAVEL PTY LTD [2011] WADC 230 CORAM : DAVIS DCJ HEARD : 14 DECEMBER 2011 DELIVERED : 22 DECEMBER 2011 FILE NO/S : APP 56 of 2011 BETWEEN : WENDY RANKILOR Appellant
AND
CIRCUIT TRAVEL PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE BROMFIELD File No : PE 2978 of 2009 Catchwords: Civil - Appeal from Magistrates Court - Minor case claim - Allegation of denial of natural justice
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Legislation: Magistrates Court (Civil Proceedings) Act 2004, s 27, s 29, s 30, s 32, s 40 Result: Appeal dismissed Representation: Counsel:
Appellant : In person
Respondent : Mr D G Price
Solicitors:
Appellant : Not applicable
Respondent : D G Price & Co
Case(s) referred to in judgment(s):
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 258 ALR 14
Cameron v Cole (1944) 68 CLR 571
Insight Vacations Pty Ltd v Young [2010] NSWCA 137
Kioa v West (1985) 159 CLR 550
Lowry v Elliott [2009] WADC 193
R v Small Claims Tribunal; Ex parte Amos [1978] Qd R 127
Rankilor v Circuit Travel Pty Ltd [2010] WADC 170
Re Burton; Ex parte Lowe [2003] WASCA 306
Tobin v Dodd [2004] WASCA 288
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1 DAVIS DCJ: The appellant, Ms Rankilor, has appealed from a decision of his Honour Magistrate Bromfield made on 12 July 2011 when he dismissed her claim against the respondent, Circuit Travel Pty Ltd.
2 Ms Rankilor's claim against Circuit Travel was a minor case claim in the civil jurisdiction of the Magistrates Court. She claimed $10,000 from Circuit Travel for an alleged breach of contract arising from a 27 day European tour which she undertook with her companion, Mr Cannon, in October 2008. 3 The claim was initially heard and dismissed by his Honour Magistrate Boothman on 19 July 2010. That magistrate's dismissal of Ms Rankilor's claim was the subject of an appeal to this court determined by Birmingham DCJ in Rankilor v Circuit Travel Pty Ltd [2010] WADC 170. Ms Rankilor's appeal was allowed and orders were made setting aside the judgment of Magistrate Boothman and remitting the matter back to the Magistrates Court for retrial before a different magistrate. 4 That retrial took place before Magistrate Bromfield over three days on 22 February 2011, 23 May 2011 and 12 July 2011, and he delivered oral reasons for decision, dismissing Ms Rankilor's claim, at the end of the third day. 5 Section 32 of the Magistrates Court (Civil Proceedings) Act 2004 restricts appeals from a judgment of the court in a minor case to situations of jurisdictional error or denial of natural justice. There is no general right of appeal against a decision because the magistrate was wrong in fact or law. 6 In her appeal notice Ms Rankilor claims that she was denied natural justice in the trial before Magistrate Bromfield.
Principles of natural justice 7 The principles of natural justice require procedural fairness to the parties before the court. A person must be given a reasonable opportunity to present his or her case and to be heard: Cameron v Cole (1944) 68 CLR 571, 589; Rankilor v Circuit Travel [12] and [67]. 8 Whether or not there has been a denial of natural justice in the course of any hearing must be assessed by reference to the application and the manner in which the hearing was conducted. The function which the court was performing and the statutory principles and rules governing its exercise must also be taken into account: Kioa v West (1985) 159 CLR (Page 4)
550, 584 - 585; Lowry v Elliott [2009] WADC 193 [17]; Rankilor v Circuit Travel. 9 The primary object of the Magistrates Court in dealing with a minor case is to attempt to bring the parties to a settlement; see s 27 of the Magistrates Court (Civil Proceedings) Act. Section 13 of the Act specifically provides that cases must be dealt with efficiently, economically and expeditiously and that the court's judicial and administrative resources are used as efficiently as possible. Section 29 of the Act provides that the court is also required to act with as little formality as it thinks reasonable, is not bound by formal rules of evidence and may inform itself on any matter in any such manner as it thinks fit. The parties are not entitled to be legally represented except with the leave of the court: s 30 of the Act. In the case of a party which is a corporation, subject of course to s 30, the corporation is to be represented by one of its officers or employees who has written authority to do so: s 44 of the Act. 10 The emphasis is on minor case claims being dealt with expeditiously and with finality. That is highlighted by the fact that there is no right of appeal from an error of fact or law by a magistrate. 11 It is also important to remember that the relevant duty of the court is to ensure that a person is given a reasonable opportunity to present his or her case. The law does not impose on the court the impossible task of ensuring that a person takes the best advantage of the opportunity: Lowry v Elliott [22].
The materials on this appeal 12 Section 40(4) of the Magistrates Court (Civil Proceedings) Act requires me to decide the appeal on the material and evidence that were before the Magistrates Court. I have had regard to the transcript of the proceedings before the magistrate and both parties in this appeal referred me to relevant pages from that transcript.
The nature of Ms Rankilor's claim against Circuit Travel 13 Ms Rankilor travelled from Australia to London in September 2008 and undertook an 8 day British Panorama Tour. This tour was not the subject of Ms Rankilor's claim, although she gave evidence concerning problems with transport upon her arrival at Heathrow airport (22 February 2011 ts 41-42), stated that she did not get day 4 as advertised in the brochure for that tour (23 May 2011 ts 25 and 26) and also gave evidence concerning a difficulty with hotel accommodation the night (Page 5)
before the commencement of the European Masterpiece Tour, the subject of her claim (22 February 2011 ts 43-47). 14 At the commencement of the European Masterpiece Tour Ms Rankilor discovered that there were two coaches of people on the tour and she was put on what was referred to as the A coach. Ms Rankilor's complaints about the 27 day European Masterpiece Tour included the following: 1. In Paris on day 2, one of the tours stated to include a visit to the Madeleine Church but this was substituted with a visit to Notre Dame Cathedral; 2. In Barcelona, day 4, those on the other coach stayed in a better hotel than those on the A coach on which Ms Rankilor was travelling. Also in Barcelona Ms Rankilor did not get complete transport because she had to walk from her hotel 485 m down a steep hill in order to catch her coach, and 485 m up a steep hill from the coach. (The evidence from Mr Cannon was that the coach had to park away from the hotel because of road works); 3. When visiting Pompeii on day 10, there was a delay of 1 hour and 45 minutes in commencing a tour of Pompeii because the tour director decided to allow people to first have a meal; 4. On day 11 on the Isle of Capri an optional tour was to include a jetfoil ride at least one way, and this did not occur; 5. At Olympia on the morning of day 14 Ms Rankilor had planned to visit the museum, but was unable to because of an early departure time to Athens, about which she received late notice only the night before; 6. Later on day 14, in Athens, a proposed visit to the Acropolis Museum did not take place because the museum was closed. A substitution was made with the people on tour taken to the Olympic Temple of Zeus and Hadrian's Arch; 7. Because of changes in ferry schedules in Athens, a later ferry had to be taken to reach Ancona on day 16 and because of this an hour of time was lost; 8. On day 17 Ms Rankilor claimed that the travel booklet stated that participants on the tour, after travelling from Ancona to (Page 6)
San Marino would be 'perched on Mount Titano for an overnight' from which Ms Rankilor understood that the overnight accommodation would enjoy a position on the summit. Ms Rankilor did not stay on the summit overnight but instead stayed at a hotel at the bottom of the mountain, with a view of a brick wall; 9. At San Marino, on day 18, Ms Rankilor did not receive a tour of the San Marino historical site; 10. In Venice, at the end of day 18 during an optional night-time tour which included dinner, while dining she had to put up with an argument between the tour director and the chef about someone else's dinner; 11. On day 23 a promised orientation tour of Lucerne did not take place and the tour consisted only of being shown the Lion Monument. Ms Rankilor had expected to see in particular the Wooden Bridge, a picture of which appeared in the tour brochure, and missed out on seeing this; 12. On day 25 in Germany Ms Rankilor had to eat her breakfast in a conference room, rather than the main dining room of the hotel in which she was staying, and there was a shortage of milk. (People from the other coach were able to breakfast in the dining room); 13. On day 27, returning to London from Amsterdam there were problems with a coach ride which Ms Rankilor said was unsafe both because of the way the coach was driven by the driver (driving with a malfunctioning demister and speeding) and the fact that there were some suitcases on seats surrounding the passengers; 14. Finally there was a complaint about the absence of seating room or as Ms Rankilor described it, 'squashed' seating on the coach.
The magistrate's decision 15 After describing the tour and the contractual documents, the magistrate stated, relevantly that (12 July 2011 ts 72): [T]he claimant has presented minute details of her expressed dissatisfaction with the services presented by the defendant. The dissatisfaction originates at the very commencement or immediately (Page 7)
before the commencement of the tour. She didn't have a transfer from the airport to a hotel for which she had a voucher. Upon making her own way to the hotel she was ultimately, after some difficulty, informed that she would be accommodated at another hotel. The evidentiary material indicates that that alternate hotel was of a lesser standard than that allocated by the defendant to the first hotel. The first hotel, as I recall it, was Novotel and the second one was Thistle. The tour then proceeded and I have heard in quite some detail over the various days of this hearing the claimant's assertion as to the deficiencies. The deficiencies were numerous. It is apparent that the performance of the tour director was perceived by the claimant to fall short of the standard that she expected to receive. There were a number of variations, one of which arises, it seems, out of the fact that there were in fact two coaches participating on the one tour … 16 The magistrate then proceeded to refer to the issues with accommodation in Barcelona and San Marino. In relation to the latter, the magistrate observed that what was stated in the documentation was 'Then proceed towards San Marino, one of the world's most ancient states perched on Mount Titano for an overnight.' The magistrate construed this to mean that San Marino is located on the top of the mountain and not that the overnight was going to occur perched on Mount Titano. 17 The magistrate then referred to the other complaints raised by Ms Rankilor. In relation to the failure to see anything in Lucerne other than the Lion Monument, he observed that one of the contractual terms indicated that of the pictorial representation in the tour brochure, not all features displayed there will necessarily be viewed. Later, when dealing with the failure to see the Acropolis museum, the magistrate referred to the terms and conditions in relation to changes of arrangements and that it was for the claimant, Ms Rankilor, to show that the failure by the defendant arose through its own fault and not as a result of factors beyond its control. 18 After the magistrate addressed other issues raised by Ms Rankilor he concluded: When the court looks at the totality of the evidence starting at the beginning, the failings by the claimant to reconfirm her bookings as she was contractually obligated to do so, the deficiencies arising from the lack of the transfer, the change of hotel, it's not shown to the civil standard of persuasion on the balance of probabilities that the defendant has breached the contractual obligations. A substitute hotel, albeit inconsistent with the contract that they would be of comparable standard, was supplied; but that (Page 8)
has to be viewed in the context of the breach by the complainant of her contractual obligations to reconfirm the booking not less than 24 hours in advance. When I sit back and look at the totality of this evidence, it's clear that the claimant did not derive the enjoyment that she had the expectation that she would derive. It's perhaps soured at the start by the events which largely arise out of her own failings. Perhaps the claimant concentrated her attention on the minutiae of the contract, the deficiencies, clashes of personality with the tour director. The court at the end of the day, when weighing up the totality of the evidence, is not satisfied that the claimant has established to the civil standard of persuasion that there was a fundamental breach of the defendant's contract. The number of exclusions contained in the contract permitted substitute facilities to be presented where the inability to do so. I could well perceive that in this instance, as an example, the one hour ferry journey that was ultimately - I have to be careful that I don't get it back to front. That the ferry journey from Patras to - leaving Athens and embarking on a ferry for a crossing to Ancona this variation may well, had it been the reverse, deprived the claimant in her mindset regarding the facilities of the tour, minded as she was and concentrating on the facilities provided to the other coach, the fact that they may have received an upgrade, doesn't mean that the defendant company has breached its contractual obligations to her.
Ms Rankilor's appeal grounds 19 The grounds of appeal in Ms Rankilor's appeal notice are vague, unnumbered, not properly particularised and very long. In some of the paragraphs in the appeal notice it was difficult to see how any issue of natural justice arose. Ms Rankilor also filed a set of submissions covering 66 pages and containing a summary of everything which occurred before the magistrate over the three hearing days of her claim. I have taken into account that Ms Rankilor is a self-represented litigant and I need to determine, notwithstanding poorly expressed grounds, what her appeal grounds are and whether there is any merit to them: Tobin v Dodd [2004] WASCA 288 [13] - [18]. 20 From what has been set out in Ms Rankilor's notice of appeal, as well as my discussions with her during the appeal hearing, Ms Rankilor's case is that she was denied natural justice for the following six reasons, which I will refer to as appeal grounds 1 to 6: (Page 9)
1. During the first day of the hearing, 22 February 2011, two people from Circuit Travel attended court, Ms Sara Toman and Ms Mary Catsandonis, and sat at the bar table. 2. At the end of the first day the magistrate referred the parties to a specific case, Insight Vacations Pty Ltd v Young [2010] NSWCA 137, inviting both parties to consider that judgment. Ms Rankilor argued that the magistrate ought not to have drawn this case to the parties' attention during the trial, but rather should have raised it before the commencement of the trial. 3. Ms Rankilor was given limited time to look at Circuit Travel's submissions on that decision of Insight Vacations Pty Ltd v Young, after those submissions were provided to her on the morning of the second day of the hearing on 23 May 2011. 4. The magistrate was overly concerned with the issue of time, particularly on 12 July 2011 when he 'rushed' to finish the trial. 5. During the hearing on 12 July 2011 the magistrate failed to make sure that Circuit Travel's representative, who appeared by audio-link, was alone after noises were heard on the audio-link. 6. When the magistrate dismissed her claim, he relied on irrelevant considerations and then, while he agreed with her on a number of issues, cast them all aside. 21 I now address the particular matters which are the subject of Ms Rankilor's appeal grounds as I have set them out, and other matters to which she referred both in her written and oral submissions in this appeal.
Appeal ground 1 22 On 22 February 2011 the trial did not commence until after the magistrate had attempted to try and bring the parties to a resolution, as required under s 29 of the Magistrates Court (Civil Proceedings) Act. The two Circuit Travel representatives, Ms Toman and Ms Catsandonis, were present during the settlement discussions. 23 Once the trial began Ms Rankilor requested the magistrate to have Ms Catsandonis removed, however, the magistrate permitted Ms Catsandonis to remain. He did so only after he had ascertained that she was not a witness in the trial. Ms Catsandonis did not take part in the proceedings. The only spokesperson for Circuit Travel was Ms Toman. (Page 10)
24 Ms Rankilor claimed she was prejudiced by having to face what she describes as 'two representatives acting on behalf of Circuit Travel'. Ms Rankilor also alleged that Ms Catsandonis was sitting at the bar table and was able to look at some of Ms Rankilor's papers. 25 There is nothing in the transcript that would suggest that Ms Rankilor was not comfortable with the presence of Ms Catsandonis in the courtroom. Certainly there is nothing to suggest that Ms Catsandonis was looking at Ms Rankilor's papers at any stage during the hearing. For most of the day Ms Rankilor was giving evidence herself and, as she advised me during the appeal hearing and also from my reading of the transcript, she had most of her papers with her in the witness box while she was doing this. 26 There is nothing to indicate, apart from after lunch when Ms Rankilor made it plain to the magistrate that she was unwell, that Ms Rankilor was under any discomfort, pressure or stress during that first hearing day or unable to present her case. Further, as soon as Ms Rankilor did mention she was unwell and notwithstanding the inconvenience to Circuit Travel, the magistrate adjourned to enable Ms Rankilor to obtain treatment (ts 62). 27 There was no denial of natural justice to Ms Rankilor and there is no merit in this appeal ground.
Appeal ground 2 28 The magistrate referred the case of Insight Vacations Pty Ltd v Young to both parties. It is a common practice of judicial officers in all jurisdictions that if there is a case relevant to any aspect of the issues before the court, the judicial officer will raise that case with the parties. That can be raised at any stage of the proceedings. 29 In my view there was no denial of natural justice in the magistrate taking the course that he did - in fact, if that case had subsequently been relied upon and had not been raised by the magistrate that may have been a denial of natural justice. That is not what occurred, however, and this ground of appeal is without merit.
Appeal ground 3 30 When the magistrate referred the case of Insight Vacations v Young he did not make any order for submissions to be filed and exchanged. Ms Rankilor, however, filed written submissions on 16 May 2011. Circuit Travel subsequently provided its written submissions addressing (Page 11)
the case, however, did not provide a copy of the submissions to Ms Rankilor. 31 At the hearing on 23 May 2011 the magistrate checked whether Ms Rankilor had received a copy of Circuit Travel's submissions. When he ascertained that she did not, he provided a copy to her and allowed an adjournment to enable her to read those submissions. According to the time noted on the transcript this was done shortly after the commencement of the hearing at 10.17 am and the hearing did not recommence until 10.36 am (23 May 2011, ts 3). 32 The first question which the magistrate asked after the adjournment was whether Ms Rankilor had taken the opportunity to read the submissions. While she observed she had had limited time to go through what was approximately 12 pages, she was able to comment on the main aspects of those submissions (see 23 May 2011 ts 3 and 4). It should not be forgotten that Ms Rankilor had already filed and served her own written submissions dealing with this case. After addressing the legal issues and observing that, unlike Circuit Travel, she did not have access to a solicitor, this is what Ms Rankilor told the magistrate (ts 4): They still have a solicitor based here in Western Australia, and they can get as much information as they wish from him as long as he doesn't walk into this courtroom, so all I can really say is, we're in a Western Australian court. I can prove a lot of my issues. I have it all here. I can show categorically that I did not get certain things and there were a lot of things I did not get and to this day Circuit Travel know that and they are still saying they have not breached their contract or done anything wrong and I'm saying that I can prove that they have. 33 Ms Rankilor was later asked by the magistrate 'are you in a position to continue with your evidence?', to which Ms Rankilor replied 'Absolutely, sir. I have everything here' (ts 5). 34 The statements made by Ms Rankilor to the magistrate indicated that she was ready to proceed, she was in a position to continue with the case and to present her evidence. In any event the hearing did not finish on 23 May and was adjourned again to 12 July 2011. Ms Rankilor therefore had sufficient time - at least six weeks - within which to review the written submissions provided by Circuit Travel in more detail and, if necessary she could have addressed those submissions further at the adjourned hearing. She was therefore not disadvantaged and there was no denial of natural justice. (Page 12)
Appeal ground 4 35 Ms Rankilor's complaint about the time issue on 12 July 2011 concentrated on the late finish to the day, together with the fact that the magistrate indicated that he wanted to finish the hearing, if at all possible, that afternoon. Ms Rankilor referred in her appeal notice to 'excessive clock watching and wanting to get the matter finalised' and rushing through the afternoon, not allocating time for things. This, it was submitted, made her feel rushed and flustered, and she was unable to locate her prepared closing statement and had to give her closing address without having what she had prepared before her. 36 As the magistrate explained to Ms Rankilor during the course of the hearing, he was obliged to ensure that the matter was dealt with economically, expeditiously and efficiently and further that the court's judicial and administrative resources were used as efficiently as possible (as specifically provided for in s 13 of the Magistrates Court (Civil Proceedings) Act). The Magistrates Court is a very busy court and the magistrate did need to take into account the fact that if there was another adjournment, this would have meant further delay to the parties in this case. Another adjournment and the relisting of another day's hearing of this matter would have also denied the resources of the court to other cases. Quite apart from the specific provision in s 13 of the Act, these are valid considerations for a judicial officer: see Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 258 ALR 14. It is often the case that a court will sit late in order to complete evidence and submissions and so avoid the necessity of a further hearing day and associated expense and delay. In my view, the course which the magistrate took involved no breach of the principles of natural justice. 37 In light of Ms Rankilor's submissions, however, I will set out what occurred when closing addresses took place. According to the time recorded on the transcript at approximately 3.11 pm (12 July 2011, ts 36) the magistrate explained that Ms Rankilor would now have the opportunity to make submissions regarding the effect of her evidence. He explained that the same opportunity would be given to the defendant to comment upon the evidence (the order of addresses dictated by the fact that the defendant did not itself call any evidence). The magistrate explained that the purpose of submissions was not to introduce fresh evidence from the bar table but to draw to the court's attention any particular facet of the evidence given by any witness and to suggest what conclusions the court might reasonably reach based upon that evidence. (Page 13)
38 Ms Rankilor then addressed the magistrate, commencing with a number of documents which had been tendered, then addressing matters raised in Circuit Travel's defence. At approximately 3.45pm (see 12 July 2011 ts 51 and 52) the following exchange took place: RANKILOR, MS: I just need to locate my closing statement then because I do have one here, sir, if that's all right to read it. Is it? HIS HONOUR: Yes if you, if you wish to refer to your closing statement. RANKILOR, MS: All I have to do is find it. Can I just have 5 minutes to locate my closing statement, please? I am aware of the time. HIS HONOUR: Are you still with us Mr Hearne? HEARNE, MR: Yes, I am, sir. HIS HONOUR: Mr Hearne, its now quarter to four in this jurisdiction, the court is intending, if it is practical, to finish the proceedings today. HEARNE, MR: Yes, that's fine. HIS HONOUR: You'll just have to bear with us. Thank you. RANKILOR, MS: If I can't locate this, I will have to just talk my way through it because I can't spend too long looking for it. I did have it, which I really did want to read out to you. I'm sorry, sir, I can't find it. I will just have to talk my way through it. HIS HONOUR: Don't get flustered. Just have a look through your documents in an orderly fashion and locate it. RANKILOR, MS: Yes, okay. Okay. I had one prepared. 39 There then followed an exchange between Mr Hearne and the magistrate because Mr Hearne asked whether he would have an opportunity for a closing statement that day and the magistrate advised that he would. Ms Rankilor continued: RANKILOR, MS: I honestly don't know where it has been put, sir, but I will just talk my way through this so that we can keep these proceedings moving. All I can say, and I will just commence and wing my way through this, is that there are a lot of things that Circuit Travel did not provide to me … (Page 14)
40 At the stage when Ms Rankilor could not find her written closing statement she was part way through her submissions. She was given time to look for her closing statement among her papers – in fact the magistrate encouraged her to take her time. When she could not find it, she was still able to continue and complete her closing oral submissions. I have read her submissions and she addressed a number of matters, consistent with the evidence and specifically mentioning most of the matters I have set out in [14] above. She also made submissions in reply to Mr Hearne's closing submissions on behalf of Circuit Travel (ts 70 and 71). 41 While the magistrate was concerned with the issue of time, there is nothing in the transcript which would indicate that this in any way precluded Ms Rankilor from presenting her case. If she feels now that she did not fully exercise the opportunity to present her argument because she had misplaced her prepared closing statement, that is not a denial of natural justice. As I have set out in [11] the duty of the court is to give a person a reasonable opportunity to present his or her case, not to ensure that the person makes the most of that opportunity. 42 There was no denial of natural justice and no unfairness or disadvantage to Ms Rankilor, and I consider there is no merit in this ground of appeal.
Appeal ground 5 43 During the hearing on 12 July 2011 while Circuit Travel's representative on that day, Mr Hearne, was cross-examining one of Ms Rankilor's witnesses, Mr Cannon, noises could be heard from the room where Mr Hearne was situated, appearing via audio-link. Ms Rankilor submitted that the noise was in fact laughter and that laughter was coming from two people not just one. Ms Rankilor suspected that Circuit Travel's representative was not on his own, when he should have been, but had someone there assisting him. It was, Ms Rankilor said, a denial of natural justice to her that she was taking on two representatives. In her appeal notice she submitted the magistrate had not done anything appropriate about it 'such as awarding a default decision to me'. 44 Again it is necessary to set out what the transcript records. The time when noises were heard was just after 2.29 pm (12 July 2011, ts 24): HEARNE, MR: I apologise about that noise, if you can hear it? HIS HONOUR: We can. (Page 15)
45 The cross-examination continued for some further time until 2.41 pm when the following occurred (ts 28): HIS HONOUR: Mr Hearne, I'm being distracted by noises in the background. If you have others accompanying you or giving you instructions I will direct you to tell them to desist. HEARNE, MR: I actually don't have anyone in the room. I have - I've got a meeting room next to us which they could be a little bit noisy and the speaker is picking up on that. Would you mind if I just go and tell them to be quiet please? HIS HONOUR: Please make those arrangements, Yes. Thank you. HEARNE, MR: I'm back and I have asked them to be quiet. HIS HONOUR: Thank you. 46 As Ms Rankilor conceded in the appeal hearing, after this exchange there were no further noises heard from the room. 47 In the context of the stage of the proceedings at which this occurred, the relatively short period of time during which this occurred and the fact that this happened to be in the middle of Circuit Travel's cross-examination, I find that there was no unfairness to Ms Rankilor. Ms Rankilor conceded in the appeal hearing (ts 18) this did not interfere with Mr Cannon's giving of evidence, nor did it affect Ms Rankilor's ability to present her case. 48 In my view the magistrate acted appropriately and there was no denial of natural justice to Ms Rankilor.
Appeal ground 6 49 Ms Rankilor complained that the magistrate took into account irrelevant considerations by referring in his reasons to what had occurred before the commencement of the European Masterpiece Tour. She also complained that he agreed with a lot of her claim and then dismissed her claim based, she said, on a decision that she had breached the contract because she had not confirmed the European Masterpiece Tour. (Page 16)
50 As to this ground of appeal, Ms Rankilor took me in detail through the magistrate's reasons for decision where he referred in particular to her arrival at Heathrow and transfer to London. She said this related to the British Panorama Tour and had nothing to do with the European Masterpiece Tour. She complained that the magistrate said she had breached the contract by not confirming the European Masterpiece Tour, leading to the confusion about which hotel she and Mr Cannon were staying at the night before the European Masterpiece Tour commenced. She said that this was incorrect as she did confirm the tour, evidenced by the fact that she participated on the tour. 51 To the extent that the magistrate made an adverse finding against Ms Rankilor in relation to these matters, I find that the magistrate's findings are not the consequence of procedural unfairness or failure to observe the principles of natural justice. While Ms Rankilor complained that what happened on arrival at Heathrow did not relate to the European Masterpiece Tour, as the magistrate observed in his reasons (12 July 2011 ts 72), this was included by Ms Rankilor in her Statement of Minor Case Claim. Further, when looking at his reasons overall, and in particular his specific findings in relation to the European Masterpiece Tour, it is my view that the magistrate referred to the matters which preceded that tour as reasons why Ms Rankilor did not derive enjoyment from the tour. After dealing with this he specifically canvassed the contract for the European Masterpiece Tour and found that this contained a number of exclusions which permitted substitute facilities to be presented. He then found, looking at the totality of the evidence, that while Ms Rankilor did not derive the enjoyment she had expected from the tour, she had failed to establish that there was a fundamental breach of her contract. 52 Ms Rankilor also took me in great detail through the relevant pages of the transcript where the magistrate had commented on the facts, particularly where he indicated an agreement with matters of evidence called by Ms Rankilor. In her submissions she argued that the magistrate had 'cast all that aside' and that from a denial of natural justice legal point of view, she did not believe that he should be able to use reasonings that were 'not true'. 53 Although there were matters of fact on the evidence called by Ms Rankilor with which the magistrate agreed, what the magistrate had to determine was whether Ms Rankilor had established, on the balance of probabilities, that Circuit Travel had breached the terms of the contract. For the reasons he gave, he found that there was no such breach. (Page 17)
54 In my view this ground of appeal is an attack of the merits of the case. It is not possible to negate an error of law or an error of fact by dressing it up as a denial of natural justice: R v Small Claims Tribunal; Ex parte Amos [1978] Qd R 127; Re: Burton; Ex parte Lowe [2003] WASCA 306 [62] and [87]. 55 While Ms Rankilor was dissatisfied with the magistrate's decision and the reasoning process by which the magistrate dismissed her claim, that does not mean that there has been a denial of natural justice: Re: Burton; Ex parte Lowe [81] and [87]. Ms Rankilor may well feel, given that the defendant did not call any evidence and there were matters of fact accepted by the magistrate, that she has been hard-done-by, however, Parliament has clearly provided that there is no right of appeal against either an error of fact or law. 56 Whether or not he made an error of fact or law, I am not satisfied that the magistrate denied Ms Rankilor natural justice when making his determination. This ground of appeal is without merit and cannot succeed.
Conclusion 57 Having read the transcript of the proceedings which took place before Magistrate Bromfield, I am satisfied having regard to how the case was run overall, and also the nature of the proceedings, that Ms Rankilor was given every opportunity to present her case fully and every consideration was given to her by the magistrate, including an adjournment on the first day after she advised him that she was not well. 58 It is true that the magistrate was very concerned by time, but that has to be understood in light of the fact that this was a minor case and the Magistrates Court is a very busy court. The magistrate was obviously anxious to ensure that the matter was completed on the third day and that it did not go over into a fourth day of hearing, requiring another adjournment. In my view, that does not amount to a denial of justice. 59 From my review of the transcript and how the proceedings took place I can discern no breach of the principles of natural justice. 60 For all of the above reasons I conclude that there was not a denial of natural justice and that the appeal must be dismissed. 61 I will hear from the parties on the issue of costs.
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