Simonsen v Legge - [2018] WADC 4

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SIMONSEN -v- LEGGE [2018] WADC 4

CORAM: EATON DCJ

HEARD: 22 NOVEMBER 2017

DELIVERED : 18 JANUARY 2018

FILE NO/S: APP 50 of 2017

BETWEEN: MARK SIMONSEN
Appellant
AND
GEOFFREY LEGGE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE COCKRAM
File No  :PERGSUM 17201 of 2003

Catchwords:

Appeal from the Magistrates Court - Apprehended and actual bias - The proper exercise of the appellate process

Legislation:

Magistrates Court (Civil Proceedings) Act 2004

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: In person
Respondent: In person

Solicitors:

Appellant: Not applicable
Respondent: Not applicable

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

Avsar v Binning [2009] WASCA 219
Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
De Alwis v The State of Western Australia [No 2] [2015] WASCA 42
Lashansky v Legal Practice Board of Western Australia [No 3] [2013] WASCA 260
Legge v Simonsen [2010] WADC 190
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
Moti v The Queen [2011] HCA 50; (2011) 86 ALJR 117
Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251

EATON DCJ: On 20 June 2017 the appellant filed a notice of appeal in this court seeking to overturn the decision of his Honour Magistrate Cockram delivered on 31 May 2017 in the Magistrates Court at Perth. In his published judgment the learned magistrate dismissed the appellant's claim against the respondent. The judgment followed a trial which occupied 8, 9 and 10 August 2016 and 18, 19 and 20 April 2017.
The appellant relies upon 9 grounds of appeal. The respondent seeks that the appeal be dismissed.
The appellant's grounds of appeal are as follows:
1.The Magistrate failed to take a balanced view of the claim based on the weight of the documentary evidence tendered by the claimant and was biased towards the claimant in the written decision.
2.The Magistrate erred and was wrong to exclude the defendants personal bank account statements which showed regular deposits for funds relating to partnership invoices and for amounts totalling $133,907.00 for the year of 2003 for monies relating to the partnership, when the defendant had stated emphatically that his only source of income was the proceeds of drawings from the partnership.
3.The Magistrate erred and was wrong to exclude the claimant's auditors report concerning invoices totals and expenditure and instead accepted the defendant's report for only cash received rather than actual invoice value and for expenditure not related to the partnership.
4.The Magistrate did not take into account any of the documents tendered by the appellant as evidence of the actual income and expenditure of the partnership where invoices matched certain deposits made into the defendant's personal bank account.
5.The Magistrate erred and was wrong in his determination at paragraphs 3 to 5 of his decision as the appellant had tendered duplicate bankers book evidence in support of the claim and did not have original bank statements as suggested by the magistrate.
6.The magistrate was clearly biased in his decision concerning witness evidence of the appellant and shows an unbalanced reasoning based off the documentary evidence presented by the appellant and is clearly unbalanced with the scales of reasoning of the Magistrate considering the greater weight of evidence tendered by the appellant.
7.The Magistrate erred and was incorrect in that the chronology of events which unfolded in the trial clearly showed that the partnership was estranged, the appellant had accounted to the defendant, however, the $133,907.00 of partnership money in the defendants account was never entered into any final accounting to me and the bankers book evidence of this was excluded by the Magistrate.
8.The Magistrate erred and was wrong in his decision to exclude the payment of Mackinlay as clearly the evidence showed that it was not a debt that the partnership owed.
9.The Magistrate at paragraphs 43 & 44 of the decision acknowledges payment for a number of invoices that the defendant had stated had not been paid, however the Magistrate was incorrect to exclude the bankers book evidence for the defendants personal account showing that these amounts had been deposited into the defendants account together with a number of other deposits that had been established with documented evidence tendered by the appellant.
The background is that in early 2003 the parties entered into a partnership. Their agreement was not in writing. They were equal partners trading under the name AGE Automation. It was a short‑lived venture.
The appellant commenced action in the Perth Local Court to recover a sum of money from the respondent on the basis that the respondent had withdrawn funds from the partnership bank account beyond his entitlement. The claim was eventually particularised as seeking an amount of $36,170.19.
For reasons which I need not go into the action commenced in the Perth Local Court continued for years without resolution. In more recent years this matter has found its way on appeal to the Court of Appeal in 2010 and to this court in 2011. In each case the appellant was the appellant before me.
Section 40 of the Magistrates Court (Civil Proceedings) Act 2004 (the Act) provides that a party to a case that is not a minor case may appeal to the District Court against the judgment of the Magistrates Court in the case. The matter before Magistrate Cockram was not a minor case.
Such an appeal must be commenced within 21 days after the date of judgment. The appeal in this matter is within time.
By s 40(4) of the Act I am obliged to decide the appeal on the material and evidence that was before the Magistrates Court. Neither party sought leave to introduce other evidence.
Both parties have filed written outlines of submissions and each has responded to the other's written outline with further written submissions.
The appellant complains in ground 1 that the learned magistrate failed to take 'a balanced view of the claim based on the weight of the documentary evidence tendered by the claimant' and was biased towards the claimant in the written decision 'indicating a lack of partiality'. In particularising that ground, the appellant refers me to the written decision of the magistrate dated 31 May 2017, the transcript of 18 April 2017 and exhibit 1 being his bundle of documents.
Although, in oral submissions at the hearing of the appeal, the appellant used the phrase 'apprehension bias', the complaint in ground 1 would appear to be one of actual bias, meaning that Magistrate Cockram pre‑judged the matter. Such an allegation has to be judged by reference to the state of mind of the judge in question. That must be judged on the basis of what the judge has said or done (see Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [33] (Gummow ACJ, Hayne, Crennan and Bell JJ)).
As to the matter of apprehended bias, in Lashansky v Legal Practice Board of Western Australia [No 3] [2013] WASCA 260 Pullin JA said [3] ‑ [5]:
As to an allegation that a reasonable apprehension of bias might exist, there are a variety of ways that the impartiality of a court may be compromised. They include having an interest in the proceedings, whether pecuniary or otherwise: see Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 74.
The test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11].
If an allegation of apprehended bias is made, it is essential that there be an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to the case: Michael Wilson [67]. The applicant must therefore identify the relevant facts and circumstances relied on.
In the matter of De Alwis v The State of Western Australia [No 2][2015] WASCA 42 [70] McLure P said:
In judging whether there is a reasonable apprehension of bias, it should be assumed that the lay observer would base his or her opinion on a fair assessment of the judge's conduct in the context of the trial as a whole: Galea v Galea (1990) 19 NSWLR 263.
In his oral submissions the appellant referred to there being 'an apprehension bias in the way the proceedings transpired but also in the actual decision where I'm aware his Honour made some - made comments in his decision which shows an error'. When I raised the allegation in ground 1 that the magistrate was biased in favour of the respondent the appellant said:
Yes, yes, there was – from my submission, your Honour, it was very hard not to form the opinion that there was that apprehension there.
The appellant then, in oral submissions, proceeded to descend into the arguments and evidence that were put before the learned magistrate.
Although the appellant used the word 'apprehension' my conclusion is that he was confusing the concepts of actual bias and apprehended bias. I infer that he meant that it was his apprehension that the magistrate was actually biased against him. In that regard, in his written submissions, as mentioned, he refers me to the magistrate's decision of 31 May 2017, the transcript of a day of the trial, 18 April 2017, and exhibit 1 being his bundle of documents. The accused, being a party to the proceedings is not a lay observer. He is a participant with a very personal interest in the outcome of the proceedings.
I have considered all of the items particularised by the appellant, including the transcript of the day referred to, as well as his oral and written submissions. There is no suggestion of any antipathy towards the appellant. In fact, perusal of both the transcript referred to and the judgment of the learned magistrate, suggests that he conducted himself in a fair and unbiased way. In my judgment there is nothing in the materials referred to by the appellant that would suggest that a fair-minded lay observer might reasonably apprehend that the magistrate might not have brought an impartial and unprejudiced mind to the trial of the matter in the court below. In my view, whether the complaint be one of actual bias or of apprehended bias, ground 1 of the appeal is not made out.
Grounds 2 and 3 complain that the learned magistrate was wrong to exclude certain documents.
Ground 2 relates to the respondent's personal bank statements. By way of purported particularisation the appellant refers to exhibit 39 and to 29 pages of transcript of the hearing on 18 April 2017 without more. There is, also, unhelpfully, further reference to the magistrate's written decision of 31 May 2017.
Perusal of the transcript indicates that pages 1 - 32 of the appellant's bundle of documents became exhibit 39. The respondent, in written submissions, refers to that exhibit as being copies of bank statements from a private bank account.
I conclude that ground 2, without further elaboration, amounts to little more than an attempt by the appellant to re‑try the various issues that were before the magistrate. There is no suggestion that the magistrate was wrong in law. The ground asserts that the magistrate excluded the respondent's personal bank account statements. That does not appear to be an assertion that they were tendered and wrongfully ruled inadmissible. It might amount to an allegation that the magistrate failed to consider or place sufficient weight on the respondent's personal bank account statements. I am not persuaded that the learned magistrate either erroneously failed to admit the documents refereed to or failed to properly consider them.
Ground 3 is in similar terms to ground 2, asserting again that the magistrate was 'wrong to exclude' the appellant's auditor's report.
The respondent's written submissions as to this ground state:
The magistrate did not err and did not exclude the appellant's auditor's report. He did however order that the two auditors create a document highlighting the differences in the figures and the reason for the differences. The magistrate came to the correct conclusion that had both auditors used the same method of accounting, based on actual received income and expenses, then the figures would have been the same.
As with previous grounds, the appellant's particularisation of ground 3 is not helpful.
In oral submissions he said:
When, on reading the magistrate's decision, he makes no mention of the bulk of that and just zeros in on a couple of points in regards to the evidence. And then - and sort of effectively disregards it for reasons that don't make any sense. In regards to what was produced. I also noted that when the auditors were in the witness box and the magistrate was asking that – he was asking them questions, because I felt that he wasn't across the auditor's report and he also stated – he also said, in the process, that he didn't have an accountancy background. So I felt that he didn't really understand the nature of the auditors' reports and income expenditure and that.
Later the appellant said:
So his report was quite detailed and he – in his auditor's report, you – you can actually see in the exhibit with his audit report, it – it – it notes his qualifications and FCPA and a registered company auditor.
As with the previous ground, I do not discern that the appellant's complaint is that the magistrate erred in law in failing to admit an auditor's report into evidence but, rather, in his contention, he excluded an auditor's report from his consideration of the evidence. In other words, he failed to take it into account.
In my view the appellant, in using the phrase 'erred and was wrong' in various grounds is adopting a phrase often used in an appellate context to suggest an error of law or fact. The true meaning of ground 3 is the contention that the learned magistrate failed to take the appellant's auditor's report into account. Having regard to all of the materials before me I conclude that he did not fail to take it into account. The evidence suggests to the contrary.
Ground 4 contends that the magistrate did not take into account 'any of the documents tendered by the appellant …'.
In his written submissions in relation to this ground the appellant repeats the ground and again refers to numerous pages of transcript, the magistrate's decision and exhibits by number.
As with previous grounds, ground 4 is no more than an attempt to re‑try the issues before the magistrate in this court. I appreciate that an appeal of this nature is by way of a re‑hearing. An appellate court hearing an appeal by way of a re‑hearing can exercise appellate power only if satisfied that there was some legal, factual or discretionary error on the part of the primary decision‑maker: see Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194, 203; Legge v Simonsen [2010] WADC 190 [4]. The fact that a litigant is disappointed with the result in the court below does not mean that the appeal court is able to intervene: Avsar v Binning [2009] WASCA 219 [37].
My assessment of the appeal before me is that the appellant is a disgruntled litigant, unhappy with the decision of the court below and seeking, by using the appellate process, to, in effect, re‑agitate the various issues before the magistrate that were not favourable to him.
The foregoing comments apply equally to ground 5 of his grounds of appeal.
Ground 6 is a further allegation of actual bias. The appellant's reference in that ground to the magistrate's 'unbalanced reasoning' is no more than a manifestation of the appellant's unhappiness with the magistrate's decision. There is nothing in the materials before me, either in the judgment or the transcript of the trial, which would suggest, in terms of what the magistrate said and did, that he was biased. Whether the ground be asserting apprehended bias or actual bias, the ground is not made out.
Grounds 7, 8 and 9 of the appeal are similar in nature to grounds 3 and 5.
I regard the appellant's appeal to this court as being in the nature of an abuse of process. It is well established that at least one of three characteristics will be apparent in many cases of abuse of process, namely:
(a)the court's process are being invoked for an illegitimate or collateral purpose;
(b)the use of a court's procedures being unjustifiably oppressive to a party; or
(c)the use of a court's procedures bringing the administration of justice into disrepute.
(See Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251, 28(McHugh J); Batistatos v Roads and Traffic Authority(NSW) [2006] HCA 27; (2006) 226 CLR 256 [9] – [15] (Gleeson CJ, Gummow, Hayne and Crennan JJ) and Moti v The Queen [2011] HCA 50; (2011) 86 ALJR 117 [10] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
In my view there are elements of (a) and (b) above in the matter before me. The appeal is not a proper exercise of the appellate process and amounts to no more than a manifestation of the appellant's disappointment with the decision of the court below.
As mentioned, the matter has a long history. The appellant commenced the action in the Local Court at Perth in 2003. In his written submissions of 11 September 2017 the respondent notes that the action had been commenced by the appellant in 2003 claiming relief as the result of the winding up of a partnership between the parties which existed for less than three months earlier that year.
Over the past 14 years the appellant has pursued his claims in the courts of Western Australia culminating in the lengthy trial before Magistrate Cockram. The adverse decision handed down by him afforded the appellant a further opportunity to pursue his claim, utilising the legislated appellate process. In my judgment the appeal brought by the appellant to this court is not a legitimate exercise of the appellate process.
In summary, the individual grounds of appeal are not made out either as to actual bias, apprehended bias or the 'exclusion' of materials. By the latter, I discern that the appellant was not, in fact, alleging an error on the part of the learned magistrate but was, rather, complaining about a decision that was unfavourable to him. Each ground of appeal fails. I dismiss the appeal.
Both parties were unrepresented. I will hear any submissions as to costs.