Thalia Corporation Pty Ltd v Phillip Allen Plumbers Pty Ltd - [2009] SADC 83

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
THALIA CORPORATION PTY LTD v PHILLIP ALLEN PLUMBERS PTY LTD
[2009] SADC 83
Judgment of His Honour Judge Chivell
7 August 2009
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA
REVIEW OF A MINOR CIVIL ACTION - WITNESSES
Credibility findings made by Magistrate challenged - Allegations of bias
Held: allegations of bias unjustified. Magistrate's findings on credibility justified.
Application for review dismissed.
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Cornwall & Ors v Rowan [2006] SASC 110, applied.

THALIA CORPORATION PTY LTD v PHILLIP ALLEN PLUMBERS PTY LTD
[2009] SADC 83
Introduction

This is an application to review a decision made by a Magistrate in a minor civil action on 25 February 2009.
The plaintiff (respondent) company sued for payment for plumbing work carried out at a high‑rise commercial building in North Terrace, Adelaide, owned by the defendant (applicant) company. The evidence at the trial was principally that of the respective directions of the plaintiff and defendant companies.
The learned Magistrate gave written reasons for his decision. At p8 of those reasons, his Honour:
·formed a favourable view of the evidence given by Mr Allen, the director of the plaintiff company. He said [45]:
I was favourably impressed by Mr Allen. I have no doubt whatsoever as to his honesty and accuracy in the recollection of relevant events.
·formed an unfavourable view of the evidence of Ms Triguboff‑Travers, the director of the defendant company. He said [46]‑[47]:
Contrarily, I was totally unimpressed by the evidence of Ms Triguboff-Travers. Her evidence was comprised largely of sweeping, if not grandiose, statements of alleged fact in respect of which not a skerrick of corroborating evidence was produced.
Moreover, for reasons unknown, it appeared that Ms Triguboff-Travers was intent on using the proceeding as a forum for making entirely gratuitous and unjustified attacks on the character and reputation of Mr Allen, which were blatantly defamatory and actionable as such by him if they had been made outside the protection of the Court.
Magistrate’s findings of fact
His Honour made the following findings of fact at [48]‑[49]:
Based on my unqualified acceptance of the evidence of Mr Allen, I make the following findings:
(1)The services described in the documents comprising P1‑P13 inclusive, were undertaken as specified in those documents, by the plaintiff for, and at the request of, the defendant;
(2)The charges raised by the plaintiff for the said services were fair and reasonable by reference to industry standards;
(3)The defendant has not paid the plaintiff for any of the services so undertaken.
(4)I accept the evidence of Mr Allen that all of the invoices in question were forwarded to Knight Frank in a timely manner.
(5)I reject any suggestion that the Plaintiff or its solicitors has failed to provide in timely manner all such documents relevant to the matter as they were required by request or by operation of orders or Rules of the court.
I reject any allegation, whether made expressly or by inference, that the plaintiff has, in any respect:
(1)Charged more than it was entitled to for any of the services;
(2)Charged for services that were not, in fact, undertaken;
(3)Claimed payment again for invoices that had been previously paid by the defendant;
(4)Falsified or exaggerated time sheets;
(5)Engaged, and charged for, more persons than were necessary to undertake any of the services;
(6)Undertaken any of the services, carelessly, negligently or otherwise than in accordance with standard industry practice at the time.
The judgment complained of
His Honour gave judgment in favour of the plaintiff company for $3,936.55, being the full amount claimed, plus interest fixed at $510.00, plus costs fixed at $788.25, making a total of $5,234.80.
Grounds for review
The defendant company has applied for a review of that decision on the following grounds:
a.     The Learned Magistrate’s exhibited apparent bias against the defendant to an extent sufficient to demonstrate that justice may not have been seen to have been done.
b.     On an impartial assessment, the issues raised by the defendant as noted in the Judgment should have been established.
c.     That the Learned Magistrate’s decision was against the evidence and the weight of the evidence.
Both Ms Triguboff-Travers and Mr Allen appeared at the hearing of the application. Mr Allen, understandably, seemed somewhat bemused at being required to appear. He told me that the defendant company has paid the full amount of the judgment, including interest and costs. Ms Triguboff-Travers insisted that the payment was not an acknowledgment of debt, but was made to avoid the issue of a bankruptcy notice threatened by the plaintiff’s solicitors. I will ignore the fact that payment has been made for the purposes of this review.
In support of the application, Ms Triguboff-Travers asserted that the learned Magistrate:
·“had no interest in anything I had to say” (T4);
·stated “that I produced no corroborating evidence” and gave insufficient weight to the evidence of Mr Vieraitis, the building manager (T5);
·“took an instant dislike to me” and did not give her a fair trial (T6); and
·“treated me (with) a lack of respect” (T8).
The test to be applied where an allegation of bias is raised was discussed by the High Court in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100:
When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision‑maker, what must be firmly established is a reasonable fear that the decision‑maker’s mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her.
In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6], the High Court said:
... the governing 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.
Their Honours emphasised in Ebner at [19] that judges have a duty to exercise their judicial functions, and that any objection to a judge sitting must be based upon “a substantial ground”. In Cornwall & Ors v Rowan [2006] SASC 110 at [14], Bleby J observed that “a bare alleged assertion” is not sufficient.
When asked to justify her assertions, Ms Triguboff-Travers pointed to two incidents, prior to the trial, when the learned Magistrate ruled against her applications for adjournments. There is no evidence before me to justify any assertion of bias arising from these orders. They were not complained of in the application to review. I reject any suggestion of bias in the way in which the learned Magistrate dealt with these applications.
Ms Triguboff-Travers then pointed to p74-75 of the Magistrate’s Court transcript to justify her claims of bias. I have now read the entire transcript of the hearing in the Magistrate’s Court. The learned Magistrate tried, over and over again, to explain to Ms Triguboff‑Travers his duty to assist self‑represented litigants, and to draw to their attention what issues they might consider, and evidence they might lead, in the conduct of their respective cases. Instead of accepting the help offered, Ms Triguboff‑Travers’s responses were argumentative and querulous. For example, after the learned Magistrate refused to disqualify himself, and after he dealt with the complaints about the adjournment orders, the following exchange occurred:
HIS HONOUR:     You have said that I have led Mr Allen, I think, effectively in his evidence. I agree that I have done that to some extent. That is normal practice in relation to the hearing of minor civil action and I don’t believe that I have stepped over the line in the sand that is drawn so far as interference as it were or assisting one party as against another party is concerned and you have said that I have required or questioned you, or asked you about where your evidence is. That is true, yes I have done that.
My purpose in doing that has been to really assist you to have some appreciation of the type and quality of evidence that might be called if it was available having regard to the allegations that you have made so that you won’t be under any misapprehension about those issues.
TRIGUBOFF-TRAVERS:      Should you rule against me your Honour, yes, should you rule against me. So I have an affidavit from the building manager. I have photos of every pump. I have here in front of me warranties to other pumps that I have and that is still not enough for you, your Honour.
HIS HONOUR:     Ms Triguboff-Travers I had not said it is not enough for me. I have ‑
TRIGUBOFF-TRAVERS:      You want more ‑
HIS HONOUR:     Ms Triguboff-Travers you are misapprehending my role in what I have said to you. I have asked you whether you have any more. I’m perfectly at liberty in my view to do that. I am not demanding anything about how you run your case. You must appreciate how you run your case and how Mr Allen runs his case is entirely up to you. As unrepresented litigants I am required, by the law, to inform you and Mr Allen as to such matters as I think are necessary so that each of you will have an understanding of what might be required in order to succeed, in his case prosecuting the case, in your case defending the case. In my view that’s all that I have done. I have not come to any view about the outcome of the matter because I have not heard all the evidence yet.
TRIGUBOFF-TRAVERS:      And yet you didn’t ask Mr Allen for more and more evidence. I’m the defendant you Honour and yet he’s making this claim and I have seen you ask him for lots of evidence. Can he come up with a photo of the pump in my building?
(Magistrates Court Transcript: p76.13-77.19)
Having read the transcript, there is no justification for Ms Triguboff‑Travers’s complaints of bias. In my opinion, his Honour gave both parties a fair hearing, and did his best to assist both of them to present their respective cases to the court.
An issue which his Honour seems to have regarded as critical to Ms Triguboff-Travers’s credibility centred upon the alleged installation of a pump in the building.
Ms Triguboff-Travers insisted that Mr Allen’s evidence about this was false, and that the invoice tendered was “made up” (T56). She was prepared to make this allegation simply on the basis that Mr Vieraitis, the property manager, had never sighted the invoice (T66).
Ms Triguboff-Travers called Mr Vieraitis. He said he had checked the basement and top plant room and he could not find a Davey pump installed as alleged by Mr Allen (T93). He had no recollection of any such installation, but conceded that it was possible that he had forgotten about it (T96).
Mr Vieraitis had previously stated in an affidavit:
I have also inspected other areas of the building where pumps are in situ and can verify that the only Davy pump sighted was recently installed by Smith Brothers and authorised by me.
(T103.110-13)
The learned Magistrate decided to visit the building himself. He arranged the visit for 8.30am the following morning, 17 November 2008. Ms Triguboff‑Travers told his Honour she would be there but, in the event, she was not. The notes from the visit are as follows (T115.14-24):
ON SITE ON 10^TH FLOOR OF PREMISES SITUATE AT 195 NORTH TERRACE ADELAIDE.
PRESENT IS MR ALLEN, MR VIERAITIS FROM FRANK KNIGHT, HIS HONOUR AND COURT STAFF.
IT IS NOTED THAT THE PUMP IN QUESTION IS FIXED TO THE CONCRETE FLOOR BEHIND THE DOOR TO THE PLANT ROOM AND NEXT TO A HOT WASTER (?WATER) CYLINDER.
THE PUMP IS A DAVEY PUMP AND IS A PRESSURE PUMP, BEING THE PUMP WHICH MR ALLEN SUPPLIED AND INSTALLED AS PER EXHIBIT P3.
VIEW CONCLUDED.
HIS HONOUR RESERVES HIS DECISION.
In his reasons, his Honour commented [42]-[43]:
On arriving for the inspection, Mr Vieraitis advised that Ms Triguboff-Travers would not be in attendance. The inspection party comprising myself, court staff, Mr Allen and Mr Vieraitis then travelled to the tenth floor. Upon opening the door to the plant room, the pump which Ms Triguboff-Travers had stridently stated was a fabrication perpetrated by Mr Allen by way of, in effect, extorting money from the defendant, was precisely where it had been installed by Mr Allen as he had deposed.
Needless to say this turn of events reflected poorly on the defendant’s case.
Undaunted, Ms Triguboff-Travers sought to argue before me that the pump was not where it should have been. She said:
They walked in with Mr Allen who showed it behind the door. That is not the normal place for a pump. We had no idea there was a pump there, which is obvious in my testimony.
Having now read the transcript of the hearing, and having heard the parties to the application, I conclude that his Honour was completely justified in reaching the conclusions he did. It is sufficient for me to find that the learned Magistrate’s findings were well and truly open to him on the evidence, and that Ms Triguboff‑Travers’s assertions of bias and error have not been made out.
The application for review of the learned Magistrate’s decision is dismissed.