Triplett v Baddeley
[2018] WADC 33
•7 MARCH 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: TRIPLETT -v- BADDELEY [2018] WADC 33
CORAM: GILLAN DCJ
HEARD: 12 FEBRUARY 2018
DELIVERED : 7 MARCH 2018
FILE NO/S: APP 72 of 2016
BETWEEN: WALTER JAMES TRIPLETT
First appellant
ROSS BLENKISOP
Second appellantAND
ANGELA CARMEN BADDELEY
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE SHACKLETON
File No :PE MINOR 4829 of 2015
Catchwords:
Appeal - Magistrates Court - Minor case claim - Unrepresented parties - Limited grounds of appeal - Whether there was a denial of natural justice - Assertion of bias
Legislation:
Constitution Act 1889 (WA)
Judiciary Act 1905 (Cth)
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Magistrates Court Act 2004 (WA)
District Court Rules 2005 (WA)
Result:
Appeal dismissed
Representation:
Counsel:
First appellant : In person
Second appellant : In person
Respondent: In person
Solicitors:
First appellant : Not applicable
Second appellant : Not applicable
Respondent: Not applicable
Case(s) referred to in judgment(s):
Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292
Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273
Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438
Minogue v Williams [2000] FCA 125; (2000) 60 ALD 366
R v Small Claims Tribunal; Ex parte Amos [1978] Qd R 127
Rankilor v Circuit Travel Pty Ltd [2010] WADC 170
Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148
Re Burton; Ex parte Lowe [2003] WASCA 306
Victoria v Commonwealth [1996] HCA 56; (1996) 187 CLR 416
Wilson v White [2007] WASCA 87
Wise & Anor v Proprietors of Strata Plan 21513 [2009] WADC 115
GILLAN DCJ: This is an appeal from a decision of his Honour Magistrate Shackleton, dismissing proceedings brought in the minor case division of the Magistrates Court of Western Australia.
The matter was a minor case claim within the meaning of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (the Act). It may be helpful to set out the relevant legislative provisions before considering the detail of the matter.
Legislative provisions and the law pertaining to appeals in a minor case claim
Magistrates Court Act 2004
Section 4 of the Magistrates Court Act 2004 provides that a court of record called the Magistrates Court of Western Australia is established. By s 6(1) a magistrate has the functions imposed or conferred on a magistrate by laws that apply in Western Australia, including that Act and other written laws. By s 9 the Magistrates Court has the jurisdiction conferred on it by that Act and by the written laws.
Section 10 of the Magistrates Court Act provides the court's civil jurisdiction is as set out in the Act.
Section 13 of the Magistrates Court Act provides that:
The Court, in exercising its discretion, is to decide all questions of fact and law.
Magistrates Court (Civil Proceedings) Act 2004
Section 6 of the Act provides that the court has jurisdiction to deal with various matters, for example, a claim for a debt or a claim to recover possession of personal property. Certain claims, not relevant to the determination of this appeal, are specifically excluded.
Part 4 contains provisions concerning the procedure in 'minor cases'. A minor case is a claim within the jurisdiction of the court where the value of the claim is not more than the minor case's jurisdictional limit, presently being $10,000.
Unless an order is made for a minor case to be dealt with under the general procedure, by s 28 of the Act the court must deal with a minor case in accordance with the minor cases procedure. Such an order can be made pursuant to a request by the parties because the case involves an important principle of law or complex facts or issues. No such request was made in this case.
Part 3 of the Act sets out the general procedure of the Magistrates Court for civil claims and pt 4 sets out the procedure for minor cases. Section 33 of the Act (contained in pt 4) provides that the rules of the court may provide for the procedure to be followed when conducting a minor case and may specify the circumstances in which any of the court's general powers under pt 3 may be exercised.
A case statement is defined in s 3 of the Act as meaning:
… a statement of a party's claim, or of a party's defence, whether as originally lodged with the Court or as amended or as supplemented by additional information given voluntarily or as ordered by the Court.
Other relevant provisions of the Act includes s 29 (contained in pt 3) which provides as follows:
Proceedings to be private and informal
(1)All proceedings of the Court when dealing with a minor case are to be held in private unless the Court otherwise orders.
(2)Relatives and friends of a party may be present at the proceeding unless the Court otherwise orders.
(3)In dealing with a minor case the Court is to act with as little formality as the Court thinks is reasonable.
(4)When dealing with a minor case the Court is not bound by rules or practice as to evidence but may inform itself on any matter in such manner as it thinks fit.
In relation to costs, s 31 of the Act restricts an order for costs in minor cases to court fees and service fees paid by a successful party. However, the court may order a party to pay the whole or part of another party's costs under the applicable costs determination contained in pt 3 of the Act where the court is satisfied inter alia that:
(a)because of the existence of exceptional circumstances an injustice would be done to the successful party if that party's other costs were not ordered to be paid; or
(b)the unsuccessful party's claim or defence was wholly without merit.
There are only limited grounds of appeal against a minor case decision. Section 32(1) and s 32(3) relevantly provide as follows:
(1)Except as provided by this section, no appeal lies against —
(a)an order made by the Court in the course of proceedings in a minor case; or
(b)the judgment of the Court in a minor case.
…
(3)Despite Part 7 an appeal against a judgment in a minor case may only be made on the grounds —
(a)that the minor case —
(i)was not within the jurisdiction of the Court; or
(ii)was not a minor case;
or
(b)that in dealing with the minor case there was a denial of natural justice; or
(c)that the judgment was beyond the Court's jurisdiction.
This means that errors of fact or law or of mixed fact and law normally cannot be corrected by an appeal and a magistrate's decision remains enforceable notwithstanding that type of error: Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148 [55] and Wise & Anor v Proprietors of Strata Plan 21513 [2009] WADC 115 [20].
An appeal in a minor case matter is not, therefore, a rehearing on the merits save as to the extent that it is necessary to review the hearing to determine if there has been a denial of natural justice: Rankilor v Circuit Travel Pty Ltd [2010] WADC 170 [7] (Rankilor).
In Rankilor, Birmingham DCJ, discussed the requirements of giving natural justice in the context of the hearing of a minor case claim in the Magistrates Court.
His Honour considered that both the hearing rule and the bias rule were encompassed within the meaning of the term 'denial of natural justice'. He also considered the obligations on a court to an unrepresented litigant.
In summary, his Honour said:
In respect to the hearing rule
1.Natural justice did not require an inflexible application of a fixed body of rules but rather required fairness in all the circumstances; including the nature of the jurisdiction, rules under which the tribunal was acting, the subject matter of the dispute and the statutory provisions governing the power or jurisdiction being exercised. At its heart, the requirement to accord natural justice required a litigant to be given the opportunity to present his or her case: Rankilor [9] - [12], [18], [67].
2.The law did not impose on the court the impossible case of ensuring that a party to proceedings took the best advantage of the opportunity to present their case: Rankilor [19], [68].
3.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 Act. Section 13 of that 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 that 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: Rankilor [15] – [17].
In respect to the bias rule
4.Fundamental to the common law system of trial is that it is conducted by an independent and impartial tribunal: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [3]. With respect to the apprehension of bias, the test is whether a fair-minded lay observer might reasonably have apprehended that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the question they are called on to decide. In applying that test it has to be kept in the mind that the notional observer is taken to be reasonable and that the judicial officer is, by training, tradition or oath or affirmation, obliged to discard the irrelevant, the immaterial and the prejudicial: Rankilor [88] ‑ [91].
With respect to unrepresented litigants
5.The duty of the judicial officer to assist litigants in person will vary and depends on the litigation, the nature of the case and the litigant's intelligence and understanding of the case. Relevantly, the advice and assistance to an unrepresented litigant is what is necessary to reduce, so far as possible, the disadvantage they would suffer when faced by traps which the adversarial system offer to the unwary and the untutored, to ensure that the unrepresented person does not, through a lack of legal skill or experience, fail to claim rights or put up arguments that they might otherwise have done: Rankilor [70] ‑ [77].
6.The duty might extend to the judicial officer identifying any issue critical to the decision which was not otherwise apparent for the nature of or the terms of the matter under consideration: Rankilor [77].
I adopt his Honour's approach in the disposition of this appeal but would add that the bias rule encompasses not only the apprehension of bias but also cases of actual bias. A decision of a tribunal that was actually biased would be made in breach of natural justice.
The claim in the Magistrates Court of Western Australia No 4829 of 2015
The second appellant commenced the claim in March 2015. His claim against the respondent in action number 4829 of 2015 was for the sum of $5,796.65 plus the costs of issuing the claim. In August 2015 the first appellant consented to being made a claimant in that action on the basis that the work the subject of the claim was performed by both of the appellants as partners.
The statement of minor case claim lodged by the claimant in July 2015 claimed the sum of $5,119.60 plus interest, legal costs and all other costs incurred in pursuing the claim. The claim was described in the Magistrates Court in the following terms:
Summary of facts relevant to the claim:
The Defendant contacted the Claimant advising the Claimant the Defendant had some work to be done at her residence. The work involved multiple trades and multiple areas of expertise. The work also required substantial digging in the ground.
The Claimant advised the Defendant that the Claimant did not provide lump sum quotes of such work and only did such work on a day rate or hourly basis.
The Defendant asked the Claimant to provide rates which were provided to the Defendant. The Defendant also asked for an estimate which was provided. Immediately after providing the estimate the Defendant advised the Claimant that the scope of work had changed. At the same time the Defendant told the Claimant to start work.
The Claimant immediately started work. The work was completed to the satisfaction of the Defendant. An invoice was sent to the Defendant. The Defendant refused to pay the invoice. The Defendant offered to pay $2,300.00 for the work instead of the amount of the invoice which was more than $2,300.00. While the work was progressing the Defendant added to the scope of work. The additional items of work added to the scope were completed by the Claimant.
In her response, the respondent admitted part of the claim, in the sum of $1,000. It was common ground before the learned magistrate that the sum of $1,000 had been paid for the work by the respondent.
A statement of defence to minor case claim was filed in August 2015. I will not repeat it in full but it contained a fairly detailed outline of the respondent's position and put in issue whether rates for the work were provided or agreed, a discussion as to whether the quoted or estimated sum for work had been agreed, made complaints about the conduct of the appellants during the time they were undertaking the work and when the appellants were at her home doing the work and made an assertion that some of the work was defective.
Discovery on oath was given by the respondent on 28 August 2015.
Later, on the application of the second appellant, in November 2016, a limited order for discovery was made requiring the parties to provide copies of all documents on which they would rely at trial.
The trial
The matter came on for trial before the learned magistrate on Friday, 5 August 2016. The appellants' case was presented by Mr Blenkinsop, the second appellant. The evidence was completed in a day and consisted of the viva voce evidence of Mr Blenkinsop and the tender of some 18 exhibits all tendered through Mr Blenkinsop. During the hearing, the first appellant confirmed to the learned magistrate that he agreed with all of the matters being put by Mr Blenkinsop and that he did not wish to give any evidence.
At the end of the evidence the learned magistrate received some very brief oral submissions from Ms Baddeley and then responded to an application on the part of Mr Blenkinsop to receive written submissions from the parties. The learned magistrate made orders requiring written submissions within 14 days and otherwise adjourned the matter to 15 September 2016 for judgment.
On 15 September 2016 the matter was called back on.
At that time the learned magistrate indicated that he had received written submissions from Mr Blenkinsop and had read them.[1]
[1] ts 2.
He invited submissions from the respondent who indicated that she had also filed and served on the appellants some written submissions.
The matter was stood down briefly to enable the learned magistrate to read the respondent's written submissions.
After a short adjournment the matter was called back on and Mr Blenkinsop indicated he wanted to make submissions in relation to the submissions of Ms Baddeley.
The magistrate heard those submissions.
There was an interchange between Mr Blenkinsop and his Honour that evidenced a misapprehension on the part of Mr Blenkinsop. Mr Blenkinsop seemed to think that if his Honour had already prepared his judgment, but was then affected by something that Ms Baddeley had to say in her submissions, that the learned magistrate could not then alter his judgment.[2]
[2] ts 3.
Mr Blenkinsop then made the following submission:
No. You can't. Only – unless you got the slip rule to fall back on.
HIS HONOUR: Sorry, are you saying after receiving these submissions, I can't change my ‑ ‑ ‑
MR BLENKINSOP: Well I imagine that you would have already prepared your judgment for today, and – so after you have prepared your judgment, you then receive submissions.
HIS HONOUR: Yes.
MR BLENKINSOP: You then read them?
HIS HONOUR: Yes.
MR BLENKINSOP: And so – what, and you change your judgment based on those submissions? I mean ‑ ‑ ‑
HIS HONOUR: Could do if I wanted to.
MR BLENKINSOP: Well I don't think – I don't the court has the power to do that, because a judgment ([indistinct)
HIS HONOUR: Okay. What submissions would you like to make? We don't have time for this.
MR BLENKINSOP: My understanding is a judgment can only be entered in very limited ‑ ‑ ‑
HIS HONOUR: Well that's once the judgment has been given. I haven't given my judgment yet.
MR BLENKINSOP: It depends on when you ‑ ‑ ‑
HIS HONOUR: I've read these, reconsidered my ‑ ‑ ‑
MR BLENKINSOP: It depends on when a judgment is given.
HIS HONOUR: Well, sure.
MR BLENKINSOP: Is a judgment given when it's drafted or when it's ‑ ‑ ‑
HIS HONOUR: [indistinct]
MR BLENKINSOP: ‑ ‑ ‑actually verbally expressed in court?
HIS HONOUR: When I express it.
MR BLENKINSOP: Okay. Well I have no further submissions, your Honour.
There was no suggestion at that time, nor could there have been, that either Mr Blenkinsop or Mr Triplett had been taken by surprise by the respondent's submissions.
His Honour then proceeded to give his reasons for decision. There are no written reasons for decision but the transcript of his reasons is available.
I do not intend to reproduce the whole of his Honour's reasons but it is apparent to me from those reasons that his Honour:
1.addressed and correctly set out the burden of proof in a civil matter;[3]
[3] ts 5.
2.set out that Mr Blenkinsop was the only person who gave sworn evidence and accurately summarised his evidence;[4]
[4] ts 5 – 6.
3.identified an anomaly in Mr Blenkinsop's evidence to the effect that Mr Blenkinsop gave clear evidence that he had given an 'estimate' for the work that would be done of $800 but went on to say that regardless of that he meant to write $4,800;[5]
[5] ts 5 – 6.
4.summarised Mr Blenkinsop's evidence with respect to his allegation that '[w]e did seven days' work and a half day';[6]
[6] ts 6.
5.identified that on even Mr Blenkinsop's own dates and on the alleged rates that Mr Blenkinsop had given, the amount that Ms Baddeley had been charged was too high[7] and that Mr Blenkinsop himself had admitted that at least one of the invoices that he sent was incorrect[8];
[7] ts 6
[8] ts 7.
6.recounted that Mr Blenkinsop's evidence about the time worked was inconsistent;
7.recounted Mr Blenkinsop's inconsistent evidence about the invoices for the materials;
8.recounted Mr Blenkinsop's inconsistent evidence about taking instructions from the respondent's partner, Greg;
9.recounted other inconsistent evidence given by Mr Blenkinsop about the value of the claim;
10.recounted Mr Blenkinsop's inconsistent evidence about text message correspondence between himself or Mr Triplett and Ms Baddeley and the fact that Mr Blenkinsop could not recall what quote he had given with respect to materials;[9]
11.went on to recount that some of the materials allegedly used with respect to this job had included two shovels, a straw hat and a Stanley knife which were asserted in the evidence by Mr Blenkinsop to be 'consumables'.[10] The learned magistrate commented that those assertions impacted on Mr Blenkinsop's truthfulness because a shovel and a hat could not be said to be consumables;[11]
12.gave two further examples of evidence of Mr Blenkinsop that his Honour found difficult to accept before finally coming to his conclusion which he expressed in these terms:
It's fair to say that I'm not at all persuaded by his evidence, even on the basis of his accuracy or his honesty. It would be impossible for me to find that it was more likely than not that, during his attendance at her house on 22 December 2014, he gave her those hourly rates.
Also, I don't accept that he – that Mr Blenkinsop had conversations with Greg that would change any terms. He didn't call Greg. Greg wasn't here to give evidence, and as I say, I'm not really persuaded by his evidence in general or specifically on points.
Ultimately, that leaves me with what was written. What was written was $800. That's the estimate that he gave, and I do not find anywhere in the evidence, and I certainly don't find that it was ever more probable than not, that that figure was ever renegotiated, and on that basis, I will order that $800 be paid.
[9] ts 7.
[10] ts 7 – 8.
[11] ts 8.
What then transcribed is that Ms Baddeley reminded his Honour that she had already paid $1,000, which was common ground between the parties, and his Honour responded:
All right. Well, then you're out of it.[12]
Orders were made dismissing the claim and entering judgment in favour of the respondent against the appellants.
[12] ts 9.
Notice of appeal
The grounds of appeal, contained in the appeal notice, are expressed as being:
1.Error of law.
2.Error of fact.
3.Denial of natural justice.
4.Denial of procedural fairness.
5.In the circumstances no adjudicator given the same factual matrix could have come to the same decision.
6.Bias.
7.Unconstitutional.
The appellants filed two additional documents containing further and better particulars of the appeal, one dated 22 December 2016 and the other dated 2 February 2017.
Each of those documents is in the nature of a submission.
Each document makes lengthy assertions that there were errors of fact and law, a failure to afford natural justice, procedural fairness and that the limited rights of appeal are unconstitutional.
I do not intend to set those matters out in full but do note that between the further and better particulars filed 22 December 2016 and the second supplementary further and better particulars document filed 2 February 2017, there were various particularised complaints that can be summarised as:
1.The learned magistrate had accepted the evidence of the appellants with respect to certain matters but that evidence was not refuted by evidence led by the respondent and so:
a.The only finding open was that there had been an hourly rates agreement or no agreement; and
b.If there was a finding of no agreement, then the only finding open was a finding based in quantum meruit;
2.Various alleged errors of law including but not limited to the argument that the appellants had given an 'estimate' for the work done, which could never have amounted to a fixed price agreement;
3.The appellants had not been afforded natural justice because the learned magistrate had made a finding that there was a lump sum agreement when that finding was unsupported by the accepted facts;
4.The appellants were denied natural justice and procedural fairness largely because the decision was not open to the learned magistrate on the accepted facts and the law and that the result was so unjust that a denial of natural justice and procedural fairness was the only explanation;
5.The District Court is not bound by the legislation or subsidiary legislation governing the Magistrates Court. If a party is the subject of a patently unjust result as a consequence of the Rule of Law and the International Covenant on Civil and Political Rights to which Australia is a signatory they must be given an opportunity to appeal;
6.The learned magistrate advised the respondent what questions to ask in cross‑examination, did not advise the witness for the appellant what evidence to give or what evidence may be missing or what to say and did not advise the witness for the appellant in any way whatsoever in relation to the evidence given by that witness;
7.The magistrate in the original matter said to the witness to the appellant that he had a 'poor attitude', when the witness for the appellants did not in fact have a poor attitude but the respondent did have a poor attitude;
8.The respondent did not give evidence which meant that the magistrate should have accepted 100% of the evidence led by the appellants but the learned magistrate appears to have taken into account the respondent's submissions at cross‑examination as evidence. Similarly, the respondent withdrew her counterclaim which wasted the appellants' time in preparation;
9.Insufficient time was allowed for the case and as a result the appellants were only able to call one witness. As a result the appellants were unable to present all of their evidence and were not heard; and
10.The magistrate was biased, having based his decision on stereotypes and had favoured the respondent who was said to be,
a young, good looking, well spoken, woman who spoke quietly and passively and deliberately portrayed the demeanour of a victim. The respondent also wore provocative clothing, in a court. The magistrate was a middle‑aged, educated male. The two claimants were older men and somewhat rough around the edges and gave the perception, knowingly or otherwise that they were uneducated. The case was about construction. The assumption would have been that they were uneducated.
Despite the fact the Respondent was not appropriately dressed the Magistrate allowed the matter to continue …
It appears the Magistrate has made a decision based on stereotypes rather than concentrating purely on the law and the facts. Magistrates are human and it is impossible for a Magistrate, or anyone, to completely divorce their humanity and preconceived ideas so as to make a purely objective and analytical decision. It appears in this case the Magistrate's humanity, human condition, has got the better of him.
(emphasis added)
It is evident from this summary that there was a wide ranging series of complaints with respect to the magistrate's decision but not all of those complaints fit within the limited rights of appeal described by me above.
At the hearing of the appeal Mr Blenkinsop again presented the case for both appellants.
Mr Blenkinsop said that the appellants would argue that there had been errors of fact, errors of law, a denial of natural justice to the partnership, a denial of procedural fairness and that the grounds were put in the particulars.
Mr Blenkinsop put some emphasis on his submission that the magistrate had made a finding in the lower court that there was a lump sum contract but the appellants' argument was that it was not open to the magistrate to find there was a lump sum contract because the alleged quote given to the respondent was only an estimate and that for a lump sum contract there had to be a precise amount. Mr Blenkinsop said that an estimate is an approximate amount and there is not a contract where the parties have only agreed to agree.
Mr Blenkinsop also said that it had been open to his Honour to make a finding that there had been a unilateral mistake in the giving of the estimate which vitiated the contract altogether. In the case where there was no contract, he said, the learned magistrate had to determine the matter on the basis of a quantum meruit.
In addition, the appellants wished to argue that the particular appeal right contained in the Act was unconstitutional on the ground that a party cannot be denied a right of appeal.
With respect to the constitutional argument, and on my inquiry, Mr Blenkinsop confirmed that he had not given any of the notices required by s 48 of the Judiciary Act 1903 (Cth) and when pressed on that indicated:
1.he was not making an argument that the appeal provisions were unconstitutional by reason of the Commonwealth Constitution; and
2.rather, he was making an argument that the appeal provisions were unconstitutional by reason of the Constitution of the State of Western Australia on the basis that the minor cases appeals provisions gives the court permission to make unjust judgments.[13]
[13] ts 12/02/2018 page 34.
Mr Blenkinsop could give me no authority for that last proposition and said 'it's just common sense'.
There was an additional matter raised by Mr Blenkinsop in his oral argument to the effect that a procedural order of Registrar Kingsley made in chambers on 12 January 2018 that the appellant pay the respondent's costs of that appearance was in error as it was outside the District Court's powers, the court being bound by the minor case costs regime. No appeal had been lodged from the Registrar's decision.
Error of fact and law
I have set out above the authority for the proposition that the rights of appeal to this court from a decision in a minor case are limited. The grounds of appeal that assert errors of fact and law are beyond the jurisdiction of this court on appeal.
Assertions of error of fact and error of law are encompassed by the submissions that the learned magistrate erred in not making a finding that the agreement between the appellants and the respondent was an hourly or daily rates agreement, the finding that there had been a lump sum agreement between them, the question of whether there could be a lump sum contract when only an estimate had been given, the findings relating to Mr Blenkinsop's credibility and whether the learned magistrate was obliged to accept the evidence of Mr Blenkinsop because no evidence had been led in opposition and whether the matter should have been dealt with on the basis of a quantum meruit.
The learned magistrate's decision was well open to him. The evidence before him was that in an email dated 1 December 2014 Mr Blenkinsop had made reference to his charges being a minimum of half a day for the tradesman and, if required, the labourer. If the job was more than half a day, then he would charge by the hour: exhibit 1. After this, the respondent emailed and asked for either a quote or that Mr Blenkinsop provide his rates: exhibit 1. On 22 December 2014 Mr Blenkinsop and Mr Triplett had inspected the property to see the work that was required.[14] Nearly a month later, on 13 January 2015, Mr Blenkinsop gave the written estimate as to the value of the work at $800: exhibit 2. There was no mention by Mr Blenkinsop in that email of an hourly rate or any reservation of an ability to charge more should the work take longer.
[14] ts 26.
The evidence of the time worked was lacking. Even if an hourly rate had been fixed, the appellants approach to time keeping was deficient. Calculation of the invoice on a daily basis and over charging did not help matters.
With respect to the suggestion at the hearing that the learned magistrate should have found that there was no enforceable contract and assessed the claim on the basis of a quantum meruit: written submissions filed on the part of the appellants dated 10 August 2016 make it clear that what was asserted was that an agreement had been reached on the basis of an hourly or daily rate, plus recovery for materials. If, as occurred, the learned magistrate did not accept that was the case, he was not put in a position to make a decision on a quantum meruit basis because it is clear that the evidence, taken as a whole:
1.did not suggest that a daily rate had ever been agreed;
2.was unsatisfactory in respect to the hours actually worked;
3.in respect to the costs of the materials: was unsatisfactory for the reasons adopted by the magistrate and the additional reason that at least one invoice relied on by the appellants' predated the day on which the appellants were given the go ahead to start work; and
4.perhaps most importantly, there was no independent evidence of the value of the work done.
Denial of natural justice and procedural fairness
An available ground of appeal under the Act is a denial of natural justice.
Mr Blenkinsop confirmed during the course of the hearing that he did not rely on the other allowable grounds of appeal that the case was not within the jurisdiction of the court or that the judgment was beyond the court's jurisdiction. Mr Triplett also confirmed independently to me that he relied on Mr Blenkinsop's submissions.
I have outlined above, briefly, the law as it relates to a denial of natural justice.
It seems to me that under this heading there are three matters that fall to be considered. Namely, whether:
1.the appellants had an adequate opportunity at the hearing before the magistrate to present their case;
2.the magistrate failed to assist them adequately as self‑represented litigants; and
3.whether the magistrate was biased.
In respect to the first of those matters, the appellants had every opportunity to run their case. The matter had been the subject of a minor case statement of claim and statement of defence which put matters in issue. At the hearing not all of those matters were pursued by the respondent but it could not be said that the appellants did not know the case that was being put against them. While there is a suggestion that the learned magistrate referred to there being some time constraints, there was no suggestion that the appellants were limited to only one witness. Mr Triplett was asked if he wanted to give evidence and no one suggested the appellants had other witnesses they wanted to call.
The appellants were given the opportunity to file written submissions. They were clearly given a chance to be heard.
The appellants simply failed to prove their case. While it no doubt seems harsh to the appellants that they might do so in circumstances where the respondent did not elect to give evidence, that was a course that was always open to her. As the learned magistrate observed, the appellants always bore the onus of proof. It is not open to the court to treat what is in realty an attack on the merits as being 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].
In respect to the second of those matters, the appellants complained that the magistrate was advising the respondent what questions to ask in cross‑examination, but had not advised the witness for the appellant what evidence to give or what evidence may be missing or what to say.
I have read the transcript of the hearing carefully and it is clear that what the magistrate had to say about the process of cross‑examination before the evidence started was in very general terms and addressed to both parties.[15]
[15] ts 4 – 5.
When Mr Blenkinsop was giving his evidence and while he was being cross-examined, his Honour did ask a number of questions of Mr Blenkinsop to seek some clarity about the evidence that was being given but it is not accurate to say that his Honour interfered or coached the respondent. Indeed, he did not allow inappropriate questions by the respondent and did not suggest questions to ask. There is no merit in this ground.
With respect to the question of bias, I note that the allegation is not one of apprehension of bias but of actual bias on the part of the learned magistrate.
Again, I have read the transcript carefully and there is simply no hint of bias in the transcript at all. Not accepting the evidence of a witness, especially where there are real reasons not to, based on that witness' own words and the documentary evidence, does not and did not in this case amount to bias.
The appellants' complaint about the learned magistrate saying he had a 'poor' attitude is incorrect. The only reference in the transcript to attitude was when Mr Blenkinsop, while being cross-examined, questioned the relevance of the questions he was being asked and the magistrate said 'Well it might go to your attitude' before requiring an answer to the question that had been put.[16] That exchange does not bear out any allegation of bias.
[16] ts 61.
At the hearing of the appeal, the respondent addressed the suggestion that she had been dressed provocatively when appearing before the magistrate. She told me that she was in court in the same clothes she had worn on the earlier occasion and she was, in my view, dressed in an entirely appropriate fashion.
The appellants did not take issue with that statement so I have assumed it to be correct but I have not reached my decision on the basis of what the respondent might have been wearing at the trial before the magistrate. For the reasons I have outlined in some detail above, the decision reached by the learned magistrate was readily available to him on the evidence led by the appellants and there was nothing in the transcript to suggest that the magistrate dealt with any of the parties in any way that was inappropriate. I could find no suggestion that he had preferred the respondent in the manner contended by the appellants in their written grounds of appeal.
I also note that, Mr Blenkinsop, during the course of argument, advised me that he was legally qualified, had worked as a solicitor but did not have a current practice certificate. He told me that he was not appearing as a solicitor for himself and Mr Triplett but as a member of their partnership.
It seems to me from both the transcript and from the hearing before me that if anyone was at a disadvantage it was the respondent who did not have the level of legal knowledge that Mr Blenkinsop told me that he had.
Constitutional argument
The constitutional argument raised in the further and better particulars relying as it did on the Rule of Law and the International Covenant on Civil and Political Rights was not pressed by the appellants at the hearing of the appeal. It would not have succeeded in any event because the Convention has not been incorporated into or become part of Australian federal domestic law. See Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 305 – 306 (Mason CJ & McHugh J), 321 (Brennan J), 348 – 349 (Dawson J), 359 – 360 (Toohey J); Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273, 286 – 287 (Mason CJ, Deane J); Victoria v Commonwealth [1996] HCA 56; (1996) 187 CLR 416, 480 ‑ 482; Sinanovic v The Queen [1998] HCA 40; (1998) 154 ALR 702, 1054; Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438, 447 – 448; Minogue v Williams [2000] FCA 125; (2000) 60 ALD 366, 372–273 and Wilson v White [2007] WASCA 87 [23] (Buss JA).
In any event, I understood what was being submitted at the hearing before me was that it was not within the power of the Parliament of Western Australia 'to make laws for the peace, order, and good Government of the Colony of Western Australia and its Dependencies': s 2 of the Constitution Act 1889 (WA), to make a law which gave only limited rights of appeal from incorrect decisions.
I was referred to no authority for that proposition and it seems to me to be clearly wrong. If Parliament can legislate to create a Court then it can legislate to create rights, including limited rights, of appeal.
In any event, for reasons I have set out above, the decision of the magistrate was well open on the case run at trial.
Costs of appeal
As I have said above, no appeal had been instituted from the decision of the Registrar on 12 January 2018 to award costs in favour of the respondent on the non-appearance of the appellants.
That would be enough to dispose of the matter but it seems to me that the argument is wrong in any event. Section 40 of the Act sets out that there is a right of appeal from the Magistrates Court to the District Court. By s 40(2) an appeal in a minor case matter is subject to s 32. However, s 32(2)(a) makes it clear that an appeal from the Magistrates Court constituted by a magistrate lies under pt 7 of the Act.
Section 40(4A) (in pt 7) further provides that the appeal must be conducted in accordance with the rules of court made by the District Court.
Rule 59 of the District Court Rules 2005 (WA) provides that costs of and incidental to an appeal are within the discretion of the court.
Result
Appeal dismissed.
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