Von ADAMETZ v Johansen - [2012] WADC 178

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION: PERTH

CITATION: VON ADAMETZ -v- JOHANSEN [2012] WADC 178

CORAM: SCOTT DCJ

HEARD: 7 DECEMBER 2012

DELIVERED : 20 DECEMBER 2012

FILE NO/S: APP 42 of 2012

BETWEEN: KLAUS G GRAEF VON ADAMETZ
Appellant
AND
ANTONY JOHANSEN
Respondent

ON APPEAL FROM:
For File No               :  APP 42 of 2012
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE BOON
File No  :CTC 20219 of 2011

Catchwords:

Whether refusal to allow appellant to call further witnesses a denial of natural justice - Turns on own facts

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 s 32, s 40

Result:

Appeal allowed

Representation:

Counsel:

Appellant: In person
Respondent: In person

Solicitors:

Appellant: Not applicable
Respondent: Not applicable

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

Allesch v Maunz [2000] HCA 40
Cameron v Cole (1944) 68 CLR 571
Kioa v West (1985) 159 CLR 550
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32
Rajski v Scitec Corp Pty Ltd [1986] NSWCA 1
Re; Burton; Ex parte Lowe [2003] WASCA 306
Shenton v Touchstone Farms Pty Ltd [2012] WASCA 261

SCOTT DCJ: This is an appeal by the appellant against the judgment of her Honour Magistrate Boon on 11 June 2012 in which her Honour dismissed the appellant's claim which was instituted in the minor cases division of the Magistrates Court in Perth.
The right of appeal is contained in s 32 of the Magistrates Court (Civil Proceedings) Act 2004 (Act). Relevantly that section provides as follows:
(1)Except as provided by this section, no appeal lies against —
…
(b)the judgment of the Court in a minor case.
(2)If a party to a minor case is dissatisfied with the judgment of the Court in the case then —
(a)if the Court was constituted by a magistrate — an appeal lies against the judgment under Part 7 and, subject to subsection (3), Part 7 applies to the appeal; or
…
(3)Despite Part 7 an appeal against a judgment in a minor case may only be made on the grounds —
…
(b)that in dealing with the minor case there was a denial of natural justice; or
…
Part 7 of the Act provides for an appeal from the Magistrates Court to this court and is relevantly in the following terms:
…
(2)An appeal against the judgment of the Magistrates Court in a case that is a minor case is subject to section 32.
…
(4)The District Court must decide the appeal on —
(a)the material and evidence that were before the Magistrates Court; and
(b)any other evidence that it gives leave to be admitted.
(5)Leave may only be given under subsection (4)(b) in exceptional circumstances.
Hence an appeal from the judgment of a magistrate in the Magistrates Court is by way of rehearing and it is therefore necessary for an appellant to demonstrate error in the court below (Allesch v Maunz [2000] HCA 40 [23]).

Grounds of appeal

In this case the only relevant ground for the appeal is that in dealing with the minor case there was a denial of natural justice.
The appeal is not in the nature of a rehearing of the judgment in the minor case at first instance on its merits save to the extent that the merits are relevant in considering whether the appellant has been denied natural justice.
The four grounds of appeal stated by the appellant in the Appeal Notice are:
1.Right of warranty.
2.Refund of pre‑payment.
3.Invalid contract.
4.Invalid offers.
By letter dated 12 November 2012 the appellant provided written submissions. It appeared from the nature of the grounds of appeal specified in the Appeal Notice and those submissions that the appellant understood that he was entitled, in this appeal, to have the court revisit the merits of her Honour's judgment on the individual claims which fell for her determination. Given that the appellant was not represented it is not surprising that he had failed to understand that his right of appeal was limited.
At the outset on the hearing of this appeal I explained to the parties that the only relevant ground of appeal available to the appellant was whether he had been denied natural justice and it was on that basis that the appeal was argued.
That being made clear, the issue which fell for determination in this appeal was whether the learned magistrate, by refusing to allow the appellant to call additional witnesses, denied him natural justice.
The relevant principles relating to the requirement to afford natural justice are as follows:
•A person against whom a claim is made must be given a reasonable opportunity of appearing and presenting his case. If this principle is not observed, the person affected is entitled to have any determination which affects him set aside (Cameron v Cole (1944) 68 CLR 571, 589).
•A decision‑maker must give an opportunity to be heard to a person whose interests will be affected adversely by the decision (Re; Burton; Ex parte Lowe [2003] WASCA 306 [63] – [65]).
•This rule (of natural justice) is not rigid and it is necessary to have regard to the particular legislative framework in which a decision must be made in order to determine whether the procedure adopted by a decision‑maker is fair in the circumstances of the case. To that end in Kioa v West (1985) 159 CLR 550, 584 – 585 Mason J said:
What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the enquiry, the subject matter and the rules under which the decision‑maker is acting.
It is therefore necessary to consider the legislative framework which governs the minor case procedure in the Magistrates Court. Relevantly:
(a)The jurisdictional limit for a minor case was $10,000.
(b)The primary object of the court in dealing with a minor case is to attempt to bring the parties to a settlement acceptable to the parties (s 27(1)).
(c)In dealing with a minor case the court is to act with as little formality as the court thinks is reasonable (s 29(3)).
(d)When dealing with a minor case, the court is not bound by rules of practice as to evidence but may inform itself on any matter in such manner as it thinks fit (s 29(4)).
(e)A party to a minor case is not entitled to be represented by a legal practitioner in a consumer/trader claim except under certain conditions (s 30(5)).
In Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 French CJ said in relation to s 28(2) of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) which is in similar terms to s 29(4) of the Act:
[The Tribunal] is not bound by the rules of evidence and may inquire into, and inform itself on, any matter in such manner as it thinks fit, subject to the rules of procedural fairness … The term 'rules of evidence' does not lay out with precision its metes and bounds. Nor does it exclude the discretionary application of such rules. But the authority of the Tribunal to 'inform itself on any matter in such manner as it thinks fit' indicates that it is able to act upon information whether or not it is embodied in evidence which would be admissible in a court of law.
There are qualifications upon the Tribunal's procedural freedom. One, which is explicit, is the requirement to observe procedural fairness.
In Shenton v Touchstone Farms Pty Ltd [2012] WASCA 261 [30], the court observed, with respect to the minor case procedure in the Act:
It is important to emphasise that the informality of the procedure of the court does not detract from its obligation to observe the requirements of procedural fairness and to ensure that claims are determined on a proper, rational basis. Indeed, given the informality and the absence of the public scrutiny that is afforded by proceedings in open court, it is especially important the court is assiduous in ensuring that those obligations are met.
In the main, parties to a minor case will not be represented by legal practitioners. Consequently, there will be a duty cast on the magistrate to afford some assistance to the parties which might not be afforded if they were represented.
In Rajski v Scitec Corp Pty Ltd [1986] NSWCA 1 Mahoney JA observed that:
… the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done. (27)
In circumstances where both parties are unrepresented and within the scope and purpose of the minor case procedure, the court should as far as is practicable, ensure that all relevant information is before it before a decision is made.

The claim

The appellant was the occupier of a rural property which was not connected to the sewage system. The appellant had installed a sewage/waste water system on the property a number of years beforehand. The pump and ancillary equipment had been serviced by the installer. Field services inspection reports (service reports) confirming that the system was operating properly were required pursuant to the relevant regulations to be provided to the local authority which in this case was the Town of Kwinana.
The appellant and the installer of the system were in dispute and as a result the appellant needed to engage another contractor who could service the system and provide the necessary reports to the Town of Kwinana.
A 12 month service contract was entered into by the appellant on 1 May 2011 (service contract) pursuant to which the service contractor was to undertake three monthly field service inspections. The service contract provided that the service contractor would at the request of the appellant, undertake such works as may be required to the system for the charge referred to therein.
It was common ground at the trial that the service contractor would provide service reports to the Town of Kwinana.
Pursuant to the service contract the appellant pre-paid $440 which was for the payment of the four field service inspections at a price of $110 each including GST.
Pursuant to the service contract the service contractor was entitled to be paid for any call-out by the appellant the sum of $110 as a call‑out fee and $60 per hour for work undertaken in respect thereto.
At the commencement of the trial her Honour spent a good deal of time in discussion with the appellant in an endeavour to crystallise the issues with which she was required to deal with respect to the appellant's claim.
During that discussion and on a number of occasions during the course of the trial, her Honour repeatedly reminded the appellant that a number of matters to which he was referring were not matters relevant to his specific claims. For example:
(a)The appellant complained that he had been mislead by the respondent because in the service contract the service contractor named in the contract with which the respondent was associated, namely TMC Pty Ltd had not in fact been incorporated. The respondent explained the reasons why the entity had not been incorporated and made it clear that he accepted personal responsibility for any successful claim made by the appellant in the proceedings. As a consequence nothing turned on that issue. For the sake of convenience I will refer to the service contractor as the respondent.
(b)The appellant claimed that the respondent had not provided any enforceable warranty with respect to the provision of a Davey pump which had been supplied by the respondent. Again that was not a matter about which there was any claim made by him nor any relief sought.
The appellant handed up to her Honour a document headed 'Replacement of my former claim, as several positions have changed' (appellant's claim). This document particularised the items comprising the claim. The specific claims there contained were as follows:
1.Pursuant to the service contract, the appellant prepaid $440 which was to cover four three monthly field service inspections. The appellant claimed a refund of $110, being the service not undertaken in February 2012. During the course of discussion with her Honour, the appellant maintained that field service inspections were also not carried out by the respondent in August or November 2011. This claim was thereby increased to $330.
2.As to the respondent's quotation of 30 June 2011:
(a)A refund was sought of the sum of $178 being the sum paid to the respondent to fit a panel and irrigation pump. The appellant claimed that there was nothing for the respondent to do on that occasion because the job was to be and was undertaken by the electrician contracted by the appellant not the respondent.
(b)Damages for misleading and deceptive conduct in the sum of $180.40 on the basis that the appellant claimed that the respondent informed him that a Davey pump acquired by the appellant had to be supplied by the respondent. The respondent quoted and was paid $400 plus GST. The appellant maintained that the pump was capable of being purchased elsewhere for $259.60.
3.As to the respondent's quotation of 24 August 2011:
(a)a refund was sought of a callout charge in the sum of $187 which was paid by the appellant to the respondent. The appellant claimed that the respondent was already committed to do a service in Kalamunda for another customer. As a consequence the appellant claimed that the respondent was not entitled to be paid a call out fee by him;
(b)a refund was sought of the sum of $187 which was paid by the appellant to the respondent for the fitting of a replacement aerator. The appellant claimed that the work was to be undertaken by an electrician not the respondent;
(c)two sums of $121 each being $110 plus GST by reason that no field service inspection was undertaken by the respondent in November 2011 and February 2012. (In this regard I observe that by reason of the claim in par 1 hereof being increased to $330, these two sums were subsumed in that claim.)
(d)other expenses being printer ink and paper in the sum of $54.
The total amount of the appellant's claim was $1,138.40.
As was evident during the course of the trial and confirmed on appeal, the appellant's insurer paid the sums particularised in the respondent's quotation of 30 June 2011 by reason that the sums sought were incurred because of an electricity power surge for which the appellant was insured.
Be that as it may, the insurer was subrogated to the rights of the appellant. During this appeal the appellant said that he had informed the insurer that any sum recovered by him would be remitted by him to the insurer.

Trial

During the trial evidence was given by the appellant and the respondent.
A summary of the matters about which the appellant and the respondent gave evidence which relate to this appeal are as follows:

Field service inspections

The appellant agreed that the respondent undertook a field service inspection in May 2011 and forwarded a field service inspection report to the Town of Kwinana.
Even though the appellant had sighted copies of service reports dated 24 August 2011 and 20 December 2011, he maintained that those field service inspections were not done. In the main, he relied on an email from the Town of Kwinana dated 20 December 2011, which confirmed that the Town received the field service report of 24 August 2011 on 14 December 2011. The appellant maintained that the report was a fabrication.
At trial there was no information from the Town of Kwinana with respect to whether it had received a copy of a service report dated 20 December 2011. The parties were in agreement that no field service inspection was undertaken by the respondent in February 2012, and that by then the appellant had terminated or purported to terminate the service contract.
The respondent in his evidence said that as part of the field service inspection he would take water samples which would be laboratory tested and then in due course a report would be sent to the relevant local authority. The relevant local authority, in this case the Town of Kwinana, would require four service reports at the end of a 12 month period.
He said that field service inspections were undertaken by him on 24 August 2011 and 20 December 2011.

Refund of $178 – fit panel and irrigation pump

The appellant in the course of the appeal agreed that the correct sum was $187 being the call out charge of $110 plus $60 being the hourly fee plus GST. The appellant said in his evidence that the work undertaken to fit the panel and irrigation pump was work which was required to be undertaken was undertaken by the electrician engaged by him. The appellant said that there was nothing for the respondent to do and as a consequence he was entitled to a refund for this sum.
The respondent said that there was electrical work undertaken by the electrician however he was required to be on site to direct the trades.

Purchase of the Davey pump

This was not an item relevant to this appeal.

Call out charge ($187) for 24 August 2011

This was not an item relevant to this appeal.

Refund of $187 – fit replacement aerator

The appellant said that the work in fitting a replacement aerator was to be undertaken by an electrician not the respondent. He said that there was nothing for the respondent to do.
The respondent said that he was required to be on site to direct the fitting of a replacement aerator. As it transpired, the aerator was the wrong item and would not fit.
After the completion of the respondent's evidence, the appellant told her Honour said that he wanted to call two further witnesses one being an employee from the Town of Kwinana and the other being the electrician engaged by him. That request was refused by her Honour without her Honour seeking from the appellant details of the evidence which was proposed to be led from the electrician.
Her Honour then delivered a relatively short extempore judgment in which she dismissed the claim.

Claim of denial of natural justice

As I say, the appellant's contention, distilled from discussion with the parties at the commencement of this appeal, is that he was denied natural justice by her Honour refusing to allow him to call these two further witnesses. The thrust of his contention was that each of those witnesses would have given evidence in support of some of his claims which were made at trial.
In the appeal the appellant said that the issues about which those witnesses could have given evidence were:
1.The number of field service inspections undertaken by the respondent.
•To this end the appellant had said in evidence that the respondent had carried out a field service inspection in May 2011 but that even though the respondent had produced copy field service inspection reports for 24 August 2011 and 20 December 2011, neither inspection was undertaken. It was common ground that no inspection was carried out in February 2012.
•The appellant had received an email from the Town of Kwinana dated 20 December 2011 which was produced to her Honour at trial. In that email a representative of the Town of Kwinana confirmed that on 14 December 2011 the Town received a service report dated 24 August 2011 from the respondent. The appellant contended at trial that that report was unlikely to be genuine because it was received by the Town a number of months after the inspection was alleged to have taken place.
•The appellant said that he had wanted to call a representative of the Town of Kwinana to confirm the specific reports which had been received by it to support his assertion that field service inspections had not been undertaken on the dates contended by the respondent. On the other hand the respondent said that the Town of Kwinana would have a report for the field service inspection carried out by him on 20 December 2011.
•During the appeal the appellant produced emailed correspondence between him and the Town of Kwinana dated 12 June 2012. In that correspondence the appellant had enquired of the Town as to how many field reports the Town had received between May 2011 and November 2011 to which the Town responded that its records indicated only one report in that period was received being a report dated 25 May 2011.
•The deficiency in that information is obvious. That is that the respondent at trial maintained that a field service inspection was undertaken by him on 20 December 2011 being a date outside the period the subject of the appellant's inquiry. I raised that matter with the parties and both parties agreed that the appellant should immediately seek from the Town of Kwinana confirmation as to whether it had received from the respondent a service report dated 20 December 2011, and if so on what date.
•Whilst this procedure was somewhat unusual, it was my view that given the simplicity of the evidence which the appellant wished to adduce from a representative of the Town of Kwinana, the provision of a response by the Town in this manner would enable me to determine the probative value of the evidence which the appellant had sought to lead and in the circumstances this was a sensible procedure to adopt.
•I have now received from the appellant a copy of an email from the Town of Kwinana dated 10 December 2012 which is in the following terms:
As per your discussion with Environmental Health Officer Rowan Bowles this morning, I confirm that the most recent ATU service report for your property at 52 Braddock Road, Wellard, held on record by the City of Kwinana was undertaken 25 May 2011. This is the only report for 2011 on council record. …
The content of this email is unfortunately inconsistent with the email from the Town of Kwinana dated 20 December 2011 to which I have already referred the author of which was an employee who is apparently no longer with the Town of Kwinana. Having regard to the email from the Town of Kwinana of 10 December 2012 there is now, it appears, some uncertainty as to whether (contrary to the Town's email of 20 December 2011 produced at trial) the Town of Kwinana received the service report dated 24 August 2011.
2.A refund of the sums charged by the respondent to fit the panel and irrigation pump and the aerator.
•The appellant said that he wished to call evidence from the electrician engaged by him to fit the panel and pump (quotation 30 June 2011) and the aerator (quotation 24 August 2011).
•He said that in both cases the work to be undertaken was that of the electrician and there was no work to be undertaken by the respondent. He said that the electrician engaged by him could confirm that to be the case and make clear exactly what work was undertaken on those two occasions.
•In the appeal the respondent reiterated what he had said in evidence at trial. That was that he was required to be in attendance because he had to direct the trades even though he agreed that in the main the work was of an electrical nature which required a qualified electrician.

Her Honour's refusal to allow further witnesses

At the start of the trial the appellant and the respondent confirmed that they would be the only two persons who were to give evidence and that there were a number of documents upon which they would each rely.
Her Honour informed the parties that the appellant would first give evidence, the respondent could ask him questions whereafter the respondent would give evidence and the appellant could question him.
It is true that her Honour made mention on a number of occasions the time limit within which the trial was to be contained. Her Honour made it clear that because of trial commitments she had on subsequent days, the trial would need to be completed on that day.
Her Honour told the appellant that she would want him to tell her about his case until 12.15 pm and then she was going to allow the respondent to cross‑examine him. It would appear from the bench book that the respondent's cross‑examination of the appellant commenced at 12.27 pm after there was a short break called by her Honour to allow the appellant to consider whether he had forgotten anything or intended to provide any further documents.
Her Honour clearly experienced some difficulty in her endeavours to restrict the appellant's evidence and submissions to matters which had relevance to the matters the subject of his claim. It was necessary for her Honour on a number of occasions to remind the appellant that a number of matters raised by him were not relevant to those issues.
In my view her Honour was faced with a difficult task to keep the appellant on point. That task was exacerbated by the appellant's apparent hearing difficulties and the fact that English did not appear to be his first language. It was, in my view, appropriate for her Honour to endeavour to take steps to maintain a reasonable time frame.
Towards the end of the respondent's evidence there was the following exchange between the appellant and her Honour (ts 97 - 98).
Appellant: You have to provide that you have issued this repeat reports all to the council, the second question is: why the council then told us only they received one from August, no other reports? You have to tell us the answer or we delay this and I bring the council as witness and they will tell you something, and I will invite my electrician and he will tell you more?
Appellant… I can go further on and providing more witnesses, and then we …
Her Honour:     No, we are not having more witnesses, today with the date of the hearing and today is when the evidence …
Appellant: Yes, I understand that but please I understand that I don't accept lying. I put the documentation that council, as an independent body, has …
Her Honour:     That is enough.
Appellant        … only received one of the field reports, not three.
Her Honour:     Does not say that, it says 'my office received a field service report from 24 August on 14 December,' it does not say, 'we haven't received any others,' and it would not have received 20 December one on that date. You admitted yourself that there were two done, that were was one done, the earlier one in May, and then that there was an August one, that was not in dispute at the outset but now it seems to be dispute. But you never disputed that this morning.
Her Honour did not then make any inquiry as to what it was that the appellant apprehended that the electrician engaged by him would say in evidence.
The exchange referred to above took place during discussions between her Honour and the parties which related to the number of field service inspections undertaken by the respondent.
Having said that, it was evident from the appellant's claim at trial that he was asserting that the work undertaken to fit the panel and pump and subsequently to attempt to fit the aerator was work which involved the electrician engaged by him but did not involve any work being undertaken by the respondent.
In the written submissions provided by the appellant and during the hearing of this appeal, the appellant maintained that he wanted to call the electrician to give evidence at trial about what was done by him and the respondent on the occasions that the panel and pump were fitted and the fitting of the aerator was to be done. In my view, before her Honour refused the appellant the opportunity to call any further witness she ought to have enquired of him what it was that the appellant anticipated that witness would say in evidence.
Her Honour would then have been in a position where she could have given consideration to the probative value of the evidence proposed to be led in order to consider the prejudice to the appellant in the evidence not being called and any prejudice to the respondent by any delay in the finalisation of the trial.
In my view evidence as to whether the Town of Kwinana received service reports or not is evidence which could likely have been probative as to the question whether her Honour was satisfied that field service inspections on 24 August 2011 and 20 December 2011 were undertaken
With respect to the sums charged by the respondent for the fitting of the panel and pump and on the occasion upon which the aerator was to have been fitted, evidence from the electrician was likely to have been relevant and probative of those matters.
The evidence may also have impacted on her Honour's assessment of the credibility of the appellant and the respondent, generally,
The question is whether her Honour's refusal to allow the appellant the opportunity to call that evidence albeit on a subsequent day amounted to a denial of natural justice.
In my view her Honour's refusal did constitute a denial of natural justice in all the circumstances. I come to that conclusion with some reservation given the difficult task her Honour had in order to have the appellant focus on the issues relating to his claim, so that the trial could proceed in an orderly and expeditious way.
There is no doubt that it would have been preferable for the appellant to have had the electrician and a representative of the Town of Kwinana available to give evidence on the day. Her Honour had informed the appellant and the respondent of the procedure which would be followed in the calling of evidence and the appellant had told her Honour at the outset that he would be the only witness in support of his claim.
In addition the appellant first raised the issue of wanting to call further witnesses towards the end of the respondent's evidence.
However the proceedings at trial were very informal. During the course of evidence being given by each party there were numerous occasions upon which her Honour and the parties had discussions about various matters and ongoing submissions were made by each party to her Honour as the evidence unfolded.
In the circumstances I do not consider that the appellant should have been prevented from being given the opportunity to lead evidence from a representative of the Town of Kwinana and the electrician even though that meant that the evidence would not be completed on that day.
As a consequence the orders I make are that:
1.The appeal be allowed.
2.The matter be remitted back to the Magistrates Court for a rehearing.