JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: WATERS -v- WILLIAMS [2013] WADC 169
CORAM: DAVIS DCJ
HEARD: 6 SEPTEMBER 2013
DELIVERED : 1 NOVEMBER 2013
FILE NO/S: APP 44 of 2013
BETWEEN: KELLY WATERS
Appellant
AND
KATHY WILLIAMS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE GLUESTEIN
File No :JO 1816 of 2012
Catchwords:
Civil - Appeal from Magistrates Court - Minor case claim - Whether denial of natural justice - Refusal to receive evidence - Whether bias on the part of the magistrate - Delay in delivering reasons for decision - Turns on own facts
Legislation:
Magistrates Court (Civil Proceedings) Act 2004 s 27, s 29, s 30, s 32 and s 40
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):
Cameron v Cole (1944) 68 CLR 571
Chin v Legal Practice Board of Western Australia [2011] WASCA 110
Ebner v Official Trustee in Bankruptcy [2005] HCA 63; (2000) 205 CLR 337
Gamage v The State of Western Australia [2008] WASCA 49
Johnson v Johnson [No 3] (2000) 201 CLR 488
Kioa v West (1985) 159 CLR 550
Michael Wilson & Partners v Nicholls (2011) 244 CLR 427
Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470
Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148
Re Burton; Ex parte Lowe [2003] WASCA 306
Sullivan v Department of Transport (1978) 20 ALR 323
SZKJV v Minister for Immigration and Citizenship [2011] FCA 80
DAVIS DCJ: In August 2012, the appellant, Ms Waters, brought a minor case claim in the Magistrates Court of Western Australia against the respondent, Ms Williams. Ms Waters sought the return of unsold consignment stock and personal items from a retail business (shop) formerly run by her sister, Ms Cherie Storm, reimbursement of payments Ms Waters had made to her sister and for the business (including the cost of an air‑conditioner for the business), reimbursement for stock sold without payment and compensation for a damaged jukebox.
At the time Ms Waters made these payments and provided items to her sister, Ms Waters was of the belief that her sister owned the business. After her sister died in September 2011 Ms Waters discovered that the business was in fact owned by the respondent, Ms Williams.
Ms Waters in her statement of minor case claim made it clear that she was basing her claim on common law torts of trespass to chattels and conversion and that she had demanded the return of her goods from Ms Williams, without success. In the case of the jukebox it had been returned, but in a damaged condition. The allegation in Ms Waters' statement of minor case claim was that Ms Williams…
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- AGLC
- Waters v Williams [2013] WADC 169
- Case
- [2013] WADC 169
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the Magistrate had denied the appellant natural justice, exhibited bias, and whether the delay in delivering reasons for the decision amounted to a breach of procedural fairness. The key issue was whether the Magistrate had acted with actual or apparent bias. The court had to consider the test for actual bias, which requires the party to show that the decision-maker's mind is so committed to a conclusion already formed as to be incapable of alteration. The test for apparent bias, on the other hand, is an objective test which requires the court to consider whether a hypothetical fair-minded person might reasonably apprehend that the decision-maker might not bring an independent and impartial mind to the resolution of the decision he is required to make.
The court found that the Magistrate had acted with actual bias. The court held that the Magistrate had prejudged the case against Waters and had acted with such partisanship or hostility as to show that the Magistrate had a mind made up against Waters. The court found that the Magistrate's conduct amounted to actual bias and that the appeal should be allowed. The court also found that the delay in delivering reasons for the decision did not amount to a breach of procedural fairness.
The court allowed the appeal and set aside the decision of the Magistrate. The matter was remitted to the Magistrates Court for rehearing before a different Magistrate.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Actual bias will exist where the decision-maker has prejudged the case against a party, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against that party and was not open to persuasion: Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507, 532 [36], [72]. Actual bias requires an enquiry into the actual thought processes of the decision-maker. The actual state of mind of the judicial officer is in issue: Michael Wilson & Partners v Nicholls(2011) 244 CLR 427 [33] and [67]. The test for actual bias requires the party contending that the bias exists to show that the mind of the decision-maker is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Such an allegation must be distinctly made and clearly proved: Jia [36], [69], [72] and [127]; Chin v Legal Practice Board of Western Australia [2011] WASCA 110 [5] (Newnes JA). Apparent bias, on the other hand, arises in the absence of any suggestion of actual bias and involves deciding whether a judicial officer might not bring an impartial mind to the resolution of a matter: Ebner v Official Trustee in Bankruptcy [2005] HCA 63; (2000) 205 CLR 337 [6], [7]. No attempt need be made to inquire into the actual thought processes of the judicial officer: Ebner [7]. The test for apparent bias is whether a hypothetical fair‑minded person might reasonably apprehend that the decision‑maker might not bring an independent and impartial mind to the resolution of the decision he is required to make: Johnson v Johnson [No 3] (2000) 201 CLR 488 [11]; Ebner [6]; Michael Wilson & Partners v Nicholls[31]; Gamage v The State of Western Australia [2008] WASCA 49 [54]. The test for apparent bias is, thus, an objective test. Two things must be remembered when applying the test for apparent bias: Johnson v Johnson [12]. First, the observer is taken to be reasonable: Johnson v Johnson [12]. The fair-minded lay observer is one who should be taken to have informed himself or herself 'on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances': Johnson v Johnson [53]; Gamage [54]. Secondly, if the person being observed (i.e. the decision‑maker) is a judicial officer it is relevant that the judicial officer is a professional 'whose training, tradition and oath or affirmation require [the judicial officer] to discard the irrelevant, the immaterial and the prejudicial': Johnson v Johnson [12]. There are two steps to the assessment of apparent bias, as the High Court set out in Ebner [8] (applied in Michael Wilson & Partners v Nicholls [63]):The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps, first it requires the identification of what is said might lead a Judge to decide a case other than on its legal and factual merits, the second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. It should be assumed that the lay observer will base his or her opinion on a fair assessment of the Judge's conduct in the context of the whole of the trial.