Waters v Williams - [2013] WADC 169

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
Tobin v Dodd [2004] WASCA 288

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 had 'intentionally asserted control over, caused damage to, and interfered with my use of my belongings for an unreasonable length of time causing myself financial loss and undue stress'.
Ms Williams in her statement of defence denied the claim, stating that she had no agreement to sell on consignment any stock or personal items belonging to Ms Waters. Following the death of her sister, items were returned to Ms Waters and Ms Water's claim 'rests with her deceased sister'.
The hearing of Ms Waters' claim took place before Magistrate Gluestein on 14 February 2013. For reasons which he published in writing and delivered on 9 May 2013, the magistrate dismissed the claim. The magistrate found that all of Ms Waters' dealings and financial arrangements were with her sister and there were no contractual arrangements between Ms Waters and Ms Williams. As set out in his reasons his findings were:
Having heard what ultimately was limited evidence and having considered the Claimant's exhibit documents I am not satisfied that the Claimant has made out her claim to the requisite civil standard. The fundamental difficulty for this claim is that, and I am sure Ms Waters would readily acknowledge, all of her (Claimant) dealings were essentially with her sister. Tragically the Claimant's sister was not available to assist this case with her version of events. However I doubt whether any input from Ms Cherie Storm would have change the outcome.
The Claimant's evidence and the exhibit material tendered by Ms Waters clearly shows that all of the Claimant's dealings and financial arrangements were with her deceased sister, Cherie. There was never any contractual arrangement between the Claimant and the Defendant. As I have stated, it seems Cherie had very poor financial management skills and arrangements between the sisters were quite informal and ad hoc. Had the Claim been made against Cherie then the outcome might be quite different. However, the Claim being made against the Defendant, with whom the Claimant had no contractual dealings, there is no basis for my being able to find in favour of the Claimant in this Minor Case Claim …

The nature of this appeal

Section 32 of the Magistrates Court (Civil Proceedings) Act 2004 (MCCPA) restricts appeals from a judgment of the court in a minor case to situations of jurisdictional error or denial of natural justice. There is no right of appeal generally against a decision because the magistrate was wrong in either fact or law.
In her appeal notice Ms Waters' two first grounds of appeal were that the magistrate had erred:
1.in finding that a privity of contract existed between the plaintiff (Ms Waters) and her deceased sister to the exclusion of the defendant Ms Williams; and
2.failing to take into account the Sale of Goods Act and Partnership Act which clarify the legal obligations of the defendant.
As I discussed with Ms Waters during the appeal hearing and which she stated that she understood, I am not able to entertain these grounds of appeal since they allege errors of fact and law on the part of the magistrate and no appeal on these grounds is permitted by the express provisions of s 32 of the MCCPA.
The remaining grounds of Ms Waters' appeal relate to what she says was a denial of natural justice in the hearing before the magistrate because:
(a)the magistrate refused to receive evidence (which I will refer to as 'appeal ground 1');
(b)there was bias on the part of the magistrate (which I will refer to as 'appeal ground 2'); and
(c)there was a delay in providing his reasons for decision (which I will refer to as 'appeal ground 3').
In considering each of these grounds of appeal, I have taken into account that Ms Waters is a self-represented litigant and I have determined, after reading her notice of appeal, her written submissions and hearing her oral argument, what the substance of her appeal grounds are and whether there is any merit to them: Tobin v Dodd [2004] WASCA 288 [13] - [18].
Section 40(4) of the MCCPA requires me to decide the appeal on the material and evidence that were before the Magistrates Court. I have had regard to the Magistrates Court file, including the transcript of the proceedings before the magistrate.

Appeal ground 1 – failure to receive evidence – legal principles

The principles of natural justice require procedural fairness to the parties before the court. A person must be given a reasonable opportunity to present his or her case and to be heard: Cameron v Cole (1944) 68 CLR 571, 589; Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148 [57].
What amounts to a reasonable opportunity to present a case depends on the circumstances of the case. The nature of the proceedings, the powers to be exercised and the rules of procedure may effect the extent to which a right to be heard may be qualified. The requirements of natural justice in this case are therefore to be viewed in the context of the minor case procedure of the Magistrates Court: Rankilor [57] and [58]; Kioa v West (1985) 159 CLR 550, 584 ‑ 585.
The primary object of the Magistrates Court in dealing with a minor case claim is to attempt to bring the parties to a settlement: see s 27 of the MCCPA. Section 13 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 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. The parties are not entitled to be legally represented except with the leave of the court: s 30.
The emphasis is on minor case claims being dealt with expeditiously and with finality. That is highlighted by the fact that there is no right of appeal from an error of fact or law by a magistrate.
It is also important to bear in mind that while a litigant in the minor claims jurisdiction of the Magistrates Court is entitled to a reasonable opportunity to present his or her case, the court is not required to undertake the 'impossible task' of ensuring that the litigant takes the best advantage of the opportunity: see Rankilor [59] and Sullivan v Department of Transport (1978) 20 ALR 323, 343.

Appeal ground 1 – failure to receive evidence – analysis

After reading Ms Waters' grounds of appeal and written submissions and hearing her oral argument, in this ground she raised two matters which I confirmed with her during the appeal hearing (appeal ts 35):
(a)the magistrate's refusal to receive in evidence a DVD recording showing the jukebox in its undamaged state taken by Ms Waters on a visit to the business premises in June 2012, and photographs of the same jukebox showing its damaged state after it was returned to Ms Waters a month later; and
(b)that Ms Waters was not happy with the way the magistrate dealt with the conflict between the evidence she gave and the evidence that Ms Williams gave.

Conflicts in the evidence

I will deal with the second matter first. Having considered both Ms Waters' written submissions and the various parts of the transcript to which she took me, in my view, this does not relate to the presentation of her case. This relates to Ms Waters' dissatisfaction with the magistrate's findings on the evidence. As she explained it during the appeal hearing, (appeal ts 32) she felt that she had proved her case.
This does not give rise to a denial of natural justice. It is in substance an appeal about the magistrate's findings of fact, relating to the merits of the case, which is not permitted by the express provisions of s 32 of the MCCPA.
Ms Waters' dissatisfaction with the magistrate's decision and the reasoning process by which he dismissed her claim, does not mean that there has been a denial of natural justice: Re: Burton; Ex parte Lowe [2003] WASCA 306 [81] and [87].
This aspect of Ms Waters' appeal cannot succeed.

Refusal to receive and view the DVD and photographs

As to the magistrate's refusal to receive in evidence the DVD recording and photographs of the jukebox, before the magistrate heard evidence from Ms Waters he had a discussion with her about the evidence that she was going to call. She advised that she did not require any witness, but 'I have got documents and a video recording pertaining to the damage of the jukebox that was in my claim' (ts 5). After clarifying that the recording was in fact on a DVD, the following exchange took place (ts 6):
HIS HONOUR:    What's the DVD about?
WATERS, MS:    It's actually what the police used to prosecute us - well, attempting to prosecute us for trespass and it shows the defendant's employee, Linda Williams, referring to the jukebox and then the jukebox was returned to me smashed. It also shows a log of - a catalogue - a video catalogue of the stock, which we needed in order go ahead with letters of admin. It also shows her employee physically assaulting my mother and verbally abusing me, but that is obviously up to the court to determine whether there were grounds for that I suppose.
HIS HONOUR:    How is that relevant to your claim?
WATERS, MS:    Because I'm claiming for the damage of the jukebox which was on that ---
HIS HONOUR:    I understand that but if your mum was assaulted, how does that fit in to your claim today?
WATERS, MS:    No, you were just asking me what was on the actual video.
HIS HONOUR:    Okay, but the relevance of the video - you're --
WATERS, MS:    Is regarding the - Kathy wasn't there. Her employee Lin was there and she advised us that we were trespassing. I didn't believe that to be so because I had belongings there and the defendant has acknowledged that. She said that she was going to call the police. I said, 'Please do', and then it just escalated. I continued to videotape the stock, which I understand I am allowed to do.
Ms Waters then went into the witness box and gave evidence relating to her claim. The magistrate then asked:
[I]s there anything else you want to tell me? --- Just with regards to the DVD which you have already asked about, as in why you need to see it because I have claimed for the damages on that, but I also have photographs of the damage.
Tell me how did the jukebox get purchased and how did it get into the shop?
Ms Waters then gave a full account of how she had purchased the jukebox, how it had got into the shop, her visit to the shop in June 2012 to collect the items she claimed (including the jukebox) and the angry reaction to her visit by the manager, Linda Williams (an employee but no relation of the respondent, Ms Williams) (ts 15 ‑ 16).
Ms Waters gave evidence that at the time she visited the shop and took the DVD recording the jukebox was not damaged. The damage was discovered after it was delivered to her mother's home and Ms Waters removed the bubble wrap in which the jukebox had been wrapped. The following exchange then took place (ts 17):
What was the damage? --- The whole top of it, the red glass area was smashed, and the white plastic area also around the top was - was scratched.
Did it work? --- I hadn't turned it on to tell you the truth. I was so upset and we took photos of it and then the court case went ahead and her response was that it was shopsoiled.
So it might very well ---? --- It may work, yes, I haven't turned it on.
It might very well work or may not? --- Yeah.
Anything else? --- I don't know if you want to see the pictures of that.
Sorry? --- I don't know if you wanted to see the pictures of that but ---
No? --- No, cool.
Anything else? --- No, I don't think so.
It is apparent from the transcript that Ms Waters was given a reasonable opportunity to present her case concerning the jukebox.
Subsequently in his written reasons for decision, the magistrate proceeded on the basis that the jukebox had been returned in a damaged condition (reasons page 3), but observed:
The defendant denies causing any damage and there was nothing to support the allegation that damage was caused by the defendant. Nor is there evidence that would assist the court to determine the quantum or value of the damage.
On appeal Ms Waters argued that in relation to the magistrate's observation that there was not enough evidence for him to determine the amount of damage, 'that would have been easier if he'd viewed the photo and the video'. She also argued that she did not claim that the jukebox was damaged by Ms Williams, but rather, that it was damaged while it was in her care because it was damaged by her manager at the time. That it was damaged by the manager was a finding which Ms Waters submitted could be made based on circumstantial evidence from the DVD. In her written submissions in this appeal (par 13) Ms Waters stated that the DVD recording 'provided circumstantial evidence to the claim of malicious damage to the Appellant's Juke Box'. In oral submissions she explained that it showed the manager swearing and the jukebox was perfectly fine on the day (appeal ts 19).
There are a number of difficulties with Ms Waters' submissions.
First, neither the DVD nor the photographs could in itself prove who damaged the jukebox, a matter conceded by Ms Waters on appeal (appeal ts 19).
Secondly, having regard to the evidence which Ms Waters gave orally during the hearing which I have set out above, the DVD and photographs could have added little to her descriptions as given in the evidence.
Thirdly, the magistrate accepted that Ms Waters received the jukebox back in a damaged condition.
Fourthly, on the assessment of quantum of damage, it is not clear to me (nor could it have been apparent to the magistrate) how the DVD or the photographs could have assisted in an assessment of damages. There was no evidence that the jukebox was damaged beyond repair, and no evidence that if it could be repaired (for example by replacing the red glass and white plastic areas), what the cost of those repairs would be.
Finally, and most importantly, Ms Waters' submissions really address what she perceives to be an error in the magistrate's findings on the issue of whether Ms Williams was liable for the damage to the jukebox. This is in substance a complaint about the magistrate's findings on both matters of fact (as to who damaged the jukebox) and law (as to Ms Williams' legal responsibility for the damage to the jukebox) and involves an impermissible argument on the merits.
Ms Waters' dissatisfaction with the dismissal of her claim relating to the jukebox does not mean that there has been a denial of natural justice: Re: Burton; Ex parte Lowe [81] and [87].
I am satisfied from my review of the transcript as a whole that the magistrate gave Ms Waters a reasonable opportunity to present her case and to be heard.
In the circumstances, I am not satisfied that there was any denial of natural justice to Ms Waters because the magistrate did not receive and view either the DVD or the photographs.
There is no merit in this ground of appeal.

Appeal ground 2 – the issue of bias– legal principles

Another requirement of natural justice is that the decision‑maker must be a person who is disinterested or unbiased in the matter to be decided: Re Burton; Ex parte Lowe [63].
There is a difference between actual bias and apparent or apprehended bias (namely, the appearance of bias) and the tests for each are different.
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.

Appeal ground 2 – the issue of bias– analysis

The bias in this case is said to arise from two matters:
(a)Comments the magistrate made relating to a charge of trespass against Ms Waters. This charge of trespass arose out of what occurred at the time of Ms Waters' visit to the shop when she took the DVD recording of the jukebox. During this visit she was asked to leave and then subsequently a charge of trespass was brought against Ms Waters and two other people, including her mother, who had been with her on the day.
(b)Comments the magistrate made about Ms Waters' sister. Some of these are in the transcript and others are in his reasons for decision.
In her written submissions in relation to the trespass charge, Ms Waters has stated that the magistrate was biased 'by clearly stating his bias against the Appellant in relation to a pending charge of trespass' and that 'his line of questioning and personal comments focused on his perceived guilt of the Appellant'. She has also submitted that she was not afforded the status of 'presumed innocent until proven guilty' (pars 19 ‑ 21). As it was not clear from Ms Waters' submissions whether she was alleging actual or apparent bias, I will proceed on the basis that she was alleging both forms of bias.
In her written submissions in relation to the comments about her sister, she has relied upon comments not only in the course of the hearing but also in the magistrate's reasons for decision. Ms Waters also confirmed at the appeal hearing that based on statements made by the magistrate in his decision, she believed that he did not approach his decision with an open mind (appeal ts 49). From these submissions, particularly as there is reference to the magistrate's reasons, I have assumed that she was alleging actual bias. I will, however, also address apparent bias, confined to the comments made during the course of the hearing. (This is because, in looking at apparent bias, I should disregard the magistrate's reasons for decision: Michael Wilson & Partners v Nicholls [67]; Ebner [7].)

Comments about the trespass charge

At the start of the hearing, Ms Waters informed the magistrate (ts 3) about an appearance the previous Friday in the Magistrates Court in Perth for trespass. The magistrate then inquired as to who was charged with trespass to which Ms Waters replied that it was herself, her mother and a third party. The magistrate then asked if this was a police prosecution and what had happened to the case. Ms Waters confirmed that it was a police prosecution which had been adjourned for a mention until March.
Later when discussing the DVD which Ms Waters had taken during that visit to the shop, the exchange which I have set out in [22] above continued (ts 6):
WATERS, MS:    … I continued to videotape the stock, which I understand I am allowed to do.
HIS HONOUR:    Well, you're not if you're trespassing.
WATERS, MS:    No, but that hasn't been proven so ---
HIS HONOUR:    Yes, but you probably were trespassing if you had been told to leave.
A final exchange occurred after the conclusion of the evidence (ts 25):
HIS HONOUR:    Ladies, this is your last chance. Do you both feel as though you have got across your respective positions? Firstly, Ms Waters, have you got across what you wanted to put to the court?
WATERS, MS:    Just that I would like some closure and I would like to be told the truth and I would like - just stop carrying around bags of receipts and be able to go ---
HIS HONOUR:    This case might be ---
WATERS, MS:    Yes.
HIS HONOUR:    That I don't know. That will be for you to decide. I will just come back to my question. Do you feel as though you have put across what you wanted to put across in this claim concerning Kathy Williams?
WATERS, MS:    Well, the question I asked regarding the trespass, the letter being incorrectly dated, I still - that's the basis of that charge and I don't understand why ---
HIS HONOUR:    Yes, but I'm not dealing with that charge, am I?
WATERS, MS:    No, I realise that but it - sorry, it goes to show the way it has all been dealt with. So yes, no, there is nothing else I need to add to it.
HIS HONOUR:    Is that going to be heard next month, is that right, that case?
WATERS, MS:    No, the ---
HIS HONOUR:    Or is it only on for mention next month?
WATERS, MS:    Mention in March.
HIS HONOUR:    In Perth or here?
WATERS, MS:    In Perth. In Perth, yeah.
HIS HONOUR:    Perth, yes, because it was a Mount Lawley incident, wasn't it?
WATERS, MS:    Yes, at the shop.
WILLIAMS, MS: Yeah.
HIS HONOUR:    All right. Is the allegation that is it Linda Williams might have - that's the allegation - told you to leave?
WATERS, MS:    No, she definitely did but she didn't ask us reasonably. I came to walk in the door, my mother had the video camera, I didn't ---
HIS HONOUR:    She told you to leave and I'm just putting it in simple terms ---
WATERS, MS:    She said - she said - she was in my face. She said, 'Get out, you're trespassing,' spitting in my face basically and I told ---
HIS HONOUR:    Okay, and what did you do after that?
WATERS, MS:    I walked to the counter and I explained to her that I was waiting to see Kathy. I didn't want to disrupt business; it was almost closing time. Each time we had gone there, it had been closed.
HIS HONOUR:    Who is charged? You and your mum?
WATERS, MS:    All three of us.
HIS HONOUR:    And you're defending it?
WATERS, MS:    Yes, because we had grounds to be there.
HIS HONOUR:    Have you had legal advice?
WATERS, MS:    Yes, we have.
HIS HONOUR:    Have you had legal advice about this claim today?
WATERS, MS:    No.
HIS HONOUR:    Probably not.
WATERS, MS:    No.
HIS HONOUR:    Well, you are fortunate that I'm not dealing with the trespass matter.
WATERS, MS:    I'm fortunate?
HIS HONOUR:    You're fortunate. It sounds very simple to me but anyway that will eventually be resolved.
As the magistrate himself observed, the trespass charge was not relevant to the matters upon which he had to make a decision, yet at the end of the hearing he asked questions about the trespass charge. The final comments he made to Ms Waters about the trespass charge might have indicated that he held strong views and had possibly formed a judgment about Ms Waters' ability to defend that charge. This does not mean, however, that he had prejudged Ms Waters' minor case claim or could not bring an unbiased mind to the issues to be decided in her minor case claim.
Appling the test for actual bias as I have set out in [43] above, I am not satisfied that the magistrate acted with such partisanship or hostility as to show that he had made up his mind and was not open to persuasion in favour of Ms Waters' minor case claim. His comments on the trespass charge may well have gone beyond what might normally be said by a magistrate but, in my opinion, this does not go so far as to prove that he was biased when he came to decide the minor case claim.
While during the hearing of Ms Waters' minor case claim the magistrate received information about the trespass charge, and the indications are that he had formed a view about that charge, ultimately he did not take any of this into account when he made his decision. In his written reasons he considered the evidence relating only to Ms Waters' minor case claim and made a decision based on only the dealings between Ms Waters and Ms Williams and contractual principles. He had no regard to the trespass charge, and the thought processes demonstrated in his reasons for decision show that this matter did not influence the outcome.
Having regard to the overall conduct of the hearing, including that the magistrate did postpone proceedings and reserved his decision, and then having regard to the magistrate's reasons and findings, I am not satisfied that the magistrate was actually biased.
Ms Waters may well feel that the magistrate's factual and legal analysis and application of contractual principles was wrong, but that in itself does not indicate or prove actual bias.
Ms Waters has failed to prove that the mind of the magistrate, in relation to her minor case claim, was so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments were presented.
As to whether the magistrate was apparently biased, I understand and accept that the discussions during the hearing about the trespass charge, and in particular the comment by the magistrate about Ms Waters being 'fortunate' that he was not hearing the trespass case, would have raised concerns in her mind about his impartiality when deciding her minor case claim.
However, the test for apparent bias is not a subjective test based on Ms Waters' belief or how she may have felt during the hearing.
As I have set out in [45] to [47], the test for apparent bias is an objective test, based on what a fair-minded observer, who is taken to be reasonable and informed, might reasonably apprehend. As I have set out in [48], it must also be remembered that the magistrate is a professional judicial officer whose training, tradition and oath or affirmation, require him to discard the irrelevant, the immaterial and the prejudicial.
In the circumstances of this case, I am not satisfied that there was any apparent bias on the part of the magistrate. On a fair assessment of the hearing as a whole, I do not consider that a reasonable person might apprehend that the magistrate's comments about the trespass charge might lead him to decide Ms Waters' minor case claim otherwise than on its merits. There is nothing in the transcript of the hearing that indicates the magistrate displayed any element of bias or pre‑judgment of that claim, which is the decision he was required to make. In fact, the magistrate reserved his decision on the minor case claim and indicated that he would need to go through the materials which had been produced by Ms Waters.
Further, I am not satisfied that there is any logical connection between the magistrate's comments on the trespass charge and the feared deviation from the course of deciding Ms Waters' minor case claim on its merits. While his comments may have indicated a pre‑judgment of the trespass charge, it does not follow that this indicates a pre‑judgment of the minor case claim. The trespass charge and the minor case claim are obviously different matters, with different issues which had to be determined, and it is apparent that the magistrate appreciated that.
This aspect of Ms Waters' claim of bias cannot succeed.

Comments about Ms Waters' sister

Ms Waters gave evidence during the hearing about her sister's financial situation (ts 9):
[Cherie] and I shared a lot of interests. She was a bankrupt and she was released of that in 2006, but she felt quite embarrassed about that and she always found it difficult to get credit, and so I assisted her with the business, with purchasing the air conditioner because ---
Sorry, when did --- when did her bankruptcy period finish? --- 2006.
All right? --- So it was well and truly over but when she applied for things like the EFTPOS terminal and that, she came across what she thought was stigma. You know, they said, 'We can't give you that because you're bankrupt'.
Ms Waters' complaint of bias in relation to comments about her sister centres upon subsequent exchanges she had with the magistrate during the course of the hearing. The first of the exchanges is as follows (ts 13):
Yes, what else? --- You asked me about personal items. I mean, that's just the operational thing and a note about the Grinch dog that I left at the shop when we were doing the Grinch display. We did various window displays. These are the daily reconciliations that my sister did and she always highlighted or put a K next to the money that was supposed to go to myself. This is ---
And ---? --- Sorry.
Do I glean correctly from this material that and at the time this was a comfortable and happy arrangement you had with your sister? --- Yes, it was - it was annoying that I never was reimbursed because she always needed to replenish the stock.
Yes, okay. I might have used the wrong adjectives? --- Sure.
It was an arrangement you had with your sister because you were helping her? --- Yes, I was helping the business, yeah.
As sisters do? --- Yes.
Another exchange relied upon by Ms Waters in relation to her sister was the following (ts 15):
Your sister might have sold it to them? --- Yeah, of course because she knew that she could order more if she - well, at the time she could.
So you bought and paid for it? --- Yes.
And what was the arrangement with your sister? --- I think she made a $50 payment but then after that, once again, business was so hard ---
It was on your credit card? --- Yes, yes, everything is on my credit card.
But she only made one payment? --- Yes.
What did she say to you after making that one payment? --- The same thing she had done her entire life, 'I'm sorry,' and 'I will pay you back when I can.'
You can't choose your blood relatives, can you? --- I wouldn't - I wouldn't change anything about her so ---
Of course, I didn't mean anything else? --- Yes. No, I understand what you mean.
The final complaints of bias relate to the magistrate's reasons for decision. First, Ms Waters referred to an observation by the magistrate in his reasons for decision when he summarised Ms Waters' evidence noting:
Until 2006, her sister Cherie was a bankrupt – it appears clear that Cherie had little, if any business or financial acumen.
Secondly, Ms Waters referred to the mention in the magistrate's findings about her sister's lack of financial management skills and the informal and ad hoc arrangements between the sisters.
Ms Waters' submissions (written submissions par 24) were that these negative and unrelated comments made about her sister, who was not a party to the hearing, 'reflects his disdain towards people who have faced financial difficulties and filed for bankruptcy without knowing all of the circumstances which led to such action'. She also submitted (written submissions pars 25 and 26) that the magistrate had made 'unduly harsh criticism' of her sister and that the perceived bias against people who have filed for bankruptcy was detrimental to her case, while on the other hand he did not seek to denigrate Ms Williams' business acumen, despite her own business relationship with Ms Waters' sister.
In my view the observations which the magistrate made during the course of the hearing were unobjectionable. The recital in his reasons for decision of Ms Waters' evidence about her sister being a bankrupt is based on her evidence. The mention of her sister's financial management is also relevant and based on the evidence. It goes to explain why Ms Waters made payments to her sister and is relevant to the magistrate's findings that Ms Waters' dealings were with her sister.
I do not consider that any of the passages I have set out from either the hearing or the magistrate's reasons for decision constitutes unduly harsh criticism of her sister or reflects a disdain by the magistrate towards people who have faced financial difficulties and filed for bankruptcy, as Ms Waters has submitted. Nor do I consider that anything said by the magistrate demonstrates a bias against people who have filed for bankruptcy which was detrimental to Ms Waters' case.
It is apparent that Ms Waters considers that the magistrate's factual and legal analysis and findings that her contractual arrangement were with her sister were wrong, but that in itself does not indicate or prove actual bias.
None of these matters, in my view, demonstrates actual bias on the part of the magistrate within the meaning of the relevant test, namely that the mind of the magistrate was so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments were presented.
Further, I have also considered whether any of the exchanges during the hearing between the magistrate and Ms Waters would indicate any apparent bias. Applying the test for apparent bias, I am not satisfied that there was any such bias on the part of the magistrate.
On a fair assessment of the hearing as a whole, I do not consider that a reasonable person might apprehend that the magistrate's comments about Ms Waters' sister might lead him to decide Ms Waters' minor case claim otherwise than on its merits. I do not think that a fair‑minded observer would find the passages I have set out in [69] and [70] above to be unduly harsh criticism of her sister or to reflect a disdain or bias by the magistrate towards people who have faced financial difficulties and filed for bankruptcy. In my view there was nothing in any of the matters to do with her sister which would indicate to any reasonable person that the magistrate was apparently biased against Ms Waters or predisposed to judge the case against her.
This aspect of Ms Waters' claim of bias cannot succeed.

Conclusions in relation to ground 2

It follows from what I have said that I am of the opinion that neither of the two matters raised by Ms Waters, when looked at individually, constitutes a sufficient basis for a finding that the magistrate was either actually or apparently biased. Nor, in my opinion, can this conclusion be arrived at when both of the matters complained of are looked at together, in the context of the whole of the hearing.
Ground 2 of Ms Waters' appeal has not been made out.

Appeal ground 3 –delay in the decision – legal principles

The circumstances in which delay in delivering a decision, of itself, will constitute a breach of natural justice, are rare. It is only where there is an unexplained lengthy delay which renders a decision unsafe, for example because of an impairment of the ability of the court or tribunal to assess the credit of witnesses, that delay may amount to a denial of procedural fairness: NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470 [5] and [10] (Gleeson CJ); In SZKJV v Minister for Immigration and Citizenship[2011] FCA 80 [33].

I should observe that the experience of the law is that the time required to decide disputes varies from case to case. Some matters can be determined in quite a short timeframe, whereas others might take a considerable period of time, even months.
However, for minor case claims it should always be borne in mind that the MCCPA requires that cases be dealt with 'efficiently, economically and expeditiously', the court is required to act with as little formality as is reasonable and parties are not usually legally represented. In these circumstances a delay of months would be undesirable and contrary to the aims of the minor case claims jurisdiction of the Magistrates Court.

Appeal ground 3 –delay in the decision – analysis

The hearing of Ms Waters' minor case claim took place on 14 February 2012. The magistrate indicated to the parties that he would publish his decision in 'about two weeks'. The magistrate did not deliver his decision until 9 May 2013.
Ms Walters submitted that this delay of almost three months was prejudicial to her. She submitted that there was an assumption that the magistrate should make a decision at a time when the facts of the case and the impression made by the witnesses were still clearly in mind, but that did not occur.
Ms Waters also claimed that the delay adversely affected her ability to identify and collect her belongings due to the fact that they may have been sold and/or disposed of. In fact, there was a sale of the business by Ms Williams but that took place before the hearing of the minor claim case.
In the particular circumstances of this case and applying the principles I have set out above, while the delay of almost three months is undesirable, the delay in itself does not mean that Ms Waters has been denied procedural fairness. I do not consider the delay to be so unreasonable that it created a real and substantial risk that the magistrate's capacity for competent evaluation of the witnesses and the facts of the case was diminished. In this case there was no adverse credibility finding based solely or significantly on an assessment of Ms Waters' evidence, combined with a lengthy or significant unexplained delay.
I do not consider the delay in this case to be such as to constitute a denial of natural justice. This ground of appeal cannot succeed.

Conclusion and orders

In the circumstances, and as Ms Waters has not succeeded in relation to her grounds of appeal relating to natural justice, her appeal must be dismissed.