Wilson v Dodo Services Pty Ltd
[2018] WADC 159
•29 NOVEMBER 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: WILSON -v- DODO SERVICES PTY LTD [2018] WADC 159
CORAM: GETHING DCJ
HEARD: 14 NOVEMBER 2018
DELIVERED : 29 NOVEMBER 2018
FILE NO/S: APP 88 of 2018
BETWEEN: SANDRA LYNNE WILSON
Appellant
AND
DODO SERVICES PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE MALLEY
File Number : FR 1850/2017
Catchwords:
Magistrates Court appeal - Minor case - Natural justice - Whether sufficient opportunity to give evidence - Whether sufficient opportunity to cross‑examine - Bias
Legislation:
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 32, s 40
Result:
Appeal dismissed
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | Phillips Law & Advisory |
Case(s) referred to in decision(s):
Alvaro v Fraser & Downsborough Designers Pty Ltd (1990) 20 ALD 762
Buttarelli v Perpetual Ltd [2013] WASCA 254
Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571
Chin v Legal Practice Board of Western Australia [2011] WASCA 110
Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38
De Alwis v The State of Western Australia [No 2] [2015] WASCA 42
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338
International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Jones v Darkan Hotel [2014] WASCA 133
Lourey v Legal Profession Complaints Committee [2012] WASCA 112
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
MTI v SUL [No 2] [2012] WASCA 87
Nobarani v Mariconte [2018] HCA 36
R v Burton; Ex parte Lowe [2003] WASCA 306
R v Kelly; Ex parte Hoang Van Duong (1981) 28 SASR 271
R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248
Ramsay v Australian Postal Corp (2005) 147 FCR 39
Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148
Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342
Re Mr P G Cockram; Ex parte Tey [2013] WASCA 104
Rowe v Stoltze [2013] WASCA 92
Smart v Albuquerque [2011] WASCA 231
Smart v Prisoner Review Board (WA) [2012] WASC 48
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141
Tobin v Dodd [2004] WASCA 288
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Woodley v Woodley [2018] WASCA 149
Woolworths Ltd v The Commissioner of Police [2013] WASC 413
GETHING DCJ:
Overview
In October 2017 the appellant, Ms Wilson, entered into a contract with Dodo Services Pty Ltd (Dodo), the precise terms of which are in dispute. Dodo says that it was only for telephone and internet services via the National Broadband Network (NBN). Ms Wilson says that it also included a telephone handset which could use the telephone service provided. Ms Wilson's phone could not be used with the service provided by Dodo with the consequence that between 31 October 2017 and 28 March 2018 she did not have a telephone she could use from her home.
In December 2017 Ms Wilson commenced a minor case claim in the Fremantle Magistrates Court in relation to her lack of a telephone. The claim went to trial on 15 August 2018 and was dismissed by Magistrate Malley (Magistrate's Decision).
Ms Wilson appealed the Magistrate's Decision to this court.
For the reasons which follow, the appeal is to be dismissed.
Proceedings in the Magistrates Court
Ms Wilson's claim was initially commenced against the wrong defendant, but was ultimately amended to be against Dodo which accepts that it is the correct defendant. For ease of reference, I will simply refer to Dodo when I am describing the claim.
Ms Wilson set out her claim in the following terms:
Failure to commence phone service allowing the claimant to be unable to secure any service in time of need, or contact daughter at any way other than email. Leaving the plaintiff 81 years old, unknowingly vulnerable, with no knowledge or reason for failure to connect phone service, and unable to contact any persons, or emergency service by virtue of this failure.
The amount of the claim was $5,000 and court costs.
On 15 January 2018 Dodo filed a Response to Minor Case Claim, in which it advised the court that it intended to defend the claim.
On 19 January 2018, Ms Wilson filed a Statement of Minor Case Claim, in the following terms:
Summary of facts relevant to the claim:
On or about 17 October 2017,
I contracted with Vocus Communications t/a DoDo Services Pty Ltd for a phone and internet service at 43B Second Avenue, Claremont, W.A. I was duly connected and enjoyed two weeks of phone service before being abruptly cut off.
I have had no cooperation from Dodo via many phone calls including my daughter's call on my behalf. Dodo Services response is that is a matter for NBN.
I am advised by NBN that they will not respond my need. They will only respond to my server's correspondence.
Dodo Services Pty Ltd have not and have no intention of contacting NBN to correct any problem resulting from either failure of NBN service or Dodo Services.
I confirm that I do have internet service – but I am not aware of who is providing this service other than Dodo Services is debiting my bank account for both services bur is providing only one …
As a result, I have had no phone service to this address and no ability to contact any Fire, Police or Ambulance in any manner what so ever. I am also aware that all neighbours work during the day and are not available in case of any emergency.
As a result of these failures, I feel and know I am at risk.
This property has an extensive record of intruders and other matters necessitating 20 calls to police on previous occasions. This is the police record for this property since 2002, further escalating the need for a phone.
The questions for the court are: what is my life, health and well being worth? What is my being at risk of all the above worth?
I know that:
1.If I had a fire and the Fire Department responded, they would not ask this question;
2.If the police are required to defend me and or my properties safety, this question would not be asked;
3.If an ambulance is needed, they come, no questions asked – but- I cannot at present contact them I have stated a dollar amount that is far below my actual worth.
After 90 days of no cooperation I have asked Ms Julie Bishop to intercede on my behalf. This should not be necessary.
On 5 February 2018 the defendant filed a Statement of Defence to Minor Case Claim, in the following terms:
Summary of facts relevant to the defence:
…
2.Dodo Services Pty Ltd (ABN 33 158 289 331) ('Dodo'), a member of Vocus Group Limited (ABN 96 084 115 499), supplies the Claimant with a telephone and internet service via the National Broadband Network (NBN) ('Service') to the address 43B Second Avenue, Claremont, WA ('Address').
3The Claimant entered into a contract with Dodo for the Services on 16 October 2017. Pending provisioning, any existing telephone service delivered to the Address remained active.
4.The Service was connected on 30 October 2017 at the Address. The telephone feature of the Service has been fully operational since 31 October 2017.
5.From 5 December 2017 to 29 January 2018, the telephone feature of the Service was deactivated in order to process a telephone number change ordered by the Claimant. Dodo informed that Claimant that the telephone feature of the Service would be unavailable during provisioning, which the Claimant accepted.
The parties attended a number of pre-trial conferences then a listing conference on 13 June 2018. The claim did not settle and was listed for trial on 15 August 2018.
On 8 August 2018 Ms Wilson filed an affidavit in support of her claim in the following terms:
…
2.I confirm the receipt of billings from Do do Services Pty Ltd on 6 July, 2018 covering the following dates:
16 October 2017;
30 November 2017;
28 February 2018.
The above were not set on those dates but sent after a recent conversation with Do Do's company lawyer.
3.I have not received any other invoices for services rendered other than those sent by the companies lawyers.
3.I confirm that I lost the opportunity from 30, Oct, 2017 to March 28, 2018 to sell any or all of the following due to failure of service, of a quantity of couture fabrics total in excess of $13,477 landed cost as of 1992.
4.I confirm that I lost the opportunity to sell an anitque Chinese Black Lacquer Mother of Pearl T V Cabinet valued in excess of $6895.
5.I confirm that I ceased the services of Dodo Services pty ltd of phone and internet on the 6th of August, 2018 due to continued and ongoing failure of services paid for.
6.I am in possession of a modem and phonecharged and for and provided by Dodo which are useless for any other companies service.
At the hearing on 15 August 2018 the magistrate commenced by not allowing Ms Wilson to rely on the 8 August 2018 affidavit on the basis that she was attempting to change the basis of her claim seven days out from trial.[1] The basis of the Magistrate's Decision was in effect that Dodo did not have the opportunity to meet this revised claim.[2] The trial proceeded on the basis of Ms Wilson's initial statement of claim.
[1] Mag Ct ts, 15.8.18, page 2.
[2] Mag Ct ts, 15.8.18, page 3.
Ms Wilson and a representative of Dodo, Brian Smith, gave evidence. It is convenient to summarise the evidence of Mr Smith first, which was as follows:[3]
[3] Mag Ct ts, 15.8.18, pages 30 - 40.
(a)on 16 October 2017 Ms Wilson entered into a contract with Dodo;
(b)the contract was for the provision of a telephone service and an internet service;
(c)the services were provisioned and connected on 30 October 2017;
(d)the telephone feature of the service was fully operational from 31 October 2017;
(e)the contract did not include the provision of a telephone handset;
(f)nor did the contract include the cost of calls;
(g)Ms Wilson had been using the internet portion of the service since its installation;
(h)on 17 November 2017 Ms Wilson contacted Dodo claiming that her telephone handset was not working;
(i)under the contract it was the responsibility of Ms Wilson to supply a suitable telephone handset;
(j)the interactions between Ms Wilson and Dodo eventually revealed that Ms Wilson's existing telephone handset was incompatible with the telephone service she acquired from Dodo, it being configured for 'VoIP' (that is, an internet telephone using the voice over internet protocol);
(k)on 28 March 2018, Dodo provided Ms Wilson with a telephone handset that would work with its service, though it did so as a matter of goodwill not contractual obligation;
(i)this telephone handset worked with the telephone service provided by Dodo; and
(j)Ms Wilson subsequently cancelled the contract with Dodo, with Dodo waiving certain charges that would ordinarily have been payable.
The salient parts of Ms Wilson's evidence was to the following effect:[4]
[4] Mag Ct ts, 15.8.18, pages 5 - 30 - 40.
(a)the contract with Dodo was entered into online and she did not print off a copy of it (nor did she seek to tender a copy);
(b)in the two weeks after she signed up with Dodo she was able to continue using her old phone, but this was on her old service before it was disconnected;
(c)the telephone handset supplied by her previous service provider (Amnet) would not work on the Dodo service;
(d)at no time when she entered into the contract with Dodo was she told that she would need a special phone;
(e)she did not have any cooperation from Dodo in the many phone calls she and her daughter made in an endeavour to get her phone service working;
(f)she was without an operating telephone between October 2017 and 28 March 2018;
(g)the only telephone she had in this period was one provided by her daughter with $10 worth of calls a month;
(h)once she received and installed the new telephone handset from Dodo on 28 March 2018 she could use her service; and
(i)Dodo charged her for using the full services it provided from 17 October 2017 even though she could not use the telephone services until 28 March 2018.
The magistrate would not let Ms Wilson give evidence about matters which only arose on the 8 August 2018 affidavit.[5]
[5] See for example: Mag Ct ts,15.8.18, pages 13, 25.
In essence, Ms Wilson's case at trial was that Dodo did not provide her with a telephone handset that would work with their telephone service, it was obliged to do so and the failure to do so gave rise to an entitlement to compensation.
The magistrate accepted evidence on behalf of Dodo and dismissed the claim. His Honour determined that:[6]
(a)the contract with Dodo was only for the provision of an internet and phone service, and did not include the provision of a telephone handset;
(b)Ms Wilson got what she paid for, an internet and phone service from 30 October 2017 to July 2018 (when she terminated the contract with Dodo);
(c)the provision by Dodo of a telephone handset was a matter of courtesy only; and
(d)there was no breach of contract by Dodo.
[6] Mag Ct ts, 15.8.18 ,pages 42 - 45.
The formal order made was that Ms Wilson's claim be dismissed (Magistrate's Decision).
District Court Appeal
A judgment of a magistrate in the minor claims jurisdiction of the Magistrates Court may be the subject of an appeal to the District Court.[7] In the present case, 'an appeal against a judgment in a minor case may only be made on the grounds … that in dealing with the minor case there was a denial of natural justice'.[8] The onus is on Ms Wilson as the appellant to demonstrate a denial of natural justice.[9] The appeal is otherwise to be made in accordance with Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCPA) pt 7.[10]
[7] Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCPA) s 32, s 40.
[8] MCCPA s 32(3)(b).
[9] Jones v Darkan Hotel [2014] WASCA 133 [31] (judgment of the court).
[10] MCCPA s 32(2)(a).
By Appeal Notice filed 4 September 2018 the Ms Wilson appealed from the Magistrate's Decision. The sole ground of appeal is 'the failure of the magistrate to be impartial', with more detailed reasons annexed (see below [26]).
The appeal was filed within the required 21 days after the Magistrate's Decision.[11]
[11] MCCPA s 40(3).
Dodo filed a Notice of Respondent's Intention on 2 October 2018 in which it stated that it 'does not intend to take part in this appeal and will accept any order made by the Court in the appeal other than as to costs'.
On 17 September 2018 Ms Wilson filed a document entitled 'Notice of request for Documents of the Defendant'. In it she, in effect, seeks discovery of:
Detail from Do Do Services Pty Ltd. From October 17, 2017 to as per law of services including all calls foreign and domestic, internet charges, and services in detail to comprise their billings of the above dates rendered to Sandra L Wilson of 43B Second Avenue Claremont WA by cessation of service.
At the hearing on 13 November 2018 I declined to make an order to give effect to this notice. This is because the District Court must decide the appeal on the material and evidence that was before the Magistrates Court.[12] The court can give leave to admit other evidence, but only in exceptional circumstances.[13] The additional material sought by Ms Wilson did not go to the issue of whether there was a denial of natural justice. Accordingly, there is no justification to order Dodo to provide the material as I would have declined to have considered it in the appeal.
[12] MCCPA s 40(4)(a).
[13] MCCPA s 40(4)(b), s 40(5).
Issues arising for determination
The sole ground of appeal is developed in reasons for the appeal which are annexed to the Appeal Notice (Initial Grounds of Appeal):
Magistrate
1.refused to accept the public has access of internet publishing of consumer law act of 2012 on the Courts Web Site.
2.refused to accept the validity of duty of care in a transaction.
3.I had to ask for permission too state my case.
4.I was told that the latest affidavit was refused to be considered as it arrived within one week of court hearing-
5.I was not offered any opportunity to explain but was given this denial of justice as a given.
6.I repudiated the defendant claim on several counts.
7.how does the attitude of let the buyer beware inform the law?
8.in asking the defendant the defendant stated in his defense form 22. that the service remained active - it clearly did not.
9.The defendant advised that $200 has been remitted to my bank account. It has not.
In an affidavit filed 17 September 2018 Ms Wilson went into more detail in the grounds of appeal in the following terms (which I will refer to as the Further Grounds of Appeal):
GROUNDS OF APPEAL:
1.The failure of the Magistrate to remain impartial. The Magistrate harangued the Appellant with prejudged opinions.
2.The Appellant had to ask to be allowed to state her Case after the Magistrate remarks prejudging the case.
3.The Magistrate did not follow proper court procedure witnessing his opening remarks prejudging the case.
4.the Respondent's witness refused to answer the Appellants questions which the Magistrate allowed without comment.
5.The Magistrate refused to accept the validity of DUTY OF CARE in a transaction.
6.The Magistrate refused to accept an affidavit filed 8 days prior to the trial. Would it not have been proper to ask why the delay? If so the Appellant could then have requested a medical report be filed in explanation.
7.The respondent stated on his form 22 that the service remained active. It did not.
8.The Appellant also pointed out in court the respondents other inaccuracies in his form 22 that were incorrect. There was no challenge from the Respondent.
9.The respondent's representative advised after the court adjourned, that the service provided was an out of date analog service, not the voip service now being used. Their service was incompatible with NBN without a modem.
10.After the court adjourned, the defendant stated that $200 was deposited in my account without explanation. This was incorrect.
On 11 October 2018 Ms Wilson filed a second affidavit. In it she provides commentary on the transcript of the hearing in the Magistrates Court. I will treat this affidavit as being written submissions on behalf of Ms Wilson. In this affidavit, Ms Wilson also annexed a copy of the transcript of the hearing on 15 August 2018 and identifies some inaccuracies in the transcript. None of the inaccuracies identified are material to the determination of this appeal.
A number of the grounds articulated by Ms Wilson do not assert that, 'in dealing with the minor case there was a denial of natural justice'.[14] The grounds assert, in substance, errors of fact. In a minor case an 'unsuccessful party has no right of appeal on the merits'.[15] What is in substance an error of fact (or even of law) cannot be 'dressed up' as a denial of natural justice.[16] The District Court does not have jurisdiction to consider these issues.
[14] MCCPA s 32(3)(b).
[15] Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148 [55] (Newnes JA, with whom Pullin JA agreed generally, and Buss JA agreed on this issue).
[16] R v Burton; Ex parte Lowe [2003] WASCA 306 [62], [87] (Barker J, with whom Murray J & Roberts‑Smith JJ agreed); Alvaro v Fraser & Downsborough Designers Pty Ltd (1990) 20 ALD 762, 766 (Malcolm CJ, with whom Seaman & Nicholson JJ agreed).
Points 9 and 10 in the Further Grounds of Appeal relate to matters arising after the conclusion of the hearing before the magistrate, and thus may not be the subject of an appeal.
From the remaining grounds, there are four issues arising for determination, each of which is capable of constituting a denial of natural justice.
•Did the magistrate deny Ms Wilson natural justice in refusing to accept the 8 August 2018 affidavit?
•Did the magistrate give Ms Wilson sufficient opportunity to present her case?
•Did the magistrate give Ms Wilson sufficient opportunity to cross examine Mr Smith?
•Was the magistrate biased?
Ms Wilson is a litigant in person in the appeal. As such, she is entitled to some leniency in relation to compliance with the court rules.[17] I approach the documents in which she articulates her appeal with some flexibility.[18] I need to be astute to ensure that, in a poorly expressed or unstructured document in which she sets out her case, there is no viable case which, with appropriate amendment or permissible assistance from the court, could be put into proper form.[19] At the same time, I also need to ensure that any latitude given to Ms Wilson as a litigant in person does not deprive Dodo of its rights to procedural fairness and a fair hearing, notwithstanding that it chose not to appear at the hearing of the appeal.[20]
Did the magistrate deny Ms Wilson natural justice in refusing to accept the 8 August 2018 affidavit?
[17] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (reasons of the court).
[18] Wentworth v Rogers(No 5) (1986) 6 NSWLR 534, 536 - 537 (Kirby P), 543 (Hope JA, with whom Samuels JA agreed); Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J).
[19] Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338 [21] (Beech J); Tobin v Dodd [2004] WASCA 288 [15] (EM Heenan J, with whom Murray & Le Miere JJ agreed).
[20] Nobarani v Mariconte [2018] HCA 36[47] (Kiefel CJ, Gageler, Nettle, Gordon & Edelman JJ); Woodley v Woodley [2018] WASCA 149 [76] (judgment of the court); Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51] (judgment of the court).
The appellant's position as regards the 8 August 2018 affidavit is set out in point 6 of the Further Grounds of Appeal:
The Magistrate refused to accept an affidavit filed 8 days prior to the trial. Would it not have been proper to ask why the delay? If so the Appellant could then have requested a medical report be filed in explanation.
As Rich J observed in Cameron v Cole, it 'is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case'.[21]
[21] Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, 589 (Rich J).
The nature of the right to natural justice was explained by Newnes JA in Rankilor v Circuit Travel Pty Ltd:[22]
It is trite law that the principles of natural justice require that a party be given a reasonable opportunity to present their case. However, what is necessary to satisfy that requirement in a particular case cannot be determined in the abstract but only in the context of the case. 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.
[22] Rankilor [57] – [58] (references omitted).
The following observations by the Court of Appeal in Rowe v Stoltze summarise the law:[23]
… It is trite law that the rules of procedural fairness are not fixed or immutable. Procedural fairness is directed to avoid practical injustice and what is necessary to avoid practical injustice will depend upon the particular circumstances: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37]. In a curial setting there is no absolute right to have an action heard and determined on its merits. What the rules of procedural fairness require is that each party be provided with a reasonable opportunity to be heard: International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 [54], [88], [141]. And what is a reasonable opportunity is to be judged nowadays not solely by reference to the interests of the parties but also having regard to the wider interest of other litigants waiting to have cases heard and the public interest in the proper and efficient use of the scarce public resources of the court: see Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; Brocx v Hughes [96]. What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources: Sali v SPC Ltd (1993) 67 ALJR 841, 844 (Brennan, Deane, McHugh JJ) cited with evident approval in Aon (French CJ) at [26] ‑ [27]. Moreover, as between parties to an action what constitutes a reasonable opportunity to be heard must be judged having regard to the effect of undue delay, including the stress and costs caused by having litigation hanging over a defendant's head for an undue period: see Aon [102].
[23] Rowe v Stoltze [2013] WASCA 92 [51] (Newnes JA, with whom Pullin & Murphy JJA agreed). See also: Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 [156] (Hayne, Crennan, Kiefel & Bell JJ); Woodley [77].
It is instructive to quote in more detail the passage from the decision of French CJ International Finance Trust Co Ltd v New South Wales Crime Commission referred to in the passage in the preceding paragraph:[24]
Procedural fairness or natural justice lies at the heart of the judicial function … It requires that a court be and appear to be impartial, and provide each party to proceedings before it with an opportunity to be heard, to advance its own case and to answer, by evidence and argument, the case put against it. According to the circumstances, the content of the requirements of procedural fairness may vary.
[24] International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 [54]. See also [88] (Gummow & Bell JJ), [141] - 146] (Heydon J).
The issue in relation to the 8 August 2018 affidavit, from a natural justice perspective, is whether Ms Wilson had been given reasonable or sufficient[25] opportunity to prepare her case by the filing of evidence so as to be given a fair or reasonable opportunity to present her case.[26] Ms Wilson commenced her claim in December 2017. It was listed for trial on 15 August 2018, two months after the listing conference on 13 June 2018. She had, in my view, ample opportunity to amend her claim to assert additional heads of damage as she sought to do in the 8 August 2018 affidavit. The magistrate quite properly pointed out the adverse impact that allowing the case to be changed at a late stage would have had on Dodo,[27] who also had the right to, on proper notice, know the case it had to meet in order to be given a fair opportunity to prepare for the hearing.
[25]Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 [112] (Gummow, Hayne, Crennan, Kiefel & Bell JJ).
[26] Re Mr P G Cockram; Ex parte Tey [2013] WASCA 104 [7] – [8] (judgment of the court) (Tey).
[27] Mag Ct ts 15.8.18, page 3.
Had Ms Wilson been allowed to rely on the 8 August 2018 then there was a real prospect that the magistrate would have had to adjourn the trial to allow Dodo the opportunity to address the issues raised. This would have resulted in a loss of the trial hearing time allocated to this matter, trial time that could not then be used by other litigants.
Ms Wilson has not satisfied me that she was denied natural justice by the magistrate refusing to accept the 8 August 2018 affidavit.
Even if Ms Wilson had satisfied me that she was denied natural justice by the magistrate refusing to accept the 8 August 2018 affidavit, that conclusion would not have led me to have allowed her appeal. Not every denial of natural justice or procedural fairness will result in the appeal court ordering a new trial.[28] Specifically, an appeal court will not order a new trial if the denial of natural justice would have made no difference to the actual result at the impugned hearing or would inevitably result in the same outcome if a new hearing was ordered.[29] In the present case, the information in the 8 August 2018 affidavit, if admitted, would have made no difference to the magistrate's finding that the contract with Dodo did not include the provision of a telephone handset. The same result would be inevitable if a new hearing was ordered at which Ms Wilson was able to rely on the 8 August 2018 affidavit.
[28] Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 145 (judgment of the court); Buttarelli v Perpetual Ltd [2013] WASCA 254 [34] (judgment of the court); Tey [10]; Lourey v Legal Profession Complaints Committee [2012] WASCA 112 [112] (Murphy JA, with whom Pullin & Buss JJA agreed).
[29] Stead (145); Lourey [112], [124; Woolworths Ltd v The Commissioner of Police [2013] WASC 413 [129] (Edelman J).
This ground of appeal has not been established.
Did the magistrate give Ms Wilson sufficient opportunity to present her case?
Ms Wilson's position as regards this issue is set out in the Initial Grounds of Appeal and, in essence, is that: 'I had to ask for permission to state my case'. In the affidavit filed 11 October 2018 Ms Wilson identifies 'the constant interruption of the magistrate making it impossible for the appellant to give a coherent detail of claim'.
As I have already stated, the principle of natural justice includes the 'opportunity to tender evidence relating to, and advance arguments in favour of, the particular orders' the party asks for.[30]
[30] International Finance [141].
On my review of the transcript, what appears to have occurred is that Ms Wilson prepared in advance what she wanted to say. The magistrate on occasion sought to interject to ask questions to clarify matters. Ms Wilson took exception to this approach. Ultimately, the magistrate allowed Ms Wilson to 'tell her story'.[31]
[31] Mag Ct ts 15.8.18, page 13.
It is not evident to me that the magistrate prevented Ms Wilson from saying everything she wanted to say (aside from matters relating to the 8 August 2018 affidavit).
In my view, Ms Wilson had sufficient, indeed ample, opportunity to present her case. She has not established any denial of natural justice in the manner in which the magistrate allowed her to give evidence‑in‑chief.
Did the magistrate give Ms Wilson sufficient opportunity to cross‑examine Mr Smith?
The appellant's position as regards cross‑examination is set out in point 4 of the Further Grounds of Appeal:
the Respondent's witness refused to answer the Appellants questions which the Magistrate allowed without comment.
The right to challenge by cross‑examination a witness whose evidence is adverse, in important respects, to the case a party wishes to present is an aspect of the obligation to accord natural justice.[32] However, a 'judge or magistrate has a wide discretionary power in any proceedings to contain cross‑examination within proper limits and to disallow repetitious prolix or unnecessary questions'.[33]
[32] Ramsay v Australian Postal Corp (2005) 147 FCR 39 [27] (Spender J).
[33] R v Kelly; Ex parte Hoang Van Duong (1981) 28 SASR 271, 273 (King CJ with whom Zelling & Jacobs JJ agreed).
The questions asked by Ms Wilson in cross‑examination were on occasion long-winded, argumentative and irrelevant. It is sufficient to cite two examples:[34]
And tell me why, since you are in office in Perth, I have had no contact with you until this moment? There has been no contact. We've had poor service from Dodo. We've had problems from Dodo for almost a year. Why have you made no contact with me personally? You don't make contact with customers. You want the cheapest possible result for the least possible effort; is that not true? Okay. Tell me what is your aim and objective in your service? Are you obtaining them, or are you achieving them?---I'm sorry, I don't think I need to answer that question. We provide - - -
Your Honour, this is inadequate?--- - - - an internet service that's affordable to people.
I suggest that they supply people who are able to represent the company. Let me give you, perhaps - - -
HIS HONOUR: No. No, just if - - -
WILSON, MS: - - - some of the Dodo Services – Wikipedia – their history from - - -
HIS HONOUR: No. No, Ms Wilson, don't go off the reservation. Just - - -
WILSON, MS: I'm not. I'm not.
HIS HONOUR: No, you are. If you've got a question in relation to this particular contract, ask it…
[34] Mag Ct ts, 15.8.18, pages 34, 37.
And: [35]
I would have thought you would have been an executive. Let's go back to this. The connection for Dodo to my service was supposed to be 17 October. It did not work. We called Dodo. We got no satisfaction. We got no reply. We got no explanation. This went on for six months. Then I called again, and every time I was put to a Philippine office. I had never talked to you, and you know this. Have you ever spoken to me before?---No.
No, because your office does not take care of the local community. Why? Surely you have an answer for that. You're here. You're paid a wage. What is your job?---My job - - -
It is connected to helping the community and the people who are paying for the services here, or not? Your Honour, the defendant is not answering.
HIS HONOUR: Well, I don't think there's much of an answer to it, Ms Wilson.
WILSON, MS: You see, we have a problem. It's very simple. I'm a consumer. I ask for a service. I pay for a service. I've got receipts for the service. It has been taken out of my account automatically, not knowing what it is until six months later in July I suddenly receive six and seven invoices. The service started in October. Can you explain why I've had no billings? Because it did not come up on my internet at any time, otherwise I wouldn't have been calling all this time?---The - - -
Can you explain?---The bills are emailed to you. If you provide the wrong email address, they will go to the wrong place.
[35] Mag Ct ts, 15.8.18, page 37.
In my view, the magistrate gave Ms Wilson considerable latitude in asking questions in cross-examination. She had ample opportunity to challenge the evidence of Mr Smith, and did so with vigour.
The appellant has not satisfied me that she was denied natural justice on the basis that she was not given a sufficient opportunity to cross-examine Mr Smith.
Was the magistrate biased?
The appellant's position as regards bias is set out in points 1 to 3 of the Further Grounds of Appeal:
1.The failure of the Magistrate to remain impartial. The Magistrate harangued the Appellant with prejudged opinions.
2.The Appellant had to ask to be allowed to state her Case after the Magistrate remarks prejudging the case.
3.The Magistrate did not follow proper court procedure witnessing his opening remarks prejudging the case.
In Re JRL; Ex parte CJL Mason J observed that a 'central element in the system of justice administered by our courts is that it should be fair and this means that it must be open, impartial and even‑handed'.[36]
[36] Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 350 (Mason J).
In the hearing before me, Ms Wilson confirmed that she asserts both aspects of bias, being that the magistrate was actually biased against her and that, given the manner in which the magistrate conducted the trial as regards Ms Wilson, the magistrate appeared to be biased.
The test for actual bias was summarised by Newnes JA in Chin v Legal Practice Board of Western Australia:[37]
Where a party contends that actual bias exists, the applicant must 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: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507, 532 [72]. Actual bias will exist where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision‑maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant: see Jia Legeng [36], [72]. Such an allegation must be 'distinctly made and clearly proved': Jia Legeng [69], [127].
[37] Chin v Legal Practice Board of Western Australia [2011] WASCA 110 [5] (Newnes JA). See also: Smart v Albuquerque [2011] WASCA 231 [9] (judgment of the court); MTI v SUL [No 2] [2012] WASCA 87 [13] (judgment of the court).
I have reviewed the transcript of the hearing on 15 August 2018, as well as Ms Wilson's observations on the transcript set out in her affidavit of 11 October 2018. From my review of the case as a whole, Ms Wilson has not satisfied me that the magistrate was actually biased in the manner described in Chin. The allegation of bias certainly has not been 'clearly proven'. Rather, what occurred was that the magistrate, correctly, sought to confine the evidence to the issues in dispute. He then sought to engage with Ms Wilson to seek to understand the issues from her perspective.
As to apparent bias, In R v Watson; ex parte Armstrong the High Court expressed the principle to be that 'a judge should not sit to hear a case if in all the circumstances the parties or the public might reasonably suspect that he was not unprejudiced and impartial'.[38] Their Honours went on to observe:[39]
It is of fundamental importance that the public should have confidence in the administration of justice. If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision.
[38] R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248, 262 (Barwick CJ, Gibbs, Stephen & Mason JJ).
[39] Watson (263).
The relevant test was stated by the court of appeal in Smart v Albuquerque:[40]
The test to be applied in determining whether a judge should be disqualified for apparent bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to determine: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11]. The majority in that case pointed out that in applying the test two things need to be remembered:
'[T]he observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial" [12]. (footnotes omitted)
[40]Smart v Albuquerque [9].
In judging whether there is a reasonable apprehension of bias, it should be assumed that the lay observer would base his or her opinion on a fair assessment of the judicial officer's conduct in the context of the trial as a whole.[41]
[41] De Alwis v The State of Western Australia [No 2] [2015] WASCA 42 [70] (McLure P, with whom Buss & Mazza JJA agreed).
In De Alwis v The State of Western Australia [No 2] McLure P observed, in the context of dealing with an assertion of bias, that it 'will often be necessary with a self-represented litigant for a trial judge to intervene in order to stop irrelevant matters being raised and to prevent unnecessary delays or disruptions'.[42] That is in part what occurred in the present hearing.
[42] De Alwis [71].
The fact that the magistrate made rulings against Ms Wilson does not provide a basis for a reasonable apprehension that the magistrate did not bring an impartial or unprejudiced mind to bear on those matters and other matters.[43]
[43] MTI v SUL [No 2] [2012] WASCA 87[14] (judgment of the court).
From my review of the case as a whole, I do not consider that a 'fair‑minded lay observer might reasonably apprehend' that the magistrate had not brought an impartial and unprejudiced mind to the resolution of the issues the magistrate had to decide. Rather, as I said in relation to actual bias, it would have been apparent to a fair minded lay observer that the magistrate was trying to confine the evidence to the issues in dispute, and then to engage with Ms Wilson to seek to understand the issues from her perspective.
The appellant has not satisfied me that there has been a denial of natural justice on the basis that the magistrate acted with actual or apparent bias. This ground of appeal has not been made out.
What final orders are appropriate?
For the reasons which I have set out above, the appeal should be dismissed.
Costs would ordinarily follow the event.[44] However, as Dodo elected to take no part in the appeal, the appropriate order is that there be no order as to costs.
[44] District Court of Western Australia Act 1969 (WA) s 64; Rules of the Supreme Court 1971 (WA) O 66 r 1(1).
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AR
ASSOCIATE TO JUDGE GETHING29 NOVEMBER 2018
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