Zepinic v Mitrovic

[2023] NSWDC 423

District Court

New South Wales

Medium Neutral Citation:

Zepinic v Mitrovic [2023] NSWDC 423

Hearing dates:

11 October 2023

Date of orders:

13 October 2023

Decision date:

13 October 2023

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

(1) Pursuant to UCPR rr 6.1 and 6.10, grant leave to the defendant to file a Notice of Appearance by 5pm on Friday 13 October 2023.

(2)   Summons struck out and dismissed.

(3)   Plaintiff pay defendant’s costs, with liberty to apply.

Catchwords:

APPEAL - appeal from decision of Assessor in the Small Claims Division of the Local Court pursuant to s 39(2) Local Court Act 2007 (NSW) - whether lack of procedural fairness or bias - appeal dismissed with costs

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 14, 56 – 58, 63, 98

Local Court Act 2007 (NSW), ss 35, 36, 39

Uniform Civil Procedure Rules 2005 (NSW), rr 6.1, 6.9, 6.10, 6.11, 14.4, 42.1

Cases Cited:

Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Ejueyitsi v Western Sydney University [2023] NSWCA 126

Eliezer v Sydney Water Corporation [2021] NSWCA 300

Geftlic v Merhi [2010] NSWCA 256

Goody v Odhams Press Ltd [1967] 1 QB 333

Hulme v Hulme [2023] NSWSC 299

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Kioa v West (1985) 159 CLR 550

Polsen v Harrison [2021] NSWCA 23

Slavin v Owners Corporation Strata Plan 16857 [2006] NSWCA 71

Spencer v Bamber [2012] NSWCA 274

Tonab Investments Pty Ltd v Optima Developments Pty Ltd [2015] NSWCA 287

Turner v News Group Newspapers Ltd [2006] EWCA Civ 540; [2006] 1 WLR 3469

Zepinic v Attorney-General of NSW [2023] NSWSC 785

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Dr Vito Zepinic (Plaintiff)
Ljiljana Mitrovic (Defendant)

Representation:

Counsel:
Self-represented (Plaintiff)
Ms Josephine Thornton (Defendant)

Solicitors:
Michael Vaughan & Co (Defendant)

File Number(s):

2023/00205582

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Local Court of NSW

Jurisdiction:

Civil

Citation:

Nil

Date of Decision:

5 June 2023

Before:

Assessor D Harvey

File Number(s):

2022/00122366

JUDGMENT

The proceedings before the District Court

1. The plaintiff appeals an order made by the Local Court on 5 June 2023 pursuant to which judgment was entered in favour of the defendant in proceedings where the plaintiff had claimed the sum of $10,000.

2. The Summons is brought pursuant to s 39(2) of the Local Court Act 2007 (NSW) (“the Act”). It is important to note at the outset that, while s 39(1) permits the bringing of an appeal to the Supreme Court on a question of law, the jurisdiction of the District Court under s 39(2) is much narrower, in that appeals as of right may only be brought “on the ground of lack of jurisdiction or denial of procedural fairness”. The policy considerations reflected the Act, including the careful delineation of these appeal rights, are designed to ensure the quick, cheap, efficient and informal disposition of proceedings in the Small Claims Division of the Local Court: Tonab Investments Pty Ltd v Optima Developments Pty Ltd [2015] NSWCA 287 at [101]. Any decisions made in this type of case must be guided by the provisions of ss 56-58 of the Civil Procedure Act 2005 (NSW).

The orders sought by the plaintiff

3. The plaintiff, by summons filed on 26 June 2023, appealed against the decision made by Assessor Harvey in the Local Court of NSW on the following grounds:

1. The Assessor has been biased and denied procedural fairness.

2. The Assessor acted outside her power and disobeyed principles of natural justice.

4. The plaintiff seeks the following orders in the summons:

1. Set aside judgment of the court below delivered on 5 June 2023 by the Assessor.

2. The respondent to return $10,000 borrowed from the appellant on 22 June 2021, plus interest since the date of the borrowed money until the date of decision by this Court.

3. Order(s) regarding the respondent’s perjury and defamatory statements given under the Oath [sic] Act 1900 (NSW).

4. Respondent pay the appellant’s costs and disbursements of the proceedings.

5. Any other order(s) which the Court deems fit.

The plaintiff brings proceedings in the Local Court

5. The plaintiff brought proceedings in the Local Court for the recovery of the sum of $10,000, being a sum he provided to the defendant on or about 22 June 2021. The plaintiff conceded that, at the time, he and the defendant were friends; the defendant gave evidence to the court that there was a romantic relationship, which he denied. The defendant does not dispute that a cash sum of $10,000 was given to her, but says it was a gift and that there was no discussion or agreement as to any repayment. At the time the defendant had told the plaintiff that she wanted to buy a motor vehicle, and she said that the cash was given to her to help her achieve this. It is not in dispute that she put the money she was given by the plaintiff to this purpose.

6. The plaintiff and defendant had met in late 2018 and saw or contacted each other over nearly three years. The defendant was a retired medical practitioner and, in her affidavit evidence before the Assessor, said that the plaintiff told her he was a psychiatrist. They initially saw each other socially at cafés and similar venues during 2019 and the beginning of 2020, on a sporadic basis. They were, however, unable to see each other for long periods during 2020 and 2021 due to the pandemic restrictions. Over this whole period, numerous text messages of a flirtatious (according to the defendant) or joking (according to the plaintiff) kind were exchanged (when tendered, these translated messages occupied 218 pages).

7. The parties’ friendship ended in early 2022. The reason given by the defendant was that she obtained some newspaper articles revealing information about the plaintiff. One of these articles, written by Kate McClymont, shocked her, and she decided not to have any relationship with the plaintiff in the future. The plaintiff agrees that the relationship ended but disputes the timing and the reasons given by the defendant for this.

8. On 9, 11, 19 and 22 April 2022, the plaintiff sent text messages to the defendant asking for the return of the $10,000. There was no reply and the plaintiff made several telephone calls. The plaintiff then commenced proceedings in the Local Court for the recovery of the $10,000 and for some books that he said he had loaned to the defendant. The defendant filed a defence. The plaintiff did not file a Reply (for which leave is required in the Local Court: Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 14.4(2)). Both sides filed affidavit evidence and the matter was listed for hearing.

9. The matter came for hearing before the Assessor Harvey on 10 October 2022 and again 16 January 2023, followed by a further hearing on 6 March 2023. Judgment in favour of the defendant was handed down on 5 June 2023.

The conduct of the proceedings and the judgment in the Local Court

10. At the heart of any complaint of bias or denial of procedural fairness lies the requirement for a careful analysis of the court procedure for case management and hearing as well as of the contents of the judgment itself.

11. All of the relevant transcript is available. Most unfortunately, the transcript of the judgment is unpaginated. That is, however, its sole weakness, as it is a long and carefully drafted account of the evidence before the court from each party which gives comprehensive reasons for the rejection of the plaintiff’s claim.

12. The procedural history of the plaintiff’s claim is referred to in some detail in the judgment. Assessor Harvey sets out how the evidence before her was prepared by the parties after issues about documentation were raised in court:

“It became apparent during the first hearing of this matter that there was a real contest in relation to the nature of that relationship and that a further issue needed to be determined, and that is, where the parties in a relationship, an intimate relationship, at the time the monies were given or prior.”

13. The Assessor went on to note that both parties had referred to text messages which they claimed would reveal the true state of their relationship, but that it was clear that not all of the relevant text messages have been put before the court. As a consequence, the matter was adjourned and the bundle of 218 pages of text messages was prepared.

14. Having carefully examined this evidence, the Assessor summarised the situation as follows:

“The court is faced with two competing versions, whether the monies were a loan or a gift and whether the relationship was one of mere acquaintance or a relationship. The plaintiff [not transcribable] on the balance of probabilities that the defendant borrowed the money.”

15. The Assessor then set out her findings as to the oral evidence and documentation for each party, starting with the length and nature of the relationship between them. Those findings included being satisfied that the parties had an intimate relationship between November 2018 and February 2019, a finding supported by the contents of the 218 pages of text messages. The Assessor stressed that being in a relationship did not of itself mean that the parties could not have entered a contract, and that she had to determine which of the competing versions of the circumstances of the cash being offered she should accept. This raised credit issues about which both sides had led evidence. A finding for one of the parties would of necessity amount to a finding that the other had not been truthful.

16. Principally by reason of the contents of the text messages, the Assessor was satisfied that the plaintiff had been untruthful about his relationship with the defendant. Other factors, such as the lack of documentation of the cash being given as a loan, were relevant, and there was also a broader issue of credibility and reliability to be determined.

17. As to credit, the Assessor went on to note that “for no explicable reason, other than to put himself in a good light”, the plaintiff had provided her with a bundle of documentation about his academic qualifications, employment and activities as a war hero. This entitled the defendant to challenge this evidence of good character, which the defendant had done by providing findings from the Healthcare Complaints Commission concerning the circumstances of the cancellation of the plaintiff’s registration as a psychiatrist, which in turn revealed false representations to regulatory bodies, forging the signature of a colleague, giving false evidence and a conviction in the United Kingdom in August 2013 for fraud for failing to disclose information on his job application. The Assessor also had regard to decisions of the Supreme Court of New South Wales in which adverse observations as to his credit had been made (Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 at [253] – [255]; Turner v News Group Newspapers Ltd [2006] EWCA Civ 540; [2006] 1 WLR 3469).

18. The Assessor then set out the importance of credit findings in these proceedings. She was particularly concerned that, when the plaintiff had sent the court hundreds of pages describing his qualifications, employment history and general good character, he had not told the court about the circumstances where courts in Queensland, New South Wales and the United Kingdom had all made findings that he was not a truthful witness. In the circumstances, she was not satisfied that the plaintiff had met the burden of proof to establish that the $10,000 cash he gave to the defendant was a loan, and judgment was entered for the defendant, with costs.

The evidence in this application

19. The plaintiff relied on the following affidavit material:

1. Affidavit of Dr Vito Zepinic affirmed on 11 August 2023 (Exhibit B).

2. Affidavit of Dr Vito Zepinic affirmed on 28 August 2023 (Exhibit C).

3. Affidavit of Dr Vito Zepinic affirmed on 21 June 2023 (Exhibit D).

4. Affidavit of Dr Vito Zepinic affirmed on 03 October 2023 (Exhibit E).

20. The defendant relied upon the following affidavit material:

1. Affidavit of Ljiljana Mitrovic sworn on 15 September 2023 (Exhibit 1).

21. Both parties also provided written submissions. In the case of the defendant, those written submissions consisted of the affidavit filed on her behalf, in which submissions setting out the reasons for opposition to the orders sought in the appeal were set out.

The defendant’s failure to file a notice of appearance

22. The plaintiff submitted that the defendant should not be permitted to make any submissions at all because no Appearance had been filed in the District Court.

23. UCPR r 6.1 provides:

6.1 No step without originating process or notice of appearance (cf SCR Part 11, rule 2)

(1) Except by leave of the court, a party may not take any step in proceedings (including any appearance in court) unless the party has filed a statement of claim or summons in the proceedings or has entered an appearance in the proceedings.

(2) Subrule (1) does not apply to—

(a) a defendant who applies for an order under rule 12.11 (Setting aside originating process etc), or

(b) a plaintiff who applies for an order under rule 25.2 (Order in urgent case before commencement of proceedings), or

(c) a defendant who makes an application in relation to the setting aside or enforcement of any judgment.

(3) In any proceedings, a person (not being a party and not having filed a notice of motion) may not take any step in the proceedings (including any appearance in court) unless he or she has filed a notice of address for service.

24. UCPR r 6.10 provides:

6.10 Time for appearance (cf SCR Part 7, rule 5, Part 11, rule 6)

(1) For the purposes of these rules, the time limited for a defendant to enter an appearance (whether by filing a notice of appearance in accordance with this Division or by filing a defence in accordance with Division 4) is—

(a) in the case of proceedings commenced by statement of claim—

(i) 28 days after service on the defendant of the statement of claim or such other time as the court directs for the filing of a defence, or

(ii) if the defendant makes an unsuccessful application to have the statement of claim set aside, 7 days after the refusal of the application,

whichever is the later, or

(b) in the case of proceedings commenced by summons—

(i) on or before the return day stated in the summons, or

(ii) if the defendant makes an unsuccessful application to have the summons set aside, 7 days after the refusal of the application,

whichever is the later.

(2) A reference in subrule (1)(b) to a summons extends, in relation to the Land and Environment Court, to an application that, in accordance with the rules of that Court, commences proceedings in Class 1, 2 or 3 of that Court’s jurisdiction.

25. It is also helpful to have regard to UCPR r 6.11, which sets out a procedure for a party to enter a submitting appearance on all issues except costs. The importance of that rule is that it demonstrates that failure to file an appearance is not a guarantee that the appeal will simply be dismissed; there is a procedure for the court to determine the appeal on the merits of the case even where there is no opposition.

26. Ms Josephine Thornton, who sought leave to appear for the defendant, conceded that no Appearance had been filed, but submitted that no penalty should follow this failure. First, the appeal had been case managed by the Judicial Registrar without there being any complaint from the plaintiff about the failure to file an Appearance. Although the plaintiff assured me that he had raised it, that would have resulted in the Judicial Registrar making an order for one to be filed, if an Appearance were necessary.

27. Additionally, the plaintiff’s failure to take this point prior to the hearing falls foul of the “fresh step” rule (s 63(4) of the Civil Procedure Act), as it should have been the subject of a ruling before further steps were taken (the same is the case with the plaintiff’s challenge concerning the defendant’s late filing of the defence in the Local Court).

28. Ms Thornton drew my attention to the opening words of UCPR r 6.1, which are “except by leave of the court”, which means that the leave of the court could be granted at any time, in appropriate circumstances. In addition, s 14 of the Civil Procedure Act commenced the court to dispense with the requirements of the rules in appropriate cases, and it is relatively common for the court to accept an undertaking to file an appearance within a limited time.

29. The plaintiff, in response, stated that no Appearance had been entered in the Local Court either, but I note that UCPR r 6.9(2) provides:

6.9 How appearance entered (cf SCR Part 11, rule 3)

…

(2) A defendant who files a defence in proceedings is taken to have entered an appearance in the proceedings.

30. The plaintiff also challenged the entitlement of the defendant to raise issues on appeal on the basis that the defence filed in the Local Court had been filed irregularly, in that it had been filed late, and was thus a nullity. Any objection to the lateness of the filing of the defence in the Local Court is subsumed in the judgment of the Assessor and would not constitute a basis upon which the hearing of this appeal should not proceed. The plaintiff also complained that no defence had been filed in these proceedings.

31. The submissions raised by the plaintiff concerning the Appearance and Defence (and in particular the last point) were unsuccessful when he raised them in Zepinic v Attorney-General of NSW [2023] NSWSC 785 (at [139] – [142]). In those proceedings, one of the reasons why his reliance upon Hulme v Hulme [2023] NSWSC 299 failed was because the initiating process was, like these proceedings, a Summons.

32. For all these reasons, the plaintiff’s submissions about the consequences he asserts arise from the absence of an Appearance and a Defence to this Summons, and as to the asserted nullity of the Defence filed in the Local Court, will fail a second time.

33. I have granted leave to the defendant to file an Appearance, as I am satisfied that this is an appropriate case for the court to accept an undertaking to file a notice of appearance. Ms Thornton points out that no Appearance was required to be filed by the Judicial Registrar during his case management of this appeal. The Judicial Registrar is always alert to such issues, and it may be the case that no Appearance is required at all. However, it is always safer to consider all possibilities where technical points are likely to be raised. I take into account the very small sum of costs involved, the obvious financial limitations of both parties and the desirability of cases being heard on their merits as opposed to technicalities of this kind, all of which are relevant s 56 – 58 issues of the kind identified in Tonab Investments Pty Ltd v Optima Developments Pty Ltd.

34. Finally, I note that, even if I were to accept the submissions of the plaintiff and to refuse to permit the defendant to make submissions, that would not relieve him of his burden to establish, whether those submissions are opposed or not, that he is entitled to the relief sought in the Summons filed. Appeal courts still hear appeals where there is no opposition; that is the purpose of UCPR r 6.11. For the reasons set out in more detail below, that is a burden which, even if the plaintiff’s submissions were considered in isolation and without any consideration of the defendant’s submissions, he fails to establish in relation to each of the grounds set out in the Summons. Additionally, he is not entitled to the making of any of the orders he seeks (Ejueyitsi v Western Sydney University [2023] NSWCA 126 at [62]) which renders the orders he seeks futile.

Denial of procedural fairness and bias

35. As set out above, the limited jurisdiction of this Court, as set out in s 39(2), is to hear an appeal only on the ground of lack of jurisdiction (which is not the issue here) or denial of procedural fairness. The legislation has carefully distinguished between grounds for appeal which must be brought in the Supreme Court pursuant to ss 39(1) and 40 and the very limited right of appeal to this Court. This Court does not have jurisdiction to hear appeals falling outside those very narrow parameters, as I explained to the plaintiff in the course of the hearing.

35. Fairness of procedure may be ascertained by considering the nature of the matters in issue, and whether fairness was given in permitting a party a reasonable opportunity to present its arguments and evidence. In Kioa v West (1985) 159 CLR 550, Mason J stated at 582:

“It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it (Twist v. Randwick Municipal Council (1976) 136 CLR 106, at p 109; Salemi (No. 2), at p 419; Ratu, at p 476; Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 CLR 487, at pp 498-499; FAI Insurances Ltd. v. Winneke (1982) 151 CLR 342, at pp 360, 376-377; Annamunthodo v. Oilfields Workers' Trade Union (1961) AC 945). The reference to "right or interest" in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests.”

37. The two principal requirements for procedural fairness are the fair hearing rule and the rule against bias. The fair hearing rule requires a decision-maker to afford a litigant an opportunity to be heard and to present evidence before making a decision affecting that person’s interests.

38. In determining such issues, the court must have regard to the fact that s 35 of the Act stresses that the proceedings brought in the Small Claims Division are conducted in a very informal fashion, in part by reason of the high proportion of litigants in person appearing and also the nature of the issues before the court and the need for there to be a proportionate response for small claims.

Is there evidence of procedural fairness being denied?

39. The plaintiff has simply annexed a copy of the transcript of the proceedings for 16 January, 6 March and 5 June 2023 to his affidavits and made no submissions as to what conduct by the Assessor, or statements in the course of the hearing and/or judgment, amounted to absence of procedural fairness.

40. The plaintiff has had the judgment since June 2023, as well as the transcript of the proceedings on 16 January 2023. He only received the transcript of 6 March 2023 on 4 October 2023, and gave this late provision of transcript for one day as an explanation for not having prepared a schedule or list of the passages of transcript and of the judgment in which he asserts he was not occasion procedural fairness and that bias was demonstrated by the judicial officer hearing his case. In those circumstances, I invited the plaintiff to take me to the relevant portions of the transcript where he had been the victim of a denial of procedural fairness.

41. The plaintiff referred me to pages 13, 14, 16, 21, 25 and 26 of the transcript of 6 March 2023. In each case, his complaint was that the Assessor, in his words, had “wrongly concluded” that the defendant should be believed and not the plaintiff. He took the view that by accepting the defendant’s “defamatory” allegations about him, the Assessor had failed to accord him procedural fairness. He submitted that the evidence of his lack of credit relied upon by the defendant should not have been permitted to go into evidence. When asked to identify what that evidence was, he described an asserted challenge to immigration procedures in which he was involved and did not refer to the credit issues identified by the Assessor, which consisted of criminal, disciplinary and civil findings of courts in Australia and Great Britain.

42. I have examined each of the portions of transcript referred to by the plaintiff during his oral submissions. Looking at the transcript, I can see the Assessor took every opportunity to encourage the parties to put forward their respective cases and did so in an impartial way. This included encouraging the parties to put all relevant documents before the court and, where it became evident that there were more text messages that should be translated and produced, made orders to that effect.

43. The plaintiff was only able to point to one possible area of denial of procedural fairness, namely obligations under s 36(1) of the Act which require that Assessors must use their best endeavours to bring the parties to a settlement. The plaintiff complained that the Assessor had accepted his offer that there be no costs orders but that the plaintiff would receive his $10,000 and said that the case should have been resolved in that way. The transcript reveals, however, that the defendant made a “walk away” offer of each party paying their own costs and that this was the offer under discussion. When the plaintiff was shown the portion of transcript in which he acknowledged that he had been mistaken, he withdrew this submission. The transcript is replete with examples of the Assessor complying with her obligations to encourage settlement and I am satisfied that all that could be done was done.

44. The Assessor carefully explained the nature of the burden of proof and gave the plaintiff many opportunities to explain the arrangements between himself and the defendant, including why there was no written agreement, why the amount had been withdrawn in cash and was unsupported by any bank documentation recording the purpose of the withdrawal and the like. The resulting judgment is a long and careful document recording the submissions of both parties all of the evidence points to the plaintiff being at least equally listen to as the defendant and to his views and submissions being carefully considered by the Assessor.

45. Essentially what the plaintiff is complaining about is that the decision was “legally unreasonable” (Eliezer v Sydney Water Corporation [2021] NSWCA 300 at [51]) because it was based on lies and perjury committed by the defendant. In Eliezer v Sydney Water Corporation, this was asserted to be jurisdictional error rather than denial of procedural fairness but, however it is categorised, such an error, even if made, would not constitute an error of the kind identified in s 39(2) of the Act: Eliezer v Sydney Water Corporation at [48] – [54]. The decision is, however, not “legally unreasonable”. First, there is no submission that the Assessor actually knew the evidence was false; she preferred the evidence of the defendant in a “he said, she said” factual scenario. Second, there was considerable evidence of there being a relationship of some intimacy between the parties, in the form of the contents of the 218 pages of text messages, at least one of which refers to a pillow and what seems to be a reference to some sexual activity. Third, the Assessor’s findings as to credit are reasonably based, in terms of her concern about prior adverse statements in other court proceedings including criminal matters (Goody v Odhams Press Ltd [1967] 1 QB 333, later extended to “judicial strictures in previous civil litigation”: Turner v News Group Newspapers Ltd at [47]-[48]).

46. Taking all of the above into account, I am satisfied that there is no evidence of denial of procedural fairness of any kind.

Bias

47. The relevant principles for the determination of bias (which is the alternate basis for the first ground of appeal) are set out in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]-[7]. The issue of bias involves consideration of factors identified by the Court of Appeal in Polsen v Harrison [2021] NSWCA 23 at [44] – [46] as follows:

“[44] The first stage of the two stage Ebner test requires the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits whilst the second requires an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.

[45] No issue was taken with the trial judge’s identification of the legal principles relevant to a disqualification application on the grounds of apprehended bias. Rather, the challenge was to her Honour’s evaluative conclusion that the test for apprehended bias was not satisfied in the present case.

[46] To the passages from the authorities extracted and emphasised by the trial judge (see [23]-[24] above) may be added the following propositions:

1. the application of the apprehended bias rule depends on the circumstances of each case;

2. the fair-minded lay observer is an hypothetical figure, founded in the need for public confidence in the judiciary;

3. there is an unavoidable level of imprecision in the standard of what a fair-minded lay observer “might” apprehend, such that a fanciful or speculative possibility must be clearly distinguished from the requisite “firmly-established” apprehension of bias;

4. a finding of apprehended bias is not to be reached lightly;

5. this is because the training, tradition and oath or affirmation of a professional judge require him or her to discard the irrelevant, the immaterial and the prejudicial;

6. the duty of a judge to disqualify for proper reasons is matched by an equally significant duty to hear any case in which there is no proper reason to disqualify;

7. the fair-minded lay observer is presumed to approach the matter on the basis that ordinarily the judge will act so as to ensure both the appearance and the substance of impartiality, such that

8. the rebuttal of this presumption requires a “realistic possibility” of the apprehension of bias which is not “fanciful or extravagant” but is based on “the established facts” of the matter;

9. “neither complacent nor unduly sensitive or suspicious”, the fair-minded lay observer may have a level of scepticism as to professional pretensions, but will be cognisant of and vigilant against his or her own prejudices;

10. the inquiry as to whether a judge might reasonably be apprehended to deviate from bringing an impartial mind to the resolution of a particular issue “requires no prediction about how the judge … will in fact approach the matter” and “admits of the possibility of human frailty”;

11. the fair-minded lay observer is not presumed to reject the possibility of pre-judgment of a matter, otherwise an apprehension of bias would never arise in the case of a professional judge; however,

12. interventionist comments or conduct by a judge will not unilaterally create an apprehension of bias in the mind of the reasonable lay observer, who is taken to understand that such interventions are often motivated by the judge’s desire to understand the evidence and to advance the trial process;

13. it is “difficult, and probably impossible, to state in the abstract, in a manner suitable for application to cases generally, the degree of knowledge to be attributed to a fair-minded observer”;

14. there is to be attributed to the fair-minded observer a broad knowledge of the material objective facts as ascertained by the appellate court and the “actual circumstances of the case” as though the observer was sitting in the court;

15. the fair-minded lay observer is taken to know the nature of the decision, the circumstances which led to the decision and the context in which it was made;

16. the context which must be considered includes the legal, statutory and factual context in which the decision is made, and “the totality of the circumstances”, although the fair minded lay observer will not be taken to have a detailed knowledge of the law or legal principles;

17. the knowledge that the fair minded observer is taken to have is not limited to those facts and matters that were known at the time of an application for recusal and includes published statements made by the judge (whether prior, contemporaneous, or subsequent to the recusal application);

18. the fair-minded lay observer will not act on “insufficient knowledge”, but will “inform himself [or herself]” of the relevant circumstances, without making “snap judgments”;

19. the judge’s own view about his or her ability to decide the case independently and impartially, as recorded in any reasons for dismissing a recusal application, carries little weight in the fair mind of the hypothetical lay observer,

20. although statements in a recusal judgment regarding factual matters, including the particular context of the comments or conduct in question, may be relevant;

21. the fair-minded lay observer would not reasonably apprehend bias on the part of a judge from a short and emotional exchange taken out of context and weighed in isolation;

22. the fair-minded lay observer will have regard to the cumulative effect of comments made by a judge and not to particular individual statements removed from their context; and

23. subsequent statements made by a judge, following the comments or conduct said to give rise to a reasonable apprehension of bias, may indicate that an earlier expressed statement or impression was not final or that the judge had not committed to a particular point of view.”

48. As there was no list of examples in the submissions, I invited the plaintiff to take me through a list of transcript pages setting out specific (or even general) examples where it was asserted that the Assessor had demonstrated bias, but he did not do so (as opposed to denial of procedural fairness, where he produced the list set out above). Instead the plaintiff made the general complaint that accepting false evidence would amount to bias, citing Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48. How the Assessor would have known of the falsity was not explained. No complaint of bias was made at the time (although such a complaint should be raised at or soon after the conduct asserted to amount to bias) but if the plaintiff has subsequently been able to ascertain that the Assessor knew this, when and how she found out has also not been explained.

49. Reading through the transcript and judgment, I cannot find a single example of the Assessor showing a closed mind and/or a prejudiced or other improper view of the kind that would demonstrate, either to myself or to the fair-minded observer, any kind of bias. It is an allegation wholly without substance.

50. My task was made all the more difficult by the plaintiff’s failure, in his written as well as his oral submissions, to identify the words or deeds asserted to amount to bias. Effectively what the plaintiff is submitting is that, by accepting the defendant’s evidence, the Assessor was, or must have been biased. Failing to find in one party’s favour is not evidence of bias.

51. In the course of his submissions on this topic (and on the topic of the granting of leave), the plaintiff complained that, by not accepting his submissions, I was showing bias, just as the Assessor had. He specifically told me that by not accepting the correctness of what he was saying, I was “refusing to follow the statutes” and that “as a judge you have no right to make law”. It is unclear whether this was a formal request for me to recuse myself, or just a warning about what would happen to me if I did not accept his submissions (at the time he said this, he had been putting submissions about legal costs arising in the Melissa Caddick investigation, which I had told him I considered to be irrelevant). Nor was I informed whether the bias alleged was actual or apprehended. In the interests of finality, I will set out findings as if it were a claim of both kinds of bias.

52. As noted above, the relevant principles for allegations of both actual bias and apprehended bias have recently been restated in Polsen v Harrison. As Basten JA notes in Spencer v Bamber [2012] NSWCA 274 at [16], the focus of attention differs in a claim of actual bias, as compared with a reasonable apprehension of bias.

53. The time at which the statements asserted to be bias are made are important. Where the parties have provided written submissions designed to cover all issues, expressions of points of view by a trial judge form an important part of the closing submissions process: Slavin v Owners Corporation Strata Plan 16857 [2006] NSWCA 71. For this reason, any statements made by the Assessor, or by myself, in the course of the submissions process, would be unlikely to represent a closed mind or prejudiced outlook.

54. As to both forms of bias, the fair-minded observer at the back of the court will be aware, both in relation to the Assessor and to myself, that the matters being put to the plaintiff consisted of reminding the plaintiff of legal issues, such as the burden of proof and the role of credit material in the assessment of which of two competing versions to accept. The fair-minded observer would not consider this to indicate bias. In the proceedings before me, the plaintiff sought to argue that his knowledge of and explanations of the law were superior to my wrong conclusions and that the expression of a differing view to his own amounted to bias. The fair-minded observer would not interpret discussions of this kind between a judge and a party (whether represented or not) in such a fashion, especially as the plaintiff was given every opportunity during the two hours he was on his feet to raise any issue he considered relevant.

55. In addition, any such observer would be conscious of the fact that a very small sum of money was involved, that the Local Court proceedings had been conducted with the appropriate informality for claims of this kind, and that the plaintiff was afforded every opportunity to put his case before the court at all times, both before me and before the Assessor.

56. The real difficulties the plaintiff faces is that, in the absence of there being any evidence whatsoever of denial of procedural fairness, absence of natural justice or bias by the Assessor, his appeal must fail. For this reason, if I have erred in failing to recuse myself, it would still be open to any court reviewing my decision (there being no right of appeal from s 39(2): Geftlic v Merhi [2010] NSWCA 256) to find that the review grounds could not succeed whether I (or the Assessor) had been biased or not: Spencer v Bamber at [18] per Basten JA. In the present case, where the sum of money involved is so small, the issues identified by Basten JA are particularly relevant.

Natural justice

57. The second ground of appeal is that the Assessor acted outside her power and disobeyed principles of natural justice.

58. Once again, no conduct by the assessor where she is asserted to be acting outside her powers was identified. As is the case with the assertion of denial of procedural fairness, it would seem that what the plaintiff is arguing is that the result is “legally unreasonable”, which was submitted to be a jurisdictional issue in Eliezer v Sydney Water Corporation at [51]. That challenge to jurisdiction failed in those proceedings and will fail again here, for the same reasons.

59. The plaintiff did not refer to natural justice at all. He did not provide any examples of the conduct amounting to denial of natural justice. For the same reasons as my rejection of his submissions concerning denial of procedural fairness, I am satisfied that there were no breaches of the principles of natural justice.

The form of orders sought

60. Even if the plaintiff had been successful, none of the orders he seeks could be made. As for order 1, while the judgment would be set aside, that would not be the end of the case, and the matter would then be remitted to the Local Court for a fresh hearing: Ejueyitsi v Western Sydney University at [62]. Not even costs orders should be made, as denial of procedural fairness and bias, if made out, are not necessarily issues for which only one of the parties is obliged to bear the costs; the issue of costs would have to await the further hearing.

61. Costs should follow the event: UCPR r 42.1. I propose to make an order for the plaintiff to pay the defendant’s costs of these proceedings, but with liberty to apply in the event that the defendant proposes to seek any other form of order as to costs, such as a gross sum costs order pursuant to s 98(4) of the Civil Procedure Act.

Orders

1. Pursuant to UCPR rr 6.1 and 6.10, grant leave to the defendant to file a Notice of Appearance by 5pm on Friday 13 October 2023.

2. Summons struck out and dismissed.

3. Plaintiff pay defendant’s costs, with liberty to apply.

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Decision last updated: 13 October 2023