Appellant v First Respondent

2 Mr Georgescu did not take part in either the Magistrates' Court proceeding or this proceeding. Remanet did not serve these proceedings on him, and discontinued against him.

3 The questions for determination in this appeal are as follows:

1. Did the Magistrate give inadequate reasons for the decision?
2. Did the Magistrate fail to take into account relevant considerations?

4 Both of these questions must be answered in the negative. The Court will make orders dismissing the appeal for the reasons below.

Did the Magistrate fail to give adequate reasons?

5 Remanent appeals pursuant to s 109 of the Magistrates' Court Act 1989 (Vic). Appeals under s 109 are confined to questions of law.

6 Remanet submits that the Magistrate did not disclose a path of reasoning because the decision does not indicate which competing evidence was preferred. In this respect, Remanet is specifically concerned with the evidence on one particular point. Mr Harle gave oral evidence concerning a meeting with Ms Sapunar and Mr Georgescu on 17 February 2014, at which he says he was retained by both. Ms Sapunar gave evidence that she only encountered Mr Harle on 14 February 2014, and her encounter was of a social nature. Remanet says that the Magistrate did not state which of these competing versions was preferred.

7 Ms Sapunar represented herself in the appeal, and submits that the decision in the Magistrates' Court is correct. She made no substantive submissions in relation to whether or not there was an error of law.

1. Judicial decisions must disclose a path of reasoning.[3]
2. If there is a conflict in evidence, and one version is preferred over the other, the judicial officer must provide reasons.[4]
3. The path of reasoning is not disclosed by simply reciting evidence.[5]
4. The ambit of the dispute at trial will influence whether reasons are sufficient in a particular case.[6]
5. Particular parts of the decision should not be taken out of context. That is, the decision must be read as a whole.[7]
6. 'Reasons can be adequate by a combination of what is expressly stated and the inferences that necessarily arise from what is expressly stated.'[8]
7. Perfection is not required in a statement of reasons and '[t]his is particularly so in a busy court like the Magistrates' Court with a large press of business.'[9]

9 I do not agree that the Magistrate has failed to disclose adequate reasons in respect of the February meetings. Ex tempore reasons were given at the conclusion of the hearing. The transcript indicates that whilst reasons were being given, there was an exchange between the Magistrate and counsel for Ms Sapunar to clarify the dates of the meetings.[10] His Honour accepted that there was a meeting on 14 February 2014, which Ms Sapunar had said was of a social nature. His Honour then referred to the 17 February meeting at a café in Queen Street. His Honour specifically considered the meeting, and evidently accepted that it occurred.[11] However, his Honour does not accept Mr Harle's conclusion that the meeting gave rise to a liability by Ms Sapunar for his services. His Honour specifically rejects the contention that Ms Sapunar may have been liable as a partner of Mr Georgescu.[12]

10 The Magistrate's reasons also deal with Remanet's invoices. The Magistrate finds that Mr Georgescu was a client of Remanet and had retained it to do work for him.[13]

11 The reasons make findings in respect of some, but not all, of the email correspondence in evidence. The Magistrate refers to an email from Mr Harle stating, 'as you know, I am assisting Georghe [Mr Georgescu]'.[14] There is also reference to Ms Sapunar's evidence that she denied ever requesting Remanet assist her, and that any assistance that was given by Mr Harle was without her request. Read in the context of the entire decision, it is clear that this evidence was accepted.

12 The Magistrate refers to the involvement of Ms Sapunar's solicitor, Mr Mark Koroneos, who was the recipient of some emails from Mr Harle. A finding is made that the email evidence is equivocal (rather than tending to show a client relationship with Ms Sapunar) and is perhaps nothing more than an effort to keep people close to Mr Georgescu informed because they have an interest in what is happening. Specifically, the Magistrate refers to Ms Sapunar perhaps being informed because she and Mr Georgescu owned property together and had a daughter, who is their mutual responsibility.[15] The Magistrate finds that there are 'many possible points of contact' between Ms Sapunar and Mr Georgescu 'which explain that ongoing relationship other than an ongoing actual business relationship'.[16]

13 The Magistrate then concludes that the plaintiff has not established that Ms Sapunar and Mr Georgescu were in a partnership, or that they had mutual financial interests such that it was in the interests of Ms Sapunar to employ Mr Harle.[17]

14 The Magistrate's path of reasoning is evident in the ex tempore decision. Remanet's submission that there was an error of law is rejected.

Did the Magistrate fail to take into account relevant considerations?

15 Remanet submits that the Magistrate failed to take into account relevant evidence and therefore failed to consider relevant considerations.

16 A judge must reveal 'the ground for, although not the detailed reasoning in support of, his [or her] finding of fact'.[18] The Court of Appeal has approved the following passage from the judgment of Mahoney JA in the NSW Court of Appeal in this respect:[19]

In my opinion, the law does not require that a judge make an express finding in respect of every fact leading to, or relevant to, his final conclusion of fact; nor is it necessary that he reason, and be seen to reason, from one fact to the next along the chain of reasoning to that conclusion.

17 If the nature of a decision suggests error, however, and there is no reference to a relevant consideration, then an inference may be drawn that it has not been considered as it should have been.[20]

18 Counsel also referred to some principles relevant to the obligation of administrative decision-makers to consider relevant material.[21] While there is, perhaps, little difference in substance between these authorities and those quoted above, the latter are to be preferred as the relevant statement of the law as it applies to judicial officers (including magistrates), rather than administrative officials.

19 I turn now to the particular considerations which Remanet says that the Magistrate failed to take into account.

20 Firstly, it is said that exhibits N and O are relevant considerations that the Magistrate failed to take into account.

21 Exhibit N is an email from Mr Koroneos to Mr Harle dated 5 August 2014, attaching points of claim in respect of a Supreme Court proceeding in which Ms Sapunar is the tenth defendant. The plaintiff is Escu Pty Ltd (in liquidation), a company of which Mr Georgescu was a director. Mr Koroneos asked Mr Harle to send him some schedules in Excel format. Mr Georgescu, but not Ms Sapunar, is copied into this email.

22 Exhibit O is an email from Mr Koroneos to Mr Harle dated 8 August 2014, stating that attached points of claim and schedules will be filed and served that day. Both Mr Georgescu and Ms Sapunar are copied into the email.

23 I have some doubt as to whether these are relevant considerations. Although not determinative, I note that Remanet's counsel made no specific submissions to the Magistrate about exhibits N and O. Nevertheless, assuming that the emails are relevant considerations, I do not agree that the Magistrate failed to take them into account.

24 Exhibits N and O must be read in context. There were a series of emails, of which Exhibits N and O were only two. The Magistrate said that he did not intend to trawl through each of the emails in evidence.[22] Indeed, the Magistrate was not bound to do so.

25 The Magistrate specifically considered various emails between Mr Harle and Mr Koroneos. The Magistrate found that Ms Sapunar authorised Mr Koroneos to divulge information to others, including Mr Harle.[23] However, emails examined by the Magistrate did not constitute a request by Mr Koroneos for Mr Harle to do work on behalf of Ms Sapunar. Further, Remanet did not appear to have raised or sent a bill in relation to the points of claim referred to in the emails.[24] This may well explain why the Magistrate did not specifically address Exhibits N and O.

26 Secondly, Remanet says that the Magistrate erred in failing to draw a Jones v Dunkel inference against Ms Sapunar for failing to call her lawyer, Mr Koroneos.

27 It is primarily the role of the Magistrate to draw such inferences. The transcript indicates that the Magistrate specifically considered this issue in the course of submissions and noted that it 'cut both ways'.[25] In my view, it is not clear that the Magistrate committed an error of law in failing to draw a Jones v Dunkel inference here.

28 Thirdly, Remanet submitted that his Honour erred by failing to consider work performed by Remanet for the benefit of Ms Sapunar. Remanet referred to evidence of documents being delivered and considered by Mr Harle. This evidence was given in Mr Harle's oral evidence.

29 This submission must be rejected. As stated above, his Honour specifically found that if any work was done on behalf of Ms Sapunar, she did not retain Mr Harle to do it.

[1] The decision was given on 26 August 2016 in the Magistrates' Court at Melbourne. The orders that are the subject of the appeal are contained in Exhibit NSW-1 to the affidavit of Noel Stewart Waters sworn on 29 September 2016.

[2] The amended notice of appeal is contained in Exhibit NSW-27 to the affidavit of Noel Stewart Waters sworn on 1 June 2017. Orders were made on 15 June 2017 giving leave to file it.

[3] Transport Accident Commission v Kamel [2011] VSCA 110, [70].

[4] Rodda v Transport Accident Commission [2008] VSCA 276, [98].

[5] Transport Accident Commission v Kamel [2011] VSCA 110, [73].

[6] Helou v Shaya [2013] VSC 297, [24] (Beach J), relying on Murray Goulburn Co-Op Limited v Filliponi [2012] VSCA 230, [28] (Neave JA and Beach AJA).

[7] Secretary to the Department of Justice v Yee [2012] VSC 447, [94].

[9] Helou v Shaya [2013] VSC 297, [25].

[10] Court Book, 340-1 (transcript of Magistrates' Court hearing 26 August 2016).

[18] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 282 (McHugh JA).

[19] Ibid 271 (emphasis added); quoted with approval in Ta v Thompson (2013) 46 VR 10, 18 [39].

[20] Agar v McCabe [2014] VSC 309, [90], applying Yendall v Smith Mitchell & Co Ltd [1953] VicLawRp 53; [1953] VLR 369, 397.

[21] Macedon Ranges Shire Council v Romsey Hotel Pty Ltd & Anor [2008] VSCA 45; (2008) 19 VR 422, 435-6; Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 61 (Brennan J).