Appellant v Respondent

2 The Appellant seeks to appeal the Magistrates' final order dismissing his application pursuant to section 109 of the Magistrates' Court Act 1999 (Vic) ('the Act') on a number of bases, all of which are difficult to understand.

3 An amended statement for grounds of appeal was filed in this Court at the hearing on 15 March 2016 ('Amended Statement'). This document was extensive and alleged that Silver Top's behaviour prior to entering the contract was illegal and unconscionable.

4 I have concluded that pursuant to r 58.10(8) of the Supreme Court (General Civil Procedure) Rules 2015 ('the Rules') that the appeal should be dismissed. After considering the affidavits and arguments I satisfied that the Notice of Appeal does not identify sufficiently, or at all, any question of law on which the appeal may be brought. I further find that the Appellant does not have an arguable case on appeal.

5 In January 2011, the Appellant, a taxi driver, entered into a contract with Respondent. The conditions of the contract were set out in documents comprising a Taxi Booking Service Affiliation Agreement ('Agreement') and a Taxi Camera Rental Agreement, together with extensive printed terms and conditions applicable to the Taxi Camera Rental Agreement. The Agreement provided for equipment to be installed in the Appellant's taxi and for the Appellant to pay the Respondent $561.00[1] by way of a network fee every 28 days ('depot fee'), together with a depot bond fee of $600.00, an annual equipment fee of $44.00 and a camera rental fee of $55.00. The Appellant and the Respondent both proceeded on the basis that in order to operate his taxi he must be affiliated with a network provider like the Respondent. By entering this Agreement, the Appellant became affiliated with the Respondent and received all the benefits that flowed from this. The Appellant's peak-service taxi licence authorised him to operate his taxi from 3 pm to 7am the following day.

6 The Appellant refused to pay the depot fee after a certain time and the Respondent effectively terminated the Agreement (by disconnecting the Appellants equipment from the central computer)[2] and demanded the return of the equipment installed in the Appellant's cab. The proceeding was brought to recover the unpaid depot fees and to recover the equipment.

7 The Appellant alleges unfavourable treatment by the Respondent prior to and after entering the contract. It is common ground between the parties that at the Magistrates' Court hearing, and in this Court, that the Appellant voluntarily and knowingly entered the Agreement and was aware of the consequences, particularly, the requirement for payment of the depot fee.

8 The Appellant alleges that he entered into the Agreement under economic duress. He asserts that he had no choice if he wished to operate as a taxi operator. He claimed that it was not explained to him before or after the entry into the Agreement what services were provided by the Respondent in return for the depot fee. Once he began working as a taxi driver affiliated to the Respondent he came to the view that these fees were excessive and impacted on his proclaimed rights and liberties as an independent sole trader. He subsequently stopped paying the Respondent depot fee.

9 The learned Magistrate heard all of the evidence adduced by the parties and found that the Appellant was liable to pay the outstanding unpaid depot fees and return the Respondent's equipment.

10 On 25 February 2016, the Appellant filed a notice of appeal in this Court in which he sought orders setting aside the order of the Magistrate, a declaration that the Agreement is void, orders requiring the Respondent to repay all depot fees together with the costs of the hearing before the Magistrate and the costs of the appeal. The questions of law stated in the Notice of Appeal were straight forward. They were:

The Magistrate erred in law by finding that mandatory affiliation of Appellants' business to the Respondent's business is legal ground for violation by Respondent [of] Appellants' business rights. The Magistrate erred in law by not finding that the Appellant was a self-employed sole trader.

11 Section 109 of the Act provides that a party to a civil proceeding in the Magistrates' Court may appeal to the Supreme Court on a question of law from a final order of the Magistrate. The appeal must be instituted within 30 days of the Magistrate's order being made (as was the fact in this case), and there is no stay of any order unless the Supreme Court so orders. Any appeal must be brought in accordance with the Rules.

12 It is well established that an appeal under s 109 of the Act on a question of law must relate to a question that was involved in the making of the order.[3] The question of law must have been raised in the Court below, whether on the pleadings, by evidence or otherwise.[4]

13 The appeal under s 109 is an appeal strictly so called, and not in any sense a re-hearing.[5] As Kaye J noted in Fiorelli Properties Pty Ltd v Professional Fence Makers Pty Ltd, '[i]t is necessary for the Appellant to be able to identify a relevant error of law made by the Magistrate before it is entitled to relief from this Court.'[6]

14 Thus, the Court is not entitled to interfere with the decision of a Magistrate unless it is satisfied that they acted on a wrong principle of law, misapprehended the facts or made a wholly erroneous assessment of the relevant issues. There is a strong presumption in favour of the correctness of the decision appealed from, and the general rule is that the decision should be affirmed unless the Court is satisfied that the decision is clearly wrong.[7]

15 Rule 58.10 of the Rules prescribes the procedure for obtaining directions for the hearing of the appeal and, as well, includes the following sub-rule:

(8) The Associate Judge may dismiss the appeal if satisfied that -

(a) the Notice of Appeal does not identify sufficiently or at all a question of law on which the appeal may be brought;

(b) the Appellant does not have an arguable case on appeal or to refuse leave would impose no substantial injustice; or

(c) the appeal is frivolous, vexatious or otherwise an abuse of the process of the Court.

16 A high degree of certainty must be present before an Associate Judge should act under r 58.10(8).[8] In Cohen v Accounts Control Management Services Pty Ltd, Vickery J accepted that, in applications under this rule, there are parallels with the operation of Order 23 of the Rules and the well-established observations of the High Court on the way in which summary dismissal applications ought to be approached.[9] Were an application made under Part 4.4 of the Civil Procedure Act 2010, the test would be whether the appeal had no real prospect of success. Be that as it may, nothing turns on the difference in this case because, for the reasons set out below, I am satisfied that the appeal is bound to fail.

17 A judge has a duty in relation to represented and unrepresented litigants alike to ensure that the hearing or trial is conducted fairly and in accordance with law.[10] It is a frequent consequence of self-representation that the Court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.[11] What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant's intelligence and understanding of the case.[12] The judge cannot be the advocate of the self-represented litigant, for the role of the judge is fundamentally different to that of an advocate. The judge must maintain the reality and appearance of judicial neutrality at all times and to all parties. The assistance must be proportionate in the circumstances - it must ensure a fair trial and not afford an advantage to the self-represented litigant.[13]

18 In Rajski v Scitec Corporation Pty Ltd[14] Justice of Appeal Samuels said:

In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.

19 I have applied these principles in hearing and determining the appeal in this case and, particularly, the application by the Respondent to dismiss the appeal under r 58.10(8) of the Rules.

20 The Appellant filed an affidavit sworn on 7 March 2016 in support of his claims. It is a mixture of evidence, assertion and submission. In this affidavit he says that the Magistrate fell into an error in law in neglecting to consider the circumstances that existed between the parties, prior to the Appellant entering the contract and finding that the contract was legally entered into.[15] The Appellant's affidavit alleges that the depot fee makes the contract unfair and voidable and that it was illegal for the Respondent to threaten him that a failure to become an affiliated driver would mean his business could not survive.[16] He asserts that that the Respondent ought provide a list of services and the associated fees to drivers, rather than having an 'all up' amount that is due and payable as a depot fee.[17] He adds that the Respondent never disclosed what fees would form part of the depot fee and that the Respondent had its own licensed taxis that did not need to pay depot fees. He says that this renders the contract unenforceable and impedes taxi drivers' autonomous rights as self-employed sole traders. The Appellant notes that taxi drivers are forced to use the Respondent's expensive electronic equipment to operate within the affiliated network of taxis.[18] He also says that this contract goes against fair trade and common business practice.[19]

21 The Appellant asserts that his status as a self-employed sole trader means that he is legally able to undertake autonomous and independent business decisions unburdened by others. He alleges that the Respondent abused this right through the requirement that he be compulsorily affiliated. He considers that the Respondent had no right to force drivers to pay a depot fee by law and that there is no correlation between affiliated drivers and the payment of a depot fee.[20] Further, it was never disclosed by the Respondent that it charged the same depot fee to drivers of peak-service taxi cabs (which were licensed to operate between 3pm and the following 7am) as it did for full service taxi cabs (which could operate 24 hours per day, 7 days per week).

22 The Respondent filed the affidavit of Mr Thinh Nguyen[21] sworn 11 March 2016. The affidavit, like that of the Appellant, is a mixture of evidence, assertion and submission. The affidavit submitted that appeal should be struck out, by which I took the Respondent to mean that the Appeal be dismissed. The affidavit asserts that the Appellant was required by law to affiliate with a Taxi Network Service Provider. It asserts that the Respondent charged depot fees for the cost of the equipment supplied to drivers for tracking and monitoring. It also submits that the Appellant was at liberty to sign the Agreement with the Respondent or any other Taxi company. He was not compelled to sign with Silver Top, but he did.

23 At the hearing on 15 March 2016, it was ordered that the Appellant should file and serve a further affidavit in support of the summons by 29 March 2016. He filed an affidavit on 30 March 2016 which exhibits:

(a) a passenger fares sticker of the Taxi Services Commission;

(b) a copy of his notice of defence dated 31 August 2015 filed by him in the Magistrates' Court in answer to the claim of the Respondent;[22]

(c) a partial copy of the transcript of the hearing before the Magistrate on 27 January 2016;[23]

(d) a copy of the order of the Magistrate made on 27 January 2016; and

(e) a copy of his Amended Statement for Grounds of Appeal.

24 It was also ordered on 15 March 2016 that the Respondent should file and serve any affidavit in response to the affidavits of the Appellant, together with an outline of submissions, by 13 April 2016. On 18 April 2016, the Respondent filed the further affidavit of Mr Nguyen sworn 13 April 2016.[24] This affidavit fills in the gaps in the partial transcript of the hearing before the Magistrate. Once again, it mixes evidence, assertion and submission. The following paragraphs set out the relevant material contained in that affidavit.

25 Mr Nguyen says that the passenger fares sticker exhibited to the Appellant's affidavit is supplied by the Taxi Services Commission and is fixed to each taxi operated under the Respondent's network. It provides passengers with information as to the maximum fares that will be charged at different times of the day, and for various extras, such as a booking fees and an airport rank fee.[25] Mr Nguyen explains that the Appellant had asserted some correlation between the $2 booking fee and the depot fee that is charged under the Agreement. There is no such correlation.[26] This passenger fares sticker was considered by the Magistrate at the hearing. In the Appellant's amended grounds he seeks to make something of the booking fee asserting that when a job is allocated to a taxi by the Respondent the booking fee applies and belongs to the Respondent. The existence of the booking fee does not justify the depot fee and so the reasons of the Magistrate were wrong. The Magistrate did not, however, refer to the booking fee being interpreted as justification for the depot fee and the Respondent did not rely upon any such justification. The Respondent relied upon its Agreement as the source of the obligation on the Appellant to pay the depot fees and the Magistrate accepted that he was contractually obliged to pay them because of the terms and conditions of that Agreement.

26 Mr Nguyen says the parties agreed at the hearing before the Magistrate that affiliation by a taxi operator with a network service provider was compulsory under the law.[27] Both the Appellant and the Respondent believed that was the requirement at the time of the hearing. The Magistrate asked counsel for the Respondent to identify the regulation or legislation that imposed that requirement. After the luncheon adjournment, Counsel for the Respondent informed the Magistrate that the governing legislation did not include a specific requirement for a taxi operator to be affiliated with a network service provider, but if a taxi operator wished to enjoy the infrastructure and benefits of a network service provider then the practical reality was that the taxi operator must be affiliated with one.

27 Mr Nguyen says that the legislation changed in about 2014 so as to permit taxi operators to run their own network service.[28] Such an operator was, however, required to maintain the types of systems that are provided by network service providers. These are costly and involve the receipt and dispatch of bookings, the provision of communication services, the provision of a global positioning systems for taxis, the maintenance of information management systems, vehicle branding, record keeping services for GPS data and the development of a compliant complaints handling service.

28 Mr Nguyen states in his affidavit that the Appellant complains in his Amended Grounds that the subject of the appeal is whether or not the actions of the Respondent were legal before the Agreement was signed and whether or not the actions of the Respondent were legal at the time the Agreement was signed.[29] Mr Nguyen submits that the grounds of appeal include an allegation that the Respondent made pre-contractual representations that turned out to be false or misleading. At the hearing before the Magistrate, the Appellant raised this issue. The Magistrate asked him to explain what was said to him before or at the time of signing the Agreement that has turned out to be false or misleading.[30]

29 The Appellant referred to the Respondent failing to offer the equipment to be installed in his taxi for sale rather than for rent and failing to provide a price list for the services provided in return for the depot fee.[31] Before me, the Appellant complained that this amounted to misleading or deceptive conduct by silence. Mr Nguyen says that it is true that the Respondent does not offer its equipment for sale, and that is because it would be of no use to the Appellant as it requires regular maintenance and software updating that are particular to the Respondent's network service. In relation to the price list for services, the Agreement sets out the various fees payable. The Appellant admitted at the hearing that he was aware of these fees when he signed the Agreement but submitted that they were unfair and unlawful for the same reasons he seeks to advance in his appeal.[32]

30 The Magistrate accepted that the Respondent was not required to offer its equipment for sale and that the charges for its services were clearly set out in the Agreement. For this reason, the Appellant could not have been misled or deceived about these matters. The Appellant did not identify any other representation made to him at or prior to the time he entered into the Agreement.[33]

31 At the conclusion of the hearing, the Magistrate delivered his reasons which in summary were:

(a) that the Appellant should not have signed the contract if he did not wish to be bound by it;[34]

(b) the equipment is the property of the Respondent;

(c) there was a risk that the contract was not in his best interests, but he signed it regardless of this;

(d) affiliation is compulsory by law;[35]

(e) it was open to the Appellant to employ someone else or change his working hours to take advantage of the depot fee he was paying;[36]

(f) depot fee was necessary to be paid as the Respondent needs to track jobs as part of its business;[37] and

(g) charging a booking fee is according to the regulations.[38]

32 It is very difficult to discern any question of law or valid ground of appeal from the Appellants Amended Grounds document. As the Respondent notes in its written Outline of Submissions:

The appellant's Amended SOG commences with 7 consecutively numbered paragraphs on the first page thereof (preliminary items), and then the numbering restarts at 1 and propositions - possibly intended to be 'grounds' - continue with numbering from 1 to 3, and then 8 to 12, omitting numbers 4-7 from a consecutive sequence (hereinafter 'Appellant's grounds'). This outline addresses each proposition numbered 1-3 and 8-12 for completeness, although each does not appear to articulate a separate 'ground' of appeal.[39]

33 In relation to the matters the Appellant identifies as preliminary or pre-contractual issues, the Respondent submitted that it was open to the Magistrate to find as he did. I agree. There is no question of law raised.

34 The Respondent's Outline of Submissions then seeks to extract discrete grounds or questions of law and to deal with them. I can do no better, and set out below each ground identified by the Respondent, with its submissions and my comment:

(a) Ground 1 - The contracting parties are completely separate businesses -This is not a question of law. I agree;

(b) Ground 2 - The contracting parties have equal business rights[40] - It appears that the Appellant's primary contention under this ground is that he was deprived of choice at the time of signing the Agreement, and that there was no price list provided to him. The price list was set out in the Agreement,[41] it was open to the Magistrate to find that the Appellant freely chose to enter into the agreement and that he did so being aware of the Respondent's charges. This is not a question of law. I agree;

(c) Ground 3 - The Appellant was precluded from buying the equipment - the Respondent agrees that it did not offer its equipment for sale, but it was not compelled to do so.[42] The Appellant has failed to identify any fact or authority on which he relies in support of the allegation that the Respondent was obliged to offer its equipment for sale, and/or that the Appellant had the right to purchase it. This is not a question of law. I agree;

(d) Ground 8 - The Magistrate stated that 'contract could be bad for you, but you sign it[sic]'[43] - The Appellant uses the word duress, but then refers to an illegal threat not to affiliate his business. He fails to identify how the Respondent exercised duress over him in entering into the Affiliation Agreement. As set out at paragraph 28 of Mr Nguyen's affidavit, there was also no evidence of duress found at the hearing. It was accepted by the learned Magistrate, however, that the Respondent was free to offer its services on its usual terms and conditions, and the Appellant was free to accept or reject those terms.[44] I agree;

(e) Ground 9 - The Magistrate stated that 'compulsory affiliation is in law and law is law'[45] - It was agreed by the parties at the hearing that the law required affiliation by taxi operators with a Network Service Provider,[46] but this was not accepted by the learned Magistrate.[47] The consideration and analysis that followed resulted in a finding that affiliation was not necessary, but may have been desirable, and the Appellant chose to affiliate with the Respondent on its terms.[48] In fact, at the hearing before me on 6 May 2016, the Appellant tendered without objection the licence conditions applicable to his licence when the Agreement was entered into. The licence conditions, which were not before the Magistrate, clearly showed that in 2011, when the Agreement was entered into, the taxi vehicle -

...must at all times be operated under radio control from a depot approved by the Victorian Taxi Directorate for the receipt and dispatch of bookings for taxis licenced to operate within the metropolitan Taxi-cab Zone and must be fitted with fully operational Positioning System equipment linked to the depot.

It thus appears from the submissions of the Appellant that the assumption upon which the parties proceeded before the Magistrate were correct, and there was at the time of the Agreement a requirement that the Appellant be affiliated with a network service provider. It follows that the compulsion on the Appellant was a product of his licence conditions and not of any economic duress of which he is entitled to lay at the feet of the Respondent. I therefore do not propose to enter into the vexed area of the law of economic duress;

(f) Ground 10 - The Magistrate stated 'employ somebody or change your working hours'[49] - The comment of the learned Magistrate was immaterial to the findings of fact upon which his Honour based the decision at the hearing.[50] It is not otherwise a relevant consideration that was taken into account, nor was it offered as business advice to the Appellant. Accordingly, it is a not a question of law. I agree;

(g) Ground 11 - Reason for decision is wrong because each business must pay for its own business activities[51] - There was no suggestion at the hearing that the Appellant should bear the Respondent's costs of its business activities. The learned Magistrate relied only on the parties' obligations under the Agreement. Accordingly, the learned Magistrate did not fall into error, and this is not a question of law. I agree;

(h) Ground 12 - Existence of booking fee in regulation in no way could be interpreted as justification of 'depot fee'[52] - The Appellant's understanding of the 'booking fee' in the passenger fares sticker is misconceived. There is no correlation between it and the depot fee charged by the Respondent.[53] The depot fee was a sum agreed by the parties and reflected in the Agreement. The learned Magistrate relied only on the parties' obligations under the Agreement.[54] Accordingly, the learned Magistrate did not fall into error, and this is not a question of law. I agree.

35 The Respondent submitted that the analysis of the questions of law advanced by the Appellant, and the grounds of appeal, showed that the Appellant had failed to identify:

(a) any principle(s) of law upon which the learned Magistrate acted in error;

(b) how the learned Magistrate misapprehended the facts, and which fact his Honour is said to have misapprehended; and/or

(c) how the learned Magistrate made a wholly erroneous assessment of the case, or any fact or matter at the hearing.

36 In consequence, it was submitted by the Respondent that the Appellant has failed to identify sufficiently, or at all, a question of law, or an arguable case for appeal. Accordingly, the appellant's appeal should be dismissed. I have to agree.

37 I am convinced that the Magistrate committed no error of law in dismissing the Appellant's appeal. I consider that the Appellant has not identified a question of law that warrants appeal or an arguable case for appeal. It is therefore appropriate to dismiss the appeal pursuant to rule 58.10(8) of the Rules.

[1] The initial fee seems to have been $506.00 but later increased to $516.00 pursuant to a term of the Agreement entitling Silver Top to vary the fee.

[2] This evidence was proffered by the Appellant from the Bar table without objection.

[3] Wong v Carter [2000] VSCA 53 (19 April 2000); Barton v Estate Agents Licensing Authority [1998] 1 VR 164, 170-1 (Brooking JA).

[4] Emer v Queen Victoria Women's Centre Trust [1999] VSC 115 (23 April 1999).

[5] Carter v Reid [1992] VicRp 22; [1992] 1 VR 351, 363 (Hedigan J).

[6] [2011] VSC 661 (16 December 2011) at [43].

[7] Urban No. 1 Co-op Society Ltd v Kilavus [1993] VicRp 69; [1993] 2 VR 201.

[8] Cohen v Accounts Control Management Services Pty Ltd [2009] VSC 618 (4 December 2009) at [4].

[9] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, 129 (Barwick CJ).

[10] MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512, 523; Dietrich v R [1992] HCA 57; (1992) 177 CLR 292; Werden v Legal Services Board [2012] VSCA 278; (2012) 36 VR 637, [53].

[11] Neil v Nott [1994] HCA 23; (1994) 68 ALJR 509, 510; Minogue v HREOC [1999] FCA 85; (1999) 84 FCR 438, [27]-[29] and [33]; Platcher v Joseph [2004] FCAFC 68, [104].

[12] Abram v Bank of New Zealand (1996) ATPR 42340, 42347; Minogue v HREOC [1999] FCA 85; (1999) 84 FCR 438, [27]-[29] and [33]; Platcher v Joseph [2004] FCAFC 68 [104]; Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100, 130.

[13] Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100, 130.

[14] Unreported, Court of Appeal, NSW, Full Court, No CA 146 of 1986, (16 June 1986), 14.

[15] 7 March Affidavit, [5], [17-19], [29] and [34].

[20] Ibid, [18-19], [28] and [36].

[21] ('the First Nguyen Affidavit').

[22] The originating process in the Magistrates' Court was not in evidence, but the Respondent handed up the Amended Statement of Claim without objection.

[23] The equipment apparently failed to record the full hearing of the matter.

[24] ('The Second Nguyen Affidavit').

[25] The Second Nguyen Affidavit [4]-[7].

[34] Amended Statement for Grounds of Appeal filed 15 March 2016 ('Amended Statement'), [8].

[39] Silver Top Outline of Submissions dated 26 April 2016, at [7].

[41] The Second Nguyen Affidavit [20]-[22].

[44] The Second Nguyen Affidavit, [28].

[46] The Second Nguyen Affidavit, [9].

[50] The Second Nguyen Affidavit, [29].

[53] The Second Nguyen Affidavit, [4]-[7].