Appellants v First Respondent

1 Dr Baijun 'Ben' Gu and Ms Hui Zhou (the 'Appellants') appeal against a Magistrate's decision whereby summary judgment was given in favour of Mr Thomas Tampi (the 'First Respondent') and Wesbourne Homes Pty Ltd (the 'Second Respondent') in what is, in essence, a fencing dispute. The Appellants are self-represented litigants.

2 The Appellants allege, among other things, that they were denied procedural fairness, that the summary judgment application was an abuse of process, that the Magistrate was biased, that certain documents before the Magistrate were false, that no reasons were given for the decision and that the decision was otherwise without legal basis.

3 The Appellants and First Respondent are owners and occupiers of adjacent land in Mernda, Victoria (collectively the 'Properties').[1] The common boundary between the Properties runs for a length of approximately 30 metres. Before July 2015 a timber fence was situated between the Properties. The fence was paid for by the Appellants and was constructed before the First Respondent took possession of his land.

4 In 2015 the First Respondent began building works on his land, including the construction of a garage on the boundary between the Properties. The First Respondent engaged the Second Respondent to carry out the building works on his behalf. Shortly after commencement of the building works, the First Respondent discovered that the pre-existing fence had been constructed a short distance into his property and not on the common boundary.

5 The Appellants allege that, on or around 27 July 2015, the Second Respondent destroyed 13.6 metres of the timber fence, damaged the remaining 14.4 metres and removed a 9 metre retaining wall belonging to the Appellants. They say that those works were completed without their prior notice or consent. The First Respondent disputes this, saying that he made several demands upon the Appellants that they join him in rectifying the misaligned boundary. Those demands, it is said, were rejected.

6 In May 2016 the Second Respondent, as agent of the First Respondent, served a fencing notice upon the Appellants requesting that they assist in the construction of a new dividing fence on the true boundary between the Properties. The Appellants rejected that notice and demanded that the First Respondent:

(a) pay half of the cost of the pre-existing fence; and

(b) at his own cost, rectify the destroyed fence and retaining wall.

7 The First Respondent rejected those demands, and nonetheless constructed a replacement fence at his own cost.

8 On 14 December 2016 the First Respondent filed a complaint in the Magistrates' Court (matter H10168174) (the 'first proceedings') seeking to compel the Appellants to pay half of the costs of the replacement fence. The Appellants filed a notice of defence on 14 February 2017. The defence alleged that the First Respondent was liable to restore the pre-existing fence and retaining wall to their original state. Notably, those assertions were not made by way of counterclaim, however the Appellants' defence did conclude with a request for monetary relief.

9 The first proceedings settled following mediation. A settlement agreement was signed by the Appellants on 19 April 2017 and by the First Respondent on 20 April 2017 (the 'Settlement Agreement'). Paragraph 8 of the Settlement Agreement contained a general release, which stated:

Subject to paragraph 10 hereof, the parties hereby release each other from all claims, actions, suits, or complaints the subject of the claim (from and only COMPLAINT No H1016874), and these terms of settlement may be produced as conclusive evidence that the parties are barred from any such claims.

10 Paragraph 10 of the Settlement Agreement provided a limited carve-out from the above release, as follows:

The release in paragraph 8 does not include a release by the parties of their respective rights in relation to their disagreement as to the location and construction of the garage, which the plaintiff contends is lawfully constructed and the defendant contends is not. The construction of the garage is currently being investigated by the VBA and the parties reserve their rights in relation to the outcome of that investigation.

11 There is a dispute between the parties as to which issues the Settlement Agreement actually resolved. The Appellants contend that the Settlement Agreement did not resolve issues raised in their defence concerning damage to the pre-existing fence. At the hearing of this appeal the Appellants tendered email correspondence in evidence which they say explains the bracketed language in paragraph 8. The Respondents say that the Settlement Agreement is plain in its terms and resolved all issues, save for that which was specifically carved out by paragraph 10.

12 The chronology of changes to the Settlement Agreement, as reflected in the email correspondence tendered by the Appellants, is as follows:

(a) In the initial draft Settlement Agreement, the general release contained in paragraph 8 was in the following terms:

The parties hereby release each other from all claims, actions, suits, or complaints the subject of the claim and the defence, and these terms of settlement may be produced as conclusive evidence that the parties are barred from any such claims.

(b) On 14 April 2017, the day following the mediation, Dr Gu sent an email to the mediator requesting that several changes be made to the draft Settlement Agreement, including that the release be replaced with the following:

The parties hereby release each other from and only complaints raised in the COMPLAINT (Court No. H1016874), and these terms of settlement may be produced as conclusive evidence that the parties are barred from any such claims. The parties acknowledge that the part of destroyed timber fence (total length of 12 meters, measured from the east-most end of the garage wall on the boundary) remains to be an outstanding issue beyond this settlement, and both parties will put best endeavours to resolve such issue in the near future.

(c) On 19 April 2017 the mediator responded to Dr Gu's email attaching a further amended draft of the Settlement Agreement. The attached draft contained marked-up amendments made by, or on behalf of, the First Respondent. The proposed amendments added paragraph 10 in the terms set out above and amended paragraph 8 as follows:

Subject to paragraph 10 hereof, the parties hereby release each other from all claims, actions, suits, or complaints the subject of the claim (proceeding No. H1016874), and these terms of settlement may be produced as conclusive evidence that the parties are barred from any such claims.

(d) Later that day Dr Gu emailed a further amended draft of the Settlement Agreement to the mediator. The attached draft slightly altered paragraph 8 to what is now its agreed form; adding the bracketed language 'from and only COMPLAINT No. H1016874'. That document was signed by the parties on 19 and 20 April 2017.

13 On 17 November 2017 the Appellants instituted proceedings against the First and Second Respondents in the Magistrates' Court at Heidelberg (matter H13177255) (the 'second proceedings'). The Appellants' claim closely mirrored the allegations contained in their defence to the first proceedings. The Appellants claimed:

(a) $1,062.60, being half of the cost of the pre-existing fence payable by the First Respondent;

(b) unquantified damages for the destruction of the pre-existing fence and retaining wall, payable by the First and Second Respondents; and

(c) $50,000 for psychiatric damage to the Appellants arising from destruction of the fence, trespass on their land and failure to remove building materials.

14 Notices of defence were filed by both Respondents in due course, albeit outside of the 21 day timeframe prescribed by rule 8.01 of the Magistrates' Court General Civil Procedure Rules 2010 (the 'Magistrates' Court Rules'). The First Respondent pleaded that the Settlement Agreement compromised the matters set out in the Appellants' complaint. A copy of the Settlement Agreement was attached to the defence.

15 On 5 March 2018 the First Respondent filed a summons for summary judgment in the second proceedings pursuant to s 63 of the Civil Procedure Act 2010 (Vic), or, in the alternative, to strike out the proceedings pursuant to rule 23.01 of the Magistrates' Court Rules. The First Respondent's summons was served upon the Appellants on 13 March 2018. An identical summons was filed and served by the Second Respondent on 15 March 2018.

16 The Respondents sought summary judgment on the basis that:

(a) the Appellants' claim had no real prospect of success because it was compromised by the Settlement Agreement; and

(b) the Appellants' claim was vexatious or otherwise an abuse of process.

17 Upon return of the Respondents' summonses on 20 March 2018 Judicial Registrar Andrew granted summary judgment, dismissing the Appellant's claim. No written reasons were given for the Judicial Registrar's decision. Brief oral reasons were as follows:

Mr Lowry [helpfully] classified, I think accurately classified the major claims in Dr Gu's complaint, the fence claim, the fence destruction claim, and a claim of psychiatric damage.

I note that Dr Gu did not really address that third point of psychiatric damage, and the submissions... made by the parties really focussed on the fence claim and the fence destruction claim.

Having analysed and reflected on the submissions made by the two defendants and Mr Gu's response, I think... My conclusion is that there is no basis in law for the complaint. Matters are dealt with by the terms of settlement, except the outstanding issue of the garage, which is specifically provided for, has not been included in the release in paragraph eight of the Settlement Deed and it is indeed currently being investigated by the Victorian Building Authority, with the parties reserving their rights.

18 On 5 April 2018 the Appellants lodged an application for review of Judicial Registrar Andrew's decision. That application was heard and refused by Magistrate Alger on 1 May 2018. Magistrate Alger provided brief written reasons for his decision affirming that of Judicial Registrar Andrew, as follows:

The Plaintiffs in their application for review, refer to failures by the Defendants to comply with a number of timeline requirements under the Court Rules, in that they, the Defendants gave shorter notice of their application for summary dismissal than required by the Rules.

Even if the Plaintiffs are correct about the Defendants failing to comply with relevant timeline requirements, it does not automatically follow that their application for review must succeed.

If, on any reasonable view, their complaint has no real prospects of success, that must remain the position, irrespective of whether there had been compliance with relevant timeline requirements.

The difficulty for the Plaintiffs in this application for review, is that their complaint seeks to re-litigate the subject matter of the earlier proceeding, which was ultimately settled in accordance with the Terms of Settlement.

Strictly speaking, the Plaintiffs were bound by the Terms of Settlement only in respect of the First Defendant, as the Second Defendant was not a party in the earlier proceeding, and therefore not a party to the Terms of Settlement, however, in the circumstances of this case, the Second Defendant was effectively acting as the agent of the First Defendant such that any claim against the Second Defendant is so closely connected with that against the First Defendant, that it could not meaningfully proceed on its own.

Ultimately, I am satisfied that the Terms of Settlement bind the Plaintiffs in respect of their complaint, to the extent that it has no real prospect of success.

It follows, therefore, that I am satisfied that the decision of the Judicial Registrar to summarily dismiss the complaint was the correct decision.

19 The Appellants appeal the decision of Magistrate Alger to this Court. The Second Respondent has informed the Court of its intention not to actively participate in the appeal, but will be bound by the Court's judgment. Hereafter, references to the 'Respondent' (singular) refer only to the First Respondent.

20 By their Amended Notice of Appeal the Appellants identify seven grounds of appeal upon which they rely, some of those grounds are interrelated:

(a) The Magistrates' Court (Andrew JR and Magistrate Alger) failed to afford procedural fairness to the Appellants by not enforcing compliance with the Magistrates' Court (Miscellaneous Amendments) Rules 2015 in respect of the timing and manner of service of the summonses dated 5 and 15 March 2018.

(b) The Magistrates' Court (Andrew JR and Magistrate Alger) erred in ignoring:

(i) alleged abuses of process by the Respondents in the timing and manner of service of the summonses dated 5 and 15 March 2018;

(ii) assistance alleged to have been provided by the court in perpetrating those alleged abuses of process; and

(iii) the procedural advantages enjoyed by the Respondents as a result.

(c) The Magistrate was misled by false documents and statements presented by the Respondents and their counsel.

(d) The Magistrate erred in failing to consider that there were no reasons given by Judicial Registrar Andrew, and in failing to give adequate reasons himself.

(e) The Magistrate erred in making an order based on an assumption that the Settlement Agreement addresses all claims, rather than by reference to the evidence.

(f) The Magistrate erred in allowing an order without legal basis to be retained, which his Honour knew was without legal basis.

(g) The Magistrate erred in neglecting alleged non-compliance and violations of law committed by Judicial Registrar Andrew during the hearing of the summary judgment application.

(a) that the order of Magistrate Alger be set aside;

(b) that the Respondents' summonses be stayed, and costs paid by the Appellants be returned;

(c) that the proceedings be remitted to a Magistrates' Court other than the Heidelberg Court; and

(d) costs.

22 The Appellants' submissions contain several further allegations, which the Court has considered and determined are not relevant to any stated ground of appeal. Some of those allegations also refer to material which was not before the Magistrate below. Those allegations, as they appear in submissions filed by the Appellants on 16 May 2019 were as follows:

(a) At paragraphs 5(I) and 8, that Judicial Registrar Andrew's order for summary dismissal refers to the incorrect section of the Civil Procedure Act 2010, which error has not been acknowledged or corrected by the Magistrates' Court:

[5(I)] The second order of summary dismissal made by Ms. R. Andrew is based on s.60 of the Civil Procedure Act 2010 (p.17). s.60 does not provide any legal basis for a summary judgment to be made. It may be a typo for s.63. However, to date, no correction was received. It is worth noting that all the court files were served to the Heidelberg Magistrates' Court at the same time when filed to the Supreme Court. However, no court report, correction or other response was given by the Magistrates' Court. It is obvious that the Heidelberg Magistrates' Court has realized that they had made much bigger mistakes than this, and they'd rather rely on this Honourable Court to correct all their mistakes/failures.

[8] The Magistrate Mr. Alger failed to identify that the second order of summary dismissal made by Ms. R. Andrew is based on s.60 of the Civil Procedure Act 2010 (p.17), which provides no legal basis for such court order.

(b) At paragraph 7, that the Respondents' summonses were brought by reference to the incorrect procedural rules:

The two Summons lodged by Mr Tampi (p.165-166) and Mr Zablocki (p.190) were pursuant to Rule 23.01(1) and 23.01(2) of the Magistrates' Court General Civil Procedure Rules 2010 and s.63 of the Civil Procedure Act 2010. None of these rules provides legal basis for summary judgment or strike out: Rule 23.01(1) and 23.01(2) are for the defendant to stay the proceeding (the correct rule should be 23.02); s.63 is for the court to give summary judgment, not for the defendant to apply summary judgment (the correct section should be s.62) Both Ms. Andrew and Mr. Alger failed to identify this issue.

(c) At paragraph 10, that the Judicial Registrar was unable to give summary judgment on a claim where the value of relief sought was greater than $10,000:

Pursuant to Rule 8(a)(i) of the Magistrates' Court (Judicial Registrars) Rules 2015, the judicial registrar Ms. Andrew can only give summary judgment in application [sic] with value of relief sought less than $10,000 in a summary judgment. In this Rule 8, summary judgment is particularly listed as one of "Examples", not "Exceptions" (Mr. Stephen Lowey [sic] called the examples as "exceptions" twice during the court hearing on 1 Feb 2019, not sure whether this was his vision problem or he was trying to manipulate the Judge's mind, as he did in the previous court hearing on 20 March 2018)... Ms. Andrew clearly had no judicial power to make the final decision in this summary judgment. However, Mr. Alger failed to identify this violation of law.

(d) At paragraph 11, that the Judicial Registrar was required to obtain the parties' consent before making a final order:

Pursuant to Rule 9 of Magistrates' Court (Judicial Registrars) Rules 2015, Ms. Andrew is required to obtain consent from all parties before making the final order. She failed to do so completely, and Mr Alger failed to identify this violation of law.

(e) At paragraph 15, that the Magistrates' Court deliberately published an out of date version of the Magistrates' Court Rules on its website, as a conspiracy between the court and the profession:

The most revolting part is that both Magistrates' Court and Mr. Lowry argued that Appellants did not seek an adjournment at the court hearing in 20 March 2018 (p.222 and 350), completely ignored the fact that the Magistrates' Court has deliberately left the out-of-date version of Magistrates' Court General Civil Procedure Rules 2010 (version 21, effective from 1 January 2016) on their website, and hidden any information about Magistrates' Court (Chapter I Miscellaneous Amendments) Rules 2015 (p. 275-276), so people cannot identify their dirty tricks. The version 21 was [sic] remained on the website at least 9 months after Appellants pointed out this to the Magistrates' Court (p. 294-297), thus, it cannot be a mistake. The Magistrates' Court did this on purpose, to help their lawyer friends rig the rules, and they do not care how innocent people think. To date, the Appellants have never received any apology or even a word from the Magistrates' Court.

It is then clear that, according to their logistics, the court judicial staffs [sic] and their lawyer friends can rig the rules and breach rules as much as they wanted, and these are all legal as long as the other party did not find out in time. The lawyers will be rewarded with indemnity costs for their smartness. Even the other party finds out shortly after, the court will still cover up for the lawyers. This is exactly what happened in the current trial. Is it still Magistrates' Court, or a lawyers' mafia? Ironically, Mr. Steven Lowry spent a good half hour during the court hearing on 1 Feb 2019, talking about how our legal system should take care of self-represented people, after he and his cahoots did all these [sic]. Does the word "shame" exist in these lawyers' dictionary?

(f) At paragraph 23, that the affidavit material filed by the First Respondent in this appeal was false, and amounted to perjury:

Perjury committed by the first Respondent, Mr. Thomas Tampi for his false statement in his affidavit dated on 2 August 2018 on the date received the sealed Summons...

(g) At paragraph 24, that the Respondents failed to comply with several procedural directions in this appeal:

Illegitimate documents accepted by the Supreme Court. Her Honour Clayton requested two Respondents to file affidavits by 1 August 2018 and file a written outline of submission in response and a list of authorities by 10 October 2018 (p.304). However, both Respondents ignored these direction orders. The second Respondent wrote to the Court on 11 October 2018, indicating that he does not propose to participate in this appeal but will be bound by the judgment. The first Respondent filed his affidavit on 10 August 2018, 9 days overdue; the outline of submissions & authorities were filed on 17 October 2018, 7 days overdue. Moreover, in the title of these documents there is no specified legal basis or court order for them to file such documents. Thus, these files are illegitimate documents. During the first time using RedCrest, this Appellant has been rejected three times because no legal basis or court order was included in the title. How can these illegitimate documents be accepted by the Supreme Court?

Besides these issues, pursuant to Order 43.09(1)(b) of Supreme Court (General Civil Procedure) Rules 2015, the Affidavit of the first Respondent, Thomas Matheos Tampi should not be used because it has not been served or filed in compliance with the Direction Order. However, the Court requested the Appellants to include these illegitimate documents into the Court Book in an email from [Registry] on 2 November 2018.

(h) In a 'closing statement' by Dr Gu, repeating allegations concerning a conspiracy between the Magistrates' Court and members of the profession:

On 20 March 2018 shortly after Ms. Andrew announced her decision, outside the Court Room 3, Heidelberg Magistrates' Court, the first word I said to Mr. Lowry and Mr. Hogan was "Australian legal system is seriously corrupted, and you guys contributed to it". The lawyers, who have the privilege to practice law, know nothing about the law and have no desire to follow the law either. All they care is how to take advantage of holes in legal system, how to manipulate judge's mind with lies and chicaneries. A law firm with 30 years' experience, does not even know how to cite correct rules or read legislation correctly. But they think they are beyond the law, that they can do whatever they want. They abused the process of court, misled the Court, took the full advantages of the out-of-date Rules the Magistrates' Court made for them. The Magistrates' Court did nothing to stop them, on the contrary, even helped them to rig the rules and cover up for them. While in the Supreme Court, these lawyers treated court orders as farts [sic], ignored and breached Direction Orders again and again. Supreme Court not only swallowed all these, filed the illegitimate documents for them, but even forced me to include these illegitimate documents into the Court Book. Most ridiculously, the Court did this intimately in its own initiative, the lawyers did not even ask the Court for it (or maybe they did privately). What is wrong with our legal system? The Courts, the honourable judicial officers, are supposed to protect the dignity of law and orders. Since when, did they become accomplices of their lawyer friends? And even willing to risk their reputation and career to help these despicable lawyers? If even they do not care about law and orders, do not care the Rules they made by themselves, do not care the Orders they issued by themselves, instead only care about how to please outlaws, who should we rely on to pursue righteousness & justice and to protect our society?

23 An appeal from the final order of a Magistrate to the Supreme Court is pursuant to s 109 of the Magistrates' Court Act 1989 (Vic). An appeal to this Court is an appeal so called, limited to an appeal on a question of law.[2] The appeal is not in the nature of a re-hearing.[3] As such, this Court is limited to considering only the material which was before the Magistrate below. The question for this Court is 'whether the order of the Court from which the appeal is brought was right on the materials which the Court had before it'.[4] In contrast to an application for judicial review, an appeal pursuant to s 109 of the Magistrates' Court Act is not limited to specified grounds of review. Grounds of appeal which may arise include, but are not limited to:

(a) error of law;

(b) error in the exercise of the Magistrate's discretion;

(c) failure of the Magistrate to give reasons;

(d) that there was no evidence to support a particular finding of fact;

(e) denial of natural justice; and

(f) fraud of a party.

Ground 1: The Magistrates' Court erred in failing to afford procedural fairness to the Appellants

24 The Appellants allege that they were denied procedural fairness as a result of the Judicial Registrar and Magistrate's failure to address and remedy defects in the service of the First Respondent's application for summary judgment.

Legal principles - failure to afford procedural fairness

25 It is a fundamental obligation of all courts and tribunals to ensure that parties before them are given a fair hearing. That obligation has been described by the High Court of Australia as 'an essential attribute of a court's procedures'.[5]

26 Whether procedural fairness has been properly afforded in any given case is primarily a practical question. As was observed by Chief Justice Gleeson in Re Lam:

Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.[6]

27 The practical question in a case of this kind is whether the party in question was given a reasonable opportunity to present their case, and to know the case to be advanced by the opposing party.[7] What is 'reasonable' in any given case will vary. In Roberts v Harkness, the Court of Appeal of Victoria recently identified several matters to be taken into account by the court, including:

(a) the nature of the decision to be made;

(b) the nature and complexity of the issues in dispute;

(c) the nature and complexity of the submissions which the party wishes to advance;

(d) the significance to that party of an adverse decision; and

(e) the competing demands on the time and resources of the court or tribunal.[8]

28 The basic question remains the same where a party is self-represented, namely, whether the litigant was afforded opportunities reasonably required to advance their own case and to respond to their opponent's case.[9] The only difference where a party is self-represented is that the Court should make its own assessment of that litigant's ability to formulate and articulate their own case when deciding what is reasonable.[10]

29 The procedural rules for making an application for summary judgment pursuant to s 63 of the Magistrates' Court Act are contained in Order 22 of the Magistrates' Court Rules. Rule 22.17 of the Rules requires that any application for summary judgment must be made by summons in Form 22B. Rule 22.18 provides that the summons must be accompanied by an affidavit in support, which must be served alongside the summons not less than 14 days before the date of hearing named in the summons. Those requirements were inserted into the Rules by the Magistrates' Court (Chapter I Miscellaneous Amendments) Rules 2015.

30 As observed, the First Respondent's summons was filed on 5 March 2018, but not served upon the Appellants until 13 March 2018. That is, only 7 days before the 20 March 2018 return date. The Second Respondent's summons was filed and served on 15 March 2018, 5 days before the 20 March 2018 hearing. Neither summons was in Form 22B. The Respondent accepts that neither summons was in the proper form, nor were they served in accordance with the Rules.

31 The Appellants allege that, as a result of the Respondents' failure to comply with the relevant rules, they were denied an opportunity to properly prepare materials for the hearing. They say that the failure to comply was a deliberate decision of the Respondents, and amounts to an abuse of the Court's process. In particular, the Appellants say that 'critical evidence' was omitted from the hearing, namely the Settlement Agreement and emails explaining changes thereto.

32 The Respondent says that he was not informed of the 20 March 2018 return date until 13 March 2018, therefore compliance would have been impossible. He says that the failure to comply is covered by the slip rule contained in rule 2 of the Magistrates' Court Rules, and that the correct remedy was for the Appellants to make an application pursuant to rule 2.03(a) to set aside service on the basis of the irregularity.

33 The Respondent further submits that, in any event, there was no practical injustice to the Appellants as a result of the non-compliance with the Magistrates' Court Rules. He says that the Appellants were fully capable of articulating the case they wished to convey, and were given ample opportunity to do so. Moreover, the Settlement Agreement was in evidence, having been attached to the First Respondent's defence and referred to several times in the course of the hearing.

34 Having reviewed the transcript of the hearing before Judicial Registrar Andrew on 20 March 2018 it is clear that Dr Gu was given ample opportunity to present his entire case, including procedural objections, should he have wished to do so. Dr Gu did raise the fact that no defence was filed within time before the Judicial Registrar, of which he said:

[M]ost importantly, Mr Tampi has failed to file notice of defence within 21 days of served [sic]. I served him on the 21st or 22nd of December last year, and after that, 39 days, I still have not received his [inaudible]. I could just ask, go ahead, fill out that form 31A, get a summary [judgment] on this, but I didn't do that. Instead, because I want my neighbour to have a fair court process, so he knows what he has done wrong. I sent email remind his lawyer, and on his end, his lawyer filed notice of defence after 40 days after received.

35 Dr Gu also spent time explaining changes to the Settlement Agreement to the Judicial Registrar. The relevant exchange was as follows:

Dr Gu: This is very important document. This documents showing that Tampi and the lawyers, clearly knows that settlement does not include that twelve meter, destroyed things. Does not include the 50% of the shared costs for the original fence.

JR Andrew: Go on.

Dr Gu: Your Honour. That's the correspondence after the mediation. You can see the history of the changes, including his signature there and how this proposal was changed. I specifically put one word, I deleted that all the claims relieved. Section eight, I specifically deleted all contents. The initial is all [inaudible] of the claim from the defendants, and replace that with from and only in the [complaint]. This settlement deals with the original content, and there's original content on the deals of the 15.9 meter fence. This fence including, that's 1.6 meter gap, which were destroyed, and rest are remaining, damage the fence, because they remove fence by force. They damage it and it destroyed and repay for all the cost. It's only fair, they pay all the costs to rebuild it. This one is only deal with the 15.9 meter fence. The remaining 12 meter fence is not included in this settlement. You cannot find anywhere in this settlement or in his original content measuring anything about this 12 meter fence, destroyed fence. He did not even mention anything about to pay or not to pay the shared 50 percent of the costs for the original fence.

The first defendant is clearly [inaudible]. This settlement does not include, does not berate me to sue him for his, for this response to 12 meter destroyed fence...

JR Andrew: Yes, [inaudible] go over that next point.

Dr Gu: Okay. It's all clear. Now, this settlement has nothing to do with my new complaint, okay?

36 On the basis of the facts and circumstances that have been outlined above, I do not consider that the Magistrates' Court erred in failing to afford procedural fairness to the Appellants.

37 The Court has reached that conclusion for the following reasons:

(a) The Judicial Registrar and the Magistrate adopted a practical approach to the hearing and determination of this matter. The matter proceeded, notwithstanding some procedural irregularities, with the participation of the Appellants. No adjournment was sought by the Appellants to afford them an added opportunity to present their case. A review of the transcript does not reveal that the Appellants were prevented from agitating any issues of concern which would advance their case. The Appellants were given a reasonable opportunity to present their case and, in my opinion, were fully cognisant of the case as put against them.

(b) The Judicial Registrar and the Magistrate had, in this Court's opinion, reasonably straightforward issues to decide. The terms of the Settlement Agreement were considered. There were no particularly complex nuances in the arguments advanced. Although not patently evident on the face of the decisions of the Judicial Registrar and the Magistrate, there is no reason whatsoever for this Court to conclude that the significance of an adverse decision on the Appellants was not a consideration in the decisions below.

(c) Judicial Registrars and Magistrates have a burdensome workload. They are required to administer the law and make decisions in a high volume and often fraught environment. In my opinion, in this case the Judicial Registrar and the Magistrate appropriately balanced the competing considerations of fairness and justice to the parties within the practical considerations of the administration of justice.

(d) I do not consider that the fact that the Appellants were self-represented alters any of the observations I have made above. Dr Gu, to my observation, was articulate and more than capable of agitating his own cause. He is well educated. For this reason I do not consider than his self-representative status has visited any prejudice or disadvantage on the cause of the Appellants.

38 Based on my observations above, I do not consider that the Magistrates' Court erred in failing to afford procedural fairness to the Appellants and accordingly Ground 1 of the appeal must fail.

Ground 2: The Magistrates' Court erred in ignoring abuses of process or was otherwise biased

39 Further to their procedural fairness argument, the Appellants allege that non-compliance with the Magistrates' Court Rules was a deliberate abuse of process on the part of the Respondents. The Appellants allege that the failure to recognise abuses of process was a part of a 'conspiracy or cooperated crime, which the Heidelberg Court was trying to cover up'. They say that, 'the Magistrates' Court rules can be breached and abused without any consequences, and the Magistrates' Court at Heidelberg will assist their lawyer friends to do so and cover up for them.' The Respondent submits, and the Court agrees, that these allegations amount to allegations of actual or apprehended bias on the part of the Judicial Registrar and the Magistrate.

40 The classic articulation of the court's jurisdiction to prevent abuse of process is that of Lord Diplock in Hunter v Chief Constable of West Midlands Police:

[T]he inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal interpretation of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.[11]

41 His Lordship described the circumstances in which abuse of process can arise as 'very varied',[12] and courts have consistently ensured that the principles are not applied in an unduly rigid or technical manner. In Jago v District Court of New South Wales,[13] Gaudron J described the court's power to control its own process and proceedings as one which 'is not restricted to defined and closed categories, but may be exercised as and when the administration of justice so demands'.[14]

42 Bias, be it actual or apprehended, is an established ground of appeal from the decision of a lower court or tribunal.

43 Actual bias exists where a decision maker has some interest in the outcome of the litigation. An interest may arise by reason of friendship, relationship, or enmity.[15]

44 Apprehended bias exists in any circumstance where a fair minded lay observer might reasonably apprehend that a decision maker might not bring an impartial and unprejudiced mind to the issues before them.[16] It is not sufficient for a party to make a bare assertion of bias. The nature of the alleged bias, as well as the facts which are said to give rise to the possibility of a departure from impartial decision making, must be clearly articulated.[17]

45 There is no evidence that the deficiencies in service of the First Respondent's summons was a deliberate attempt to abuse the process of the Court. As observed, the deficiency is explained by the Respondent by reference to the receipt of the 20 March 2019 return date on 13 March 2019, after which the summons was promptly served.

46 The Appellants' allegations of bias on the part of the Magistrates' Court are serious, and do not extend beyond mere assertion. There was opportunity for the Appellants to complain about procedural deficiencies and accordingly to request an adjournment in the event that they perceived that they were prejudiced if the matter proceeded. No such arguments were advanced. No adjournment was sought.

47 There is no evidence whatsoever of any bias on behalf of the Magistrates' Court in allowing this matter to proceed. For that reason, Ground 2 of the appeal must fail.

Ground 3: The Magistrate was misled by false documents and statements presented by the Respondents and their counsel

48 The Appellants' third ground of appeal concerns the alleged misconduct of the Respondents and their legal representatives, and the failure of the Magistrates' Court to identify the same. Misconduct alleged by the Appellants includes:

(a) professional misconduct by the First Respondent's solicitor, through deliberate delay in service of the summons;

(b) false statements contained in the affidavits of the First Respondent and Mr Nathan Zablocki, director of the Second Respondent; and

(c) false statements made in the First Respondent's written outline of submissions and by the First Respondent's counsel during the hearing before Judicial Registrar Andrew on 20 March 2018.

49 Only the latter two allegations have potential to give rise to an appealable error, the first essentially repeats Grounds 1 and 2.

50 As observed, the fraud of a party in obtaining judgment of a court or tribunal is an established ground for impeaching that judgment.[18]

51 An allegation of fraud is a very serious matter. The usual course is for a party to bring independent proceedings alleging fraud and seeking to set aside the judgment, however it is not uncommon for a tainted judgment to be challenged by way of appeal. In McDonald v McDonald, Justice Taylor of the High Court said of the jurisdiction to set aside a judgment on the basis of fraud:

[J]udgment will be set aside on the ground of fraud only after an affirmative finding of the fraud alleged... Indeed, an application to set aside a judgment on the ground of fraud is not, in substance, an appeal in the strict sense at all but an independent proceeding in which the party complaining carries the onus of establishing the fraud alleged and he will fail unless this onus is discharged_._[19]

52 A judgment will only be set aside where there has been an affirmative finding of the fraud alleged. The onus falls upon the party alleging fraud, the Appellants in this case, to establish the fraud alleged.

53 Menzies J described the effect of a finding of fraud as follows:

[I]f by any means it be affirmatively proved that the earlier judgment was tainted by fraud, it will, without more, be set aside. Thus, for instance, to prove the bribery of a witness or a juryman at the earlier trial by a party would require a verdict given in his favour to be set aside without speculation upon the result of the bribery.[20]

54 The Appellants' primary allegation of fraud concerns a survey report presented by the Second Respondent at the 20 March 2018 hearing. That report was exhibited to the affidavit evidence of Mr Zablocki. The Appellants allege that the survey report was a 'fake and forged document, drawn by [the Second Respondent] several months after he destroyed the fence, not by a proper surveyor'.

55 Attached to the survey report is a planning document which shows the position of the pre-existing fence and the true boundary between the properties. The Court observes, having considered the survey report, that the plan attached to the report does bear the name of the Second Respondent. This was acknowledged in Mr Zablocki's affidavit, which deposed that the plan was prepared by him, and that the surveyor, Mr Peter Richards, affirmed its correctness. The Appellants have not provided any further evidence to bring into question the legitimacy of the survey report.

56 The Appellants further allege that counsel for the First Respondent misled the Magistrates' Court by submitting that the Settlement Agreement had the effect of compromising all outstanding matters in the second proceeding. The Appellants allege that counsel was aware at the time of making that submission that, as they say, paragraph 8 dealt only with allegations in the complaint (and not those contained in the defence). Therefore, they say, counsel deliberately misled the court. The Respondent denies this allegation. He says that the Settlement Agreement speaks for itself, and was in any event read aloud in open court from which the Judicial Registrar and the Magistrate could draw their own conclusions.

57 I refer to paragraph 12 above, which sets out the chronology of events leading up to the finalisation of the Settlement Agreement.

58 There is clearly a difference between the initial draft of paragraph 8 where the release so expressed concerns 'the claim and the defence' and the final version of the release that related to 'from and only COMPLAINT No. H1016874'.

59 Paragraph 10 of the Settlement Agreement, as I have observed, provides a limited and specific carve out from the release in paragraph 8 in relation to the location and construction of the garage.

60 It is well accepted that when interpreting a contract, including a settlement agreement, the Court should give primacy to the actual terms used. Where there is no ambiguity in those terms, they should be given their plain and ordinary meaning in the context of the document as a whole. Unless the language is ambiguous, evidence of the surrounding circumstances is not admissible to contradict the meaning established.[21]

61 In my opinion there is no justification in the present circumstances to permit any other construction of paragraph 8 of the Settlement Agreement beyond what I consider to be its plain and ordinary meaning. The plain and ordinary meaning to be ascribed to the words 'subject of the claim' includes necessarily 'all claims, actions, suits or complaints' that may arise by way of defence in the first proceeding.

62 The clear meaning of paragraph 8 of the Settlement Agreement is to dispose of the first proceeding subject only to the preservation of rights in relation to the garage in paragraph 10.

63 The form of the carve out from the Settlement Agreement in paragraph 10 could have been replicated in relation to any other matter or claim which the parties wished to preserve past the entry into the Settlement Agreement. It was not.

64 Given the absence of evidence in relation to the alleged illegitimacy of the survey report and my observations concerning the scope of the Settlement Agreement, in my opinion the Appellants have failed to make out Ground 3 of the appeal.

Ground 4: The Magistrate erred in failing to consider that there were no reasons given by Judicial Registrar Andrew

65 The Appellants' fourth ground of appeal alleges that the Magistrate erred in failing to consider the fact that Judicial Registrar Andrew did not give reasons for granting summary judgment. The Appellants further submit that the reasons given by Magistrate Alger were inadequate.

66 The duty to give reasons is a normal incident of the Court's obligation to afford due process to the parties before it.[22] The giving of reasons to accompany a judgment serves at least three purposes:

(a) to enable the parties to understand the basis for the Court's decision;

(b) to further judicial accountability by allowing an appeal court to determine the correctness of the decision; and

(c) as a basis of precedent, to be used for predicting how similar cases may be decided in the future.[23]

67 The nature and extent of required reasons will vary, depending on the nature of the dispute and the particular circumstances of the case.[24] With respect to appeals limited to questions of law, McHugh JA (as his Honour then was) observed in Soulemezis v Dudley (Holdings) Pty Ltd:

In a case where a right of appeal is given only in respect of a question of law, different considerations apply from the case where there is a full appeal. An ultimate finding of fact, which is not subject to appeal and which is no way dependent upon the application of a legal standard, can be treated less elaborately than an issue involving a question of law or mixed fact and law. If no right of appeal is given against findings of fact, a failure to state the basis of even a crucial finding of fact, if it involves no legal standard, will only constitute an error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done. If, for example, the only issue before a court is whether the plaintiff sustained injury by falling over, a simple finding that he fell or sustained injury would be enough, if the decision turned simply on the plaintiff's credibility. But, if, in addition to the issue of credibility, other matters were relied on as going to the probability or improbability of the plaintiff's case, such a simple finding would not be enough.[25]

68 Reasons need not be lengthy or detailed in all cases, provided they serve the functions outlined above. In Beale v GIO, Meagher JA identified three elements of judicial reasons which, although not a mechanical formula, ought generally be included:

(a) firstly, the judge should refer to the relevant evidence. There is no need to do so in detail, especially where it is clear that the evidence has been considered;

(b) secondly, the judge should set out any material findings of fact and any conclusions of fact reached;

(c) thirdly, the judge should provide reasons for making the relevant findings of fact and applying the law to the facts found. That process of reasoning should be logical and understandable.[26]

69 In some cases it is not necessary for reasons to be given at all. For example, where a case turns upon a finding in relation to a single, simple, question of fact or was otherwise conducted in a manner which made the reasons for the Judge's decision obvious.[27] It was said by the Gray J in Sun Alliance Insurance v Massoud:

That does not mean that on every occasion a judge will be in error if he fails to state reasons. The simplicity of the context of the case or the state of the evidence may be such that a mere statement of the judges conclusion will sufficiently indicate the basis of a decision.[28]

70 In Pasha v Edmonds & Anor[29] Smith J of this Court identified several helpful examples of cases where detailed reasons may not be necessary:

(a) cases which turn entirely on a finding in relation to a single and simple question of fact;

(b) cases which have been conducted in such a way that the reasons for the decision are obvious to any intelligent person;

(c) where a claim or defence has been presented in such a muddled way that it would be a waste of public time to give reasons; and

(d) cases where it may not be necessary or desirable to give reasons.[30]

71 The parties agree that Judicial Registrar Andrew did not give any written reasons for judgment. Although she gave brief oral reasons, the Appellants complain that those reasons failed to identify which specific term of the Settlement Agreement showed that all matters had been dealt with, and that this fact was overlooked the Magistrate.

72 The Appellants also submit that Magistrate Alger's reasons were inadequate, for two reasons:

(a) firstly, they say that the Magistrate did not identify where in the Settlement Agreement it stated that all matters in the first proceeding had settled; and

(b) secondly, that the Magistrate did not adequately deal with claims against the Second Respondent.

73 With regard to the claim against the Second Respondent, the Appellants say that the claims against those claims concern 'unlawful practices conducted by an employee of... a building company', none of which were mentioned in the first proceeding. The Appellants say that the summary dismissal of those claims was flawed, as the alleged 'unlawful practices' were outside of the scope of any building contract between the Respondents.

74 The Respondent submits that the issue before Judicial Registrar Andrew, and Magistrate Alger, was a simple one. That is - was there a cause of action, carved out of the Settlement Agreement, with a real prospect of success? The Respondent contends that the reasons given by both judicial officers were adequate in answering that simple question, such that no further exposition of fact or law was required of them.

75 In my opinion, notwithstanding that it may invariably be desirable from the perspective of parties to litigation for detailed reasons for decisions to be given, based on the authorities, it is not necessarily required in all cases.

76 I agree with the submissions of the Respondent in relation to this ground of appeal for the following reasons:

(a) the nature of the dispute was extremely limited, the transcript reveals that all issues were fully ventilated and the parties had an appropriate opportunity to advance their arguments;

(b) there has been no prejudice to the Appellants in their agitation of this appeal as a result of a failure to give reasons; and

(c) there is no identifiable question of pure law at issue in this appeal.

77 In those circumstances, the reasons given by Judicial Registrar Andrew, and Magistrate Alger, were sufficient.

78 Based on these reasons, Ground 4 of the appeal must fail.

Ground 5: The Magistrate erred in making an order based on an assumption that the Settlement Agreement addresses all claims, rather than by reference to the evidence

79 Ground 5 relates to the Appellants' submissions regarding denial of procedural fairness. The Appellants allege that the Magistrate's decision proceeded on the assumption that the Settlement Agreement addressed all claims in the second complaint, without proper consideration of its terms. The Appellants submit that they were denied an opportunity to present evidence which they say supports their position that the Settlement Agreement only compromised claims which were the subject of the complaint in the first proceedings, and not the defence.

80 The Respondent maintains that the Appellants were given adequate opportunity to present their case before the Judicial Registrar and the Magistrate, and in fact did explore the history of amendments to the Settlement Agreement at first instance. He says that Judicial Registrar Andrew and Magistrate Alger clearly considered the terms of the Settlement Agreement, which contain no ambiguity, and that the Appellants have failed to identify any admissible evidence that was not considered.

81 Based on my observations in paragraphs 57 to 63 above, I do not consider that there was any error on behalf of the Magistrate in relation to the interpretation of the Settlement Agreement nor do I consider that any relevant evidence in relation to this issue was ignored.

82 Accordingly, Ground 5 of the appeal must be dismissed.

Ground 6: The Magistrate erred in allowing an order without legal basis to be retained

83 The Appellants' notice of appeal states the following with respect to Ground 6:

Crystal clear evidence has demonstrated the existence of noncompliance, abuse of court processes and professional misconduct committed by both the Respondents and their legal representatives, as well as by the Heidelberg Court staff members in a cooperative manner, during the trial of summary judgment. The procedure and judgment were significantly biased.

84 The Respondent submits that this ground restates matters raised by Grounds 1, 2, and 3, and does not allege a separate error of law. I agree with that submission. I refer to and repeat the observations made with respect to each of those Grounds above.

Ground 7: The Magistrate erred in neglecting alleged non-compliance and violations of law committed by Judicial Registrar Andrew during the trial of Summary Judgment

85 Ground 7 concerns an allegation that Judicial Registrar Andrew deliberately attempted to cause prejudice to the Appellants by:

(a) personally deciding a return date for the hearing of the summons that caused prejudice to them;

(b) ignoring the late service of a notice of defence by the First Defendant; and

(c) accepting an outline of written submissions prepared on behalf of the First Respondent at the beginning of the hearing on 20 March 2018.

86 There is significant similarity between this ground, and the Appellants' allegations of bias in Ground 3. As observed, the Appellants have not identified any evidence to support these allegations. The allegations are serious and do not extend beyond assertion.

87 In addition to the observations I have made in relation to Ground 3 specifically, I do not consider that any prejudice was caused to the Appellants by virtue of the setting of the return date, the late service of the notice of defence or the acceptance of submissions prepared on behalf of the First Respondent.

88 As I have observed, the Appellants wanted to be heard on the return date of the summons, and adopted this course rather than seeking an adjournment or further time from the Judicial Registrar in which to respond to material.

89 In making these observations, the Court remains conscious that the Appellants are self-represented. However the Court observes that the Appellants (represented by Dr Gu) demonstrated a sound awareness of the process of agitating their case and a resolve to do so.

90 The Court further observes that Dr Gu was articulate, determined and methodical, notwithstanding that many of his arguments were emotionally charged and, at times, highly irregular and not finding any sound basis recognisable at law.

92 For the reasons set out above this appeal must fail.

1. The appeal is dismissed.
2. The Appellants pay the First and Second Respondents' costs to be agreed or in default of which to be taxed on a standard basis.

[1] The Properties comprise the land described in Certificate of Title Volume 11301 Folio 190 and Certificate of Title Volume 11301 Folio 191.

[2] Magistrates' Court Act 1989 (Vic) s 109(1).

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

[4] Ponnamma v Arumogam [1905] 1 AC 383, 390 (Lord Davey, giving the advice of the Judicial Committee of the Privy Council).

[5] Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38, 99 [156] (Hayne, Crennan, Kiefel and Bell JJ).

[6] Re Minister for Immigration and Multicultural Affairs; Ex parte Hieu Trung Lam [2003] HCA 6; (2003) 214 CLR 1, 14 [37].

[7] Roberts v Harkness [2018] VSCA 215, [48] (Maxwell P, Beach and Niall JJA).

[11] [1981] UKHL 13; [1982] AC 529, 536C. That statement has been repeatedly affirmed by the High Court of Australia: Walton v Gardiner (1993) 177 CLR 378, 393 (Mason CJ, Dawson and Deane JJ); Rogers v R [1994] HCA 42; (1994) 181 CLR 251, 256 (Mason CJ); 286 (McHugh J); D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1, 28 [74] (Gleeson CJ, Gummow, Hayne and Heydon JJ); Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75, 93 [28] (French CJ, Gummow, Hayne and Crennan JJ).

[12] [1981] UKHL 13; [1982] AC 529, 536D.

[13] [1989] HCA 46; (1989) 168 CLR 23.

[15] R v Watson; Ex Parte Armstrong [1976] HCA 39; (1976) 136 CLR 248, 258 (Barwick CJ, Gibbs, Stephen and Mason JJ).

[16] Livsey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, 293-294 (Mason, Murphy, Brennan, Deane and Dawson JJ).

[17] See, for example, Priestly v Godwin [2008] HCA 59; (2008) 251 ALR 612.

[18] Hip Foong Hong v H Neotia & Co [1918] UKPC 65; [1918] AC 888, 894 (Lord Buckmaster, giving the advice of the Judicial Committee of the Privy Council); McDonald v McDonald [1965] HCA 45; (1965) 113 CLR 529, 540 (Menzies J); Gann v Hosny [2014] VSCA 344, [33]-[34] (Weinberg JA, Ginnane and Sloss AJJA).

[19] McDonald v McDonald [1965] HCA 45; (1965) 113 CLR 529, 535 (Taylor J).

[21] Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337, 350 (Mason J, Stephen and Wilson JJ agreeing); Esso Australia Ltd v Australian Petroleum Agents' & Distributors' Assn [1999] 3 VR 642, 645 [12] (Hayne J).

[22] Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; [1989] VR 8, 19 (Gray J, Fullagar and Tadgell JJ agreeing).

[24] Mifsud v Campbell (1991) 21 NSWLR 725, 728 (Samuels JA); Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 442-443 (Meagher JA) ('Beale v GIO').

[25] (1987) 10 NSWLR 247, 281.

[26] (1997) 48 NSWLR 430, 443-444 (Meagher JA).

[27] Brittingham v Williams [1932] VicLawRp 35; [1932] VLR 237, 239 (Cussen ACJ).

[28] [1989] VicRp 2; [1989] VR 8, 19.

[29] [1998] VSC 169; (1998) 28 MVR 217.

[30] Ibid, 219, by reference to the decision of Cussen ACJ in Brittingham v Williams [1932] VicLawRp 35; [1932] VLR 237, 239.