Applicant v Respondent

2 The case was heard over two part days and one full day in the Magistrates' Court at Melbourne. The Magistrate dismissed Mr Velissaris's claim, on the ground that he had not proved that the alleged collision was the cause of the damage to his car. In the course of his reasons, the Magistrate rejected evidence given by both Mr Velissaris and a panel beater called by him to give expert evidence.

3 Mr Velissaris applied to an Associate Justice for leave to appeal the Magistrate's decision, on a question of law, pursuant to s 109 of the Magistrates' Court Act 1989 (Vic). The Associate Justice dismissed the application. Mr Velissaris appeals that dismissal.

4 Giving the draft notice of appeal a benevolent construction, Mr Velissaris raises two grounds of proposed appeal. First, that the Magistrate conducted himself so as to give rise to a reasonable apprehension of bias, a point which he took before the Magistrate but did not pursue. Second, that the Magistrate's decision on the facts was so unreasonable as to be 'not open' to him on the evidence. I accept that each of the two grounds may involve a question of law. Accordingly, if the material properly before the Court discloses an arguable case on either ground, the Court has a discretion to grant leave. Conversely, if there is no arguable case on either of the grounds, the Court may refuse leave to appeal.[1]

5 Before considering whether an arguable case has been raised justifying leave on either ground, I should note that Mr Velissaris sought leave to amend his proposed notice of appeal to raise other grounds. The proposed amended notice of appeal was provided to counsel for the respondent in Court immediately prior to the commencement of the hearing.

6 The proposed amended grounds of appeal include the two grounds already referred to, and five other proposed grounds. Those five grounds took counsel for the respondent by surprise, and he said he was not prepared to argue them. I accept that is so. Accordingly, if leave were given to raise the amended grounds, an adjournment would be necessary to afford justice to the respondent. In these circumstances, I refused leave to rely on the further grounds. In doing so, I took particular account of the amount in issue (only some $3,000), the unsatisfied costs orders of $9,000 in favour of the respondent arising from the Magistrates' Court proceedings, the costs already incurred in this Court, the likely further costs order against Mr Velissaris arising from an adjournment of the appeal to enable the respondent to deal with the new grounds of appeal, Mr Velissaris's professed impecuniosity (he sought and was granted an exemption from paying filing fees in this matter), the waste of Court resources arising from an adjournment, the need to bring finality to the litigation, and the need to ensure that the costs and Court resources used in connection with the proceeding were proportionate to the amount in dispute.

7 I will first consider the case based on reasonable apprehension of bias. The relevant legal position was stated in the majority judgment of the High Court in Ebner v Official Trustee,[2] in the following terms:

a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.[3]

8 Mr Velissaris addressed his arguments concerning apprehended bias by reference to the transcript of proceedings before the Magistrate on the third day of the trial, the only full day of hearing. Since completion of the hearing before me, I have read this transcript in full. Mr Velissaris contended that this transcript revealed the following conduct by the Magistrate which, when taken together, gave rise to a reasonable apprehension of bias.

9 First, Mr Velissaris relies upon what he contends were many instances of the Magistrate speaking over him or cutting him off. In that regard, the transcript does not support Mr Velissaris. Mr Velissaris was obviously a difficult litigant in person for the Magistrate to handle. Mr Velissaris interrupted the Magistrate, counsel for the respondent and witnesses. This led to some heated exchanges between the Magistrate and Mr Velissaris. Where the Magistrate did cut Mr Velissaris off, that was justified in the circumstances of his disruptive behaviour.

10 Second, Mr Velissaris contends that the Magistrate was rude to him, and did not chastise a witness for the respondent when he called him 'stupid'. There is no merit in that submission. Reading the transcript as a whole, it is apparent that the Magistrate's patience was stretched by Mr Velissaris's behaviour and that he, understandably, expressed exasperation from time to time. He was not rude. The witness did call Mr Velissaris stupid (in retaliation for an insult by Mr Velissaris to him), but the Magistrate firmly rebuked the witness for his insult.

11 Third, Mr Velissaris contends that the Magistrate deprived him of an opportunity to call relevant evidence, by refusing him leave to tender a statutory declaration of a witness he had called the previous day and who had been cross-examined and excused. The Magistrate's decision on this issue was open to him in the context of the trial, and provides no support for a submission of apprehended bias.

12 Fourth, Mr Velissaris contends that the Magistrate did not allow him to further cross-examine witnesses called by the respondent. There is no substance in this submission. In the context of a difficult trial, the Magistrate was entitled to ask Mr Velissaris to 'move on', and Mr Velissaris cannot point to any particular line of cross-examination that he was prevented from fairly pursuing.

13 For the reasons stated, whether taken singly or together, there is in my opinion no arguable case raised by the proposed ground of appeal based on apprehended bias. Furthermore, Mr Velissaris made an application to the Magistrate that he disqualify himself for actual bias, but did not pursue that application. It was only when the Magistrate decided against him that he again sought to argue bias. In any event, no arguable case of actual or apprehended bias sufficient to justify granting leave to appeal has been demonstrated.

14 I turn to consider the second proposed ground of appeal - that the Magistrate's factual findings were not open on the evidence. There is no merit in this proposed ground. Mr Velissaris articulated it in the following terms - the Magistrate erred by believing the respondent's witnesses and not him and his witnesses. Framed that way, the proposed appeal raises no question of law - only questions of fact.

15 Mr Velissaris endeavoured to support this ground of appeal by referring to photographs of his car, which show a damaged side mirror and some damage to the right hand rear corner (including a broken indicator light). These photographs were apparently before the Magistrate. They were taken into account by the Magistrate in arriving at his decision. The Magistrate's decision was open to him on the evidence available to be considered on this application.

16 For the above reasons, the appeal will be dismissed with costs.

[1] Supreme Court (General Civil Procedure) Rules 2005, r 58.10(8)(b).

[2] [2000] HCA 63; (2000) 205 CLR 337.