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[2010] WADC 170
District Court of WA
2010-11-12
Original judgment source is linked above.
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
CITATION : RANKILOR -v- CIRCUIT TRAVEL PTY LTD [2010] WADC 170
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Appeal - Local Court - Minor case claim - Unrepresented parties - Obligation of judicial officer to assist an unrepresented litigant - Whether magistrate's failure to alert the appellant of the need to formally prove contract a denial of natural justice - Denial of natural justice - Whether reasonable apprehension of bias
Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Long v Mayger [2004] WASCA 41
Macpherson v The Queen [1981] HCA 46; (1981) 147 CLR 512
Mayne Nickless t/as Wards Express v Mayne (Unreported, WASC, Library No 960736, 19 December 1996)
Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 166 ALR 129
National Companies & Securities Commission v News Corp Ltd [1984] HCA 29; (1984) 156 CLR 296
Re Burton; Ex parte Lowe [2003] WASCA 306
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56
Restifio v Bernstein (1996) 23 MVR 347
Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1985) 2 NSWLR 340
Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1
Tobin v Dodd [2004] WASCA 288
BIRMINGHAM QC DCJ: [The transcript of this judgment, delivered extempore on 12 November 2010, has been corrected for grammar, syntax, authority citations and quoted transcript references.]
1 This matter comes before me by way of an appeal from a decision of his Honour Magistrate Boothman in the Minor Cases Division of the Magistrates Court in Perth.
2 For the purpose of this appeal, it has been necessary to refer to the unrepresented appellant's submissions and to the affidavits filed by her in support of her appeal to identify precisely the grounds upon which the appellant relies. In essence, it is the appellant's case that she was denied a fair trial, insofar as the learned magistrate:
3 On 3 March 2009 the appellant initiated a minor case claim in the civil jurisdiction of the Magistrates Court. She claimed $10,000 from the respondent/defendant Circuit Travel Pty Ltd in relation to an alleged breach of contract arising from a 27 day European tour undertaken by her in October 2008.
4 The matter was heard by his Honour Magistrate Boothman on 19 July 2010.
5 On 20 July the learned magistrate dismissed the claim and ordered that the appellant pay the respondent's out-of-pocket disbursements fixed at $957.89.
6 By a notice dated 6 August 2010 the appellant seeks orders that the decision be set aside and in lieu thereof there be judgment in her favour in the sum of $10,000.
7 Pursuant to s 32(3) of the Magistrates Court (Civil Proceedings) Act 2004 (the Act), the right to appeal an adverse decision in a minor case claim, other than for any jurisdictional consideration, is limited to circumstances where there has been a denial of natural justice in dealing with the case.
8 It is clear, given the limited right of appeal, that the appellant is limited to arguing that she was denied natural justice. The appeal cannot be in the nature of a rehearing of the matter on the merits save to the extent that they are relevant to considering whether the appellant has been denied natural justice.
9 Natural justice does not require an inflexible application of a fixed body of rules but rather requires fairness in all the circumstances including the nature of the jurisdiction, rules under which the tribunal was acting, the subject matter that was being dealt with and the statutory provisions governing the power or jurisdiction being exercised. They are not inflexible and they vary from case to case: National Companies & Securities Commission v News Corp Ltd [1984] HCA 29; (1984) 156 CLR 296 (311 - 312) (Gibbs CJ).
10 As noted by Rich J in Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 (589):
It is a fundamental principle of natural justice applicable to all Courts, whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case. If this principle is not observed, the person affected is entitled ex debito justitiae to have any determination which affects him set aside and a Court which finds that it has been led to purport to determine a matter in which there has been a failure to observe the principle has inherent jurisdiction to set its determination aside. In such a case there has been no valid trial at all. The setting aside of the invalid determination lays the ghost of the simulacrum of a trial an leaves the field open for a real trial (Crane v Director of Public Prosecutions [1921] 2 AC at 332 - 333).
11 See also Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1 (4).
12 In short, natural justice requires that a litigant be given a reasonable opportunity to present his or her case.
13 Minor cases dealt with by the Magistrates Court are claims of not more than $10,000.
14 The Act contains special provisions to enable minor case claims to be dealt with expeditiously, informally and hopefully with finality.
15 Section 27 of the Act provides that the primary object of the court when dealing with a minor case is to attempt to bring the parties to a settlement acceptable to the parties.
16 The Act further provides that the court is to act with as little formality as the court thinks reasonable and is not bound by formal rules of evidence. The court may inform itself on any matter in such manner as it thinks fit: s 29 of the Act. Importantly, the parties are not entitled to be represented before the court except with the leave of the court: s 30 of the Act.
17 This emphasis on minor case claims being dealt with expeditiously and with finality is highlighted by the fact that no right of appeal lies, even though the magistrate may make an error of law or an error in some factual finding.
18 It is important to remember that the relevant duty is to ensure that each party is given a reasonable opportunity to present his or her case.
19 The law does not impose on the court the impossible task of ensuring that a party of the proceedings takes the best advantage of the opportunity to which he or she is entitled, however notwithstanding the degree of informality in the proceedings, it is important to note that those provisions of the Act do not detract from the fundamental requirement that the court is to accord natural justice of the party appearing before it by giving them a reasonable opportunity to present their respective cases.
20 In Re Burton; Ex parte Lowe [2003] WASCA 306 [63] - [65] Barker J dealt with a question of natural justice in relation to the exercise of jurisdiction by a magistrate in the Small Disputes Division of the Local Court in the following terms:
The rules of natural justice have two substantive requirements: first, that a decision-maker give an opportunity to be heard to a person whose interests will be affected adversely by the decision; and, secondly, that the decision-maker be a person who is disinterested or unbiased in the matter to be decided. These two rules are called respectively the 'hearing rule' and the 'bias rule'. It is sometimes suggested there is a third rule required by natural justice - the 'no evidence' rule - which requires that the decision be based upon logically probative evidence. See, for example, the grounds for review available under the Administrative Decisions (Judicial Review) Act (Cth), s 5(1)(h), s 5(3), and s 6(1)(h), s 6(3). However, the third suggested rule is not universally acknowledged to be part of the general law of natural justice. In this application, we are only concerned with the hearing rule. [63]
It is accepted that the hearing rule is not rigid and that it is necessary to have regard to the particular legislative framework in which a decision must be made in order to determine whether the procedure adopted by a decision-maker is fair in the circumstances of the case. As Mason J said in Kioa v West [1985] HCA 81; (1985) 159 CLR 550, at 584 - 585:
'What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting.' [64]
The content of hearing rule was explained by the Full Court of the Federal Court of Australia in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576, at 591 - 592, in terms recently referred to with approval by Gleeson CJ, Gummow and Heydon JJ in a joint judgment in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327; [2003] HCA 56, at [22]:
'Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.' [65]
21 Whether or not there has been a denial of natural justice in the course of the hearing in this case must be assessed by reference to the application and the manner in which the hearing was conducted.
22 I now turn to matters identified by the appellant in this case.
23 The history of these proceedings is not a happy one. For a process that is intended to enable the parties to achieve an expeditious and hopefully satisfactory resolution to matters this case is a sorry example - taking over 15 months to trial. There were considerable number of court appearances by the parties with numerous interlocutory applications.
24 The appellant says that the learned magistrate denied her natural justice in dismissing her claim. Her complaint is not only in relation to the manner in which the trial was conducted on 19 July and the basis of the decision given on 20 July but also in relation to the magistrate's conduct on three other occasions when he dealt with the matter namely 1 February, 3 June and 2 July 2010.
25 To put the appellant's case into context it is necessary to have regard to the proceedings during the lead up to the trial in addition to the trial.
26 In March 2009 the appellant commenced a minor case claim in the Magistrates Court in respect of damages said to have been suffered by reason of the respondent's breach of contract arising from the tour undertaken by the appellant in late 2008. A friend of the appellant and fellow passenger, Mr Cannon, on the tour also commenced proceedings against the respondent albeit the nature of his claim differed from that of the appellant.
27 In June 2009 the respondent applied to have the two claims joined and heard by the one magistrate. On 10 December 2009 Magistrate Bromfield dismissed the respondent's application to join the appellant's and Mr Cannon's action. Those actions were then scheduled to be tried on 11 and 12 February 2010 respectively.
28 The respondent company resides in New South Wales.
29 On 1 February 2010 there was an application before the court for the respondent's evidence at trial to be obtained by audio-video means to thereby spare the respondent the expense of a trial being conducted in Western Australia. All parties agreed to that order being made. The appellant did not attend the hearing, having indicated her consent and advised the court that she was unable to attend.
30 On 1 February, his Honour Magistrate Boothman, of his own volition, notwithstanding the orders made by Magistrate Bromfield on 10 December 2009, unilaterally ordered that the trial of the appellant's action and that of Mr Cannon listed for hearing in February be vacated and adjourned to 19 and 20 July for hearing before the same magistrate. The application for the evidence by video or audio means was dismissed.
31 In making his determination the learned magistrate made the observation that he was going to combine the two actions 'because a court has to have an eye to the costs of the administration of justice and any difficulties that might arise if two separate magistrates sit and bring in two separate results'. The learned magistrate addressing the respondent (ts 3 - 4) said:
HIS HONOUR: Well, of my own volition, I'm going to combine them, because the Court has to have an eye to the cost of the administration of justice and the difficulties that might arise if two separate Magistrates sit and bring in two separate results.
That would be entirely inappropriate. So I'm going to deal with that administratively in due course. The next thing is that the Court would require you (the Respondent) to be here to give evidence, because this is going to be a two or perhaps three-day trial, given the nature of the documentation that I have before me, and I'm not going to run a trial on the basis that we do it by telephone link-up over a two-day period at least, possibly a three-day period.
...
HIS HONOUR: The difficulty - I will hear from Mr Cannon in this matter, but I've looked at the files and I think (a) they should be combined, and (b) the trial should be adjourned so that you're not entirely inconvenienced.
And because the parties have had a holiday of sorts - and I'm not making any comment on that, but they have had a holiday. So in that sense, since they have - had paid for it, they've had the holiday, they're not entirely prejudiced.
The learned magistrate then addressed Mr Cannon as follows (ts 4 - 5):
HIS HONOUR: Mr Cannon, you've heard what I - what I've said. Of my own volition, I'm going to combine these two trials so that there is only one Magistrate dealing with it. It would be entirely uneconomical to have two Magistrates sitting in this who might bring in different decisions et cetera. These are the same parties, the same facts, by and large, and they should be dealt with as the one matter.
The other thing is that I'm bringing Ms Sarcas and the other gentleman; I can't remember his name off the top of my head, to the Court. And be aware that should you lose - and I have no idea of these issues at all. Should you lose, you'll be up for the cost of their flights, you'll be up for the cost of their hotels for two or three days. Be aware of that.
These are not legal costs. These are disbursements to the other side to bring them here because you require that they be brought here. If you lose, you'll be up for those costs. Do you understand?
CANNON, MR: Yes.
HIS HONOUR: Those costs could well be several thousand dollars.
CANNON, MR: Yes.
HIS HONOUR: And if you own a house or a car or the like, they can be seized and sold to recover those costs. Be aware these things happen. Although though there are no legal costs in these matters, there are disbursements to face. So you must be aware that this Court will impose those discretions [sic] upon you, and they are recoverable by seizure of your house or car or the like if you lose. I'm not saying you will.
CANNON, MR: Yes.
HIS HONOUR: But be aware these things happen. When you enter into litigation, you never know which way the cat is going to jump. So be aware of that. Do you have any remarks about that?
CANNON, MR: Nothing about the disbursements or payments.
The learned magistrate continued to Mr Cannon (ts 7):
HIS HONOUR: Be aware - you must be aware - and I urge you to take some proper legal advice in this matter. You should in fact go to the Legal Aid Commission and ask them for some proper legal advice on it. All right? There are difficulties in your case. I would certainly say that. There are some difficulties, sir. The fact that you had to walk 245 metres from the bus is not really the basis of any legal claim.
CANNON, MR: There are quite a few claims in my case, your Honour.
HIS HONOUR: There are many, many things involved in that. But I'd urge you to get some proper legal advice in this matter.
(Emphasis in bold added)
32 I note in passing that it is apparent from the transcript, that the learned magistrate:
33 The appellant was advised of the outcome and later received a copy of the transcript.
34 On 12 May the appellant sought orders seeking a change of venue. The matter was heard by his Honour Magistrate Bromfield. The learned magistrate noted that the application was to review the decision of his Honour Magistrate Boothman to try the two cases together and for his disqualification, and quite properly adjourned the matter to the learned magistrate.
35 That application came on for hearing before Magistrate Boothman on 3 June 2010. The transcript for the hearing on that day is incomplete. The appellant had brought two applications; one for documents to be disclosed by the defendant/respondent and the second to require the learned magistrate to disqualify himself from the trial.
36 To the extent that the appellant relies upon the learned magistrate's conduct on this occasion it is appropriate to refer to the transcript (ts 2 - 4):
RANKILOR, MS: There are a few things, sir. To date I've not got a response from the Circuit - from Circuit Travel or other things that go before you today; that's the undisclosed documents they were supposed to serve me two to three days ago.
I've not had a response to either of those matters, so I feel a bit disadvantaged to begin with. So I've got the affidavit of service.
HIS HONOUR: I have no idea what you're talking about. Your application is to do what today?
RANKILOR, MS: There are two applications. I've got them here with me. The first is that they disclose undisclosed documents, that being the tour director's report and a couple of medical certificates. I haven't had a response from Circuit Travel to that matter. I'm sorry, sir.
HIS HONOUR: Let me find this application for you - by you.
RANKILOR, MS: Certainly. That's the first one.
HIS HONOUR: There is now such a vast amount of material on this file.
RANKILOR, MS: I'm aware of that, sir.
HIS HONOUR: The Court has great difficulty in dealing with your applications, I must say.
RANKILOR, MS: I don't understand, sir.
HIS HONOUR: I've just told you, the Court has difficulty in dealing with these matters.
RANKILOR, MS: In what respect, sir, if I may?
HIS HONOUR: There's just so much of it.
RANKILOR, MS: I'm fully aware that there's a lot of it, but I don't understand. There are two issues going before you today, sir.
HIS HONOUR: Just let me find what we're dealing with.
RANKILOR, MS: Certainly, certainly.
HIS HONOUR: Now, what I have to - let me see if I can find your original application, because there's a vast amount of material flying in and out of this.
RANKILOR, MS: Well, everything should be on the file, sir.
HIS HONOUR: I'm sure it's on the file. And because they're keeping a vast amount of it, the Court has difficulty keeping track of it.
RANKILOR, MS: Well, that's fine. But I'll just wait for you to find it, sir.
HIS HONOUR: Thank you. I'm just telling you why. You asked why and I'll telling you why. The Court has difficulty keeping track of it.
RANKILOR, MS: Thank you, sir. I'll wait.
HIS HONOUR: Thank you. I do have an application. I don't know whether you've got it, Ms Rankilor. I do have an application from the defendant, which says that they're seeking to move the hearing date to 14 June. The matter is listed for the 14th.
37 Ms Rankilor replied that she did not have the documentation there. His Honour then found the application and continued:
Now, this is your application today. You have an application for the trial for the 19th and 20th to be brought forward to the 12th. Is that right?
RANKILOR, MS: That's correct.
HIS HONOUR: The second matter today is the issue of the undisclosed documentation.
38 When it came to an issue about the application seeking disclosure of medical reports, to which the respondent took objection, the following conversation took place (ts 6 - 7):
RANKILOR, MS: All I want to say in regard to the medical reports is they're only to help with the issue of time. That's all. I don't need any other information. It's purely to assist with time issues with regard to certain tours. That's all it was for. So if they don't want to produce it, that's fine.
HIS HONOUR: Why are you then asking for medical reports?
RANKILOR, MS: I don't need the medical reports. It's just to show the time.
HIS HONOUR: You've come in here today asking for other people's medical reports.
RANKILOR, MS: Okay. Then I don't - forget that.
HIS HONOUR: You are simply increasing costs and time in this matter by asking such things, Ms Rankilor.
RANKILOR, MS: All right then. I don't - - -
HIS HONOUR: Stop. You know full well you can't get other people's medical reports. I surmise that you know full well that you can't get other people's medical reports.
RANKILOR, MS: Look, then - okay. Let's not just worry about getting them.
HIS HONOUR: No. The Court does worry about it because you're increasing costs needlessly by asking for other people's medical reports. You can't do that. You know that too.
RANKILOR, MS: Certainly. Look - certainly, sir. I do appreciate what you're saying. I'll take it onboard. I appreciate it. You are correct, with respect.
HIS HONOUR: You're not taking it onboard because you have increased the costs in his matter unnecessarily.
RANKILOR, MS: I do apologise deeply, sir, but I don't know if you know what's going on in my head. And I'm telling you - - -
HIS HONOUR: I have no idea what's going on in your head.
RANKILOR, MS: I apologise.
HIS HONOUR: What I do know is what's in front of me, and that's what I do know.
RANKILOR, MS: Certainly, certainly. I apologise for everything that I've just said. Could we move on to the next issue, please? There are two issues today. The next issue is that I don't feel - - -
HIS HONOUR: I'm dealing with the issue of the medical reports. Now, the order I'm going to make is that the application or the medical reports be dismissed.
RANKILOR, MS: Certainly. Thank you, sir.
HIS HONOUR: In respect to the application dated 12 March 2010, in respect to the medical reports and the request for medical records, that be and is dismissed.
39 After the learned magistrate dealt with the balance of the application for production of documents including the tour director's reports, Ms Rankilor proceeded with her application that the learned magistrate recuse himself from conducting the trial. Whilst the transcript is incomplete the following exchange is noted at ts 8 - 10:
HIS HONOUR: Yes the next matter is what?
RANKILOR, MS: Well I don't feel that if you participate in this trial I am going to get a fair outcome. That's irrespective of whether I win or lose. As I've just pointed out I have no documentation from the defendants on this issue. Now, you have ordered Ms Sarkers to forego her maternity leave under the Fair Work regulation laws of 2009. That is against the law to do that. The company are well aware of that, the managing director gave permission for Ms Sarkers two weeks before she gave birth to defend this matter and she forego her maternity leave entitlements under those Fair Work regulation laws of 2009. Now I do not understand why you have ordered that. To bring a woman over with a baby, the company have other representatives, i.e. Sarah Toman, that is now on the phone to you ---
HIS HONOUR: Poman ---
RANKILOR, MS: It's T, for Tom - O-M-A-N. She will confirm that with you now that it's Toman.
HIS HONOUR: Are you Sara Poman or Sara Toman.
TOMAN, MS: T for Tom.
HIS HONOUR: Toman. Thank you. Yes?
RANKILOR, MS: If I may continue? Now, from the very beginning these matters were kept separate so that I could have a fair and just trial which I've been trying to get since 3 March 2009. I've been put under undue stress with this ---
HIS HONOUR: No one has put ---
RANKILOR, MS: I don't understand ---
HIS HONOUR: Stop. No one has put you under stress, no one. You've chosen to come to Court and deal with this matter ---
RANKILOR, MS: I have chosen this because I don't feel that you will give me a fair trial, that's even if I lose this.
HIS HONOUR: What has this Court ever done to you? I have dealt with this matter once.
RANKILOR, MS: That's correct sir. But everything that has happened since 1 February I now feel that I will not get a fair and just trial. That's even if I lose ---
HIS HONOUR: Well I can't control what you feel. I can't control what you feel.
RANKILOR, MS: No you can't. But I don't understand why you've, under your own vallation [sic], have put these two matters together when they were kept separate for a reason and the defendants were denied that request or that was dismissed on 10 December 2009 sir.
HIS HONOUR: Essentially what you're asking me to do is review my previous order, is that right?
RANKILOR, MS: That's correct. I expect that you would disqualify yourself and allow another Magistrate to sit in on this trial.
HIS HONOUR: Why would I do that? Why would I say that I'm prejudice? Can you tell me why you would say ---
RANKILOR, MS: I believe - that's what I feel, that's what I believe.
HIS HONOUR: Yes.
RANKILOR, MS: One of the major issues is these matters were kept separate so I could have a fair and just trial. That way it is you cannot bring in different decisions, I know cases have been won and lost on how a matter is presented to Court, how things pan out. So you've either got to come back and say we both win or we both lose and I'm claiming for British Panorama and Mr Cannon is not claiming for that. I had a Mr Rodney Tilley from the Department of Consumer Protection all organised to attend the trial date on February 26, 2010. I didn't come to Court on 1 February because I was sitting an assessment at Stirling College thinking that the only think [sic] that's going to be going down on 1 February is can they have this trial by audio video link. I had no idea - I wasn't here to have a say, to put my opinion forth, to get even just any opportunity whatsoever to address what took place on 1 February.
HIS HONOUR: Who have you sued?
RANKILOR, MS: I'm sorry sir?
HIS HONOUR: Who have you sued?
RANKILOR, MS: Circuit Travel Pty Ltd. Only Circuit Travel.
HIS HONOUR: Who has Mr Cannon sued?
RANKILOR, MS: I believe it's Circuit Travel, but you would have to ask him, I believe that that's what he's done. I'm here for my own matter of 2978/09, nothing to do with Mr Cannon. He does his thing, I'm doing mine. We live at separate addresses. I put my application forward on 3 March, I think he put his forward some time later. We have different issues, they're not all the same. I will be totally absolutely disadvantaged with these cases going forward together ---
HIS HONOUR: You didn't turn up to Court on the last occasion when the parties sought to deal with this matter?
RANKILOR, MS: I'm sorry sir?
HIS HONOUR: You didn't turn up to Court on the last occasion?
RANKILOR, MS: No I put my apologies to the Court sometime before that date ---
HIS HONOUR: You see this is what the Court decided; the Court decided that because it has to have an eye to the costs of the administration of justice, these are the same parties on this matter, these are the same defendant, this is the same tour.
RANKILOR, MS: Sir, if I may, it's not the court, you were presiding over this on 1 February. All that the defendants put forward was an application to have the trial by audio video link. That's all they asked for. I did not expect other issues were coming up on that day and cay please tell me why you've ordered a woman with a baby to break the Fair Work regulation laws of 2009---
40 On 2 July the appellant again appeared before Magistrate Boothman on the hearing of two applications.
41 Inexplicably there is no transcript for either of these applications.
42 The first application sought a seven week adjournment of the trial to enable the chief magistrate to fully peruse the transcript of 3 June 2010 and to replace Magistrate Boothman as the magistrate dealing with the trial. The application is endorsed by the learned magistrate at 3.00 pm 'The application be and is dismissed'.
43 The second application was directed to page 1 the deletion of any reference of the tour report from the defendant's statement of defence; and page 2 requiring the defendant provide clean copies of documents otherwise redacted relating to the matter.
44 Whilst the application on the court file is endorsed and initialled by the learned magistrate as having been dismissed, the appellant says that the learned magistrate advised that he would deal with the production of documents issue at the trial. The respondent confirms the appellant's account as to the outcome.
45 The trial of the action was heard before Magistrate Boothman on 19 July 2010. At the outset of the trial, seemingly for the first time, the learned magistrate indicated that his duty was to try and ensure that the matter was settled if at all possible and invited the appellant to make any offer to try and settle the matter.
46 In undertaking such task the learned magistrate described his role as being 'obliged to try and arrive at a settlement which would cause both parties, really to walk away equally unhappy'. The learned magistrate seemingly misapprehended his task as required by s 27(1) of the Act namely to arrive at a resolution that was acceptable to all parties.
47 When the matter did not resolve the appellant commenced giving her evidence.
48 The appellant gave a long monologue detailing all of the various issues occurring during the trip that were, in her opinion, unsatisfactory and not as represented in the travel information material. The learned magistrate treated this aspect of her evidence as an opening statement. Thereafter the appellant then gave a monologue with little questioning or intervention from the learned magistrate. Significantly during the course of her evidence the appellant indicated to the learned magistrate:
RANKILOR, MS: But I would like the opportunity to go through these in more detail. So I am trying to give you as best an overview as I can and the reason why I feel justified in claiming.
RANKILOR, MS: Now, I've got all this evidence here, which I will show if I need to, showing the mountain and where the historical site is situated. If I need to show any of it I've got it here, so I'm just keeping it here in the meantime.
At page 11 of the transcript, the appellant referred to the tour booklet in the following terms:
RANKILOR, MS:
According to this booklet we are supposed to have - where is it here? I've got to find it. We did get this tour 'Follow your tour director through the main gate up to Government House at the very heart of this tiny ancient republic'. We didn't get that tour at all from Day 17 all day or day 18.
At the foot of page 11 the following conversation between the appellant and his Honour took place:
RANKILOR, MS: ......The next problem, of course, was Venice which is where we headed to on day 19. Like I say I've got evidence for all of this, but I'll only use it if it has to come to it.
HIS HONOUR: Well, I should point out to you that you are obliged to put all the evidence to the other side --- Yes, they've got all of my evidence.
Yes ?--- The other side have all of my evidence, sir.
49 The appellant then continued to give her evidence and summary of the various matters that she said were a breach of the agreement. Throughout her evidence she referred to the terms and conditions contained in the travel brochure. After some time the appellant concluded (ts 16):
RANKILOR, MS: .......There's probably a lot of stuff I've missed out sir, but I've done the best I can. So at this stage I think I'll just try and give my voice a rest, thank you.
50 The magistrate then invited the defendant to cross-examine. The defendant declined. His Honour then invited the appellant to return to her seat and call other witnesses.
51 The appellant called Mr Rodney Tilley, a senior conciliation officer with the Department of Commerce Consumer Protection. The learned magistrate (ts 18) seemingly assumed that Mr Tilley was to give evidence in relation to any attempts at conciliation and refused to allow Mr Tilley to give evidence insofar as he had not been on the tour.
52 The appellant then called Mr Keith Cannon. Neither the appellant, Mr Cannon nor Mr Tilley, each of whom made copies of the terms and conditions were requested or required to tender the document.
53 The whole of the evidence was directed to breaches of terms of conditions but at no stage during the course of the proceedings were the documents produced into evidence notwithstanding that they had been referred to by both the appellant and the respondent in their respective cases.
54 At the completion of Mr Cannon's evidence, the learned magistrate asked the appellant whether she had any other witnesses or other evidence (ts 27):
HIS HONOUR: Thank you. Do you have any other witnesses. Any other evidence?
MS RANKILOR**: I have no other witnesses but I'd like to bring out some of my evidence. I don't know if I'm permitted to do so. To do that or not.**
HIS HONOUR: No. Do you have any other witnesses.
MS RANKILOR: I don't have any other witnesses sir, thank you.
HIS HONOUR: Is that your case?
MS RANKILOR: That is my case. Yes. Thank you.
55 Ms Toman for the respondent indicated that she had evidence and wished to produce statements. The learned magistrate again (ts 28) seemingly took the view that as she was not on the tour she could not give evidence and limited her to making a closing statement.
56 At the completion of addresses the learned magistrate reserved his decision.
57 On 20 July the magistrate dismissed the appellant's claim. The learned magistrate found that there was no evidence as to the terms and conditions of the contract against which any alleged breach of contract could be measured. The learned magistrate dismissed the claim on the basis that the contract had not been proved. He found that the claimant had failed to show that the contract had been breached to such extent as would sound in compensation and damages. He found that the appellant had failed to prove the contractual relationship between the parties to the court so that it could properly ascertain what were the terms and what tours were included on the tour.
58 The learned magistrate further found that even if he were to allow that to take place (viz the proof of the terms) there was insufficient evidence presented by the appellant as would cause the court to find that such breaches should sound in an award of damages. Somewhat surprisingly the learned magistrate, seemingly without knowing the terms of the contract, was prepared to find that the evidence given by the appellant did not amount to a breach of those terms.
59 The appellant says that at all times she believed she was entitled to return to the witness box and give further evidence and had at all times intended to tender the terms and conditions of the contract. Further, Mr Tilley had been called to give evidence and it was intended that he would also refer to the terms and conditions and in that process they would be tendered.
60 The appellant says she was denied natural justice in the following respects:
(1) with the joinder of her case with that of Mr Cannon and the adjournment of the trial by Magistrate Boothman on 1 February 2010;
(2) the refusal of Magistrate Boothman to recuse himself;
(3) the refusal to allow the plaintiff to call evidence or to continue giving evidence and to call Mr Tilley to give evidence;
(4) the failure of the learned magistrate to deal with the question of the redacted documents at trial - it now being apparent that it was not appropriate to redact the documents as the defendant had done and as such discovery was incomplete;
(5) that the learned magistrate, in dismissing the claim on the basis the contract had not been proved, did not give the appellant the opportunity to produce the contract in evidence - and the learned magistrate having not foreshadowed that he intended to take a technical approach to the evidence and aspects of proof.
61 The first aspect of complaint can be dealt with quickly - leaving aside for the moment, the question of bias in relation to the events on 1 February.
62 Whilst the learned magistrate clearly had no jurisdiction to effectively overrule a decision made by his brother magistrate and join the proceedings - particularly in circumstances where the appellant was not present and was unaware of the orders being made, I do not consider that such conduct in any way impacted upon the appellant's opportunity to obtain a fair trial. Mr Cannon discontinued his claim and as such the trial proceeded on the basis of the hearing of the appellant's claim only. Further, whilst there was some delay in the hearing with the adjournment from February to July, nothing was put before me to indicate that that in any way impacted upon the capacity of the appellant to present her case or in any way impact upon her ability to obtain a fair trial.
63 The complaint in relation to the conduct of the trial may be identified in two areas; first, preventing the appellant from adducing evidence in support of the claim and secondly, to the extent that the judgment was premised on the failure of the appellant to prove the contract, failing to alert the appellant of the need to strictly prove the contract before any claim for a breach could be maintained.
64 The issues in relation to whether Mr Tilley was permitted to give evidence or the appellant cut short in her evidence need to be considered in the context as to what such further evidence would be adduced. The only other evidence that could have been adduced (save as to further elaboration of breaches) was the terms of the contract.
65 The key issue is whether there was an obligation on the learned magistrate to alert the appellant to the need to prove the contract if she was to succeed in her claim.
66 What is required by way of fairness includes consideration of the nature of the jurisdiction, the rules under which the proceedings are conducted and the subject matter that is being dealt with. It is important to recognise that this was an action being maintained in the minor case jurisdiction of the Magistrates Court. The court rules in respect to the conduct of the trial provide that:
Rule 37: A trial is to be conducted in accordance with the orders of the Magistrate.
67 The parties are not permitted to be represented before the court. Importantly, the court is required to act with as little formality as it thinks reasonable, is not bound by formal rules of evidence and may inform itself on any matter in such manner as it thinks fit. The relevant duty is to ensure that each party is given a reasonable opportunity to present his or her case.
68 As noted above, the law does not impose on the court the difficult task of ensuring that a party to proceedings takes the best advantage of the opportunity to which he or she is entitled. Notwithstanding the degree of informality of the proceedings, it is important to note that those provisions of the Act do not detract from the fundamental requirement that the court is to accord natural justice to the parties appearing before it by giving them a reasonable opportunity to present their respective cases.
69 The duty of a judicial officer to assist an unrepresented litigant was considered in Tobin v Dodd [2004] WASCA 288. At [14], E M Heenan J cited with approval the judgment of the Full Court of the Federal Court in Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 166 ALR 129 (130, 131):
Unrepresented litigants present difficult issues for courts and for individual judges. As the majority observed in Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403 at 415; [1994] HCA 14; 120 ALR 385 at 391:
'While the right of a litigant to appear in person is fundamental, it would be disregarding the obvious to fail to recognise that the presence of litigants in person in increasing numbers is creating a problem for the courts.'
Increasing attention is being devoted to the policy issues created by the increasing numbers of litigants in person. See, for example, Australian Law Reform Commission, The Unrepresented Party (Background Paper 4, December 1996). [26]
In Neil v Nott [1994] HCA 23; (1994) 68 ALJR 509; 121 ALR 148, the High Court considered whether the trial judge's exercise of discretion to refuse an extension of time for lodging an application for maintenance and support under the Administration and Probate Act 1958 (Vic) [had miscarried].
The court observed (at [510] and [150]) that a
'frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.'
In Abram v Bank of New Zealand (1996) ATPR 41-507 at 42,347, a Full Federal Court, faced with an unrepresented litigant's claim that the trial judge had not given him appropriate assistance to present his case, made this comment:
'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.'
We respectfully agree with this observation. Because the duty of the judge varies according to the factors identified by the Full Court in Abram, the duty to assist an unrepresented accused in criminal proceedings is likely to be more extensive than that imposed on a judge hearing civil proceedings in which one or more of the parties are not legally represented: cf MacPherson v R [1981] HCA 46; (1981) 147 CLR 512; 37 ALR 81; D A Ipp, 'Judicial Intervention in the Trial Process' (1995) 69 ALJ 365, at 369-70. [27]
The general principles governing the role of the judge in civil proceedings involving an unrepresented litigant have been stated in Rajski v Scitec Corp Pty Ltd (CA(NSW), 16 June 1986, unreported). Samuels J said this (at 14):
'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 as 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.'
Mahoney JA made the following observation (at 27):
'Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done.'
These comments have been referred to with approval in subsequent cases: see In the Marriage of Johnson (1997) 139 FLR 384 (Fam Ct/FC), at 406 (and cases cited there); Morton v Vouris [1996] FCA 828; (1996) 21 ACSR 497 at 513-14 per Sackville J. There is nothing in Neil v Nott inconsistent with what was said in Rajski v Scitec Corp. [28]
A trial judge often faces something of a dilemma. While he or she may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation: Burwood Municipal Council v Harvey (1995) 86 LGERA 389 (NSW CA), at 397 per Kirby P. However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial**: Panagopoulos v Southern Healthcare Network** (SC(Vic), Smith J, 15 September 1997, unreported) at 6. [29]
70 The principles identified by their Honours can be summarised as follows:
71 In Macpherson v The Queen [1981] HCA 46; (1981) 147 CLR 512 (534) Mason J expressed the position as follows:
Giving full weight to the adversary character of a criminal trial and the difficulties of advising an accused who is not represented, I nevertheless consider that the trial judge is bound to ensure that an accused person has a fair trial. To that end he is under a duty to give the accused such information and advice as is necessary to ensure that he has a fair trial.
72 In Restifio v Bernstein (1996) 23 MVR 347, Murray J held that the duty of a trial magistrate in a traffic matter was to explain the law and procedure of the court to a self-represented defendant included explaining the difference between evidence and submissions so that he could make an informed election as to whether to give evidence.
73 The extent to which a unrepresented litigant was entitled to assistance was considered by the Full Court (Kennedy, Pidgeon & Owen JJ) in Mayne Nickless t/as Wards Express v Mayne (Unreported, WASC, Library No 960736, 19 December 1996). The provisions relating to the conduct of the hearing then under consideration were in several respects similar to those provisions in respect of applications to the court in minor claim matters.
74 When considering the decision of the learned magistrate reviewing the actions of the review officer including the extent to which a review officer in a workers' compensation secretariat was obliged to inquire of or to put questions to an unrepresented party and whether the role of the review officer was inquisitorial, Pidgeon J (ts 20) expressed the position as follows:
He (the learned Magistrate) then referred to the proposition that reviews may be inquisitorial in nature than adversarial and said:
'In such circumstances, it's for the review officer to ensure that all the relevant information in the context of the application is before him before he makes a decision.'
On that basis, the Review Officer is to undertake, in effect, an inquiry into any matter which proceeds before him ensuring inter alia all parties properly before him are accorded procedural fairness. The learned Magistrate concluded at paragraph - page 11 of his reasons:
'My comments as to the inquisitorial nature of a review should not be construed to mean that it is inappropriate for reviews to be conducted on an adversarial basis. My comments should be construed to mean that having allowed a review to proceed on an adversarial basis may not remove from the Review Officer the responsibility of ensuring that all relevant information in relation to the application is before him. My comments should not be construed to mean that a Review Officer cannot rely on concessions or admissions made by the parties. Furthermore, the inquisitorial nature of a review may be substantially diminished, if not totally negative, where the review is conducted on an adversarial basis and the party represented by legal practitioners.'
I agree with that part of the proposition that the Review Officer should ensure that all relevant information is before him before he makes a decision. That is very much the point if the parties were not represented and had not brought to the Review Officer evidence known at the time to exist such as reports of medical practitioners who had seen the applicant. I would see Mr Cockram (the learned Magistrate) saying no more than this and that the circumstances would be different if the parties were represented by legal practitioners. It would, however, I consider, be placing it too high to say that he is conducting an inquisition and that his functions are inquisitorial. (Emphasis added)
Circumstances could arise where it would be proper for the Review Officer to ensure that he has all the evidence before him. But I do not consider it could be said on the facts of this case that he had made an error in law in not seeking to obtain further evidence or himself undertaking further inquiry in a matter which the parties had asked him to judge on the evidence available. (Emphasis added)
75 Kennedy J (ts 6 - 7) expressed the obligations of the review officer as follows:
The respondent's primary contention is that the Review Officer failed to inquire in relation to the specific questions raised in the respondent's application. It may be observed that this particular complaint did not find its way into the ground of appeal against the decision of the Review Officer. Furthermore, although it's certainly the case that the respondent's original application for referral of the matter to conciliation described the nature of her disability as 'Acceleration and/or exacerbation of a pre-existing and asymptomatic Scheurmann's Disease or osteochondrotis' and that no date for the occurrence of any injury was contained in the application, the evidence of the respondent before the Review Officer was that she first developed back pain in September 1992. In those circumstances, the Review Officer was bound to inquire into that allegation, and he did so. (Emphasis added)
76 It's apparent from the decision in Mayne Nickless v Mayne that, in circumstances, and indeed where the procedural requirements were substantially the same as those in respect of these proceedings, that there is an obligation upon the judicial officer with unrepresented parties to make inquiries to ensure that they, to use the words that were identified in Minogue's case, 'do not suffer from the destruction from the traps which our adversary procedures offer to the unwary and untutored'.
77 As noted in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 [22] procedural fairness required a person likely to be affected by the decision being entitled to know or have identified to him any issue critical to the decision which was not otherwise apparent for the nature or terms of the matter under consideration.
78 In my opinion, consistent with this obligation, in circumstances where an informal process has been adopted, the learned magistrate ought to have alerted the appellant to the need to put before the court the terms and conditions of the contract by way of evidence - particularly in circumstances where the case for decision was one of breach of contract before dismissing the claim for the want of such evidence.
79 The fact was that each of the parties had filed particulars of claim and defence and indeed in their respective documents filed had referred to various terms that were included in the contract. To thereafter rely on the absence of proof of the contract and its terms as the basis for judgment denied the parties a fair trial on the very issue for decision. It allowed the appellant to fall into one of the traps of the unwary or untutored in the proof of a contract claim where, because of a lack of legal skill, the appellant failed to address the necessary evidentiary requirements for the proof of her claim.
80 To the extent that there is a criticism of the learned magistrate in respect of his refusal to allow the appellant to return to the witness stand to give her evidence and to allow Mr Tilley to give evidence, whilst his Honour's intervention in the trial process was no doubt based upon an assumption by him as to what he considered the case was about; namely, complaints about the tour, it falls to be dealt with in the same category as the need to put before the appellant the importance of proving the contract. The treatment of the evidence of Mr Tilley and the appellant has to be seen in the same context.
81 In my opinion the learned magistrate's failure to alert the appellant of the need to produce such evidence was such as to amount to a denial of natural justice in dealing with the case and I would set aside the judgment.
82 In such circumstances it is unnecessary for me to deal with the additional issues raised by the appellant, namely apprehended bias on the part of the magistrate and the extent to which the failure of the magistrate to deal with the redacted documents may generally relate or give rise to a denial of natural justice.
83 Having regard to the arguments that have been presented however, I make the following observations.
84 In my opinion whilst the learned magistrate failed to deal with the issue of the documents and the matters and the appellant's application for the production of those documents, I do not consider that failure would constitute a denial of natural justice in dealing with the case.
85 As noted by Waddell J in Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1985) 2 NSWLR 340 (356):
Proper and full discovery for documents is a step in the pre-trial procedure which is essential to achieving a just result between the parties at the trial. The Court has power to order a new trial if the failure of the defendant to give proper discovery had been of such a kind or has resulted in such prejudice to the conduct of the parties' case as to allow the trial to continue would deny the party a fair trial. The failure to give proper discovery would equate to the same prejudice.
86 That said however, in my opinion, it does not constitute a denial of natural justice 'in dealing with the minor case'. In my opinion, s 32(3)(b) of the Act looks the conduct of the presiding officer or court and not the parties.
88 Fundamental to the common law system of adversarial trial is that it is conducted by an independent and impartial tribunal: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [3]. In Ebner the judges forming the majority (Gleeson CJ, McHugh, Gummow and Hayne JJ) said [8]:
The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
89 Whilst the conduct of the learned magistrate on matters dealing with the appellant stands in stark contrast to that of other magistrates - particularly when regard is had to the transcript of various proceedings, in my opinion, it is important to have regard to the circumstances in which the learned magistrate made the observations that had been identified by the appellant for criticism.
90 The test in determining whether a judicial officer is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the question the judicial officer is required to decide: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11].
91 Two things need to be remembered: first, the observer is taken to be reasonable, and secondly, the person being observed is a professional judicial officer whose training, tradition and oath or affirmation, require the judicial officer to discard the irrelevant, the immaterial and the prejudicial: Johnson v Johnson [12].
92 In my opinion, the comments in relation to the trial and possible outcomes if the plaintiff was unsuccessful need to be considered in context.
93 A trial judge is not precluded from expressing preliminary views at an appropriate time in a trial in relation to factual issues: Johnson [13]. There can be no objection on the part of the learned magistrate in encouraging consideration of settlement, indeed pursuant to s 27 of the Act it is his duty to do so. Nor is it inappropriate to stress the risks of litigation. There does, however, need to be balance and the criticism of the learned magistrate by the appellant are not without some justification. Significantly, his comments on 1 February were not balanced and could indicate possible prejudgment. He should have directed them to both parties.
94 What the authorities establish as objectionable is for the trial judge to make statements which might convey to a reasonable lay observer that he or she might have come to a view that could not be altered by the evidence or the submissions of the parties. Similarly, to refer to the evidentiary hurdles faced by the parties, the costs implications of suffering an adverse judgment, may well have gone beyond what might normally be said by a magistrate but, in my opinion, did not go so far as to display bias on his part.
95 Taking the practical pragmatic approach in relation to the hearing of the matter on 1 February it was understandable insofar as there were then two actions against the same defendant relating to the same bus trip which, although may have had some differing aspects in relation to each claim, were substantially similar in relation to the facts as to warrant them being tried together.
96 The learned magistrate's comment in relation to inconsistent verdicts has to be seen in the context of separate claims. One could reasonably expect that a legally qualified magistrate would make the necessary distinction between each party's respective claim and whether they were proved.
97 Of more concern however was the learned magistrate's comment (ts 7) that 'there are difficulties in your case, I would certainly say that. 245 metres from the bus is not really the basis for a legal claim'.
98 At that time the learned magistrate had no information whatsoever before him in relation to that matter and his gratuitous comments on the difficulties of the case were seemingly gleaned from the perusal of the defendant's submission. They were unhelpful at the least. One could well understand why the appellant sought to have the learned magistrate disqualified in such circumstances.
99 The magistrate's conduct towards the appellant on 3 June where he seemingly berated the appellant for bringing an application he considered unnecessary was inappropriate. The magistrate seemingly misapprehended the basis upon which the appellant had sought the information - and it indicated that he was seemingly not listening to what she had said. The fact that he has difficulty in understanding the appellant's applications and the extent to which there is a lot of material on the file was an inappropriate criticism to make to the appellant.
100 Given the state in which the court's file was presented to this court for the purpose of the appeal, I can well understand why the learned magistrate had some difficulty in locating the applications in a file that could be fairly described as a shambles. That said, the comments ought not to have been made that seemingly attributed the state of the file to the appellant's desire to have the matter dealt with and the bringing of applications for relief in accordance with the rules provided.
101 As observed by McKechnie J in Long v Mayger [2004] WASCA 41 [42]:
It is important to remember that judicial officers are not mindless automatons. They have emotions and may, on occasions, be affected by them. It can be normally assumed that an experienced judicial officer will recognise when judgment may be being swayed by emotion and take steps to avoid injustice by postponing proceedings or even standing aside. Whether a judicial officer, bound by an oath of office should step aside because of a perception of bias is a matter principally entrusted to the judicial officer concerned. The test, however, is to be measured objectively by reference to a fair-minded observer in possession of the facts.
102 Having regard to my decision in relation the disposition of this matter it is unnecessary for me to reach a concluded view on the issue of bias. However whilst I am prepared to find the conduct of the magistrate on earlier occasions did go so far as to require him to recuse himself from the hearing, it was such that, in the circumstances where one was dealing with unrepresented parties, a prudent judicial officer might have, upon proper reflection, allowed the matter to be deal with by a different magistrate.
103 In the circumstance, and for the reasons stated, the orders I make for the disposition of this appeal are:
Cameron
Cole
(1944) 68 CLR 571
(2000) 205 CLR 337
(2000) 201 CLR 488
(1981) 147 CLR 512
(1999) 166 ALR 129
(1984) 156 CLR 296
(1996) 23 MVR 347
(1985) 2 NSWLR 340
(1979) 143 CLR 1
(1985) 159 CLR 550
(1994) 49 FCR 576
(2003) 201 ALR 327
(1994) 179 CLR 403
(1994) 68 ALJR 509
(1997) 139 FLR 384
(1995) 86 LGERA 389