John Briscoe v Securecam Pty Ltd

LEGISLATION CITED : Local Courts Act 1982 - s 74(1) Uniform Civil Procedure Rules 2005 - 46.12(1)(c)

Allied Pastoral Holding Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 Autoun v The Queen [2006] HCA 2 Browne v Dunn (1894) 6 The Reports 67 Council of the Municipality of Burwood v Harvey (1995) NSWCA 3 CSR Ltd v Della Maddalena [2006] HCA 1 Fabre v Arenales (1992) 27 NSWLR 437 CASES CITED : Fox v Percy (2003) 214 CLR 188 Gutirrez v R [1997] 1 NZLR 192 Jones v Dunkel (1959) 101 CLR 298 MWJ v The Queen (2006) 222 ALR 436; [205] HCA 74 Payne v Parker [1976] 1 NSWLR 191 R v Birks (1990) 19 NSWLR 677 Slavin v Owners Corporation Strata Plan 16857 [2006] NSWCA 71 Swain v Waverley Municipal Council [2005] HCA 4

Securecam Pty Ltd - First Defendant PARTIES : Brett Andrew Robertson - Second Defendant

COUNSEL : Mr P E Cullen - Plaintiff Mr D Hand - Defendants

Slattery Jurd Solicitors - Plaintiff SOLICITORS : Jones & Co - Defendants

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

15884/2005 - JOHN BRISCOE DISCOUNT STORE PTY LTD v SECURECAM PTY LTD

JUDGMENT (Appeal and leave to appeal decision of Local Court Magistrate) 1 HER HONOUR: By amended summons filed 11 July 2006 the plaintiff seeks firstly, pursuant to s 74(1) of the Local Courts Act 1982, leave to appeal the decision of His Honour Lulham LCM dated 23 September 2005 in Downing Centre Local Court proceedings 6834/2005, notwithstanding the expiration of 28 days, pursuant to Rule 46.12(1)(c) of the Uniform Civil Procedure Rules 2005 (UCPR), secondly, that the respondent pay the sum of $14,850.00 to the appellant, or alternatively, that the matter be remitted to the Local Court for rehearing de novo. The plaintiff relied on the affidavit of John Briscoe-Hough sworn 12 December 2005. 2 The plaintiff is John Briscoe Discount Stores Pty Ltd (Briscoe Discount). The first defendant is Securecam Pty Ltd (Securecam). The second defendant is Brett Andrew Robertson. The third defendant is Peter Hobbs. 3 The plaintiff sought leave to appeal on questions of mixed fact and law. Section 74(1) of the Local Courts Act 1982 provides that a party to proceedings under this part who is dissatisfied with the judgment or order of a Court sitting in its General Division may appeal to the Supreme Court on a ground that involves a question of mixed law and fact, but only by leave of the Supreme Court. 4 In Swain v Waverley Municipal Council [2005] HCA 4, the Chief Justice at [2] reiterated that in the common law system of civil justice, the trial process determines the issues between the parties. The system does not regard the trial as merely the first round in a contest destined to work its way through the judicial hierarchy until the litigants have exhausted either their resources or their possibilities of further appeal. 5 Section 75 of the Act provides that the Court may determine an appeal either by (a) varying the terms of the judgment or order, (b) setting the judgment or order aside, (c) setting the judgment or order aside and remitting the matter for determination in accordance with the Court's directions or, (d) by dismissing the appeal.

Grounds of appeal 6 The appellant appeals from the whole of the decision and orders of Magistrate Lulham dated 23 September 2005. The grounds of appeal are that His Honour erred with respect to failing to make a negative inference from the respondent's failure to call Greg Gill as a witness pursuant to the rule in Jones v Dunkel (1959) 101 CLR 298; finding that Greg Gill was authorised by the appellant to direct the delivery of goods subject of the agreement between the appellant and respondent; holding that it was at the appellant's request that the respondent's invoice of 20 October 2004 was falsely and deliberately expressed to show that the goods were to be delivered to the appellant's commercial address when such a proposition was not put to the appellant's witness in cross-examination as required by the rule in Browne v Dunn (1894) 6 The Reports 67; in the alternative, failing to make a finding as to why that invoice showed that the goods were to be delivered to the appellant's commercial address; failed to take into account at all, or adequately, objective documentary evidence of the term of the agreement concerning delivery of the goods; finding Patrick Briscoe not a credible witness solely by taking judicial notice of rational commercial practices; failing to make any finding as to the legal relationship between the plaintiff and the first defendant; making findings beyond the scope of the issue for determination as defined by the pleadings and beyond the scope of the case presented by the defendant's counsel; making findings inconsistent with the defendant's admissions in evidence and pleadings; failing to find that it was a term of the agreement that the goods be delivered to the appellant's commercial address; failing to understand the nature of the appellant's argument and finally, failing to decide the issues with a fair and unprejudiced mind, resulting in actual bias.

Leave for an extension of time to lodge an appeal 7 On 23 September 2005 judgment in the Local Court was delivered. On 14 December 2005 this appeal was filed. Thus the appeal was filed almost three months outside the stipulated time period. 8 Mr John Briscoe-Hough, managing director of the appellant company, explained the delay was due to his ill health and his difficulty in obtaining the transcript of the Local Court proceedings. 9 One week after the Magistrate delivered his judgment, Mr Briscoe-Hough instructed his solicitor to request a copy of the transcript of the hearing in order to determine whether an appeal should be lodged. 10 On 17 October 2005 Mr Briscoe-Hough attended a conference with his Counsel, Mr P E Cullen, with a view to obtaining advice on the prospects of success of an appeal. On that day the appellant was not well enough to attend so his son Patrick Briscoe took his place. 11 On 21 October 2005, the day on which time to appeal was to expire, Mr Briscoe-Hough's solicitor informed him that a copy of the transcript had still not been received. This, in addition to his poor health, left him unable to decide whether to commence an appeal. 12 On 30 November 2005 despite still not having received the transcript, a second conference with Mr Cullen held that Mr Briscoe-Hough had given instructions to commence an appeal. The defendants do not oppose the extension of time to lodge the appeal being granted. The plaintiff's explanation for the delay is satisfactory. Leave to extend the time for filing this appeal is granted.

The pleading framework in the Local Court 13 The statement of claim pleads as follows. That on (the date is blacked out on the Court's copy of the document) John Briscoe on behalf of the plaintiff entered into a verbal contract with the first defendant whereby the first defendant was to supply services and goods to the plaintiff. Pursuant to the verbal contract the plaintiff, by way of cheque, gave to the third defendant, on behalf of the first and second defendants the sum of $14,580. The goods and services were not provided by the defendants pursuant to the contract and the defendants refused to return the said moneys paid by the plaintiff and as a result the plaintiff suffered damage in the sum of $15,598.08. This pleading is a relatively straightforward one. 14 The defence pleads: "1. The Defendants deny the claim by the Plaintiff in paragraph 3 of Annexure 'A' to the Statement of Liquidated Claim that the First Defendant agreed to provide goods and services to the Plaintiff. The Defendants do however agree that the First Defendant made a verbal agreement with the Plaintiff the terms of which were, inter alia, that the Plaintiff would pay the invoices for the installation of the CCTV systems on behalf of "IRTV" the company for whom the first defendant had installed the CCTV systems.

2. The agreement between the First Defendant and IRTV was for the installation and rental to 'IRTV' of Closed Circuit Television Systems (CCTV systems) by the First Defendant at various commercial outlets at a cost of $13,500 plus GST per installation. 3. It is the understanding of the Defendants that 'IRTV' organised for the payment of the installation and rental of the CCTV systems through the Plaintiff and the Plaintiff verbally agreed with the Defendants to pay the installation costs. On this basis, the First Defendant proceeded with the agreed work. 4. The Defendants agreed with the claim by the Plaintiff in paragraph 5 of Annexure 'A' to the Statement of Liquidated Claim that the First Defendant did not provide the goods and services to the Plaintiff and says that it was never agreed that the defendants would supply goods and/or services to the Plaintiff. The First Defendant was only obligated to supply and install the CCTV systems at various commercial outlets under the direction and approval of 'IRTV' who had arranged for the payment of the goods and services by the Plaintiff to the First Defendant. 5. After the first installation, the First Defendant sought payment from the plaintiff. The Plaintiff paid the First Defendant's invoice. There was no agreement between the Plaintiff and the Defendants that the money paid by the plaintiff to the first defendant would be refundable to the Plaintiff and the Defendants therefore denied that the Plaintiff was entitled to a refund of those moneys from the defendants. 6. The First Defendant then proceeded to install two further installations, each at a cost of $13,500 plus GST. This work has since been completed however the First Defendant has not been paid. 7. The Defendants deny that the Plaintiff suffered damage in the sum of $15,598.08, or at all, as a subsequence of the Defendants' action." 15 The purpose of pleadings is to apprise the opposing party of the case it is required to meet. It is very difficult to distil the issues raised by the defendants in their defence except to say that the defendants seem to be saying that there were agreements with other entities and that the closed circuit television (CCTV) systems were to be installed at various commercial outlets. 16 At the hearing the plaintiff sought to file an amended statement of claim (ASC). Mr P E Cullen appeared in the Local Court and on this appeal. Likewise Mr D Hand appeared for the defendant in the Local Court and on this appeal. 17 On the filing of the ASC the Magistrate had this to say: "Mr Hand, I've come to a decision. I propose to allow the amendment at this stage. If during the proceedings it transpires that your client will suffer real prejudice as a result of that I'll consider an adjournment then and if I have to make an adjournment then and if I have to make an adjournment it will be at the cost of the plaintiff. I have come to a preliminary view that on the basis of the matters set out in the statements, that if the plaintiff succeeds he will succeed under the contract point and I could not imagine how he would not succeed under the contract point, but concede under the Trade Practices Act. I have come to a preliminary view that if your client is successful on the factual situation he deposes to, that he would be successful in relation to the contract claim, an be successful in relation to the Trade Practices Act claim. This is a factual - it's a factual dispute as to what was the agreement that the parties entered into. That's the decision I've come to." 18 I have reproduced this passage in full because it is at this point that the plaintiff's Counsel submitted that the Magistrate pre-judged the case. I shall return to this submission later in this judgment. 19 The expanded pleadings contained in the ASC had the effect of making the issues in dispute even more difficult to discern.

Jones v Dunkel - Grounds 1, 2 and 4 20 One of the appellant's principal appeal points is that His Honour did not adopt the submission that a Jones v Dunkel inference be made against the defendant's for not calling a material witness. Greg Gill had oral conversations and dealings with both Mr Briscoe on behalf of the plaintiff and Mr Hobbs, on behalf of the defendant. At the hearing Mr Briscoe and Mr Hobbs relied upon their affidavits, gave evidence and were cross examined. Mr Briscoe is the senior sales and operations manager of John Briscoe Discount Stores Pty Ltd. Mr Hobbs is a director and New South Wales state manager of Securecam. Securecam specialises in the design, installation, rental and maintenance of CCTV systems. Without the benefit of Mr Gill's evidence, the case depended upon competing versions of events between Mr Briscoe and Mr Hobbs. 21 The third and final affidavit that was relied upon at the hearing was that of the plaintiff's solicitor Mr Jurd (22/09/2005). His affidavit was read and admitted into evidence without contest and deals solely with the solicitor's attempts to locate Mr Gill. It contained the following information firstly, that the solicitor had intended to issue a subpoena upon Mr Greg Gill requiring his attendance at the hearing; and secondly, that on 12 September 2005 (two weeks prior to the hearing date) he was informed by both John Briscoe and Patrick Briscoe on behalf of the plaintiff that they did not know the address of Greg Gill. On 12 September 2005 Mr Jurd searched the Sydney telephone directory but was unable to locate Greg Gill in that directory. He also carried out an ASIC name search of IRTV. This search returned no results. 22 In cross examination Mr Hobbs initially said that Greg Gill was not called as a witness today because [we] could not find him, Mr Hobbs then admitted that he obtained Mr Gill's telephone number the day before the hearing. Mr Hobbs phoned IRTV and Greg Gill answered the phone. Mr Hobbs stated that it was too short notice to get him to Court to give evidence. However, Mr Hobbs did have a home address for Mr Gill and supposed that he still lived there. In re-examination Mr Hobbs explained that aside from the conversation on the day before Court, his last conversation with Mr Gill was nine months previously. Mr Hobbs described his relations with Mr Gill as "not good" (t 69.50-58). 23 The Magistrate decided: "There is one further preliminary point. Mr Cullen, for the plaintiff, produced an affidavit by Mr Jurd, and relied on that affidavit as sufficient evidence that Mr Briscoe had made sufficient enquiries to try to ascertain the address of Mr Gill, so as to prevent an inference, the Jones v Dunkell inference being made against Briscoe. I do not think those inquiries would satisfy me that the necessary inquiries have been made to that end. In any event, I am satisfied I can decide the matter on the evidence before me. Mr Gill is the person clearly not on favourable terms with either of the parties before the Court. There is absolutely no doubt that Gill and/or his company, was the villain in the piece. In those circumstances in my view it is not unusual that neither party would wish to call him and I am satisfied I can decide the matter without his evidence and without drawing an inference against either of the parties. …" 24 The Jones v Dunkel rule may allow inferences of fact to be drawn from a party's failure to adduce evidence. The principle is not concerned with whether a particular inference of fact can be drawn but rather whether it should be drawn in the particular case - see Fabre v Arenales (1992) 27 NSWLR 437 at 444 per Mahoney JA. [my emphasis added] 25 In Payne v Parker [1976] 1 NSWLR 191 at 201 Glass JA set out three conditions that should be satisfied before the rule operates. Firstly, the missing witness would be expected to be called by one party rather than the other or also described as where it would be natural for one party to produce the witness, such as where the witness might be regarded as being in the camp; secondly, the witness' evidence would elucidate a particular matter; and thirdly, the witness' absence is unexplained. Even if these preconditions are met, the issue for the Magistrate is whether any inference should be drawn. 26 Both parties had dealings and oral conversations with Mr Gill. At the hearing before the Magistrate, Counsel for the defendants submitted that Mr Gill should be regarded as being in the camp of the plaintiff. The plaintiffs' Counsel submitted that Mr Gill should have been regarded as being in the defendants' camp. The Magistrate regarded Mr Gill as not being in either camp. 27 In the circumstances outlined above, it was open for the Magistrate to decide that no inference should be drawn against either party. Ground 2 and 4 which relate to Jones v Dunkel points also fail. Grounds 3 and 5 have been deleted from the amended notice of appeal.

The rule in Brown v Dunn - Grounds 6 and 7 28 The plaintiff submitted that the plaintiff was prejudiced by the defendants' failure to put certain aspects to the plaintiff's witness. The plaintiff says that the new and significant evidence is said to stem from the following exchange in cross examination (t 55.5): "Q. So he asked you to put a false delivery address there, is that your evidence? A. Yes." 29 The rule in Brown v Dunn is ultimately a rule of procedural fairness that requires flexibility in its application - see R v Birks (1990) 19 NSWLR 677 at 688 where Gleeson CJ stated that the consideration of fairness: "…provides the best guide, both to the practical requirements of the rule in a given case, and to the consequences which may properly flow from its non-observance, including the remedies that are available to deal with a problem so created." 30 In Gutirrez v R [1997] 1 NZLR 192 the New Zealand Court of Appeal cited with approval R v Birks. The Court concluded at 199: "…the rule is simply one of fairness. Has a reasonable opportunity been given to enable the evidence in question to be properly assessed? It is the responsibility of the prosecuting counsel or a prosecutor who proposes to attack the credibility of defence witnesses, including the defendant, to cross examine in a way which makes it plain that the relevant evidence is challenged and gives the witness a fair opportunity to answer the challenge. Such cross examination however may not be necessary if from what has gone before or from the circumstances of the case it is fairly made plain that the truthfulness of particular facts given in evidence is not accepted, and an adequate opportunity to meet the challenge has been afforded. If evidence relevant to credibility is not so tested when it ought to be, it is likely to be unreasonable for the trier of fact to make an adverse finding in respect of credibility." 31 In Allied Pastoral Holding Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 16 Hunt J stated that the rule is "Attended more with ignorance than with understanding". Hunt J stated (at 23) that the practical aspects of the requirement of fairness are: "In many cases, of course, counsel for the party calling the witness in question will be alert to the relevance of the other material in the case to be relied upon for the challenge to the truth of the evidence given by his witness or to the credit of that witness, and in those circumstances counsel will be able to give his witness the opportunity to deal with that other material in his own evidence in chief." 32 In MWJ v The Queen (2006) 222 ALR 436; [2005] HCA 74 the High Court per Gummow, Kirby and Callinan JJ stated at [40]: "Reliance on the rule in Brown v Dunn can be both misplaced and overstated. If the evidence in the case has not been completed, a party genuinely taken by surprise by reason of a failure on the part of the other to put a relevant matter in cross examination, can almost always, especially in ordinary civil litigation, mitigate or cure any difficulties so arising by seeking or offering the recall of the witness to enable the matter to be put." 33 The defendants had pleaded that the CCTVs were installed at various commercial outlets. The pleading in the ASC at [12] alleged misleading and deceptive conduct, in that the plaintiff would not have paid $14,500 to the first defendant if it did not believe that the relevant CCTV goods were to be delivered to the address stipulated on the invoice. Hence, at the outset of the hearing the plaintiff was aware that the delivery address shown on the invoice was a significant matter. 34 Mr Patrick Briscoe was cross examined about his knowledge of the arrangement that the goods were to be installed at the Ashfield Farm Fresh store; about the financing deal; and about the timing of his payment to Securecam at about exactly the time that the Ashfield installation was completed. The issue of directing the delivery of the goods was the subject of specific questions in cross examination in the following exchanges: "Q. Are you aware of the extent of Greg Gill's involvement in directing the delivery of the goods by my client? A. I was not aware." (t 30.50-53) "Q. Mr Briscoe, I put it to you that what really happened was that you were aware of the arrangement with Greg Gill for these installations and that's why, on his instructions on 17 November, the day the installation at Ashfield finished, you were happy to write that cheque? A. No, that's not right." (t 32.45-55) 35 I accept that it was not specifically put to Mr Briscoe that he was the person who gave instructions to have the incorrect delivery address appear on the invoice. It was after Mr Briscoe had concluded his evidence that Mr Hobbs, during cross examination, explained that the reason the incorrect delivery address appeared on the invoice was because he was given this instruction by Mr Briscoe. 36 At that stage, had the plaintiff's Counsel been concerned that his client should be given the opportunity to explain whether or not he gave instructions to put the incorrect address on the invoice, he could have sought to recall Mr Briscoe or sought to have Mr Briscoe recalled and request the defendant's Counsel put that proposition to him and seek his explanation. Counsel for the plaintiff did not opt for either of these alternatives. This ground of appeal fails.

The objective evidence - Ground 8 37 The plaintiff submitted that the Magistrate failed to take into account or adequately take into account the objective evidence. 38 The objective evidence was an email from Peter Hobbs to Patrick Briscoe dated 13 October 2004, an email from Patrick Briscoe to Peter Hobbs dated 13 October 2004, the first defendant's invoice dated 20 October 2004, the first defendant's second invoice dated 10 November 2004, a photocopy of the plaintiff's Commonwealth Bank statement showing payment of cheque 004854 for $14,850 on 19 November 2004, a photo copy of the cheque butt 004854 of the plaintiff's cheque for $14,850 to the first defendant dated 17 November 2004, a fax from the plaintiff to the defendant dated 31 December 2004; the defendant's blank Rental Agreement; a drawing allegedly with the signature of "IRTV/Greg Gill stating IRTV approval Greg Gill", and Mr Peter Hobbs' selected diary notes. 39 In reaching his decision the Magistrate at 74.40-55: "All of the objective features in this matter, evidence in my view points to the matter occurring as I have found." 40 While the address shown on the invoice (being an entry appearing on a piece of the objective evidence) was the Bexley address, the Magistrate stated: "Much was made of the fact that on the invoices the address for delivery was shown as Mr Briscoe's retail address, 418 Forest Road, Bexley. Mr Hobbs signed one of those invoices on the 18th when he picked up the cheque. He said that he took no notice of what the delivery address shown on the invoice was, and I thought that was an honest answer, and consistent with the facts that he knew at that stage that the goods had already been installed." 41 This finding of fact does not exactly correspond with the delivery address shown on the invoice, the invoice being an objective piece of evidence. Not all of the objective evidence points to the matter occurring in the manner he found [my emphasis added]. It does not follow that there is an error of law. The Magistrate was aware that the address shown on the invoice was a live issue between the parties. On this issue, he accepted Mr Hobbs' evidence. Objective evidence such as labour charges being shown on the invoice was taken into account by the Magistrate. The plaintiff further submitted (Ground 10) that the Magistrate erred in failing to find that it was a term of the agreement between the plaintiff and defendants that the relevant goods be delivered to the plaintiff's commercial address (Bexley). There was evidence to the contrary from Mr Hobbs that the goods were to be delivered at other specified addresses. It was open to the Magistrate to accept Mr Hobbs' evidence. Hence, I do not consider these are matters for which leave ought to be granted nor do they amount to errors of law. 42 The plaintiff submitted that these findings were not based upon logical reasoning and were consistent with the Local Court Magistrate's pre-determination of the proceedings. The Magistrate when faced with two competing versions of events looked to the objective evidence and took this into account. This submission fails.

Adverse credibility finding - Ground 9 43 The plaintiff submitted that the Magistrate erred in finding that Mr Briscoe was not a credible witness firstly, on the sole basis of his judicial notice of rational commercial practices; and secondly, in the absence of evidence capable of justifying that finding. 44 The Magistrate made negative findings upon Mr Briscoe's credibility. His Honour stated (74.6-55): "It was put to Mr Briscoe in cross-examination that he was aware that those items included in the invoice a digital video recorder; 17 inch control monitor; and digital high release colour camera. Those items provided a closed TV security equipment for a retail shop. He said - and that he was told that, he said "not that I can recall." I was not impressed with that answer. He said that he did not have a conversation with Hobbs wherein he told Hobbs that no labour charges were to be included on the invoice. I do not accept Briscoe's evidence on that point. I am satisfied on the evidence of Hobbs that there was a discussion as to what was to go on the invoice and that in particular that that there were to be no labour charges and they could only be labour charges for installation, but no labour charges were to go on the invoice. I was not impressed with the way Briscoe gave evidence in relation to those matter, or for instance when he was asked a simple question, when did he become aware that the finance through Inrent had fallen through. He was asked that question by counsel and by myself three or four times. One would have expected the answer to be relatively simple to be given either by a reference to a particular date, or a particular month, or a particular time, or even that he did not know. He gave three or four answers, none of which came anywhere near answering the question he was asked. I am satisfied on the evidence, and it requires finding against Mr Briscoe on the question of credibility, that he was aware that these goods there to be installed at the Ashfield Farm Fresh. If, as he would maintain, the goods were to be delivered to his shop, his premises, I cannot believe that he would have handed over the cheque prior to the delivery of those goods, this being the very first time that he had had any dealings with the defendant. I could not understand his answer, which to me seemed to defy all logic, that for a supplier that he had not dealt with he said that he would pay before he got the goods." 45 Recently in CSR Ltd v Della Maddalena [2006] HCA 1 (2 February 2006) the High Court affirmed the approach adopted in Fox v Percy (2003) 214 CLR 188. In Fox v Percy the trial judge found in favour of the plaintiff who was seriously injured when her horse collided with a Volkswagen Kombi van. There was incontrovertible evidence that the vehicle was on the correct side of the road at the time of the collision and that there were 10 metre skid marks immediately behind it. The New South Wales Court of Appeal allowed an appeal by the defendant. 46 On appeal the High Court addressed the tension between the statutory obligations imposed on an appellate court on the one hand, and the restraint imposed by earlier judicial statements commanding deference to credibility assessments of trial judges. The High Court in Fox held that findings of fact by a trial judge, based on the credibility of a witness, may be set aside upon appeal where incontrovertible facts or uncontested testimony demonstrate that the judge's conclusions are erroneous or where it is concluded that the decision at the trial was glaringly improbable or contrary to compelling inferences in the case. 47 In CSR the High Court at [46] held: "A judge cannot, in his or her reasons, expound all of the considerations that influence the decision in hand "[T]ime and language do not permit exact expression" of every factor that has contributed to a judicial decision. However, trial judges in Australia know the common disapproval of appellate courts of attempts to render trial conclusions appeal-proof by expressed reliance on the demeanour and appearance of witnesses where that is unnecessary or inappropriate. They also know the scientific unreliability of many such assessments. They are aware of the general desirability of founding judicial conclusions (as far as possible) on rationality and logic." 48 This is not the case here. There were two competing versions of oral conversations between Briscoe and Hobbs. Hobbs said that Briscoe told him [Hobbs] not to include labour charges on the invoices. Objectively there were no labour charges on the invoice. Mr Briscoe in his affidavit at [16] and [21] was the one who raised usual commercial practices. The Magistrate adopted his terminology but disagreed with Mr Briscoe's view. Hence the Magistrate referred to the practice in his judgment. The Magistrate took into account Mr Briscoe's demeanour, the content of his answers and objective evidence to reach his conclusion as to Mr Briscoe's credibility. The Magistrate's conclusions were not erroneous, nor was the ultimate decision reached by the Magistrate glaringly improbable nor contrary to compelling inferences. This ground of appeal fails.

The Magistrate's other findings and the issues in dispute - Grounds 9 and 11 49 The plaintiff submitted that the Magistrate erred in finding that Patrick Briscoe was not a credible witness on the sole basis of the Magistrate's judicial notice of rational commercial practices and in the absence of evidence capable of justifying that finding on the following grounds. Firstly, that the Magistrate erred in failing to make any finding as to the legal relationship between the plaintiff and the first defendant; secondly, the Magistrate erred in making findings beyond the scope of the issues for determination as defined by the pleadings; thirdly, the Magistrate erred in making findings inconsistent with the defendants' admissions in evidence and pleadings; fourthly, the Magistrate erred in making findings beyond the scope of the case presented by the defendant's Counsel; and fifthly, the Magistrate erred in failing to understand the nature of the argument put by the plaintiff in its case against the defendant. [AS 9A-9D & 11]. 50 The Magistrate did not form his view on Mr Briscoe's credibility solely on the basis of taking judicial notice of rational commercial practices. The issues raised in the pleading were difficult to discern. The Magistrate gave adequate reasons for his decision. There is no error of law, nor should leave be granted.

Actual bias - Ground 12 51 The plaintiff submitted that the Magistrate pre-determined the outcome of the proceedings before hearing the full evidence and made his decision consistent with that prejudgment and without sufficient evidence upon which to base that decision in the face of opposing evidence and the absence of a material witness. The plaintiff does not allege reasonable apprehension of bias; he alleges actual bias. This is a very serious submission to make and one would have thought, not lightly made. 52 In Council of the Municipality of Burwood v Harvey (1995) NSWCA, 3 April 1995 Kirby J stated: "…a judicial officer observing the conventions of the Australian courts must conform to certain restraints which have been accepted as inherent in the judicial office and necessary to the manifestly neutral determination of controversy in a court of law. In a well-known passage in Jones v National Coal Board (1957) 2 QB 55 (CA), Denning LJ, at 64, chartered the limits by reference to the metaphor of the lay-out of a courtroom. Advocacy is for the bar table. The judicial officer sits on an elevated bench, not to promote a sense of self-importance, but to symbolise his or her removal from the fray. Such removal is designed to promote both the appearance and actuality of neutrality and independence of the parties which are the hallmarks of the judicial office:

'The judge's part in all this is to harken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate; and the change does not become him well.'" 53 Kirby J in Antoun v The Queen [2006] HCA 2 also said at [27] that in some circumstances strong and forthright remarks, especially where the judge is the sole judge of fact and law and the parties are represented by counsel able to respond with clarity and forthrightness, will not give rise to a reasonable apprehension of bias, and that he "would not want to say anything that needlessly mollycoddled candid judicial speech addressed to trained advocates". 54 In Slavin v Owners Corporation Strata Plan 16857 [2006] NSWCA 71 Giles JA stated at [8] - [11]: "As is made clear in Antoun v The Queen [2006] HCA 2, if the judge exhibits pre-judgment it does not matter that, at the time or in retrospect, the case for that judgment is strong: see at [2] and [23] per Gleeson CJ, [46]-[49] per Kirby J and [83]-[87] per Callinan J with whom Heydon J agreed. But the cases caution against too ready acceptance of disqualification applications, see in particular Re JRL; Ex parte CJL (1986) 161 CLR 342, and recognise that it is permissible, indeed preferable, that the judge express preliminary views to the parties so that they may deal with them. …

The formation of preliminary views is inevitable as a judge attends to the evidence and relates it to the issues for decision, and it is commonly in the interests of the parties and promotes the efficient resolution of their dispute that the views be made known, so that the parties can focus their submissions and respond to those views." 55 Throughout the hearing the issues in dispute were far from clear. That made the Magistrate's task a difficult one. The Magistrate in his judgment recorded that both parties were not well prepared. During the hearing His Honour tried to clarify the issues that were in dispute. Regrettably he was not assisted with clear, concise, articulate answers. The plaintiff referred to examples of what were meant to show the Magistrate's predetermination of the matter. The plaintiff submitted that when they are considered in their totality they establish actual bias on the part of the Magistrate. The Magistrate expressed a preliminary view (making a decision beneficial to the plaintiff by allowing him to rely on his statement of claim). The preliminary view was that if the plaintiff was successful on the factual situation that he would be successful in relation to the breach of contract claim and the Trades Practices Act claim. One example referred to by the plaintiff was when the Magistrate ruled that certain paragraphs of Mr Briscoe's affidavit were irrelevant. When cross examination of Mr Briscoe was taking place it became clear to the Magistrate that those paragraphs were indeed relevant to the issues in dispute and when that became apparent those paragraphs were reinstated. This seems to me to be a fair approach. 56 Another example referred to in the plaintiff's submissions is when the plaintiff's witness Mr Briscoe was being cross examined and the following exchange took place: "HIS HONOUR: Q. I'll just ask these questions. Where are the goods now? A. I don't know. Q. Well you own them? A. I haven't been sent the goods. That's why I cancelled the order. They haven't been supplied, I haven't signed the receipt of them. The order's still outstanding - well till I cancelled the order. I hadn't received the goods. The goods were to be delivered to John Briscoe-- Q. Look, you keep saying that. That's what this case is about. HAND: Your Honour, I think my client will be in a position to give evidence as to where the goods are. HIS HONOUR: Righto. Mr Hand, what - have you looked at your client's statement? CULLEN: Well your Honour, I must protest. HIS HONOUR: Well look, I'm going to have to decide this matter and it's going to be this man's word against this man. CULLEN: Well sir, you can't be the judge and the advocate. HIS HONOUR: Well I'm not being, but I can - in the interests - I'd do the same to your client. You haven't put to this man-- CULLEN: Well I object to this strenuously. HAND: I put to him the-- CULLEN: When there were objections on law sir, you had something to say to my friend about the objections he made, consequently he went back to the earlier part of the affidavit and he adopted your objections and as the evidence fell, unfortunately sir you were incorrect and - what you had to say was incorrect sir-- HIS HONOUR: I still don't - I still don't-- CULLEN: --and now sir you're being the advocate again and I ask you, with the greatest respect, to allow each of us to provide the case for the Court to decide upon. HIS HONOUR: But I've got to do justice between both parties. CULLEN: It's the evidence that's put before the Court. Your Honour has asked questions of the witness, not unreasonably. However, it's not-- HIS HONOUR: Yes, righto. HAND: Well I'm happy-- HIS HONOUR: No objection's taken. HAND: Well I'm happy-- HIS HONOUR: No, objection's taken." (t 33.28-58; 34.1-35) 57 This exchange does not reflect well on the plaintiff's advocate but nevertheless after this exchange, the plaintiff's Counsel did not request the Magistrate to recuse himself. The plaintiff's Counsel never requested the Magistrate to recuse himself during the entire proceedings. The Magistrate from time to time, and usually unsuccessfully, sought to elucidate what the issues in dispute were and asked questions from time to time. I have read the affidavits, the transcript and the judgment carefully. In my view the Magistrate did not prejudge the case. Nor did he demonstrate actual bias. The Magistrate, despite the difficulties encountered during the proceedings, carried out his role with remarkable patience and in the manner outlined by Kirby P in Harvey. 58 Leave to appeal is refused. The appeal is dismissed. The amended summons filed 11 July 2006 is dismissed. 59 Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendants' costs as agreed or assessed.

(1) An extension of time to file the appeal is granted.

(4) The amended summons filed 11 July 2006 is dismissed.

(5) The plaintiff is to pay the defendants' costs as agreed or assessed. *********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.