Court of Appeal (WA)|2013-06-18|Before: Pullin JA

RANKILOR -v- CIRCUIT TRAVEL PTY LTD [2013] WASCA 148 (18 June 2013)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : RANKILOR -v- CIRCUIT TRAVEL PTY LTD [2013] WASCA 148

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Citation : RANKILOR -v- CIRCUIT TRAVEL PTY LTD [2011] WADC 230

Practice and procedure - Appeal to District Court against decision of magistrate dismissed - Appeal against decision of District Court - Whether appellant denied natural justice in Magistrates Court - Whether appellant may raise grounds not relied on in District Court - Whether appellant may adduce evidence on appeal - Turns on own facts

Application to adduce additional evidence dismissed

Banque Commerciale SA, en liquidation v Akhil Holdings Limited [1990] HCA 11; (1990) 169 CLR 279

Caltex Australia Petroleum Pty Ltd v Commissioner of State Revenue [2000] WASCA 54; (2000) 22 WAR 299

Centronics Systems Pty Ltd v Nintendo Co Ltd [1992] FCA 584; (1992) 39 FCR 147

Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1

Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317

Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273

National Australia Bank Ltd v KDS Construction Services Pty Ltd (in liq) [1987] HCA 65; (1987) 163 CLR 668

O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310

O'Brien v Shire of Rosedale [1969] VicRp 81; [1969] VR 645

R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546

Rankilor v Circuit Travel Pty Ltd [2010] WADC 170

Rheem Australia Ltd v Collector of Customs (NSW) (1988) 78 ALR 285

Schwerin v City of Sale [1997] 2 VR 219

Shilkin v Taylor [2011] WASCA 255

SNF (Australia) Pty Ltd v Jones [2008] WASCA 121

Sullivan v Department of Transport (1978) 20 ALR 323

Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418

Total Gas Care Pty Ltd v Barry Bros Specialised Services Pty Ltd [2012] VSCA 303

University of Wollongong v Metwally [No 2] [1985] HCA 28; (1985) 59 ALJR 481

Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491

Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598

2 BUSS JA: The appellant appeals to this court against a decision by Davis DCJ. The relevant decision is her Honour's dismissal of the appellant's appeal to the District Court against Magistrate Bromfield's dismissal of the appellant's claim against the respondent after a trial in the Magistrates Court.

3 The appellant's claim was for breach of a contract pursuant to which the appellant participated in a 27-day group tour, described as a 'European Masterpiece Tour', of numerous European cities and historical sites. The cost of the tour was about $3,700. The appellant claimed damages of $10,000. The proceedings in the Magistrates Court were a 'minor case', as defined in s 26 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (the Act). The case was therefore subject to the minor cases procedure set out in pt 4 of the Act.

4 The relevant facts and circumstances, details of the decision of Magistrate Bromfield, the grounds of appeal before Davis DCJ and her Honour's reasoning in relation to them are set out in the reasons of Newnes JA (with which Pullin JA has expressed his agreement).

5 By s 32(3) of the Act, an appeal to the District Court against a judgment of a magistrate in a minor case may only be made on the following grounds:

(a) that the minor case was not within the jurisdiction of the Magistrates Court or was not a minor case; or

(b) that in dealing with the minor case there was a denial of natural justice; or

6 The appellant contended in her appeal before Davis DCJ that she had been denied natural justice in the proceedings before Magistrate Bromfield.

7 As Newnes JA notes in his reasons, the appellant appears to contend, in substance, before this court that Davis DCJ erred in that she should have found that there had been a denial of natural justice in the Magistrates Court. Also, as Newnes JA notes, the appellant appears to rely, in substance, on the following grounds:

the respondent was allowed to have two representatives at the bar table;
the appellant was not given sufficient time to look at the respondent's submissions on 23 May 2011;
the magistrate failed to take sufficient time to consider the evidence before delivering his decision;
the magistrate took into account irrelevant considerations in making his decision;
the magistrate refused to allow the appellant to adduce evidence in support of a claim in respect of the preceding 'British Panorama' tour;
the magistrate failed to give any weight to deficiencies in the respondent's discovery; and
the magistrate relied upon material not properly before him.

8 I agree with Newnes JA, for the reasons he gives, that grounds 1 and 2 fail.

9 The appellant asserted in relation to ground 3 that Magistrate Bromfield should have reserved his decision so that he 'could properly peruse all that had gone before him on [12 July 2011]'. She argued that it was 'neither reasonable nor practical' for the magistrate to deliver his decision immediately after the completion of the hearing. The appellant submitted, in effect, that she was denied natural justice as a result of the magistrate's failure to give proper consideration to the evidence and her contentions.

11 I agree with Newnes JA, for the reasons he gives, that ground 3 is without merit. I would not, however, reject the ground on the basis that, the ground not having been raised before Davis DCJ, it is too late to raise it now. It is unnecessary to decide whether ground 3 should be rejected on that basis.

12 The principles relating to the advancing of a new case on appeal are well-established.

13 An appellant is bound by the conduct of his or her case at trial. In University of Wollongong v Metwally [No 2] [1985] HCA 28; (1985) 59 ALJR 481, Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ said:

It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so (483). (emphasis added)

14 The substance of this statement was reiterated in Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 by Gibbs CJ, Wilson, Brennan and Dawson JJ (7 - 8):

To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards: see Suttor v Gundowda Pty Ltd ((1950) [1950] HCA 35; 81 CLR 418, at 438); Bloemen v The Commonwealth ((1975) 49 ALJR 219). (emphasis added)

15 The High Court returned to this issue in Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491. Mason CJ, Wilson, Brennan and Dawson JJ emphasised that a point cannot be raised for the first time on appeal 'when it could possibly have been met' by calling evidence at the trial (497) (emphasis added).

16 In Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598, Gleeson CJ, McHugh and Gummow JJ restated the applicable principles and elaborated upon their rationale [51] - [52]:

It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial (University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481 at 483; Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 8 - 9; Liftronic Pty Ltd v Unver (2001) 75 ALJR 867 at 875 [44]; Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 at 496 - 497; cf R v Birks (1990) 19 NSWLR 677 at 683-685). Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross-examination. Even when no question of further evidence is admissible, it may not be in the interests of justice to allow a new point to be raised on appeal, particularly if it will require a further trial of the action (Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 645 - 646). Not only is the successful party put to expense that may not be recoverable on a party and party taxation but a new trial inevitably inflicts on the parties worry, inconvenience and an interference with their personal and business affairs.

As Water Board v Moustakas ((1988) [1988] HCA 12; 180 CLR 491 at 498) makes clear, a point may be a new point even though it is within the pleadings or particulars. The pleadings and particulars are frequently decisive in determining whether a party is seeking to raise a new point on appeal. But they are not conclusive. To determine whether a party is raising a new point on appeal, it is 'necessary to look to the actual conduct of the proceedings' (Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 at 497) (emphasis added).

17 The juridical basis of these principles appears to derive, in part, from public policy considerations directed to ensuring finality in litigation and, in part, from the doctrine of estoppel by election in the conduct of litigation. However, to the extent that some aspects have their origin in estoppel by election, the relevant consideration is not that the other party is put in a worse position, but that he or she may have been put in a worse position. See Banque Commerciale SA, en liquidation v Akhil Holdings Limited [1990] HCA 11; (1990) 169 CLR 279, 284 (Mason CJ & Gaudron J).

18 However, the rule against a new point being raised for the first time on appeal is not absolute. In O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310, Mason J (Murphy, Aickin, Wilson & Brennan JJ agreeing) said '[i]n some cases when a question of law is raised for the first time in an ultimate court of appeal ... it is expedient in the interests of justice that the question should be argued and decided' (319). See also Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418, 438 (Latham CJ, Williams & Fullagar JJ); National Australia Bank Ltd v KDS Construction Services Pty Ltd (in liq) [1987] HCA 65; (1987) 163 CLR 668, 679 - 680 (Mason CJ, Brennan, Deane, Dawson & Toohey JJ); Moustakas (497); Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317 [151] (Hayne & Callinan JJ). This qualification to the rule has been applied by intermediate courts of appeal. See, for example, O'Brien v Shire of Rosedale [1969] VicRp 81; [1969] VR 645, 647 (Winneke CJ, Little & Menhennitt JJ); Rheem Australia Ltd v Collector of Customs (NSW) (1988) 78 ALR 285, 305 - 306 (Burchett J); Centronics Systems Pty Ltd v Nintendo Co Ltd [1992] FCA 584; (1992) 39 FCR 147, 189 (Beaumont & Burchett JJ); Caltex Australia Petroleum Pty Ltd v Commissioner of State Revenue [2000] WASCA 54; (2000) 22 WAR 299, 306 - 307 (McKechnie J, Pidgeon & Murray JJ agreeing). The qualification has been more readily applied where the judgment under appeal was not given after a trial. See Doherty v Murphy [1996] VicRp 86; [1996] 2 VR 553; Schwerin v City of Sale [1997] 2 VR 219; Total Gas Care Pty Ltd v Barry Bros Specialised Services Pty Ltd [2012] VSCA 303.

19 In Coulton, Gibbs CJ, Wilson, Brennan and Dawson JJ referred to the rule against raising a new point for the first time on appeal, the qualification to that rule and the earlier decisions of the High Court in Suttor and Komesaroff (7 - 8). Their Honours then said:

In our opinion, no distinction is to be drawn in the application of these principles between an intermediate court of appeal and an ultimate court of appeal (8).

20 It is plain, from the context, that this observation related to a new point being raised in an intermediate appellate court or an ultimate appellate court which was not taken at trial.

21 In the present case, the appellant filed her appeal notice on 30 December 2011. The respondent, by its solicitors, filed a notice on 25 January 2012 stating that it did not intend to take part in the appeal, and it would accept any order made by this court other than as to costs.

22 This election by the respondent, to abide the outcome of the appeal, was made before the appellant filed her grounds of appeal and her appellant's case. The respondent's election does not preclude the appellant from seeking to raise before this court an issue that was not taken before Davis DCJ. The respondent made the election unconditionally, except as to costs. In these circumstances, this court should not summarily reject the new issue unless it decides, in accordance with principle, that it is not in the interests of justice to permit the appellant to raise the new issue. This decision should be made without any predisposition against permitting the new issue to be raised because the respondent has elected not to appear at the hearing or otherwise participate in the appeal.

23 The complaint in ground 3 concerns Magistrate Bromfield's decision not to reserve his judgment for further consideration; that is, the ground concerns the performance of his judicial function. It is not concerned with an issue of fact or law that could have been, but was not, litigated between the parties at the trial.

24 I agree with Newnes JA, for the reasons he gives, that ground 4 fails.

25 The appellant asserted in relation to ground 5 that Magistrate Bromfield should have permitted her to adduce evidence in support of a claim in respect of the preceding 'British Panorama' tour.

27 I agree with Newnes JA, for the reasons he gives, that ground 5 is without merit. However, generally for the reasons I have given in the context of ground 3, I would not reject ground 5 on the basis that, the ground not having been raised before Davis DCJ, it is too late to raise it now. It is unnecessary to decide whether ground 5 should be rejected on that basis.

28 The appellant asserted in relation to ground 6 that Magistrate Bromfield should have given weight to alleged deficiencies in the respondent's discovery.

30 I agree with Newnes JA, for the reasons he gives, that ground 6 is without merit. However, generally for the reasons I have given in the context of ground 3, I would not reject ground 6 on the basis that, the ground not having been raised before Davis DCJ, it is too late to raise it now. It is unnecessary to decide whether ground 6 should be rejected on that basis.

31 The appellant asserted in relation to ground 7 that Magistrate Bromfield relied upon material not properly before him.

33 I agree with Newnes JA, for the reasons he gives, that ground 7 is without merit. However, generally for the reasons I have given in the context of ground 3, I would not reject ground 7 on the basis that, the ground not having been raised before Davis DCJ, it is too late to raise it now. It is unnecessary to decide whether ground 7 should be rejected on that basis.

The application to adduce additional evidence

34 I agree with Newnes JA, for the reasons he gives, that the appellant's application to adduce additional evidence should be dismissed.

35 It follows that, in my opinion, the application to adduce additional evidence should be dismissed and the appeal should be dismissed.

36 NEWNES JA: This appeal arises out of proceedings in the minor cases jurisdiction of the Magistrates Court. In those proceedings, the appellant claimed that the respondent had breached its contract with the appellant in respect of a 27 day European tour which the appellant undertook in October 2008. The appellant claimed damages of $10,000, the statutory maximum recoverable in the minor cases jurisdiction. The claim was dismissed.

37 The appellant appealed to the District Court, alleging that she had been denied natural justice in the Magistrates Court. The appeal was dismissed by Davis DCJ. The appellant now appeals to this court against that decision. An application by the appellant for leave to adduce additional evidence on the appeal has been referred to the hearing of the appeal.

38 I should note that while the respondent appeared by counsel before the primary judge in opposition to the appeal to the District Court, the respondent took no part in the appeal to this court.

39 I would dismiss the appeal for the reasons which follow.

40 The respondent entered into a contract with the appellant to provide what was described as a 'European Masterpiece Tour' of 27 days duration, at a cost of approximately $3,700. It was, in essence, a coach tour of a number of famous European cities and historical sites.

41 It is evident that the tour which took place fell well short of the appellant's expectations. The appellant had a number, indeed a large number, of complaints about it. Many of them, it must be said, appear to have been of a relatively minor nature that a lot of other travellers may not have found particularly troublesome. Be that as it may, the appellant considered that the perceived shortcomings were such that the respondent was in breach of its contract with her and commenced proceedings in the minor cases jurisdiction of the Magistrates Court seeking damages of $10,000. I note in passing that the damages claimed are almost three times the cost of the tour.

42 The claim initially went to trial before Magistrate Boothman who, on 19 July 2010, dismissed it. That decision was the subject of an appeal by the appellant to the District Court. The appeal was allowed. The decision of the magistrate was set aside and the action was remitted to the Magistrates Court for retrial before a different magistrate: Rankilor v Circuit Travel Pty Ltd [2010] WADC 170.

43 The retrial took place before Magistrate Bromfield over three days on 22 February, 23 May and 12 July 2011. Neither party was legally represented, legal representation in the minor cases jurisdiction being permitted only by leave of the court: Magistrates Court (Civil Proceedings) Act 2004 (WA) (the Act), s 30. At the end of the third day, on 12 July 2011, his Honour dismissed the appellant's claim. He delivered oral reasons for his decision. It is unnecessary to canvass his Honour's reasons in any detail. He concluded that the appellant had failed to establish that the respondent was in breach of its contract with her. His Honour found that a number of the complaints had not been made out and that others, relating to the substitution of events or facilities, fell within the terms of the contract which permitted such substitution (ts 76).

44 The appellant was dissatisfied with the magistrate's decision but no general right of appeal was available to her. An appeal can only be brought against a decision in the minor cases jurisdiction on the grounds of jurisdictional error or a denial of natural justice: s 32 of the Act.

45 The appellant appealed to the District Court on the ground that she had been denied natural justice. The primary judge found it difficult to discern the precise nature of the appellant's case from the grounds of appeal, which her Honour described as 'vague, unnumbered, not properly particularised and very long' [19]. Nor, her Honour found, did it emerge clearly from the 66 pages of submissions filed by the appellant. Ultimately, however, the primary judge concluded that the denial of natural justice was based on the following six grounds:

During the first day of the hearing, 22 February 2011, two people from [the respondent] attended court, Ms Sara Toman and Ms Mary Catsandonis, and sat at the bar table.
At the end of the first day the magistrate referred the parties to a specific case, Insight Vacations Pty Ltd v Young [2010] NSWCA 137, inviting both parties to consider that judgment. [The appellant] argued that the magistrate ought not to have drawn this case to the parties' attention during the trial, but rather should have raised it before the commencement of the trial.
[The appellant] was given limited time to look at [the respondent's] submissions on that decision of Insight Vacations Pty Ltd v Young, after those submissions were provided to her on the morning of the second day of the hearing on 23 May 2011.
The magistrate was overly concerned with the issue of time, particularly on 12 July 2011 when he 'rushed' to finish the trial.
During the hearing on 12 July 2011 the magistrate failed to make sure that [the respondent's] representative, who appeared by audio-link, was alone after noises were heard on the audio-link.
When the magistrate dismissed her claim, he relied on irrelevant considerations and then, while he agreed with her on a number of issues, cast them all aside.

46 The primary judge canvassed each of those grounds of appeal. On the first ground, her Honour noted that the appellant had asked for Ms Catsandonis to be removed from the bar table but the magistrate had permitted her to remain, having ascertained that she was not a witness in the case. Ms Catsandonis did not take part in the proceedings, the only spokesperson for the respondent being Ms Toman. The primary judge found that the presence of Ms Catsandonis had not caused the appellant any disadvantage or discomfort and there was no denial of natural justice.

47 Her Honour found there was no merit in the second ground, pointing out that a judicial officer was entitled to draw the parties' attention to a relevant case at any point in the proceedings.

48 In relation to the third ground, the primary judge noted that when asked by the magistrate on the second day of the hearing whether she had had the opportunity to read the respondent's submissions, the appellant said she had only had limited time but she was in a position to comment on the main aspects of them. Her Honour also noted that the submissions were provided to the appellant on the morning of the second day of the hearing, on 23 May 2011, but the trial did not conclude until late on the third day, on 12 July 2011. The appellant could have made any further submissions on 12 July 2011. Her Honour found there was no denial of natural justice.

49 The primary judge concluded there was no substance in the fourth ground. Having reviewed the transcript of the hearing before the magistrate, her Honour found that whilst the magistrate was concerned to try to complete the case within the time allocated to it in order to avoid it being adjourned again part-heard, there was nothing to indicate that this had precluded Ms Rankilor from presenting her case as she wished. On the contrary, the magistrate had encouraged her to take her time.

50 The fifth ground of appeal arose out of arrangements that had been made on the third day of the hearing to enable the respondent's representative on that occasion, Mr Hearne, to appear by video-link. During Mr Hearne's cross-examination of one of the appellant's witnesses, background noise became evident at Mr Hearne's end. In response to a query from the magistrate, Mr Hearne said there was no-one in the room with him but that the noise was coming from a meeting room next to the room he was in. He left the room briefly to ask the persons next door to reduce the noise. The primary judge found that the noise had not affected the witness's evidence or the appellant's ability to present her case, and that the magistrate had acted appropriately in the circumstances.

51 On the final ground of appeal, the primary judge observed that this ground, as explained in more detail in the appellant's submissions, was in truth a complaint that the magistrate had made adverse findings of fact against the appellant. That, as her Honour observed, did not give rise to a denial of natural justice and no appeal lay from errors of fact - if indeed the magistrate had made errors of fact.

52 The primary judge concluded that the appellant had not been denied natural justice and the appeal must therefore be dismissed.

53 The grounds of appeal are not in conventional form and simply constitute headings which are expanded upon in the written submissions. However, I understand the appellant to contend, in substance, that the primary judge erred in that she should have found there was a denial of natural justice on the following grounds:

the respondent was allowed to have two representatives at the bar table;
the appellant was not given sufficient time to look at the respondent's submissions on 23 May 2011;
the magistrate failed to take sufficient time to consider the evidence before delivering his decision;
the magistrate took into account irrelevant considerations in making his decision;
the magistrate refused to allow the appellant to adduce evidence in support of a claim in respect of the preceding 'British Panorama' tour;
the magistrate failed to give any weight to deficiencies in the respondent's discovery; and
the magistrate relied upon material not properly before him.

54 I have mentioned that the case was brought under the minor cases procedure of the Magistrates Court. It is necessary to say something about that procedure. It is evident that the minor cases procedure is intended to provide a speedy, informal and inexpensive process for the resolution of claims not exceeding $10,000. To that end, the Act provides that the court is to act with as little formality as it thinks reasonable and is not bound by the rules of evidence but may inform itself as it thinks fit: s 29(3), (4). Unless the court otherwise directs, all proceedings are to be held in private (s 29(1)) and the parties are not entitled to legal representation (s 30). Ordinarily, the only costs allowable to a successful party are court and service fees, and the costs of enforcing a judgment: s 31.

55 An unsuccessful party has no right of appeal on the merits. Section 32 of the Act provides that an appeal against a judgment in a minor case may only be made on the grounds that:

(a) the case was not within the jurisdiction of the court or was not a minor case;

(b) in dealing with the minor case there was a denial of natural justice; or

56 Only the second of those grounds, a denial of natural justice, is relied upon by the appellant.

57 It is trite law that the principles of natural justice require that a party be given a reasonable opportunity to present their case. However, what is necessary to satisfy that requirement in a particular case cannot be determined in the abstract but only in the context of the case. Thus, as Brennan J pointed out in J v Lieschke [1987] HCA 4; (1987) 162 CLR 447, while the principles of natural justice apply to courts:

That is not to say that the content of the principles of natural justice to be applied by a court take no account of the nature of the jurisdiction to be exercised. The nature of the proceedings, the powers to be exercised and the prescribed rules of procedure may affect the extent to which a plenary right to be heard may be qualified, even in curial proceedings. (456)

58 See also, for example, R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546, 552-553; Koia v West [1985] HCA 81; (1985) 159 CLR 550, 584 - 585. The requirements of natural justice in this case are therefore to be viewed in the context of the minor case procedure of the Magistrates Court.

59 It is also important to bear in mind that while the appellant was entitled to a reasonable opportunity to present her case, the court was not required to undertake the 'impossible task' of ensuring that the appellant took the best advantage of the opportunity: see Sullivan v Department of Transport (1978) 20 ALR 323, 343.

60 Against that background, it is convenient to take each of the grounds of appeal identified above in turn.

61 In support of this ground, the appellant essentially reiterated the submissions she had put to the primary judge. So far as it emerged from her submissions, the appellant's complaint seemed to be two fold: that she was not given the opportunity to have someone else at the bar table with her and that it was 'intimidating' to have two representatives of the respondent at the bar table. It is not suggested, however, that the appellant ever sought to have another person with her at the bar table. Nor, as the primary judge observed, is it apparent how the appellant was, or indeed could have been, prejudiced by the presence of two representatives of the respondent at the bar table. The primary judge correctly found there was no denial of natural justice.

62 In her submissions under this ground, the appellant also raised what was ground 5 before the primary judge, namely, that she had been denied natural justice because the magistrate had failed to take appropriate action in relation to the noise which occurred when Mr Hearne was cross-examining one of the appellant's witnesses on 23 July 2011. The appellant's complaint about the incident appeared to be, first, that the witness may have been distracted and, secondly, that it was unfair for Mr Hearne to have someone assisting him. The first is entirely speculative and the second is contrary to Mr Hearne's statement, which the magistrate was entitled to accept, that Mr Hearne was alone in the room and the noise was coming from an adjacent room.

63 The primary judge correctly found that the magistrate had acted appropriately and there had been no denial of natural justice.

65 As the primary judge noted, whilst the magistrate did not order that written submissions be filed in relation to Insight Vacations v Young, the respondent filed written submissions on 19 May 2011, dealing not only with Insight Vacations v Young but also with other aspects of the appellant's claim. However, a copy of the respondent's submissions was not provided to the appellant until the morning of the resumption of the hearing on 23 May 2011. It appears the trial was adjourned for some 15 minutes or so to enable the appellant to read the submissions. Upon the resumption of the hearing, the appellant told the magistrate that although she had only had limited time to read the submissions, she was in a position to comment on the main aspects of them. The appellant did not seek any further opportunity to consider or comment on them that day. Nor did she seek to address them further on the resumption of the trial on 23 July 2011. There was, as the primary judge found, nothing to suggest that the appellant was denied a sufficient opportunity to consider and comment on the submissions.

No error has been made out. This ground must be rejected.

66 The appellant contends that the magistrate ought to have reserved his decision so that he 'could properly peruse all that had gone before him on [12 July 2011]', submitting that it was 'neither reasonable nor practical' for the magistrate to deliver his decision immediately after the completion of the hearing. The appellant submits, in effect, that she was denied natural justice by the failure of the magistrate to give the evidence proper consideration.

67 This is not a ground of appeal raised before the primary judge. In my view, it is too late to raise it now. In Metwally (No 2) v University of Wollongong (1985) 60 ALR 68; (1985) 59 ALJR 481, 483, the High Court said:

It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

68 In Coulton v Holcombe [1986] HCA 33; (1986) 65 ALR 656, 661, the High Court referred to the importance of this principle in light of the public interest in:

[T]he finality of litigation, the difficulty of inducing an appeal court to consider new facts, the undesirability of encouraging tactical decisions not to present an issue at first instance: keeping it in reserve for appeal; and the need for vigilance to avoid injustice to a party having to meet new facts and new issues of law for the first time at the appeal court (8).

69 The principle applies both to points which were not taken at trial and also to the different stages of the appellate process: see Coulton v Holcombe, 660 - 661.

70 The appellant has not established that there are any exceptional circumstances which would justify allowing her to raise this ground for the first time on the appeal to this court. No explanation has been provided for her failure to raise it before the District Court. The respondent, which was represented in the District Court, did not have the opportunity to respond to it then and it has not participated in this appeal. It would appear to have had no notice of it. The appeal notice was filed on 30 December 2011 and the notice of the respondent's intention, stating that it did not intend to participate in the appeal, was filed on 25 January 2012. The appellant's case, containing the grounds of appeal, was filed a month later, on 20 February 2012. Presumably it was not served on the respondent in light of the prior notice of the respondent's intention not to participate in the appeal.

71 If this ground was sought to be raised by the appellant, it could and should have been raised before the primary judge. It is not appropriate that the point be raised for determination for the first time at this stage.

72 In any event, the ground is without merit. Nothing has been advanced by the appellant from which it might reasonably be inferred that the magistrate failed to give the case proper consideration. No such inference is capable of arising merely because the magistrate delivered his decision immediately. It is by no means uncommon for a court to deliver its decision immediately after the completion of the hearing. Indeed, where that can be done it is clearly desirable that it should be done in order to avoid the inevitable anxiety and uncertainty experienced by parties awaiting a reserved decision. This case was not particularly lengthy or complex and turned essentially on issues of fact. There was no reason the magistrate could not, and good reasons why in the minor cases jurisdiction he should, deliver his decision immediately.

73 Nor, contrary to what I understand to be the appellant's submission, is such an inference capable of arising because in his reasons for decision the magistrate did not refer to all of the evidence led in the proceedings or all of the submissions made by the appellant. It was not necessary that he do so. The function of reasons is to provide procedural fairness to a litigant who is entitled to know why he or she has been successful or unsuccessful, and to allow an appeal court to determine whether the decision was based on an appealable error. The reasoning process which led to the result must be disclosed with sufficient certainty to achieve those ends: Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [27]; SNF (Australia) Pty Ltd v Jones [2008] WASCA 121 [32]. The magistrate's reasons were sufficient to do so.

74 It is, in fact, evident from the appellant's submissions that this is in substance simply an attack on findings made by the magistrate adverse to the appellant. The appellant plainly believes that had the magistrate spent more time considering the case he would not have come to the conclusion that he did but, on the contrary, would inevitably have found in her favour. The errors alleged by the appellant do not reflect a lack of consideration of the evidence by the magistrate; rather, they simply reflect the appellant's dissatisfaction with findings his Honour made on the merits.

76 The appellant filed lengthy written submissions, and supplemented those with oral submissions, in support of the contention that the primary judge had failed to have regard to what are said to be numerous errors of fact or law made by the magistrate. It is unnecessary to traverse this ground in any detail. Much of what was advanced by the appellant was concerned not with the magistrate's reasons for decision but with matters raised by his Honour during the course of the hearing. So far as it went to the magistrate's decision, it was, as the primary judge correctly identified [54], not an allegation that the appellant did not have a proper opportunity to present her case but simply an attack on the merits of particular findings made by the magistrate. There was nothing which was capable of making out a denial of natural justice. This ground must be rejected.

77 Under this ground it is contended that the primary judge should have found that the appellant was denied natural justice in the Magistrates Court because the magistrate refused to hear her claim in respect of the 'British Panorama' tour.

78 This, however, is not a ground which was raised before the primary judge. For the reasons I gave in relation to ground 3, it is too late to raise it in this court.

79 In any event, I do not consider that the magistrate erred in refusing to hear a claim in respect of the 'British Panorama' tour. Whilst the application in the minor cases jurisdiction is long and convoluted, there is nothing in it to suggest that the 'British Panorama' tour was part of the appellant's claim in the proceedings. While the appellant complained of alleged confusion in her transfer to the 'European Masterpiece Tour' after the completion of the 'British Panorama' tour, her claim in the proceedings in the Magistrates Court was clearly enough identified as being in respect of the 'European Masterpiece Tour'. It appears from the magistrate's reasons that the appellant subsequently sought to expand the claim to include the 'British Panorama' tour but in the exercise of his discretion his Honour refused to permit it to be added (ts 72). I am not persuaded that he erred in doing so.

81 The appellant says that the primary judge failed to deal with this ground of appeal. It relates to certain emails which had been sent by the respondent's Australian office to its office in Switzerland regarding the appellant's complaints about the tour. Parts of the copies produced on discovery and put into evidence by the respondent had been redacted on the basis that they were not relevant to the appellant's claim. During the course of the trial, the appellant obtained unredacted copies and sought to put them into evidence. The respondent says that the magistrate failed to have regard to the respondent's failure to discover the emails in an unredacted form and he also failed to have regard to the unredacted copies when they were produced by the appellant.

82 There was, however, nothing in the appellant's grounds of appeal in the District Court, or in her lengthy written submissions in support of that appeal, which raised these issues. The primary judge did not deal with them because they were not before her. For the reasons I gave in relation to ground 3, it is too late to raise them now.

83 In any event, having read the unredacted emails I am not satisfied that the redacted parts were material to the issues in the litigation. No prejudice could be caused to the appellant because they were not taken into account. Nor was the respondent's discovery deficient because the emails were redacted. In any event, the appellant had unredacted copies at the trial.

85 This ground relates to statements alleged to be contained in the respondent's defence quoting responses provided in some of the 85 questionnaires completed by other participants in the tour after the tour had been completed. (In fact, the passages from the questionnaires do not appear to be contained in the respondent's defence but in pre-action correspondence with the appellant.) As I understand the appellant's complaint, it is that the magistrate should have disregarded the questionnaires entirely, as they had not been on the respondent's list of evidence (form 36) or in their discovered documents, and the information in them was intended to be only for quality control purposes by the respondent.

86 Again, this is not a matter raised in the appellant's grounds of appeal in the District Court and accordingly it was not a matter considered by the primary judge. For the reasons I gave in relation to ground 3, it is too late to raise it in this court. In any event, there is nothing in the reasons for decision of the magistrate to suggest that he had regard to anything contained in the questionnaires.

The application to adduce additional evidence

88 The appellant has applied to adduce additional evidence on the appeal. No such application was made to the primary judge. The material the appellant now seeks to have admitted consists of the five unredacted emails, several emails between the appellant and the respondent after the completion of the proceedings in the Magistrates Court, and, perhaps somewhat paradoxically, the 85 questionnaires referred to above. Apart from the post-hearing emails, all of that material was in the appellant's possession at the time of the trial.

89 It is only in 'exceptional circumstances' that this court may give leave for evidence to be admitted on appeal which was not before the District Court: s 42(3)(c), read with s 42(4) of the Act. As this court pointed out in Shilkin v Taylor [2011] WASCA 255 [68], it is not helpful to attempt to describe what would constitute 'exceptional circumstances' in this context. The variety of circumstances which might arise is inexhaustible and restating the statutory test in different words would serve no useful purpose. It is sufficient to say that in this case no exceptional circumstances have been made out.

90 I have dealt with the unredacted emails above. The post-hearing emails do not deal with any substantive issue in the proceedings. In relation to the questionnaires, there is no explanation as to why the appellant did not put them into evidence at the trial. Copies of the questionnaires were provided to her more than two months before the trial commenced. It is, I think, to be inferred that at the time of the trial the appellant considered that they would not have advanced her case. Having read the questionnaires, I do not find it difficult to see why she might have reached that view. To the extent they may have been relevant at all, they would appear, on balance, to be quite unhelpful to the appellant's case. Be that as it may, the fact that they were deliberately not led at trial weighs heavily against their admission on appeal: CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 [116].

91 In any event, ordinarily new evidence will not be admitted on appeal unless it would have led to a different outcome if it had been put into evidence at trial: see CDJ v VAJ [111]; Shilkin v Taylor [66] - [67]. I do not consider the questionnaires would have led to a different outcome.

93 In my view, none of the grounds of appeal have any merit. I would:

(a) dismiss the application to adduce additional evidence; and

Court (Civil Proceedings) Act 2004

RANKILOR -v- CIRCUIT TRAVEL PTY LTD [2013] WASCA 148 (18 June 2013)

At a glance

Court

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Judgment (134 paragraphs)

RANKILOR -v- CIRCUIT TRAVEL PTY LTD [2013] WASCA 148 (18 June 2013)

Legislation Cited (1)

Cases Cited (23)