Ethnic Business Awards Pty Ltd v George Jaksic trading as GeoGraphics Group

1. [1]

   HER HONOUR: By summons filed 17 September 2015, the first and second plaintiffs seek firstly, leave to appeal under s 40(2) of the Local Court Act 2007 (NSW) from the whole of the interlocutory decisions of His Honour Magistrate Bradd dated 2 September 2015 refusing to hear their disqualification application and/or disqualify himself from any further involvement in the proceedings on the grounds of apprehended bias, and case management orders for requiring the further service of evidence and setting down the matter for hearing; secondly, that the case management orders be set aside; and finally, that the proceedings be remitted to the Local Court for case management by a judicial officer other than Magistrate Bradd. The parties have agreed to a stay of the case management orders pending the outcome of this appeal.

2. [2]

   The first plaintiff is Ethnic Business Awards Pty Ltd (“Ethnic Business Awards”) who is the first defendant in the Local Court proceedings. The second plaintiff is Jascom International Pty Ltd (“Jascom International”) who is the second defendant in the Local Court proceedings. The defendant is George Jaksic trading as GeoGraphics Group (“Mr Jaksic”) who is the plaintiff in the Local Court proceedings. For convenience I shall refer to Ethnic Business Awards and Jascom International as “Ethnic Business Awards” and to Mr Jaksic by name. At the hearing of this appeal, Ethnic Business Awards was represented by Mr O’Neill of counsel. Mr Jaksic was represented by Mr Mack of counsel. I shall refer to Magistrate Bradd as “the Magistrate”. Where other Magistrates presided I shall refer to their surnames.

3. [3]

   Ethnic Business Awards relied on two affidavits of its solicitor, Tatijana Hudap, dated 17 September 2015 and 30 September 2015 (Ex A). Tapes of the Local Court proceedings that took place on 28 July 2015 and 2 September 2015 were played in this Court (Ex B). The parties produced an agreed written copy of the portions of what was said on the tapes which did not appear in the transcripts.

Appeal of an interlocutory decision of a Magistrate

1. [4]

   Section 40(2) of the Local Court Act provides that a party who is dissatisfied with an order as to costs or an interlocutory judgment of the Local Court may appeal to the Supreme Court, but only by leave of the Supreme Court.

2. [5]

   Section 41(1) of the Local Court Act provides that this Court may determine an appeal either (a) by varying the terms of the judgment or order, or (b) by setting aside the judgment or order, or (c) by setting aside the judgment or order and remitting the matter to the Local Court for determination in accordance with the Supreme Court’s directions, or (d) by dismissing the appeal.

Leave to appeal

1. [6]

   Counsel for Ethnic Business Awards submitted whether leave to appeal is required is not clear, since the Magistrate’s decisions were arguably final because his Honour reached a final conclusion that he should not disqualify himself. Thus, according to Ethnic Business Awards this appeal constitutes a denial of procedural fairness and an error of law falling within s 39 of the Local Court Act (appeal on a question of law as of right).

2. [7]

   In Barakat v Goritsas (No 2) [2012] NSWCA 36 at [64], so far as grants of leave to appeal involving an issue of apprehended bias are concerned, the Court of Appeal observed that “it will frequently be appropriate to grant leave to appeal, assuming the challenge is not patently untenable and where a long and costly trial would be avoided if the decision below were incorrect”.

3. [8]

   However, the Magistrate in the Local Court has determined that he will not preside over the trial so this is not the situation where a long and costly trial will be avoided. Nevertheless, this appeal raises important issues concerning practice, procedure and, significantly, the requirement for procedural fairness in the Local Court. These are matters of general application.

4. [9]

   Accordingly, it is my view that while the Magistrate’s decisions are interlocutory in nature, leave to appeal should be granted.

The proceedings in the Local Court

1. [10]

   By statement of claim dated 24 October 2014, Mr Jaksic seeks payment of fees he says he is owed in respect of printing services he allegedly provided to Ethnic Business Awards in 2013. By amended defence dated 2 April 2015, Ethnic Business Awards denies that Mr Jaksic is entitled to those fees. Ethnic Business Awards also claims a set off pursuant to s 21 of the Civil Procedure Act 2005 (NSW). I shall deal with the hearing and the directions hearings in chronological order.

2. [11]

   On 18 March 2015, the proceedings were set down for a two day hearing commencing 25 June 2015. On 19 May 2015, Magistrate Keogh confirmed this hearing date at a readiness hearing in the absence of Mr Jaksic.

3. [12]

   The approach that I will adopt is to take into account that the Magistrate’s remarks were made in the context of a busy Magistrate’s Court so my focus should be upon the substance of what the Magistrate said and did. Any other approach would impose an intolerable burden on magistrates: see Acuthan v Coates (1986) 6 NSWLR 472; (1986) 24 A Crim R 304 per Kirby P at 479.

The hearing set down for 25 and 26 June 2015

1. [13]

   On 25 June 2015, the first day of the hearing commenced before the Magistrate. Mr Jaksic failed to appear at Court. On that day, Ethnic Business Awards made an oral application for the proceedings to be dismissed. It relied on an affidavit of its solicitor, Ms Hudap, dated 25 June 2015, which outlined a brief procedural history, the non-attendance of Mr Jaksic at the readiness hearing on 19 May 2015, communications between Ethnic Business Awards and Mr Jaksic about his health both indirectly and via his former barrister and

2. [14]

   The Magistrate adjourned the hearing to the next day. In doing so, he said:

3. [15]

   On the next day, 26 June 2015, the hearing before the Magistrate resumed. As foreshadowed in the above letter, Mr Jaksic did not appear at Court. The Magistrate stated:

4. [16]

   When the Magistrate said “I”, the first person pronoun, he was perhaps using loose language which conveyed the impression that he had personally contacted Mr Jaksic by telephone and email. The proceedings were adjourned to a directions hearing on 28 July 2015.

28 July 2015 – directions hearing

1. [17]

   On 28 July 2015 at 10.00 am, these proceedings came before the Magistrate for directions. On this occasion Ethnic Business Awards was represented by alternate counsel, Mr N Kirby. Mr Jaksic did not appear. The Magistrate informed counsel for Ethnic Business Awards that Mr Jaksic remained unwell and that the proceedings would again be adjourned. His Honour said:

2. [18]

   This time the Magistrate used the plural personal pronoun “we”, indicating that the contact may not have been personally made by the Magistrate. The exchange continued:

3. [19]

   Before the matter was adjourned, counsel for Ethnic Business Awards made an oral application for the Magistrate to disqualify himself. That application was refused. Counsel for Ethnic Business Awards then foreshadowed that this application may be renewed at the next directions hearing on 2 September 2015. The exchange was as follows:

4. [20]

   At 4.13 pm on 28 July 2015, the solicitors for Ethnic Business Awards received a fax from the Local Court addressed to Ms Hudap attaching a medical certificate of Dr Tringali. According to the fax cover sheet accompanying the medical certificate, the medical certificate had been provided to the Local Court at Level 4, Downing Centre, Sydney at 2.00 pm on 28 July 2015 by Mr Joseph Liebtaker. The medical certificate was dated the same date and addressed “To Whom It May Concern”. It stated that because Mr Jaksic had had a reconstruction of a neuropathic bone in his right foot for which he had been hospitalised for 36 days, Mr Jaksic was unable to walk as his right leg was in a cast and Mr Jaksic also had severe diabetic complications including eye complications. The medical certificate concluded that Mr Jaksic was “unfit for court duties” and was undergoing a rehabilitative care program. [Ex A, pp 141-2]

2 September 2015 – directions hearing

1. [21]

   On 2 September 2015, the proceedings were again listed for directions before the Magistrate. It is fair to say that the relationship between the Magistrate and counsel had been deteriorating with each hearing but at this directions hearing it got worse.

2. [22]

   This time, Mr Jaksic appeared at Court. Mr O’Neill appeared for Ethnic Business Awards. At the outset of this directions hearing counsel for Ethnic Business Awards sought to make an application that the Magistrate disqualify himself for apprehended bias. He sought to rely on the affidavit of Ms Hudap dated 1 September 2015 as well as written submissions. The Magistrate declined to accept these documents. The following exchanges took place.

3. [23]

   Nevertheless, counsel for Ethnic Business Awards persevered with his oral submissions:

4. [24]

   While counsel for Ethnic Business Awards was making oral submissions, the Magistrate left the bench. The matter was adjourned to 10 February 2016.

5. [25]

   The Magistrate made the following case management orders:

6. [26]

   I make three observations as to what took place at this directions hearing. Firstly, the application for dismissal of proceedings for want of prosecution was foreshadowed but no actual notice of motion had been filed; secondly, the Magistrate clarified that he had not directly spoken to Mr Jaksic; and finally, the Magistrate indicated that was not presiding over the next hearing.

7. [27]

   Further, I observe that on the second day of the hearing (26 June 2015), the Magistrate had indicated that he (which he later clarified as a member of staff) had been in contact by telephone and email. At the next directions hearing on 28 July 2015, the Magistrate also indicated that he had received emails and had his staff call Mr Jaksic. Those emails were never produced to Ethnic Business Awards. As previously stated, a medical certificate dated 28 July 2015 was faxed to the solicitors for Ethnic Business Awards, albeit after the directions hearing had concluded. In fairness, the transcripts do not disclose the number of communications between the Magistrate’s staff or their contents. It may be that the Magistrate again used loose language which conveyed the impression that more communications had passed between Mr Jaksic and the Magistrate’s staff than actually had.

8. [28]

   Finally, I have listened to the audio recordings of the hearings on 28 July 2015 and 2 September 2015. These recordings reveal the Magistrate’s tone was overbearing in his exchanges with counsel.

Grounds of appeal

1. [29]

   Ethnic Business Awards relies on the following grounds of appeal which can be summarised as follows:

   1. (1)

      The Magistrate denied Ethnic Business Awards procedural fairness by failing to hear his application that he disqualify himself on the grounds of apprehended bias; and by failing to give reasons for his decision (grounds 1 and 2).

   2. (2)

      The Magistrate erred in refusing to uphold Ethnic Business Awards’ application for apprehended bias (ground 3).

   3. (3)

      The Magistrate’s case management orders were made in error on the basis that he should have disqualified himself for apprehended bias (ground 4).

   4. (4)

      Further and in the alternative, the Magistrate erred in failing to hear Ethnic Business Awards’ submissions in respect of the case management orders (ground 5).

   5. (5)

      The Magistrate failed to consider the mandatory and discretionary considerations required of him by the Civil Procedure Act (ground 6).

2. [30]

   I will deal firstly with whether Ethnic Business Awards was denied procedural fairness (grounds 1, 2 and 5). I will then deal with apprehended bias (ground 2 and 3) and compliance with the Civil Procedure Act (ground 6) if necessary.

Procedural fairness

1. [31]

   On 2 September 2015, counsel for Ethnic Business Awards submitted that it had attempted to make the disqualification application from the outset of the hearing when Mr O’Neill was told to “sit down” by the Magistrate, as foreshadowed by Mr Kirby at the 28 July 2015 hearing, and so according to Ethnic Business Awards, it could hardly have been a surprise when the application was formally renewed.

2. [32]

   Ethnic Business Awards submitted that the Magistrate refused to accept both the affidavit of Ms Hudap sworn 1 September 2015 and the submissions in support of the application and that it was entitled at the very least to make the application and be heard. Had it been heard, the disqualification application could have been determined in accordance with law. Ethnic Business Awards further submitted that it was entitled to be provided with an explanation for the refusal from the Magistrate.

3. [33]

   Ethnic Business Awards also submitted that the case management orders affect the rights of the parties, in particular its rights, and it was not given an opportunity to be heard in relation to the making of the orders. According to counsel for Ethnic Business Awards, the current orders allow Mr Jaksic to propound a new case through fresh evidence and require Ethnic Business Awards to respond to that fresh evidence and prepare again for a trial. Ethnic Business Awards also submitted that these orders provide no compensatory mechanism to ameliorate the significant costs prejudice that Ethnic Business Awards will incur in respect of Mr Jaksic being granted a wholly new chance to re-agitate his case.

4. [34]

   Finally, counsel for Ethnic Business Awards argued that the case management orders were also, at least ostensibly, made without due regard to ss 56, 58, 59 and 60 of the Civil Procedure Act (an argument which was in part raised by Ethnic Business Awards on 2 September 2015).

5. [35]

   Counsel for Mr Jaksic provided oral submissions at the hearing before this Court. He submitted that this Court should have regard to the practicalities of the situation, being that there is a timetable in place for him to file evidence that has now past, so that on any view of it, the reality is that something must be done about a new timetable.

6. [36]

   In so far as Ethnic Business Awards’ complaint that the Magistrate did not hear its application for the dismissal of the proceedings for want of prosecution, counsel for Mr Jaksic also referred to the Court of Appeal decision in Kapoor v State Transit Authority of NSW [2010] NSWCA 143 (“Kapoor”).

7. [37]

   The brief facts in Kapoor are that when Mr Kapoor did not appear at court on 31 January 2008, counsel for the Authority made an oral application to the judge, without notice to Mr Kapoor, for the proceedings to be dismissed for want of prosecution. The judge entertained the application and, after hearing brief submissions, reserved his decision. On 16 April 2008, the Authority then filed a notice of motion to dismiss the proceedings for want of prosecution supported by a large affidavit, returnable on 21 April 2008.

8. [38]

   In Kapoor, the Court of Appeal (per Handley JA, with whom Allsop P and McColl JA agreed) held that, by entertaining the oral application for want of prosecution made without notice to Mr Kapoor, the appellant was denied procedural fairness on 31 January 2008. Although this was formally cured when the Authority served its notice of motion and supporting affidavit of 16 April 2008, it was not cured in substance because the time between service and the mention date was unreasonably short. This deprived Mr Kapoor of a reasonable opportunity to review the affidavit “to ensure that nothing of relevance had been omitted, to identify any errors, and to assemble any material that he wished to put before the Court in reply”, to which he was entitled. The appeal was allowed. The decision of the judge dismissing the action for want of prosecution was set aside.

9. [39]

   Counsel for Mr Jaksic also drew this Court’s attention to the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) rule 13.6 regarding non-appearance by a plaintiff. It reads:

10. [40]

    Counsel for Mr Jaksic submitted that the Magistrate complied with UCPR 13.6. However, it does not appear that Mr Jaksic was informed that his proceedings may be dismissed if he did not attend on the next occasion, namely 28 July 2015.

Conclusion

1. [41]

   In relation to procedural fairness, the starting point is Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 584-585, where Mason J made the well-known statements that the law had developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. Procedural fairness is the notion of a flexible obligation to adopt fair procedures that are appropriate and adapted to the circumstances of the particular case. The critical question in most cases is not whether the principles of natural justice apply. It is what does the duty to act fairly require in the circumstances of the particular case?

2. [42]

   In Re Minister for Immigration & Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1, the High Court discussed the manner in which procedural fairness cases are approached by the courts. Gleeson CJ (at [37]) stated:

3. [43]

   In Kojima Australia Pty Ltd v Australian Chinese Newspapers Pty Ltd [2000] NSWSC 1153 and Wakim v Mathiew Pty Ltd t/as Dove Migration Services [2002] NSWSC 405, O'Keefe J (at 23-24 and at 20-21 respectively) made essentially identical observations on natural justice, now referred to as procedural fairness. His Honour, in noting the applicability of the requirements of natural justice to the Local Court, stated:

4. [44]

   I should briefly refer to two procedural issues.

5. [45]

   So far as Ethnic Business Awards sought to have the proceedings brought by Mr Jaksic dismissed for want of prosecution, it should have filed and served a notice of motion together with any supporting affidavits. It did not do so. As outlined in Kapoor, the reason for this is to allow Mr Jaksic to have the opportunity to review the application and be heard.

6. [46]

   While I take into account that the Local Court is a busy Court, at the directions hearing on 2 September 2015 Ethnic Business Awards was entitled to be heard as to whether Mr Jaksic should have been afforded a further opportunity to file affidavits. Counsel for Ethnic Business Awards was not given the opportunity to outline the steps it wished to take to prepare for trial. After counsel for Ethnic Business Awards announced his appearance, spelt his name and the Magistrate had heard from Mr Jaksic, it is my view that the Magistrate had closed his mind as to what Mr O’Neill had to say on this topic. Earlier in this judgment I made four observations. The first is that the application for dismissal of proceedings for want of prosecution was foreshadowed but no actual notice of motion had been filed, therefore the magistrate was correct not to hear that application. The balance of the observations are that the Magistrate clarified that he had not directly spoken to Mr Jaksic; the Magistrate indicated that was not presiding over the next hearing; and finally, on the second day of the hearing (26 June 2015), the Magistrate had indicated that he (which he later clarified to be a member of staff) had been in contact with Mr Jaksic by telephone and email. Save for the medical certificate dated 28 July 2015, the communications between Court staff and Mr Jaksic referred to by the Magistrate on 26 June 2015 and 28 July 2015 have not been produced to Ethnic Business Awards.

7. [47]

   It is my view that on 2 September 2015, when the Magistrate acceded to Mr Jaksic’s request to file further affidavits without hearing from counsel for Ethnic Business Awards, there was a denial of procedural fairness.

8. [48]

   It follows that in my view Ethnic Business Awards was denied procedural fairness and the orders made on 2 September 2015 should be set aside.

9. [49]

   The issues raised in this appeal serve as a timely reminder of the importance of making sure that proceedings are conducted in a transparent manner and that civility is retained in the relationship between judicial officers and legal representatives. If an email concerning proceedings is received by a judicial officer from one party, a copy should be provided to the other party or parties, otherwise a party who did not receive the correspondence must rely on an interpretation of its contents. Further, a judicial officer should avoid speaking to a party directly other than within the formal structure of open court proceedings. Even if I accept that the Magistrate did not speak to the litigant, using the word “I” and referring to emails that were never produced creates disquiet in an opponent’s mind because if the Magistrate correspond with a party in the absence of other parties it means that proceedings are not transparent. Finally, it is regrettable that the exchanges between the Magistrate and counsel became confrontational.

10. [50]

    It is unnecessary for me to decide whether the Magistrate should have recused himself on the basis of apprehended bias or failure to consider the requirements of the Civil Procedure Act.

11. [51]

    The result is that leave to appeal is granted. The appeal is granted. The orders of Magistrate Bradd dated 2 September 2015 are set aside. In these circumstances, it is recommended that another Magistrate preside over a further directions hearing.

Costs

1. [52]

   Costs are discretionary. Costs usually follow the event. The defendant is to pay the plaintiffs’ costs on an ordinary basis as agreed or assessed.

2. [53]

   Counsel for Mr Jaksic submitted that if he were unsuccessful, any costs should be paid out of the Suitors’ Fund pursuant to s 6 of the Suitors’ Fund Act 1951 (NSW), which relevantly reads:

3. [54]

   Counsel for Ethnic Business Awards did not oppose this order. It is my view that Mr Jaksic should have a certificate under the Suitors’ Fund Act.