Tim Lawson Bulk Cartage Pty Ltd v Warwick Petersen t/as Riverina Truck Electrics

1. [1]

   By summons filed 20 April 2017 the Plaintiff seeks an order that the decision of Magistrate Pierce in the Local Court delivered on 13 March 2017 and entered 22 March 2017 be reviewed and quashed pursuant to s 69 of the Supreme Court Act 1970 (NSW). No order in the nature of mandamus was sought although if an order in the nature of certiorari were made quashing the decision an order would ordinarily follow that the matter be remitted to the Local Court to be determined in accordance with law whether or not the same magistrate determined the matter again. Nor was the decision-maker named as a defendant as r 59.3(4) UCPR requires.

2. [2]

   As a result of directions I made at the outset of the hearing, an amended summons was filed correcting these errors. The amended summons also made clear that an order in the nature of certiorari was being sought.

3. [3]

   The short reason for the order sought is that the Plaintiff was denied procedural fairness.

4. [4]

   The basis for this may be briefly stated. The Magistrate heard a claim by the Plaintiff arising out of a fire in the Plaintiff’s truck that occurred shortly after the Defendant, an auto-electrician, had replaced the starter motor. The Magistrate heard the proceedings on 17 November 2016. The evidence was completed and the Defendant’s counsel was in the middle of making submissions when it became necessary to adjourn at the end of the day. Thereafter the Magistrate gave directions for the Defendant to lodge written submissions by 31 January 2017 and for the Plaintiff to lodge its submissions by 15 February 2017. The Magistrate said that he would give judgment on 13 March 2017. The parties were directed to lodge the submissions by emailing them to the Court at an email address the Magistrate provided.

5. [5]

   The Defendant filed his submissions on 8 February 2017 and the Plaintiff filed its submissions by 1 March 2017. It may be noted that both parties were late in that regard.

6. [6]

   On 13 March 2017 the Magistrate handed down his reasons and gave judgment in favour of the Defendant. He directed the parties to go outside the courtroom to discuss orders to be made in relation to costs.

7. [7]

   The solicitor for the Plaintiff then noticed that in the reasons for judgment the Magistrate said this:

8. [8]

   That statement was wrong on two bases. First, written submission had been lodged by the Plaintiff. Secondly, Mr Parker had made no oral submissions.

9. [9]

   The lawyers returned to the courtroom and the Plaintiff’s solicitor advised the Magistrate that written submissions had been lodged by the Plaintiff. The Magistrate then extracted a document from the court file and said:

10. [10]

    The Magistrate then asked the Plaintiff’s solicitor what he should do. By consent the Plaintiff’s solicitor asked the Magistrate to stand the matter over for one week to give him time to consider the Plaintiff’s written submissions. The matter was adjourned to 22 March 2017.

11. [11]

    On 22 March the Magistrate said:

Submissions

1. [12]

   The Plaintiff relies on an exchange that took place between the Magistrate and Mr Carolan while Mr Carolan was making his submissions (T 71) to suggest that his Honour was of the view that there was a duty to warn but, in the absence of submissions from the Plaintiff, an inference can be drawn that his Honour’s decision was strongly influenced by Mr Carolan’s submissions.

2. [13]

   The Plaintiff submits that in not altering his reasons for judgment after being made aware of the Plaintiff’s submissions, the Magistrate failed to deal adequately with those submissions and in that sense the Plaintiff was denied procedural fairness. The Plaintiff submitted further that the Magistrate erred in law by failing to give any reasons for rejecting the submissions made by the Plaintiff.

3. [14]

   The Plaintiff submitted that the Magistrate did not in any way deal with the error he made in asserting that Mr Parker had made oral submissions.

4. [15]

   The Defendant submitted that the requirement for natural justice is to provide only an opportunity to be heard. Reference was made to what Mason J said in Kioa v West (1985) 159 CLR 550. The Plaintiff was given the opportunity to file its submissions by 15 February 2017 but these were not filed, the Defendant asserted, until 3 March 2017. In that regard, the Plaintiff did not prior to 13 March 2017 seek to vary the Court’s order to permit an extension of time. The Defendant submitted that by reason of the late filing of submissions by the Plaintiff the Magistrate may already have written his judgment and returned the file to the registry. In that way, the lodging of the submissions by the Plaintiff may not have come to his attention.

5. [16]

   The Defendant said that ultimately the Court received and considered the Plaintiff’s submissions and in that way there could be no denial of natural justice.

6. [17]

   The Defendant submitted that the reasons of the Magistrate were adequate and indicated quite clearly the basis or bases for the Plaintiff’s lack of success in the proceedings. In that way the Plaintiff was not denied the ability to bring an appeal if it desired to do so. The Defendant submitted, in reliance on cases such as Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 that it is not necessary for a decision-maker to make findings on every argument and submission put forward by a party.

7. [18]

   The Defendant pointed to the brevity of the Plaintiff’s submissions to the Magistrate. This was said to be related to the fact that during oral submissions from the Defendant’s counsel the Magistrate had effectively put to him the Plaintiff’s case for him to answer. In that way it was said the Magistrate had done Mr Parker’s bidding by putting those matters.

8. [19]

   The Defendant submitted that an analysis of the Magistrate’s reasons showed that he referred to relevant evidence, set out material findings of fact and conclusions, and gave reasons for his findings.

Consideration

1. [20]

   In the events that happened, there are two points at which the question of whether procedural fairness was denied must be considered. The first was on 13 March when the Magistrate gave judgment in favour of the Defendant. At that time the Plaintiff had made no oral submissions and, as the Magistrate’s judgment made clear, he did not consider the Plaintiff’s written submissions because his understanding was that none had been filed.

2. [21]

   In J v Lieschke (1987) 162 CLR 447 Brennan J said (at 462):

3. [22]

   In Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 Gageler and Gordon JJ made reference to what Gleeson CJ had said in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 that the concern of procedural fairness is to “avoid practical injustice”. Their Honours went on to say:

4. [23]

   The Defendant put forward three matters to deal with what was asserted to be this first denial of procedural fairness. First, it was said that the Plaintiff had an opportunity to put in written submissions but filed them late without seeking an extension of time to do so. Secondly, the judgment is sufficient to allow appeal rights to the Plaintiff because the Plaintiff cannot genuinely feel aggrieved by having no understanding as to why it lost the case. The Magistrate made clear in his reasons that no term was implied into the contract and there was no contractual obligation beyond the installation with there being no duty on a prudent auto-electrician to have gone to the further extent of feeling the condition of the cable and the fuel line. Thirdly, in any event, the problem was cured by the Magistrate adjourning to consider the submissions after 13 March 2017.

5. [24]

   I do not consider that any of these matters provides an answer to the failure of the Magistrate to accord procedural fairness. The first point may have a more solid arguable basis if the Plaintiff had not bothered at all to lodge submissions with the Magistrate. All that happened was that the Plaintiff was late in lodging its submissions, perhaps partly because the Defendant was late in lodging his submissions.

6. [25]

   Although the High Court in WZARH, following a number of earlier decisions, suggested that reference to the concept of legitimate expectation might well distract from the real question concerning procedural unfairness (see at [28]-[30] and [61]) the judgment of Gageler and Gordon JJ at [61] said that legitimate expectation was relevant only so far as it bears on the question of the opportunity that a decision-maker ought fairly to have given to a party. They quoted what Gleeson CJ had said in Lam at [34]:

7. [26]

   The matter is relevant here because the Magistrate had directed that written submissions should be filed with the Court, and the Plaintiff did precisely that. No guillotine order was imposed on the dates for the lodgement of those submissions (cf. Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (Court of Appeal, 8 April 1993, Unrep)), and the reasonable expectation from the making of the orders and even the late compliance with them was that the Plaintiff would be heard by having those submissions considered by the Magistrate.

8. [27]

   The focus by the Defendant on appeal rights and whether the Plaintiff can understand why it lost the case is beside the point. The Plaintiff is entitled to feel aggrieved because it lost the case in circumstances where its submissions were not considered. The Plaintiff feels aggrieved not because it lost the case but because it lost the case unfairly.

9. [28]

   Subject to a consideration of whether the matter was cured on or after 13 March, I am satisfied that the Plaintiff was denied procedural fairness by what the Magistrate did and failed to do in giving his judgment.

10. [29]

    The second point at which it can be argued that there has been a failure of procedural fairness is when the Magistrate announced on 22 March that he did not intend to change his decision nor his reasons. The question to be determined at this point is whether it can fairly be said that the Magistrate has, subsequent to 13 March, properly considered the submissions made by the Plaintiff.

11. [30]

    Without going into the merits of the claim, it is necessary to say something briefly about the dispute between the parties. As noted, the contractual arrangement between the Plaintiff and the Defendant was for the Defendant to replace the starter motor in the truck. The fire was said to have occurred because of chaffing to the battery lead and also the fuel hose with those two items coming into contact with one another and sparking the fire. Replacing the starter motor involved disconnecting and moving the battery cable and then reconnecting the battery cable to the new starter motor.

12. [31]

    An issue in the case was whether the Defendant ought to have felt along the cable and the fuel lead to see if there was any fraying of those items. It was suggested that there was evidence to the effect that the fraying of battery cables and fuel lines is common in trucks particularly where the truck is not a new one. This was not a new truck. The evidence suggested that the relevant point of fraying was about 60cm along the battery cable from where it was connected to the starter motor.

13. [32]

    The Plaintiff sued on two bases. It first asserted that there was an implied term in the contract that once the starter motor had been replaced the vehicle would be safe to drive and free from any mechanical defects associated with the work performed by the Defendant. The second basis was that the Defendant owed the Plaintiff a duty of care to perform the work in a proper and workmanlike manner to ensure that when the work was completed the vehicle would be free of any defect associated with the work performed by the Defendant. The particulars were similar for each cause of action. Relevantly for what was ultimately litigated, particular (a) asserted that the Defendant failed to check fully all of the work that he had performed on the Plaintiff’s vehicle, and another particular (paragraphs 9(d) and 11(b)) asserted that the Defendant failed properly to perform the work to the standard required of a reasonable auto-electrician.

14. [33]

    The Plaintiff’s submissions to the Magistrate first adopted paragraphs 1-6 and 9-10 of the Defendant’s written submissions. The Plaintiff then said that it relied upon the allegation that there was an implied term, but made no further submission about that matter.

15. [34]

    The submissions then made reference to the evidence of Mr Marshall, the Plaintiff’s expert and directed attention to some portions in his report and the transcript of his evidence that the Plaintiff sought to rely on. The Plaintiff’s submissions thereafter said this:

16. [35]

    The reasons of the Magistrate dealt principally with the evidence of the two experts Mr Marshall and Mr Cracknell. The Magistrate preferred the evidence of Mr Cracknell that it was difficult to see the point where the abrasion occurred when looking down into the engine bay. His Honour then dealt with whether a reasonable person would have taken precautions and whether it was appropriate to extend liability to the Defendant. He held that it was not, principally because of the scope of the work he was contracted to do and because it was not reasonably foreseeable that the leads and hoses would have been chaffed so that there was no failure on his part not to check for that.

17. [36]

    This is not a merits review and it is not necessary to descend into the correctness of the Magistrate’s view in that regard. The significant matter is, however, that the submissions in paragraphs 7-13 of the Plaintiff’s written submissions draw specific attention to a number of passages in the Defendant’s evidence as well as to a conversation between the Defendant and Mr Lawson of the Plaintiff which were put forward to suggest admissions and concessions on the part of the Defendant about the work he ought to have performed and how he should have gone about the work for which he was contracted. The submission was then made in paragraph 15 based also on Mr Cracknell’s evidence.

18. [37]

    In submissions lodged with leave after the conclusion of the argument in the present proceedings, the Defendant addressed each of those paragraphs in the Plaintiff’s written submissions. The Defendant pointed to passages in the Magistrate’s judgment which, it was submitted, addressed the issues about which the Plaintiff made submissions.

19. [38]

    I accept that the Magistrate discussed those issues. However, he did not discuss them having regard to the Defendant’s evidence relied upon by the Plaintiff. The Defendant’s duty of care is, to some extent, informed by what the Defendant says he would ordinarily do or what he should have done, the nature of the degree of danger liable to be caused by the Defendant and his knowledge of the danger to the Plaintiff by his conduct: Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258 at [102]–[103].

20. [39]

    The matter referred to in paragraph 7 of the Plaintiff’s submissions concerned a conversation Mr Lawson said that he had with the Defendant where what is asserted to be an admission was made by the Defendant as follows:

21. [40]

    The Defendant denied this conversation. Nowhere in the judgment does the Magistrate say anything about this conversation or about whose evidence, of Mr Lawson and Mr Petersen, his Honour preferred. The Defendant submitted that the relocation of the battery lead was not an issue and it was not part of the Plaintiff’s case that when the battery cable was relocated its contact with the hose probably produced a short circuit. The Defendant may be correct about that, but it was on its face a significant submission asserting an admission that was germane to the case being made. It is difficult to see how his Honour has had any regard to this part of the submissions.

22. [41]

    The Plaintiff relies also on exchanges between the Magistrate and Mr Carolan suggesting that the Magistrate had a view about the evidence more particularly referred to in paragraphs 8 to 13. Of course, courts have frequently said that statements made by judicial officers in the course of submissions are not to be taken as any indication of a final view. Often they are put to test counsel or to provide an answer to some aspect of the matter concerning the judge. In themselves, what the Magistrate has said in those exchanges takes the matter nowhere. However, where later submissions are made by a party concerning those same areas of debate, in the circumstances of the present case where those submissions were overlooked entirely, the failure of the Magistrate subsequently to respond to them in any way, apart from confirming his judgment and reasons, leads again to the conclusion that the Magistrate has denied procedural fairness to the Plaintiff.

23. [42]

    Further, although the Magistrate dealt with Mr Cracknell’s evidence, he does not refer to those parts of it which the Plaintiff relied upon at paragraph 14 of its submissions.

24. [43]

    It may be accepted, as the Defendant submits, that a decision-maker is not obliged to refer to or deal with every submission that a party makes. However, in this case the Magistrate first reached a view without any regard to submissions made by the Plaintiff. Thereafter he went away to consider submissions that he ought to have considered, but subsequently said that he did not intend to change his reasons or his judgment without making any reference at all to submissions dealing with significant aspects of the evidence.

25. [44]

    In my opinion, in circumstances such as the present, there is a greater obligation on a decision-maker to ensure that his or her reasons demonstrate that submissions considered after a decision has been reached have been appropriately dealt with. In most cases, and the present is one such, the decision-maker should issue supplementary reasons to make clear that the submissions have been considered.

26. [45]

    In AAMI Ltd v Ali [2012] NSWSC 969 Beech-Jones J said at [48]:

27. [46]

    It seems to me that, however the error is characterised, the Magistrate either constructively failed to exercise his jurisdiction after being made aware of the Plaintiff’s submissions or failed to accord procedural fairness to the Plaintiff by simply stating that he did not intend to alter his reasons or his judgment without anything to indicate that he had responded to a substantial, clearly articulated argument based on the evidence of both the Plaintiff and the Defendant.

28. [47]

    The Plaintiff was entitled to apprehend that the Magistrate might not bring a fair and balanced mind to bear after he had already produced a judgment. In my opinion, there was a greater need for the Magistrate, having reviewed the Plaintiff’s submissions, if he intended not to alter his ultimate judgment, to deal appropriately with submissions put forward that suggested his initial view was not the correct view, in order to assuage such an apprehension.

29. [48]

    By reason of his failure to address the substance of the Plaintiff’s written submissions the initial denial of procedural fairness in coming to a judgment without regard to the Plaintiff’s submissions has not, as the Defendant now asserts, been cured. In what the Magistrate has said and done there is a clear indication that he has failed to accord procedural fairness to the Plaintiff.

30. [49]

    In response to the amended summons, the Defendant submitted that now it was clear that relief in the nature of certiorari was being sought, such relief should be refused in accordance with the principles set out in Meagher v Stephenson (1993) 30 NSWLR 736.

31. [50]

    In that case the respondent was conditionally granted an off-licence for his premises. The appellant was one of four unsuccessful objectors before the Full Bench of the Licensing Court of New South Wales. The appellant commenced proceedings in the Supreme Court. In those proceedings he appealed pursuant to s 146 of the Liquor Act 1982 (NSW) (which gave a right to appeal on a question a law) and also made application for orders in the nature of certiorari and mandamus.

32. [51]

    The Court of Appeal said this (at 738):

33. [52]

    The Plaintiff has not, in the present case, brought both an appeal pursuant to s 39 of the Local Court Act 2007 (NSW) as well as seeking certiorari. It has only brought a claim seeking prerogative relief. No abuse of process is involved.

34. [53]

    In my opinion, the Plaintiff was correct in seeking prerogative relief to complain about a failure to accord procedural fairness. It was not seeking certiorari on the basis of an error of law on the face of the record which may well have been able to have been appealed as a question of law under s 39. Further, until procedural fairness has been accorded to the Plaintiff and adequate reasons provided the Plaintiff is not in a position to appeal under s 39. I do not consider that what is said in Meagher v Stephenson is relevant to the present matter.

35. [54]

    Although the Defendant submitted that, if the Plaintiff was successful, the matter ought to be remitted to the Magistrate who heard the case to deal properly with the submissions made to him by both parties, that does not seem to me to be appropriate. Where there has been a failure on two separate occasions to accord procedural fairness by the present Magistrate, the matter ought to be remitted to the Local Court to be re-heard by a different Magistrate.

36. [55]

    I was informed, in any event, that the parties believe that the Magistrate from whom the present proceedings came, has retired. The parties could not produce any evidence to clarify whether that was so. However, for the reasons I have given, even if the Magistrate has not retired it would be inappropriate for the proceedings to be remitted to him.

37. [56]

    Accordingly, I make the following orders;

    1. (1)

       An order in the nature of certiorari quashing the decision of Magistrate Pierce in the Local Court made first on 13 March 2017 and affirmed on 22 March 2017.

    2. (2)

       An order in the nature of mandamus directing a magistrate other than Magistrate Pierce to hear and determine the Plaintiff’s claim according to law.

    3. (3)

       An order that the Defendant pay the Plaintiff’s costs of the proceedings in this Court.

    4. (4)

       The Defendant is to have a certificate under the Suitors’ Fund Act 1951 (NSW).

    5. (5)

       The costs of the proceedings before Magistrate Pierce are to be determined by the Local Court after the proceedings have been re-heard.