Cindy Laws v David Buchanan

• Jurisdiction: Bermuda
• Court: Supreme Court (Bermuda)
• Judgment Date: 20 November 2017
• Neutral Citation: [2017] SC Bda 99
• Docket Number: APPELLATE JURISDICTION 2017: No 50
• Date: 20 November 2017

[2017] SC (Bda) 99

IN THE SUPREME COURT OF BERMUDA

APPELLATE JURISDICTION 2017: No 50

Between:

Cindy Laws

Appellant

and

David Buchanan

Respondent

The Appellant appeared in person

The Respondent appeared in person

Waiver of judicial bias — Application to rely upon additional grounds of appeal out of time — Whether the test for relying upon additional grounds of appeal out of time is the same as the test for filing notice of appeal out of time — Jurisdiction of Appellate Court — Credibility of witnesses

JUDGMENT 1

Introduction

1. By an Ordinary Summons issued on 16 October 2013, the Respondent (the Plaintiff below) claimed the sum of $3,000 from the Appellant (the Defendant below) as the balance due to the Respondent for tiling work carried out at the Plaintiff's apartment.

2. On 13 July 2017, the Worshipful Magistrate Stoneham (now Justice Stoneham) entered judgement in favour of the Respondent for $2,501. The judgment was delivered to the parties on 24 July 2017. Against this decision, the Appellant appeals by Notice of Appeal dated 31 July 2017. The general thrust of the grounds of appeal is that the decision of

the Learned Magistrate was against the weight of the evidence. Both parties appeared in person at the trial in the Magistrates court and the appeal hearing.

Summary

3. The Appellant's appeal is allowed to a limited extent by reducing the amount awarded to the Respondent from $2501 to $2001. The Appellant is ordered to pay the Respondent's costs of the appeal. I set out reasons for my decision below.

Waiver of Judicial Bias

4. Before I address the merits of the appeal, I raised the issue of conflict of interest with the parties. Fifteen years ago, the Appellant instructed Trott and Duncan Limited to act on her behalf. I was at the time and continue to be a partner in Trott and Duncan Limited. That retainer ended over ten years ago, since which time Trott and Duncan Limited has not represented the Appellant. After I informed the parties of the potential conflict of interest, I invited both parties to adjourn the matter to another date when the appeal could be heard before another judge. In light of the information I disclosed, I assured both parties they would not be prejudiced, and the court would not hold an unfavourable view of either party if they accepted the invitation to adjourn the appeal.

5. The Respondent urged me to hear the appeal today for five reasons. First, he had every confidence I would conduct the appeal fairly; second, the dispute between the parties was important to him but involved the modest sum of $2,501; third, he could not afford to come back to court on another occasion to participate in the appeal, he was losing time off work he could ill afford; fourth, the claim in the Ordinary Summons was filed five years ago, and he wanted the matter resolved without further delay; and fifth, he believed the Appellant was dragging the case out intentionally in the hope he would abandon the judgment awarded in his favour. The Appellant also urged me to hear the appeal today. The Appellant believed I would conduct the appeal fairly. She wanted the matter resolved and did not want to come back to court on another occasion.

In Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142 AT 151 Cooke P, sitting as President of the New Zealand Court of Appeal, said this about waiver of judicial bias at the time of disclosure.

“There is much authority that a party who, in the course of a hearing, has become aware of facts which may constitute disqualification for bias or otherwise, will be held to have waived the objection, or refused discretionary relief, if he allows the hearing to continue without protest.”

Support for the principle that judicial bias can be waived by fully informed consenting litigants is also found in R v Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet Urgate (No 2) 2000 1 A.C. 119 at pages 136 and 137 and Millar v Dickson [2002] 3 All E.R. 1041 at 1054–1055.

6. Both parties were informed of the potential conflict of interest and acknowledged that they believed the appeal hearing would be conducted fairly. Combined with their concerns regarding the further delay of the appeal, contrary to my initial suggestion to the parties, I accepted their waiver of any potential conflict of interest and agreed to hear the appeal.

Application to Rely Upon Additional Grounds of Appeal

7. The grounds of appeal in the Notice of Appeal are as follows:

• 1. The judge erred in neglecting the additional $500 paid to the Plaintiff,

• 2. The judge awarded a rate to a tiler, not self-employed who didn't have his own truck to transport trash and material,

• 3. The tiler changed his rate after the agreement without consultation.

The substance of the appeal is that the Learned Magistrate was wrong to reject the Appellant's version of the agreement the parties entered into. Consequently, the decision to award the Respondent $3,000 should be quashed. Alternatively, the Appellant seeks relief in the sum of $500 as a deduction from the sum of $3,000 the Learned Magistrate awarded to the Respondent. The Appellant also advanced the argument that the sum of $500 should be deducted from any sum this court determines the Respondent is entitled to.

8. At the start of the appeal, the Appellant sought leave to rely upon three new grounds of appeal contained in a document dated 18 October 2017 entitled Additional Grounds for Appeal. The Additional Grounds of Appeal represent a broadside attack on the then, Magistrate Stoneham, now Justice Stoneham.

9. I asked the Appellant why she raised fresh grounds of appeal for the first time on the day of the hearing. I also asked the Appellant why the Additional Grounds for Appeal had not been filed with the court and served on the Respondent. I informed the Appellant her omission to file and serve the Additional Grounds for Appeal within thirty days of the delivery date of the judgment appeared to be in breach of section 4 (2) of the Civil Appeals Act 1971, (“the 1971 Act”). Consequently, I informed the Appellant that in order to rely upon the new grounds of appeal she first had to explain why she failed to comply with the filling and service obligations in section 7 (2) of the 1971 Act. The second hurdle the Appellant would have to overcome is section 7 (1) of the 1971 Act by which she must demonstrate that she had good cause for not filing the fresh grounds of appeal within thirty days of the delivery of the judgment and was therefore entitled to an extension of time within which to file the new grounds of appeal. The Appellant responded that with the time it took her to focus on preparing the Notice of Appeal, she did not consider filing the Additional Grounds for Appeal. The Appellant continued that she reflected upon the appeal and decided to raise the new grounds of appeal today.

10. The new grounds of appeal alleging delay delivering the judgment and questioning the Magistrate's capacity to sign the judgment could not have been raised until 24 July 2017, when the judgment was delivered to the parties. However, I further enquired why the Appellant had not raised the more serious ground of appeal alleging the Magistrate was biased on any one of the five previous occasions when she had the opportunity to raise this objection. First, at the commencement of the trial in the Magistrates Court on 9 December 2015. The second occasion this ground could have been raised was at any time during the course of the trial before delivery of the judgment. Thirdly, when the Appellant filed the Notice of Appeal on 31 July 2017. The fourth opportunity was 18 October 2017, the date the Appellant signed the Additional Grounds for Appeal and the fifth instance when this ground of appeal could have been raised was 19 October 2017, the day before the appeal, when both parties appeared before the Registrar to confirm they were prepared to proceed with the appeal on 20 October 2017. In response to this enquiry, the Appellant again stated she was consumed with drafting the Notice of Appeal and, therefore, did not focus on filing the Additional Grounds for Appeal.

11. The Respondent had not seen the Additional Grounds for Appeal before the commencement of the appeal. He objected to introduction of the new grounds of appeal at this late stage. The Respondent contended that the Appellant's application to rely upon fresh grounds of appeal on the day the appeal is scheduled to be heard is another attempt to delay the proceedings in the hope he would abandon the judgment awarded in his favour. The Respondent was not prepared to agree delaying the appeal.

12. At the conclusion of arguments from both parties, I briefly adjourned the hearing to consider the application after which I resumed the hearing and gave brief reasons why I refused the application to introduce and rely upon the Additional Grounds for Appeal. I now give full reasons for my decision.

13. Sections 7 (1) and (2) of the 1971 Act read as follows:

“7 (1) Where it appears to a magistrate on application made in accordance with subsection (2), that the appellant has failed to give notice of appeal within the time specified in section 6(1)(a), he may for good cause direct that any such notice of appeal previously given by the appellant after the expiration of the said period, or any such notice that may be given by him within such further time as may be specified in the direction, shall be treated as if it had been given within the said period.

(2) An application for a direction under subsection (1), if not made in open court, shall be made by summons and supported by affidavit, and such summons shall be served on the respondent or respondents at least two clear days prior to the hearing thereon.”

14. In strict terms, the application to rely upon the Additional Grounds for Appeal is not an application to file a Notice of Appeal out of time...