Al Zoubidi v Madadi - [2023] SADC 20

District Court of South Australia
(Civil: Minor Civil Review)
AL ZOUBIDI v MADADI
[2023] SADC 20
Judgment of his Honour Judge Burnett
1 March 2023
BAILMENTS - GRATUITOUS BAILMENT - DUTIES AND LIABILITIES OF BAILEE - NEGLIGENCE - ONUS OF PROOF
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA
The applicant sought to review a minor civil action in which the Magistrate dismissed his claim. The applicant had claimed the sum of $8194.37 for damage sustained to an Isuzu Truck (the Truck) owned by him when it collided with a power pole and another vehicle. No-one was in the Truck at the time of the accident. Although there was no direct evidence as to how the accident occurred, it was likely that the Truck did not have its handbrake applied properly.
Immediately prior to the accident, the Truck had been outside the respondent’s house and had been parked there for about 2 months. The Truck had not been driven during that period. There was a dispute between the parties as to the circumstances in which the Truck had come to be parked outside the respondent’s property.
The Magistrate had found that at the time of the accident, the Truck was most likely outside the respondent’s property for the purpose of storage, the respondent had no intention of purchasing the Truck and had not used the Truck during the period that it was parked outside his house. The Magistrate found that there was no evidence that the respondent had done anything to the Truck, deliberately or negligently. There was no evidence that the respondent had failed to apply the handbrake.
Held:
(1) The Magistrate’s decision is affirmed and the review is dismissed.
(2) There existed a bailment of the Truck between the applicant and the respondent: Hobbs v Petersham Transport Co Pty Ltd (1971) 124 CLR 220 applied. The Truck had been delivered by the applicant, as bailor, to the respondent, as bailee on the implied condition that when the purpose for which the Truck had been delivered had been fulfilled, it would be returned to the bailor or delivered according to his instructions.
(3) In the circumstances of this case, the respondent was a gratuitous bailee: Coggs v Bernard (1703) 92 ER 107 applied. A gratuitous bailee such as the respondent had a duty to take such care of the Truck as was reasonable in the circumstances; Dalgety & Co Ltd v Warden [1954] St R Qd 251 applied.
(4) Where goods are damaged or stolen during the course of a gratuitous bailment, the onus was on the applicant, as bailor, to prove negligence on the part of the bailee: O’ Dea v O’Hara, Register Newspaper 17 May 1895, W,G.H Nominees Pty Ltd v Tomblin (1985) 39 SASR 117 applied: cf Port Swettenham Authority v TW Wu & Co [1979] AC 580, Graham v Voigt (1989) 89 ACTR 11.
(5) The applicant had not discharged that onus. Even if the onus was on the respondent to prove that he was not negligent, in the circumstances the respondent had discharged that onus.
Magistrates Court Act 1991 (SA) s 38, referred to.
Harradine v District Court of South Australia [2012] SASC 96; Gillott v District Court of South Australia [2019] SASC 132; Trittenheim Pty Ltd v H & H Gill Nominees Pty Ltd (1994) 63 SASR 434; Griggs v Noris Group of Companies (2006) 94 SASR 126; [2006] SASC 23; Harradine v District Court of South Australia [2012] SASC 96 at [53]; Wilczynski & Anor v District Court of South Australia & Ors [2016] SASC 51; Wilczynski & Anor v District Court of SA & Ors [2017] SASCFC 102; Robinson Helicopter Co. Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679; (2016) 331 ALR 550; Hobbs v Petersham Transport Co Pty Ltd (1971) 124 CLR 220; East West Corp v DKBS 1912 [2003] QB 1509; Steljes v Ingram (1903) 19 TLR 534; Coggs v Bernard (1703) 2 Ld Rym 909 at 912-913; 92 ER 107; Klapsis v Formosa [2016] NSWSC 1371; Dalgety & Co Ltd v Warden [1954] St R Qd 251; W.G.H. Nominees Pty td v Tomblin (1985) 39 SASR 117; Port Swettenham Authority v TW Wu & Co [1979] AC 580; Phipps New Claridge’s Hotel (1905) 22 TLR 49; Morris v CW Martin & Sons Ltd [1961] 1 QB 716; James Buchanan & Co LTD v Hay’s Transport Services LTD & Anor [1972] 2 Lloyd’s Rep 535; McComb v Martin Box Marine Holdings Pty Ltd (1992) 8 SR (WA) 193; Normoyle v Ducin Pty Ltd (2005) 19 DCLR (NSW) 98; Graham v Voigt (1989) 89 ACTR 11; Mitchell v Ealing London Borough Council [1979] QB 1; Dalgety & Co Ltd v Warden [1954] ST R Qd 251; Tottenham Investments Pty Ltd v Carburettor Services Pty Ltd (1994) Aust Torts Reports 81-292, considered.

AL ZOUBIDI v MADADI
[2023] SADC 20
Civil
Introduction

This is a review pursuant to s 38(6) of the Magistrates Court Act 1991 (SA) of a minor civil action in which the Magistrate dismissed a claim brought by Mr Raad Al Zoubidi against Mr Armin Madadi and awarded costs in the sum of $1160 in favour of Mr Madadi.
Mr Al Zoubidi brought a claim in the Magistrates Court in the sum of $8194.37 for damage sustained to his Isuzu truck (the Truck) when on 2 September 2019 it collided with a power pole and another vehicle. The trial in the Magistrate’s Court proceeded on an agreed basis that:[1]
(i)Immediately prior to the collision, the Isuzu truck had been parked in front of Mr Madadi’s house;
(ii)The Isuzu truck had been parked outside of Mr Madadi’s house for approximately two months;
(iii)At the time of the collision, there were no persons in the Truck.
[1] Reasons of Magistrate Jackson (Reasons) at [2].
The trial further proceeded on the basis that the Truck likely did not have its handbrake applied properly and thereafter rolled and collided with the pole and the other vehicle which was stationary. There was no direct evidence as to how the accident occurred.[2]
[2] Ibid at [3].
The dispute concerned who was responsible for the Truck at the time of the accident. Mr Al Zoubidi claims that he had loaned the Truck to Mr Madadi some 6 weeks earlier for Mr Madadi to determine whether the Truck was suitable for his work and if it was suitable, to consider its purchase.[3] Mr Madadi stated that he had never borrowed the Truck, nor had he the keys to the Truck and that Mr Al Zoubidi, or someone on his behalf, had parked the Truck in front of Mr Madadi’s house and that the Truck had remained there for two months.[4]
[3] Ibid at [4].
[4] Ibid at [7].
The Magistrate found that no bailment agreement existed between the parties and that the Truck had remained on the public road in front of Mr Madadi’s house for the convenience of Mr Al Zoubidi.[5] Further, if there was a bailment agreement, the Magistrate found the applicant had not established on the balance of probabilities that Mr Madadi had not used reasonable care.[6]
[5] Ibid at [27].
[6] Ibid at [26].
Mr Al Zoubidi was dissatisfied with the decision of the Magistrate and sought a review of that decision. In his Notice of Review, Mr Al Zoubidi raised eight grounds of review. They can be conveniently divided into three broad categories:
(i)The decision of the Magistrate was contrary to the evidence and the Magistrate failed to take into account all relevant evidence (grounds 1, 4, 5, 6 and 7);
(ii)Mr Madadi had presented in evidence a fraudulent document (ground 2); and
(iii)One of his witnesses was unavailable to give evidence at trial but could now give evidence which would affect the decision of the magistrate (ground 3). There was also new evidence which might affect the outcome (ground 8).
The Magistrate did not make any findings in relation to quantum other than to observe that the registration fee would not be allowed (even if liability was established) but that the towing fee and the invoice for the repair would likely by claimable. I agree with that assessment. If liability were established, the amount of damages payable to Mr Al Zoubidi would be in the sum of $7700.00.
Application for Review
This review is conducted pursuant to s 38(6) to 38(9) of the Magistrates Court Act. On this review, the Court may inform itself as it thinks fit and, in doing so, is not bound by the rules of evidence. The Court may, if it thinks fit, rehear the evidence taken in the Magistrates Court. In hearing and determining this review, the Court must act according to equity, good conscience and the substantial merits of the case, without regard to technicality and legal form. It is important to note I am conducting a review of the matter and not a review of the judgment.
Section 38(1) of the Magistrates Court Act sets out provisions which are applicable to the conduct of the minor civil action. These provisions provide as follows:
(1)     The following provisions are applicable to the trial of a minor civil action:
(a)     the trial will take the form of an inquiry by the Court into the matters in dispute between the parties rather than an adversarial contest between the    parties;
(b)     the Court will itself elicit by inquiry from the parties and the witnesses,    and by examination of evidentiary material produced to the Court, the issues in dispute and the facts necessary to decide those issues;
(c)     the Court may itself call and examine witnesses;
(d)     the parties are not bound by written pleadings;
(e)     the Court is not bound by the rules of evidence; and
(f)     the Court must act according to equity, good conscience and the substantial     merits of the case without regard to technicalities and legal forms.
Sections 38(6) and 38(7) of the Magistrates Court Act require an examination of the inquisitorial process undertaken by the Magistrate to determine whether there had been a trial by the Magistrate in accordance with those provisions. The conduct of a minor civil action must be considered in the context of the statements by Blue J in Harradine v District Court of South Australia[7] that the role of the Magistrate in such an action is that of an inquirer rather than managing an adversarial contest between the parties.
[7] [2012] SASC 96 at [40]-[41].
In Gillott v District Court of South Australia,[8] Peek J discussed the meaning of the phrase ‘equity, good conscience and the substantial merits of the case’ and quoted from the decision of Olsson J in Trittenheim Pty Ltd v H & H Gill Nominees Pty Ltd,[9] in which his Honour noted that the meaning of that phrase must be construed in the context of the nature of the issues involved and, where appropriate, the clear purpose of the relevance of the relevant statute. Olsson J went on to hold that in certain cases the phrase required that the Court should adopt a broad approach of common sense and common fairness, eschewing all legal or other technicality. In Griggs v Noris Group of Companies,[10] White J referred to the phrase in the context meaning good sense and the natural justice of the matter. At times, he held that the expression meant that the decision-maker was empowered to do whatever he or she might think necessary to achieve fairness between the litigants.
[8] [2019] SASC 132 at [40]-[46].
[9] (1994) 63 SASR 434.
[10] (2006) 94 SASR 126; [2006] SASC 23 at [31].
Given the nature of the minor civil review and its purpose to achieve an economical and efficient disposition of the matter, I consider that the phrase ‘equity, good conscience and essential merits of the case’ is used in the context described above, namely requiring the Magistrate to act according to good sense and the natural justice of the matter and to do whatever is necessary to achieve fairness between the parties in relation to their legal rights, eschewing legal or other technicalities. Regard must be had to the substance of the claim while ensuring a fair trial including permitting the parties to have an opportunity to address the real issues in dispute.
The decision of this Court on review is final and is not subject to appeal, pursuant to s 38(8) of the Magistrates Court Act.
On this review, I may affirm the judgment of the Magistrate or rescind it and substitute it with a judgment of this Court or rescind the judgment in its entirety.
Conduct of the Review
In Harradine v District Court of South Australia,[11] Blue J set out the principles that apply to a review by the District Court of a minor civil action. In relation to the relevance of the facts found by the Magistrate, Blue J held:
1.The review is not in the nature of an appeal stricto sensu.
2.The review is not necessarily a hearing de novo in that the Court is entitled to have regard to the evidence adduced before a magistrate and “may” rehear that evidence.
3.The review is not necessarily an appeal by way of rehearing in that it is a “review” (not an “appeal”), the Court may inform itself as it thinks fit, the Court must act        according to the substantial merits of the case and the Court may rehear evidence     without being confined by the “fresh evidence” rules which apply to appeals by way of rehearing.
4.The Court can tailor the nature of the hearing to the circumstances. In a case where the review will not turn on findings of fact or credibility of witnesses, the Court might simply have regard to the evidence adduced before a magistrate and a        magistrate’s findings of fact. In a case which does turn on disputed issues of fact or       credibility, the Court might simply proceed to hear the evidence afresh.
5.If the District Court concludes that a magistrate made an error vitiating the judgment      and had not made findings of fact necessary to determine the matter, it will be     necessary for the Court itself to hear the evidence relevant to those findings of fact    (as it does not have power to remit the matter for rehearing).
6.To the extent that the Court does itself hear evidence, it should proceed in a similar manner to that provided by section 38(1), namely adopting the form of an inquiry by the Court rather than an adversarial contest between the parties. This is because section 38(7) provides that the Court may inform itself as it thinks fit and also because it would be incongruous if the District Court were to adopt a radically different approach to the hearing to that required to be adopted by a magistrate at first instance given that there is no power of remitter.
[11] [2012] SASC 96 at [53].
These principles were considered by Doyle J in Wilczynski & Anor v District Court of South Australia & Ors.[12] Although that decision was reversed, for other reasons, on appeal,[13] Doyle J held that s 38 of the Magistrates Court Act contemplated a range of different approaches that the judge on review may take. Those approaches included:[14]
(i)Re-hearing all the evidence and deciding the matter entirely on that basis.
(ii)Hearing no evidence and determining the matter based entirely on the evidence in the Magistrates Court.
(iii)Adopting a hybrid approach involving the receiving of some evidence or the hearing or receiving of some additional evidence, but also having regard to the evidence before the Magistrate.
[12] [2016] SASC 51.
[13] Wilczynski & Anor v District Court of SA & Ors [2017] SASCFC 102.
[14] Wilczynski & Anor v District Court of SA & Ors [2016] SASC 51 at [59].
Doyle J held that there may be more than one approach open to the judge on review, and that the judge has a broad discretion as to how to proceed with the review.
In the circumstances of this case, I considered that it was not necessary to re-hear all of the evidence that was taken in the Magistrates Court. The hearing in the Magistrates Court was conducted over two days. There were seven witnesses called to give evidence, including both Mr Al Zoubidi and Mr Madadi. On the review, I permitted Mr Al Zoubidi to call Mr Abraham Ali to give evidence, as Mr Ali was unavailable to give evidence at the hearing because he was overseas. I allowed Mr Ali to give evidence on the review because to conduct the review according to ‘equity, good conscience and the substantial merits of the case’ required a consideration of his evidence. Mr Ali Abdrahman also gave evidence on the review. Although he gave evidence at the hearing before the Magistrate, I considered that his evidence was complementary to the evidence of Mr Ali and therefore should be considered in the context of this new evidence. Mr Al Zoubidi and Mr Madadi gave limited evidence on the review in which they responded to my questioning so that I would get an overall understanding of the matter. Other than the above, I did not consider there was any utility in requiring any further evidence on the review. The issues were clear and the Magistrate was in the best position to make findings of fact and credit.
I do not consider that I am as constrained as an appeal court in interfering with findings that are based on the credibility of witnesses. I am not limited to interfering with the Magistrate’s finding of facts in circumstances only where they are demonstrated to be wrong by incontrovertible facts or uncontested testimony or are glaringly improbable or contrary to compelling inferences.[15] That said, I have had regard to the findings of the Magistrate which were made after the trial and after hearing the evidence of both parties.
[15] Robinson Helicopter Co. Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679; (2016) 331 ALR 550 at [43].
Conduct of the trial in the Magistrates Court
The trial in the Magistrates Court was conducted in an inquisitorial style as required by s 38(1)(a) of the Magistrates Court Act.
Mr Al Zoubidi gave evidence. He described how he had met Mr Madadi and that he had sold him two or three motor vehicles in the past. Relevantly, for these proceedings he said that Mr Madadi requested a car for work and said that if the work went well, he would pay him for that car. Mr Al Zoubidi gave him a Ford van but after a couple of days Mr Madadi requested a truck which Mr Al Zoubidi agreed to provide. Mr Al Zoubidi said that the Truck needed to be inspected by the company for which Mr Madadi worked and if the inspection was successful and the company accepted the car, Mr Madadi would pay for the Truck. Mr Al Zoubidi said that an approximate price of between $18,000-$20,000 had been agreed. He said that if the Truck was not acceptable, he would sell it to someone else.
Mr Al Zoubidi agreed that the Truck had graffiti on it when he gave it to Mr Madadi but said that it could be easily removed. He said that the graffiti occurred in May 2019 when the Truck had been parked near a friend’s business.
Mr Al Zoubidi said that he used the Truck on an on needs basis and he parked the Truck when he wasn’t using it. He said that he had no difficulties in finding a place to park the Truck. He said that between May and July 2019 the Truck had been kept outside of Mr Madadi’s house. He said that when Mr Madadi requested use of the Truck, a friend, Mr Abrahim Ali had possession of the Truck and was using it for his supermarket business.
He said that he arranged with Mr Madadi for him to collect the keys from a Mr Ali Abdulrahman who lived near to Mr Ali’s business.
Mr Al Zoubidi gave evidence that Mr Madadi used the Truck for about one and a half months. He said that he kept calling Mr Madadi to enquire what was happening with the Truck but was advised by him that the assessment was still in process and the company had sent the car to the manufacturer for inspection. Mr Madadi was still driving the Ford van during this period.
On 2 September 2019, Mr Al Zoubidi said that he was contacted by Mr Madadi about the accident. He said that Mr Madadi handed to him the Authority to Tow which had been completed by Mr Madadi.
Mr Madadi also gave evidence. He gave evidence of a number of SMS messages between him and Mr Al Zoubidi. Mr Al Zoubidi accepted authenticity of those messages. Although most of these messages were not directly relevant to these proceedings, they do indicate that the relationship between Mr Al Zoubidi and Mr Madadi involved many other aspects and that the Magistrate was entitled to conclude, as she did that:
I have struggled with the evidence given by both the applicant and the respondent. I have said during the trial that I believe that there may be an aspect of their prior relationship that they may have not disclosed, which makes it difficult for me to ascertain what the true nature of the agreement was between them. Neither of them gave evidence which adequately explained the content of the SMS messages between them.

Mr Madadi said that he took possession for the Ford van from about August to September 2019. He said that before he took possession of the Ford van, Mr Al Zoubidi had told him that that the van had some engine issues that had been checked and fixed by a mechanic and that he wanted to make some money out of the van and not sell it. Mr Madadi gave evidence that they agreed that he would use the van for a few days to get some idea as to how much income could be derived from its use. He said that after about two weeks, he realised that he could not make money from the van and returned it to Mr Al Zoubidi.
Mr Madadi said that he came home sometime in July 2019 and the Truck was parked outside of his house. He said that Mr Al Zoubidi told him that he had parked the Truck in front of his house because he couldn’t park it in front of the IGA as he had done previously. He said that he didn’t drive the Truck and in fact could not do so as he did not have a licence to drive a truck.
Mr Madadi tendered some documents. They included a photograph of the Truck being jump started on 29 August 2019. There was also a text message (the authenticity of which was disputed by Mr Al Zoubidi) which states that Mr Al Zoubidi was going to bring a truck to his street and park it for a few days but Mr Madidi was not to be responsible for the truck. I agree with the Magistrate’s observation that it was not clear why so many photographs of the Truck had been taken.
Mr Farhad Safari gave evidence that he had been asked by Mr Al Zoubidi to be a guarantor for Mr Madadi in relation to the purchase of a vehicle but that he declined to so as he considered it was better if both parties were honest and sincere with each other. He said that he saw the Truck outside of Mr Madadi’s home, but never saw it being driven and that Mr Madadi had said to him that he was giving the Truck a trial run.
Mr Ali Abdulrahman gave evidence and said, relevantly, that he had been asked to go around to Mr Ali’s place and collect the keys for the Truck and give them to Mr Madadi who was going to come around later that night to collect the keys. Mr Abdulrahman gave evidence that Mr Madadi did in fact come around to collect the keys.
Mr Al Zoubidi also called a Mr Hussain Al Jaroudi to give evidence. He said that he knew both Mr Al Zoubidi and Mr Madadi. He said that he knew that Mr Madadi had purchased two motor vehicles from Mr Al Zoubidi, an Audi and a Mitsubishi Triton, as he was involved in both sales. He said that Mr Madadi called him to get the truck “from the same guy that we got the Audi from” but that he was too busy to do so. The evidence of Mr Al Jaroudi was vague and, as the Magistrate observed, of little assistance in resolving the matter.
Mr Madadi called two further witnesses, Ms Judith McNicholl and Mr Steven Queale, who are both his neighbours. They have no relationship with Mr Madadi other than as neighbours. Ms McNicholl gave evidence that she became aware of a white truck that was parked outside of Mr Madadi’s house and which had graffiti on it. She said that she did not ever see Mr Madadi drive the Truck. She said that she asked Mr Madadi on one occasion whether he knew who the Truck belonged to and that he replied that an acquaintance asked him if he could park the Truck in the street because where it had been parked originally, it had been graffitied. She said that on another occasion she asked him what was happening with the Truck and he said that as far as he knew the owner was going to sell it.
She said she never saw the Truck moved and it was always in the same place. She gave evidence that she did not see the accident but was at the scene shortly after. She said no-one was in the Truck at the time of the accident and it hit the neighbour’s car and then a lamp post or light pole.
Mr Queale, a neighbour of Mr Madadi and the partner of Ms McNicholl, gave similar evidence. He said he did not ever see Mr Madadi drive the Truck and that he knew that the Truck remained in the same place because debris built up behind the wheels. He gave evidence about a conversation that he had with Mr Madadi where Mr Madadi informed him that an acquaintance wanted to park it outside of his house because it was getting graffiti where it had been parked previously. Again, Mr Queale saw the aftermath of the accident.
Evidence on review
Mr Al Zoubidi and Mr Madadi both gave evidence on the review. Their evidence did not materially add to the evidence that they had given before the Magistrate. Mr Ali, who was overseas at the time of the hearing before the Magistrate, gave evidence as to the collection of the keys by Mr Madadi. Mr Ali’s evidence was that he had hired the Truck from Mr Al Zoubidi for $200. Mr Ali then said that he was contacted by both Mr Madadi and Mr Al Zoubidi to advise that Mr Madadi would come and collect the Truck. Mr Ali’s evidence about the collection was not satisfactory. He first said that he handed over the keys and the Truck to Mr Madadi when he came to collect it. He later said that Mr Madadi got the key to the Truck from someone else near his business and then came to his shop to collect the Truck. Mr Abdulrahman confirmed his earlier evidence that Mr Madadi had collected the keys to the Truck from him.
The findings of the Magistrate
The Magistrate delivered an ex tempore judgment and made the findings of fact set out below about her assessment of the witnesses.
As I have described above, the Magistrate had reservations about the evidence of both Mr Al Zoubidi and Mr Madadi. I share those reservations. The SMS messages that were admitted as having passed between the parties point to a closer relationship than either party admitted at trial. The evidence of the neighbours, Ms McNicholl and Mr Queale, which was accepted by the Magistrate, is inconsistent with Mr Madadi having possession of the Truck for the purposes of ascertaining the suitability of the Truck for purchase.
The Magistrate accepted Mr Safari and Mr Abdulrahman as witnesses of truth. The Magistrate found that Mr Safari said that he was asked by Mr A Zoubidi to be guarantor for Mr Madadi for the purchase of the Truck. My reading of the transcript leaves uncertain the identity of the vehicle for which he asked to be guarantor. Mr Safari’s evidence about conversations with Mr Madadi support a finding that at least at the commencement of the period, Mr Madadi intended to try out the Truck with a view to purchasing it. Mr Abdulrahman’s evidence, which was accepted by the Magistrate, supported the finding by the Magistrate that Mr Abdulrahman had given the keys to the Truck to Mr Madadi.
The Magistrate made the following relevant findings of fact:
1.    Mr Madadi collected the keys to the Truck from Mr Abdulrahman and was involved directly or indirectly in relocating the Truck from the IGA car park to the front his house;
2.    Mr Al Zoubidi wanted to dispose of the Truck and on the balance of probabilities asked Mr Madadi to make enquiries about it;
3.    If Mr Madadi ever considered purchasing the Truck, that consideration was no more than fleeting;
4.    As at 2 September 2019, Mr Madadi had no intention of purchasing the Truck and Mr Al Zoubidi was aware of that;
5.    Most likely, the Truck remained in front of Mr Madadi’s house effectively as storage;
6.    No finding could be made as to whether Mr Madadi ever intended to purchase the Truck for his own purposes or whether he made enquiries with third parties;
7.    From time to time, Mr Madadi did favours or work (either paid or unpaid) for Mr Al Zoubidi and in return Mr Al Zoubidi either loaned or sold vehicles to Mr Madadi on favourable terms;
8.    The Truck was not driven or used in the two month period that it was parked in front of Mr Madadi’s house;
9.    The Truck had a flat battery and was not driveable without a jump start. Mr Al Zoubidi was aware of the mechanical status of the vehicles and that it was parked on a public road;
10.   The was no explanation as to why the Truck rolled away on 2 September 2019. There was no suggestion that Mr Madadi had done anything to the Truck deliberately or negligently. There was no evidence that Mr Madadi had not applied the handbrake.
The Magistrate then made the legal conclusions which I referred to at the commencement of these reasons.
Determination of the Review
In my view, the Magistrate’s findings of fact were in accordance with the evidence.
I will now consider the complaints and points of law raised by Mr Al Zoubidi in his Notice of Review.
First, Mr Al Zoubidi complained that the decision was unfair and there was no evidence to justify the decision. This questions all of the findings of fact that were made by the Magistrate, whether they were justified and whether some further finding ought to have been made.
The first finding of fact made by the Magistrate was that Mr Madadi had collected the keys from Mr Abdulrahman and had been involved in the relocation of the Truck from the IGA to outside of his house. This is a finding made in favour of Mr Al Zoubidi. Although there were some inconsistencies in the evidence of Mr Ali, I am prepared to accept the finding.
The second finding of fact made by the Magistrate was that Mr Al Zoubidi wanted to dispose of the Truck and on the balance of probabilities asked Mr Madadi to make enquiries about it. That finding is consistent with the evidence. It is clear that Mr Al Zoubidi did not require the Truck for his personal use and was prepared, on his own evidence, to sell the Truck to Mr Madadi. Mr Al Zoubidi was also in the practice of renting out the Truck to third parties such as Mr Ali. He had previously sold vehicles to Mr Madadi. Although there was no direct evidence that Mr Madadi would made enquiries about selling the Truck, that finding is a reasonable inference from the evidence of Mr Al Zoubidi and Mr Madadi and the fact that the Magistrate correctly considered that neither of the parties had told the Court of the whole of the relevant background.
Thirdly, the Magistrate found that if Mr Madadi ever considered purchasing the Truck, that consideration was no more than fleeting. That finding is consistent with the evidence of Mr Madadi and the evidence that the Truck had remained in the same place outside of Mr Madadi’s home and had not been used for the two month period when it was so situated.
Fourthly, the Magistrate found that as at 2 September 2019, Mr Madadi had no intention of purchasing the Truck and Mr Al Zoubidi was aware of that. Mr Madadi gave evidence of these facts. This finding is consistent with the evidence that the Truck had not been used or moved during the period in which it was parked outside of Mr Madadi’s house. That suggests that Mr Madadi had no intention of driving or using the Truck, which he surely would have done if he was interested in buying the Truck. There is no reason why Mr Madadi would have withheld that information from Mr Al Zoubidi as the Truck, parked outside of Mr Madadi’s home, was an inconvenience to Mr Madadi.
Fifthly, the Magistrate found that most likely, the Truck remained in front of Mr Madadi’s house effectively as storage. That finding follows from the earlier findings made by the Magistrate.
Sixthly, the Magistrate held that no finding could be made as to whether Mr Madadi ever intended to purchase the Truck for his own purposes or whether he made enquiries with third parties. That matter became irrelevant once the Magistrate made the third finding referred to above, namely that if Mr Madadi ever considered purchasing the Truck, that consideration was no more than fleeting.
Seventhly, the Magistrate found that from time to time, Mr Madadi did favours or work (either paid or unpaid) for Mr Al Zoubidi and in return Mr Al Zoubidi either loaned or sold vehicles to Mr Madadi on favourable terms. That finding is consistent with the evidence of both Mr Madadi and Mr Al Zoubidi, although neither gave evidence of the precise details of the arrangements between them.
Eighthly, the Magistrate found that the Truck was not driven or used in the two month period that it was parked in front of Mr Madadi’s house. That is consistent with the evidence of Mr Madadi and also of the two independent witnesses, Ms McNicholl and Mr Queale. Those independent witnesses provided compelling evidence that the Truck was not used in the two month period.
Ninthly, the Magistrate found that the Truck had a flat battery and was not driveable without a jump start, that Mr Al Zoubidi was aware of the mechanical status of the vehicle and that it was parked on a public road. The evidence of Mr Madadi and the photograph indicates that the Truck had a flat battery and was not driveable without a jump start. The evidence from Ms McNicholl and Mr Queale that the Truck had not been driven for a two month period supports the finding that the Truck was unable to be driven. It is inherently improbable, in the absence of any explanation, that a vehicle that was capable of being driven, lay idle for that period. The evidence of Mr Madadi supports the finding that Mr Al Zoubidi knew the Truck was parked on a public road. That finding is not critical to the determination of the matter.
Tenthly, the Magistrate found that:
(i)there was no explanation as to why the Truck rolled away on 2 September 2019;
(ii)there was no suggestion that Mr Madadi had done anything to the Truck deliberately or negligently; and
(iii)there was no evidence that Mr Madadi had not applied the handbrake.
These findings are derived from the evidence as a whole including, relevantly the agreed facts, the circumstances of the accident as provided by Ms McNicholl and Mr Queale and the fact that the Truck had not been driven over the two month period. In these circumstances, the Magistrate was correct to observe that there was no explanation as to why the Truck rolled away. There was no evidence and no reason for Mr Madadi to have done anything to the Truck in circumstances where the Truck was not operative, had not been moved in the two month period and Mr Madadi was not present at the time of the accident. It follows from these matters that there was no evidence that Mr Madadi had failed to apply the handbrake.
The second ground of review comprised a contention by Mr Al Zoubidi that Mr Madadi presented a fraudulent document and therefore the decision was affected by fraud. The relevant document was an alleged message which stated that Mr Al Zoubidi would park the Truck in the street outside Mr Madadi’s house but that Mr Madadi would not be responsible for the Truck. That message is very powerful evidence. However, the Magistrate did not rely on that evidence in coming to her conclusion. There was no evidence to find that the document was fraudulent and the Magistrate made no finding to that effect. The alleged fraudulent document played no part in the Magistrate’s reasoning.
In the third ground of review, Mr Al Zoubidi contended that one of his witnesses was overseas and was not able to give evidence at the hearing before the Magistrate. This ground became otiose as Mr Ali gave evidence on the Review. In any event that evidence had no effect on the Magistrate’s determination or my determination as the evidence of Mr Ali was confirmatory of the evidence given by Mr Abdulrahman at the trial and accepted by the Magistrate.
The fourth ground of review was the Magistrate did not take into account the evidence presented by Mr Al Zoubidi at the hearing including the evidence of all of his witnesses and the documents he tendered. It is clear that the Magistrate considered this evidence. She referred to the evidence given by each of the four witnesses called by Mr Al Zoubidi. The Magistrate accepted the evidence given by Mr Safari and Mr Abdulrahman. She was not impressed by the evidence given by Mr Al Jaroudi but in any event found it not to be relevant to the issues to be determined. The Magistrate had reservations about the evidence of Mr Al Zoubidi and Mr Madadi and considered both had not been frank about their relationship. The Magistrate examined all relevant documents. In particular she examined the Authority to Tow and made findings about that document.
In the fifth ground of review, Mr Al Zoubidi contended that he had suffered financial losses due to the reckless actions of Mr Madadi. That is not by itself a sufficient reason to impugn the determination of the Magistrate. Mr Al Zoubidi must prove what reckless act was alleged to have been committed by Mr Madadi. On the evidence, the Magistrate, correctly in my view, found that there was no evidence that Mr Madadi had committed a negligent act (such as leaving the handbrake off) and there was no evidence that he committed such an act or any other act in a reckless manner.
The sixth ground of review raises essentially a point of law. Mr Al Zoubidi contends that because Mr Madadi was in possession of the Truck at the time that the accident occurred, he is liable for any damage caused to the Truck. I will deal with that ground of review when I consider the law relevant to this matter.
The seventh ground of review also raises the question of possession; Mr Al Zoubidi contends that he had established that Mr Madadi had possession of the Truck by the evidence that Mr Madadi handed the keys of the Truck to the tow truck operator. It is clear that the Magistrate accepted that Mr Madadi has possession of the Truck as she found that he collected the keys to the Truck from Mr Abdulrahman. However, possession is not sufficient in itself to establish the claim. I will deal with this issue further when I consider the applicable law.
The eighth ground of review states that Mr Al Zoubidi has new evidence. Other than the evidence of Mr Ali, to which I have already referred, no other new evidence was identified.
Application of the law by the Magistrate
The claim by Mr Al Zoubidi must be considered according to the terms of the law of bailment. The factual findings made by the Magistrate are relevant in determining what was the legal relationship between the parties and what must be proven to establish liability on the part of Mr Madadi.
A bailment is a delivery of goods from one person, the bailor, to another, the bailee, on a condition, either express or implied, that when the purpose for which the goods had been delivered has been fulfilled, the goods will be returned to the bailor or delivered according to their instructions.[16] A bailment cannot be imposed upon a bailee without their consent.[17]
[16] Hobbs v Petersham Transport Co Pty Ltd (1971) 124 CLR 220 at 238.
[17] East West Corp v DKBS 1912 [2003] QB 1509 at [24].
If the Magistrate had found that Mr Al Zoubidi had simply parked the Truck outside the house of Mr Madadi without his consent, there was no bailment. In such a case, Mr Madadi would not taken possession of the Truck. He would have given no consent to the arrangement. The Magistrate did not make such a finding.
However, the Magistrate did find that as at 2 September 2019 that there was no bailment agreement and that the Truck had remained on the public road in front of Mr Madadi’s house for the convenience of Mr Al Zoubidi. I do not accept this finding. Once it is accepted that the Truck was in the possession of Mr Madadi, then as long as it remains in his possession, he will have some responsibility as a bailee. His responsibilities may be lighter but as a possessor of the Truck, he will have continuing obligations arising out of the continuing bailment relation.[18] In the ordinary course, the duties of the bailee will not end until the goods are redelivered to the bailor or repossessed by the bailor.[19] It is not sufficient for Mr Madadi to inform Mr Al Zoubidi that he no longer wanted to purchase the Truck for the bailment to terminate.
[18] Steljes v Ingram (1903) 19 TLR 534 at 535.
[19] N.E. Palmer, Bailment, Law Book Co (2^nd ed, 1991) at 109.
A distinction is drawn between any contract that might underpin a bailment and the cessation of the bailee’s responsibility as a bailee.[20] A contract might be terminated but the bailee’s obligations may outlive the contract.
[20] Ibid at 108.

The Magistrate also held that as at the date of the accident, the bailment of Mr Madadi was not exclusive and Mr Al Zoubidi had access to and the ability to use the Truck. I consider that the correct way to characterise that circumstance is that:
(i)Mr Madadi initially had possession of the Truck;
(ii)any access provided to Mr Al Zoubidi acted to determine temporarily the relationship between Mr Al Zoubidi and Mr Madadi as bailor and bailee;[21] and
(iii)that relationship as bailor and bailee resumed when the Truck was returned to the possession of Mr Madadi.
[21] Ibid at 110.
I therefore consider that any liability of Mr Madadi falls to be considered by reference to his duties as bailee. The duties of a bailee are determined by the classification of bailment as a bailee for reward or a gratuitous bailee. That classification is based on the decision in Coggs v Bernard[22] where the court listed six different circumstances where a bailment might arise. They were:
(i)The deposit of goods for gratuitous safekeeping by the bailee such as handing over jewellery to a bank for safe custody where no charge is made for the service.
(ii)The delivery of goods to a bailee for work to be done on the goods without reward, such as where A leaves a watch of B for repair without a charge being made for the repair.
(iii)The delivery of goods on gratuitous loan for use by the bailee, such as where A lends her car to B without charge.
(iv)The deposit of goods for safekeeping for reward such as handing over jewellery to a bank for safe custody where a fee is charged for service.
(v)The delivery of goods to have something done to them for reward such as where a car is left at a garage for repair.
(vi)The delivery of goods for use by the bailee for reward, that is the hiring the goods.
[22] (1703) 2 Ld Rym 909 at 912-913; 92 ER 107 at 109.
This list is not exhaustive and various other circumstances of bailment exist such as the delivery of chattels to be held as security for a loan.
The first three types of bailment listed are gratuitous while the last four are bailment for reward.[23] A gratuitous bailment, on this analysis is a bailment where only one party benefits; the other provides his or her services or chattels free.[24] This classification of bailment has been widely accepted, although not definitive.[25]
[23] C Turner and J Trone, Australian Commercial Law, Law Book Co, (3^rd ed, 2021) at [5.50].
[24] N.E. Palmer, Bailment, Law Book Co (2^nd ed, 1991) at 125.
[25] See for example N.E. Palmer, Bailment, Law Book Co (2^nd ed, 1991) at 123; Klapsis v Formosa [2016] NSWSC 1371 at [84].
In the present case, the arrangement appears to most resemble the third category. There has been a delivery of goods by Mr Al Zoubidi to Mr Madadi. There has been no charge for the delivery of goods. Although there was no charge, there were at least initially potential benefits to both parties. Mr Madadi arguably got the use of the Truck and to see if it potentially would be useful in his work. Mr Al Zoubidi got a potential sale if one could be negotiated. The arrangement was more a personal relationship than a business relationship.[26] Certainly, by the end of the period, there was no benefit accruing to Mr Madadi. The Truck could not be driven and had not been used during the period. Mr Madadi had no intention of purchasing the Truck. These matters were, on the Magistrate’s findings, known to Mr Al Zoubidi. The Truck could be collected at any time by Mr Al Zoubidi.
[26] Ibid.
A gratuitous bailee such as Mr Madadi had a duty to take such care of the goods as was reasonable in the circumstances.[27]
[27] Dalgety & Co Ltd v Warden [1954] St R Qd 251 at 253.
Where goods under a gratuitous bailment are damaged, the issue of the onus of proof assumes some significance. There are conflicting authorities on this issue. In South Australia, there is authority binding on me that the onus is on the applicant, as a bailor, to prove negligence in respect of a claim for goods damaged during the course of a gratuitous bailment. In O’Dea v O’Hara and another,[28] Way CJ held:
The innkeeper was merely a gratuitous bailee. He might have become responsible if with his connivance of gross negligence injury had been done, but no evidence of that had been brought forward. At the time of the injury to the bicycles the relations of host and the guest had been determined and there was no evidence of breach of bailment on the part of the appellant…the defendant was not liable.
[28] Register newspaper, 17 May 1895.
That decision was considered by Zelling J in W.G.H. Nominees Pty Ltd v Tomblin.[29] Zelling J noted that the concept of gross negligence had been equated with lack of reasonable care.[30] In relation to the onus of proof, Zelling J observed that O’Dea stood for the proposition that the onus was on the plaintiff [the bailor] to prove that the goods were damaged by the negligent acts of the bailee.[31] Zelling J referred to the decision of the Privy Council in Port Swettenham Authority v TW Wu & Co[32] where the Privy Council came to the opposite conclusion and held that the onus was on the bailee to prove that they took reasonable care. Zelling J concluded:[33]
Accordingly, I am left with a decision of the Full Court of this State which binds me and a dictum of the Privy Council which does not. In my view I am compelled by law to follow the decision of the Full Court of this State. It has the added advantage that I think the Full Court were right on both points that I have to decide.
[29] (1985) 39 SASR 117.
[30] Ibid at 122.
[31] Ibid at 121.
[32] [1979] AC 580 at 589-590
[33] (1985) 39 SASR 117 at 123.
Zelling J noted that there may be an evidentiary onus on the bailee to point to circumstances negativing negligence.[34]
[34] Citing Phipps v New Claridge’s Hotel (1905) 22 TLR 49 at 50.
I observe that there is English authority, in addition to Port Swettenham Authority, to the contrary.[35] There is also some other Australian authority that the gratuitous bailee has the onus of proving that he or she took reasonable care of the goods while they were in their possession.[36] Similarly, a bailee who has failed, upon demand, to return goods that have been lost, has a duty to show that the goods had been lost without negligence.[37] In Dalgety & Co Ltd v Warden, [38] the court held that the degree of care required by the bailee in the circumstances of that case was slight but on the evidence they exercised no care whatever. The bailee was not bound to show exactly how the loss happened but were bound to show that they had not been lost or stolen by any default on their part.[39] Arguably, Kirby J in Tottenham Investments Pty Ltd v Carburettor Services Pty Ltd[40] also supports this position, although his comments were made in proceedings concerning bailment for reward.
[35] Morris v CW Martin & Sons Ltd [1966] 1 QB 716 at 731; James Buchanan & Co LTD v Hay’s Transport Services LTD & Anor [1972] 2 Lloyd’s Rep 535.
[36] McComb v Martin Box Marine Holdings Pty Ltd (1992) 8 SR (WA) 193 at 194; Normoyle v Ducin Pty Ltd (2005) 19 DCLR (NSW) 98 at [62].
[37] Graham v Voigt (1989) 89 ACTR 11 at 19; Mitchell v Ealing London BoroughCouncil [1979] QB 1.
[38] [1954] ST R Qd 251 at 252.
[39] Ibid.
[40] (1994) Aust Torts Reports 81-292.
I find that Mr Al Zoubidi has failed to discharge the onus on him to establish negligence on the part of Mr Madadi. There is no direct evidence of negligence on the part of Mr Madadi. I do not consider that any inference of negligence can be drawn from the established facts which I refer to below.
Assuming there was an evidentiary onus on Mr Madadi to point to circumstances negativing negligence, I consider that he has discharged that onus. He was not present at the time of the accident. There was no evidence as to how the accident occurred or why it occurred after the Truck had been outside the property of Mr Madadi for two months. The Truck had not been moved or driven during this period. Mr Madadi gave evidence that he had not moved the Truck or attempted to move it. By 2 September 2019, he had no reason to attempt to move the Truck and in fact the Truck was not driveable.
Even if the W.G.H. Nominees Pty Ltd v Tomblin was not followed (or Mr Madadi was properly characterised as a bailee for reward), for the same reasons that are set out in the preceding paragraph, I consider that Mr Madadi has discharged any onus imposed on him to prove that he exercised reasonable care in looking after the Truck.
Accordingly, I am satisfied that the Magistrate correctly determined that the accident occurred in circumstances where there was no negligence of the part of Mr Madadi. The extent of any duty imposed on Mr Madadi is to exercise reasonable care in the circumstances and will depend on such matters as the value and vulnerability of the goods, the general environment in which the goods are stored, the conditions of the goods upon delivery, the purpose for which the goods have been delivered and the availability of further protective measures.[41] Applying such criteria, I am satisfied that Mr Madadi has established that he exercised reasonable care.
[41] N.E. Palmer, Bailment, Law Book Co (2^nd ed, 1991) at 786.
It follows that the claim of Mr Al Zoubidi must fail.
Conclusion
For the reasons that I have expressed, I dismiss the application for review and affirm the judgment of the Magistrate.