Australian Foods Company Pty Ltd v Harvest Grain Pty Ltd
[2004] VSC 161
•13 May 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 5445 of 2003
| AUSTRALIAN FOODS COMPANY PTY LTD (ACN 081 404 686) | Plaintiff |
| V | |
| HARVEST GRAIN PTY LTD (ACN 073 722 933) AND MAGISTRATES' COURT OF VICTORIA | First Defendant Second Defendant |
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JUDGE: | Williams J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 April 2004 | |
DATE OF JUDGMENT: | 13 May 2004 | |
CASE MAY BE CITED AS: | Australian Foods Company Pty Ltd v Harvest Grain Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 161 | |
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MAGISTRATES – JUDICIAL REVIEW – Whether Magistrate erred in law by taking into account deponent's failure to attend for cross-examination on application for re-hearing –
r 16.01(b) Magistrates' Court Civil Procedure Rules 1999 – r 40.04(1) Supreme Court (General Civil Procedure) Rules 1996
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Wells | Gavin Wells Corporate Solicitor Australian Foods Company Pty Ltd |
| For the First Defendant | Mr W Stark | Lucas and Marshman |
HER HONOUR:
By an originating motion filed on 17 April 2003, the plaintiff (“Australian Foods”) seeks an order under r 56 of the Supreme Court (General Civil Procedure) Rules 1996 in the nature of certiorari quashing the decision of the Magistrates’ Court at Horsham on 19 February 2003 which dismissed an application for the re-hearing of a complaint brought by the first defendant (“Harvest Grain”).
The Magistrates’ Court proceeding
Harvest Grain commenced a proceeding in the Magistrates' Court by a complaint dated 24 September 2001, seeking damages in relation to the supply of allegedly defective beans by Australian Foods. An undated notice of defence was filed on behalf of Australian Foods. On 1 November 2002, in the absence of Australian Foods, orders were made awarding damages in the amount claimed of $11,250.77 together with interest of $1,541.20 and costs of $4,065.10 against it.
By an application dated 6 December 2002 Australian Foods applied for a re-hearing of the complaint under s 110 of the Magistrates' Court Act 1989. S 110 relevantly provided:
110. Re-hearing
(1) If a final order is made by the Court in a civil proceeding against a person who did not appear in the proceeding, that person may, subject to and in accordance with the Rules, apply to the Court for an order that the order be set aside and that the proceeding be re-heard.
(2) On an application under this section, the Court may set aside the order subject to any terms and conditions that it thinks just and re-hear the proceeding.
…
(5) If an applicant under this section fails to appear at the time fixed for the hearing of the application and the application is struck out, the applicant can re-apply only if the applicant first obtains the leave of the Court.
Both parties were represented at the hearing of the re-hearing application on 19 February 2003, but Mr Pavan Shivnani, the principal of Australian Foods, was absent. The application was dismissed.
The reasons for decision in the re-hearing application
It was common ground that the learned Magistrate’s reasons and decision in the re-hearing application were contained in the following passage from the transcription of proceedings on the 19 February 2003:
"His Worship. Thank you. In the absence of any explanation why Mr Shivrani (sic) is not present today – other than there was no Court order, but in the absence of Mr Shivrani not being present for the opportunity to be given to the plaintiff or respondent in this proceeding to cross-examine him in relation to the merits or otherwise of his affidavit, I propose to proceed on the basis that all advice given to him by those people who are legally qualified and acting as his practitioner is advice complying with the legislation and the rules of this Court.
In the absence of Mr Shivrani being present to be cross-examined as to why he wasn't here on 1 November and as to why he didn't think it was a full hearing of the issues, I propose to proceed on the basis that he was well aware that the hearing on 24 September was one set for the full hearing of the issues, and that that hearing was adjourned for a full hearing of the issues on 1 November.
I am satisfied that counsel when seeking an adjournment on 1 November obtained instructions as to the whereabouts of Mr Shivrani. The instructions to this Court were that he was still overseas. In the absence of the opportunity to cross-examine Mr Shivrani as to his assertion that he was not overseas, I accept that he had every opportunity to attend Court here on 1 November.
The evidence to the Court on 1 November with which Mr Shivrani is now agreeing in some respects, although inconsistent with his instructions given to his legal practitioner on 1 November, is that he was attending a meeting in Naracoorte on that evening. It is consistent with Mr Shivrani's affidavit that he did attend at Naracoorte for such a meeting. The evidence before the Court is that that meeting was in the evening and I have just put on the record that Naracoorte is some 90 minutes to 105 minutes away from Horsham – well driveable after hearing of the issues of which I find that he knew was listed for 1 November.
The proceedings in this case and the stage of the proceedings where he has asked for further time for adjournments and things of that kind demonstrate that he has been seeking to delay matters in this proceeding. I am not prepared to accept, in the absence of the opportunity to cross-examine Mr Shivrani, that he was mistaken or confused about the hearing date.
When I consider prejudice, Mr Shivrani, it is said, was unable to attend because he is busy. I should point out that Mr Shivrani is not the only busy person. Some other people are busy as well and the loss of a day to attend Court is a very important matter for them and they are prejudicing the running of their business by having to do that.
I take into account the other considerations, that is, the triable issues and whether the matter if adjourned can be overcome by costs. In the absence of the opportunity to cross-examine Mr Shivrani as to the issue of triable matters and issues, I am not satisfied that that or the fact as to whether prejudice can be overcome by costs – whether each of those matters overcome the first issue, and that is, he has been given every opportunity to attend Court for the trial of these issues and that he has failed to do so.
He was told, as I understand it, that he should be here today. Is that right? I think that's right, isn't it?.
Mr Verspaandonk: I passed on your Worship's recommendation.
His Worship: That he should be here today, yes. He was told that he should be here today. I proceed on the basis that having said that in Court on a previous day, that is, the bench having said that, that that was conveyed to Mr Shivrani in terms that he should be here.
Mr Verspaandonk: I conveyed it to my instructor.
His Worship: Yes. That's why I proceed on the basis that instructing solicitors and those people who are advising Mr Shivrani would convey that sort of information to Mr Shivrani but nevertheless, Mr Shivrani does not wish to attend. In all the circumstances, the application for a re-hearing is refused."
It was also common ground that under s 10 Administrative Law Act 1978 the reasons for his decision formed part of the “record” of the Magistrate’s decision on the face of which any alleged error of law must be disclosed.
The application for review
The applicant’s case
Mr Wells who appeared for Australian Foods in the application for review of the order dismissing the re-hearing application filed written submissions which set out three grounds for the order sought.
During the course of argument he abandoned grounds and ultimately only pressed his submission that the Magistrate had made an error of law apparent on the face of the record in taking into account in the exercise of his discretion the irrelevant consideration of Mr Shivnani’s failure to attend for cross-examination. In that regard, he submitted that, by reason of the operation of r 16.01 of the Magistrates' Court Civil Procedure Rules 1999, in the absence of any order that he attend, Mr Shivnani was not obliged to be present at the re-hearing application. The Court then erred in law in assessing his affidavit evidence with reference to his absence.
Rule 16
R 16 .01 was at all relevant times in the following terms:
Evidence of witness
16.01 Except where otherwise provided by any Act or by these Rules or unless the Court otherwise orders, the evidence of a witness –
(a)at the hearing of a complaint must be taken orally on oath or by affirmations; and
(b)on any other application must be by affidavit.
Harvest Grain’s response
Mr Stark appeared for Harvest Grain and also provided written submissions to the Court. The submissions referred to much material not forming part of the record which must disclose the error of law. Mr Stark referred to a written request by a letter from Harvest Grain’s solicitors to the solicitors for Australian Foods requiring Mr Shivanani’s attendance for examination at the re-hearing application.
On the assumption that the Court in the application for review could take into account the making of such a request, Mr Stark sought to support the decision of the Magistrate by reference to r 40.04 of the Supreme Court (General Civil Procedure) Rules 1996. He argued that, under r 1.12 of the Magistrates Court Rules, the provisions of r 40.04 could appropriately have been adopted and applied by his Worship, in the absence of any similar procedure under the Magistrates’ Court Rules.
R 40.04 of the Supreme Court (General Civil Procedure) Rules 1996 provided at all relevant times:
Examination on affidavit
40.04(1) Where an affidavit is filed in any proceeding, the Court may order that the deponent be examined before the Court and may order that he attend for that purpose at such time and place as it directs.
(2)Unless the Court otherwise orders, a party to a proceeding commenced by originating motion on whose behalf an affidavit is filed in the proceeding shall cause the deponent to attend at the trial of the proceeding to be examined if notice that such attendance is required is served on the party by any other party a reasonable time before the commencement of the trial.
(3)Where a deponent in respect of whom an order is made under paragraph (1) or a notice is served under paragraph (2) does not attend for examination the Court may order that the affidavit be not received into evidence.
He submitted that the Magistrate was entitled to take it into account, when assessing the persuasiveness of his affidavit material, that Mr Shivnani had not attended for cross-examination after having been given notice to do so.
There is no indication in the reasons that the Magistrate made any order under r 1.12 or decided to adopt or apply any procedure provided for by r 40.01. Further, I do not find persuasive the argument that there was any relevant absence of procedure when there is no provision in the Magistrates’ Court for the conduct of a trial by affidavit, such as that available to a litigant in the Supreme or County Courts commencing a proceeding by originating motion. I note also the presence of r 16.04 (1)(a) of the Magistrates’ Court Rules which permits the making of an order in any proceeding “for the attendance of any person for the purpose of being examined”.
Indeed, rather than referring to any request by Harvest Grain that Mr Shivnani attend, the Magistrate appeared to refer to his own indication from the bench that Mr Shivnani should present himself as a relevant consideration, saying in the course of his reasons:
“He was told, as I understand it, that he should be here today. Is that right? I think that's right, isn't it?
Mr Verspaandonk: I passed on your Worship's recommendation.
His Worship: That he should be here today, yes. He was told that he should be here today. I proceed on the basis that having said that in Court on a previous day, that is, the bench having said that, that that was conveyed to Mr Shivrani in terms that he should be here.
Mr Verspaandonk: I conveyed it to my instructor.
His Worship: Yes. That's why I proceed on the basis that instructing solicitors and those people who are advising Mr Shivrani would convey that sort of information to Mr Shivrani but nevertheless, Mr Shivrani does not wish to attend. In all the circumstances, the application for a re-hearing is refused."
Palmer Tube Mills (Aust) Pty Ltd v Semi.
Mr Stark also sought to support the correctness of the learned Magistrate’s findings as to the persuasiveness of Mr Shivnani’s affidavits by referring to the decision of the Victorian Court of Appeal in Palmer Tube Mills (Aust) Pty Ltd v Semi[1]. In Palmer the Court of Appeal considered the validity of orders made in relation to applications under s 135A of the Accident Compensation Act 1985 and s 93 of the Transport Accident Act 1986 for leave to commence proceedings for damages. The challenged orders provided, despite the requirements of r 40.04(2) of the County Court Rules, that cross-examination should not take place unless the trial judge so ordered. Mr Stark relied upon a passage in the judgment of Brooking JA with whom Tadgell and Buchanan JJA agreed. At 449 his Honour said:
" … it is clear that a decision has been made that in general applications under s 93 or s 135A will be determined without cross-examination. To lay this down is impermissibly to fetter the discretion given by r 40.04(2), which should be exercised on a case by case basis and without any presumption against cross-examination. Rule 40.04(2) indeed creates a presumption in favour of cross-examination if it is desired, but even if the rule simply empowered a judge to determine whether cross-examination should be permitted it would be wrong to lay down a general rule that cross-examination was not to be permitted on applications under particular statutory provisions. Moreover, even if r 40.04(2) did not apply to the applications in question, on the footing that the paragraph of the orders dispensing with viva voce evidence subject to any direction of the judge prevailed over r 40.04(2), the difficulty would remain, in that the order lays down a general rule against cross-examination. In 'serious injury' applications, both sides are of course entitled to a fair trial of the issue: Stead v State Government Insurance Office (1986) 161 CLR 141 at 145. The nature of the issue to be tried is such that, if evidence is to be given by affidavit, fairness will often require that one side be able to cross-examine those who have made affidavits relied on by the other side. What fairness requires in a given case can be decided only in the light of the circumstances of that case, including in particular the affidavit material. It is not conducive to a fair trial that the trial of the issue should be approached with a pre-disposition against the permitting of cross-examination."
[1][1998] 4 VR 439.
Mr Stark argued that, in accordance with the Court’s obligation to provide natural justice recognised in Palmer, it was entitled to reject or give less weight to evidence given by affidavit if the deponent had been requested to attend for cross-examination and had failed to do so.
I am not persuaded by Mr Stark’s submissions in relation to Palmer. The decision in Palmer relates to the validity of an attempt to deny effect to r 40.04 of the County Court Rules in the trial of a proceeding commenced by originating motion.
Re O'Neil (Dec'd)
Mr Stark also relied upon principles referred to by Anderson J in Re O'Neil (Dec'd)[2], where his Honour dealt with the admissibility at trial of an affidavit made by a deponent who had subsequently died, stating at 333:
"In cases where affidavits are challenged, as is that of Veronica Graham [the deceased] in this case, and the deponent is not available for cross-examination, the affidavit may either be rejected, or, if it is received, only slight weight may be given to its contents. In Shea v Green (1886), 2 T.L.R. 533, the Court refused to act upon an affidavit of a deponent who had absconded, and could not be cross-examined. Similarly, in Dunne v English (1874), L.R. 18 Eq. 524, and Bingley v Marshall (1862), 6 L.T. 682, where the deponents had left the country and were not available for cross-examination, their affidavits were not allowed to be read. In other cases where the deponents have died or have been too ill to be cross-examined, their affidavits have been admitted, though the Court has intimated that the weight to be given to them would be slight; see Abadom v Abadom (1857), 24 Beav.243; Davies v Otty (1865), 35 Beav.208; Braithwaite v Kearns (1865), 34 Beav.202. In principle, there appears to be no difference between the non-availability of a deponent for cross-examination due to wilful absence and non-availability due to death or illness. It will depend upon the particular circumstances including the nature of the proceedings whether such an affidavit will be rejected or if admitted the weight to be given to it. It appears, however, that the admission of an affidavit which cannot be tested by cross-examination is a matter of determination by the Court."
[2][1972] VR 327 at 333.
Re O'Neil once again dealt with the situation at a trial at which evidence was given by affidavit. I am not persuaded that the applicable principles are decisive in this case which concerns an interlocutory application where no order has been made for the attendance of a deponent.
Mr Stark also referred to the decision of the Court of Appeal in Comet Products UK Ltd v Hawkex Plastics Ltd [3] in which it was held that cross-examination ought not be allowed of the deponent of an affidavit filed in an application alleging contempt of court in circumstances in which the cross-examination might potentially affect the subject matter of the litigation generally and have small relevance to the contempt application. Mr Stark relied upon Megaw LJ’s view that “the judge might think it right to disregard the affidavit, or to give it very little weight”[4]. Whilst he acknowledged that the authority dealt with a distinguishable situation of an opposed application for an order that a deponent attend for cross-examination, he submitted that the case was authority for the proposition that, when cross-examination does not occur, the court is entitled to give the affidavit evidence little or no weight.
[3][1971] 2 QB 67
[4]ibid at 77
Mr Stark conceded that there was no provision in the Magistrates’ Court Rules requiring the deponent to attend for cross-examination in the absence of an order to do so. However he said that did not prevent the court from rejecting or disallowing the affidavit or giving the evidence very little weight. In light of the authorities, Mr Stark submitted, the Magistrate was permitted to take into account the absence of Mr Shivnani in reaching his conclusions as to the persuasiveness of his affidavits in support of his application for a re-hearing.
Review of the exercise of a discretion by an inferior court
The Court may grant relief in the nature of certiorari under r 56.01 of the Supreme Court (General Civil Procedure) Rules 1996 in relation to an interlocutory or final decision of an inferior court on the basis of an error of law disclosed on the face of the record.[5]
[5]Craig v South Australia (1995) 284 CLR 163 at 174-176
The decision of the Magistrate to grant a re-hearing application is a discretionary decision. An error of law will be demonstrated if it is apparent that his Worship “allow[ed] extraneous or irrelevant matters to guide or affect him”: see House v The King [6].
[6](1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ.
Conclusion
In conclusion I am satisfied that the learned Magistrate erred in law in taking into account the absence of Mr Shivnani in circumstances in which the Magistrates’ Court Rules provided for the evidence in the interlocutory application to be given by affidavit and no order had been made for his attendance. A recommendation by the court that the deponent attend to explain himself would not suffice to make his absence a relevant consideration to be taken into account in the way it was in the assessment of the weight to be given to his evidence.
The application under r 56 will be granted and the order of the learned Magistrate will be quashed.
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