Black v Walker

[2000] NSWSC 983

New South Wales

Supreme Court

CITATION:

Black v Walker [2000] NSWSC 983 revised - 12/12/2000

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

SC 11802 of 1997

HEARING DATE(S):

22 July 1997
14 August 1997
15 August 1998
10 March 1999

JUDGMENT DATE:

27 October 2000

PARTIES :

RICHARD BLACK
(Plaintiff)

v

SANDI PAU YIN WALKER
(Defendant)

JUDGMENT OF:

Levine J

COUNSEL :	M Watts (Plaintiff) M Macrossan (Defendant)
SOLICITORS:	Forshaws Neill (Plaintiff) Redmond Partners (Defendant)
CATCHWORDS:	Stated case - Justices Act 1902 - amendment - questions of fact - questions of law
LEGISLATION CITED:	Justices Act 1902 Local Courts (Civil Claims) Act 1970
CASES CITED:	Australian National Industries Limited v Spedley Securities Limited (In Liq.) (1992) 26 NSWLR 411 Booton v Hosking (1948) 65 WN (NSW) 110 Cook v Evans (1948) 65 WN (NSW) 289 Ex Parte Sharah; Re Cox; Potato Marketing Board v Sharah (1956) 73 WN (NSW) 283 Fisher v Commonwealth Bank of Australia (Federal Court of Australia, unreported, 11 April 1990) George Hudson Limited v Australian Timber Workers Union (1923) 32 CLR 413 Grassby v The Queen (1989) 168 CLR 1 at 20 per Dawson J Instant Colour Pty Limited v Canon Australia Pty Limited (Federal Court of Australia, unreported, 30 October 1995) R v Masters (1992) 26 NSWLR 450 R v Watson; Ex Parte Armstrong (1976) 136 CLR 258 Saddi v Saddi & Ors (unreported, 1 June 1995, Dunford J) Sangster v Henry (1920) 37 WN (NSW) 135 Smith v NSW Bar Association (1992) 176 CLR 256 Taylor v Logwon Pty Limited (Court of Appeal, unreported, 9 February 1994) Urban Transport Authority of NSW v Nweiser (1991) 28 NSWLR 471 Wheeler v Cahill (1944) 61 WN (NSW) 1
DECISION:	See paragraph 86

DLJ: 2
[2000] NSWSC 983

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

No. 11802 of 1997

JUSTICE DAVID LEVINE

FRIDAY 27 OCTOBER 2000

RICHARD BLACK
(Plaintiff)

v

SANDI PAU YIN WALKER
(Defendant)

JUDGMENT (Stated case - Justices Act 1902 - amendment - questions of fact - questions of law)

1��� By Summons filed on 17 June 1997 the appellant seeks the determination of matters raised in a Stated Case pursuant to s 101 of the Justices Act 1902 as it then applied. The lengthy and in many respects unfortunate history of this matter will be referred to at the conclusion of these reasons. 2��� The plaintiff/appellant instituted proceedings in the Local Court by way of Ordinary Statement of Claim on 1 April 1996. The cause of action was in detinue for the return of a diamond ring or its value. 3��� From the Stated Case the relevant factual matters can be summarised as follows: the diamond ring was given in consideration of marriage. Mr Carr, solicitor for the appellant wrote two letters of demand on his client’s behalf subsequent to the date upon which the respondent says that the ring had been taken by the appellant from her premises. Mr Carr gave evidence that the respondent contacted him after he had written the first letter of demand and maintained a right and entitlement to possession of the ring and made assertions as to certain conduct on part of the appellant. 4��� There was no note of Mr Carr’s telephone conversation with the respondent. Mr Carr gave evidence that a note was made of that conversation and placed in a telephone message book and that he had removed the note from the record book because he wanted to save the appellant from the embarrassment arising from any of Mr Carr’s staff having access to the material; the note was later destroyed when the parties were “reconciled”. 5��� There was evidence from the appellant’s mother, Mrs Black of a telephone conversation she had with the respondent in July of 1994 when it was said that the respondent expressed an intention to keep the ring. 6��� There was evidence of the respondent that the appellant had come to her premises on 31 May 1994 and removed the ring and certain “lingerie” photos. 7��� It was the evidence of the respondent that on 31 May 1994 the appellant was an unwelcome visitor to her home; he had been told that the ring was on the bedside table in her bedroom; he had the opportunity to remove the ring while she was absent; it was her evidence that she had a conversation with the appellant in which she accused him of taking the ring, an accusation denied by the appellant. 8��� The respondent gave evidence of a further conversation on 25 June 1994 in which the appellant repeated the accusation, the conversation being to the effect:

“Q. What did he say?
A. He said ‘I’ve got it, but I’m taking you to Court’ he said ‘the Magistrate will never believe a solicitor will commit perjury in Court’ and he said, he said, ‘It’s my word against yours, you haven’t got a leg to stand on. I’m going to get you, I’m going to hurt you because of what you did that night with Shamus’”.

9��� The respondent’s assertion that the appellant took the ring is “supported” by the existence of a diary note of 25 June 1994 which the learned Magistrate admitted into evidence over objection by the appellant’s counsel. That diary note reads: “suing me for return of ring. He has the ring and wants to hurt me”. 10��� On 22 August 1996, during the course of the case in chief of the appellant, no evidence was lead from a Mrs Marcel Gorman. On 6 November 1996 the learned Magistrate allowed the appellant’s counsel, during the cross-examination of the respondent, to put to the respondent a conversation she had with Mrs Gorman, a neighbour, where it was put that the respondent had acknowledged possession of the ring and a refusal to return it. This acknowledgment was made after the date on which the respondent alleges that the appellant had taken the ring. The cross-examination was said to have been allowed on the basis that an application would be made to lead Mrs Gorman’s evidence as part of the appellant’s case in reply. The evidence, the subject of cross-examination, is said to have corroborated the testimony of Mr Carr and Mrs Black. At the end of the respondent’s case an application was made to lead evidence of Mrs Marcel Gorman by re-opening the appellant’s case and as evidence in reply but the learned Magistrate refused such application. 11��� It is to be noted at this point that the transcript of the Local Court hearing on 6 November 1996 (LCT 44-51) points to an ambit of evidence sought to be lead in “re-opening” or in “reply” far beyond that of merely calling Mrs Marcel Gorman. 12��� The learned Magistrate found on the balance of probabilities that the ring was a gift given by the appellant to the respondent in consideration of marriage and that therefore the appellant was entitled to demand the return of the ring when the engagement to marry broke down. 13��� As to the demands he was satisfied on the balance of probabilities that demands were made by the appellant’s solicitor and by the appellant himself, but that the first of those demands was not made until some time after 31 May 1994 (that is the date upon which it was alleged that the appellant had come to the respondent’s premises and removed the ring). 14��� The learned Magistrate was satisfied on the balance of probabilities that the appellant removed the ring the subject of the proceedings from the respondent’s premises and from that day the respondent did not have possession of the ring thus making any demand for its return or a claim for its value meaningless and any assertion that the respondent refused to return the ring an impossibility. 15��� The appellant’s contentions and the questions raised thereby are as follows. 16��� The first contention relates to the refusal by the learned Magistrate to admit evidence from Mrs Marcel Gorman in reopening, evidence described as “relevant and important”. His Worship refused to admit the evidence on the grounds that the appellant had had an opportunity to lead the evidence in chief and ought to have lead it then and on the grounds that the respondent would be deprived of the opportunity of responding in the same way had the evidence in fact been lead in chief. 17��� Thus it is that the first question for determination is:

1(a) Was the learned Magistrate correct in allowing the cross-examination of the respondent regarding her conversation with Mrs Marcel Gorman and not allowing the evidence of Mrs Gorman;
1(b) Was the learned Magistrate correct in not permitting the appellant to reopen to lead evidence of Mrs Gorman?

18��� The relevant component of the cross-examination of the respondent was as follows (LCT 6/11/96 10-11):

“Q. Do you know a woman by the name of Marcel Gorman?
A. Yes, she is my neighbour.
Q. She lives at 5 Rainbow Place, doesn’t she, in Kareela?
A. Yes.
Q. I suggest to you that you have spoken with her about the engagement ring?
A. No I don’t think so I have not spoken to her about the engagement ring.
Q. Is there any reason why she would tell lies about a conversation that she said she had with you?
A. I believe we …
OBJECTION. NOT ALLOWED.
Q. See I suggest to you that you had a conversation with her about the break up of your engagement with Mr Black?
A. I do not think I would have spoken to that lady.
Q. I suggest that during the course of a conversation that you had with her after your engagement had broken up that she asked you whether you had given Mr Black the ring back, what do you say about that?
A. No, Marcel Gorman and I do not get along, I would not speak to her about anything, about my private life, and that’s the truth.
Q. I suggest that you said words to her along the lines, there is no way in the world I’ll give that ring back to him. My sister in Singapore spent a lot of time selecting that diamond and I do not intend to return the ring. I suggest that you said to Mrs Gorman?
A. That is pure fabrication”.

19��� Having heard arguments as to an application to re-open his Worship declined so to do (LCT 46.50). 20��� The second contention was that the learned Magistrate erred in law in not placing weight on the evidence of Malcolm Carr, solicitor, of a telephone conversation on 16 June 1994 with the respondent when the respondent asserted a right to keep the ring. 21��� The second question for determination is:

2. Was the learned Magistrate correct in not placing weight on Malcolm Carr’s evidence as to the telephone conversation?

22��� The evidence in this regard, to the substance of which reference has been made above, is set out at LCT 33-38. His Worship’s finding is as follows:

“Mr Carr’s evidence is that a note was made of the telephone conversation and placed in the appropriate record of telephone messages. Mr Carr’s explanation for the removal of that note from the record of telephone messages to the effect that he wanted to shield MR Black from embarrassment arising from Mr Carr’s staff having access to material adverse to Mr Black’s character in my opinion is so unconvincing that I am unable to give significant weight to the evidence of Mr Carr in respect of that conversation”.

23��� What is described as the third contention is that his Worship erred in allowing into evidence the respondent’s diary note and in placing weight on the diary entry of 25 June 1994. 24��� The respondent in examination-in-chief gave evidence of an alleged telephone conversation with the appellant on that date and that she made a diary note of the conversation. When the hearing before the Magistrate resumed on 6 November 1996 the respondent was cross-examined and on re-examination the diary note was tendered and admitted into evidence over objection. 25��� It is not clear from the format of the Stated Case that separate questions have been set out as the “third question for determination”. They are in fact set out as the “fourth” question. I will note the fact that there is no “third” question and deal with the matter that the next set of questions can be described as follows:

4(a) Was the learned Magistrate in error in admitting into evidence the respondent’s diary note?
4(b) Was the learned Magistrate in error in placing weight on the respondent’s diary note?

26��� With respect to the evidence of the respondent and the note his Worship said (LCT, 5 February 1997, 5.15):

“The defendant’s assertion that the plaintiff took the ring is recorded (sic) [supported] to some extent by the existence of a diary note for 25 June 1994 admitted into evidence over objection taken by plaintiff’s counsel. The diary note reads and I quote ‘Suing me for return of ring. He has ring but wants to hurt me’”.

27��� The fifth contention related to evidence Mrs Black gave on 22 August 1996 of a telephone conversation she said she had with the respondent on 7 July 1994 when the respondent acknowledged possession of the ring and a right to keep it after (that is in point of time) the respondent in fact alleged that the appellant had taken the ring from her residence. In cross-examination it was not put to Mrs Black that she lied or that the appellant (her son) had asked her to lie when she made her statement. 28��� The fifth question for determination can thus be viewed as:

5 Was the learned Magistrate correct in not placing weight on Mrs Black’s evidence?

29��� The sixth matter of contention was that the learned Magistrate erred in finding that the appellant took the ring and that error arose because it was against the weight of the evidence. 30��� The sixth question for determination therefore can be understood from the Stated Case as:

6. Was the learned Magistrate correct in entering a verdict for the respondent in the light of the evidence that the respondent had acknowledged to Malcolm Carr, solicitor on 16 June 1994 a right to retain the ring and to Mrs Black on 7 July 1994 that she had possession of the ring after the date she alleges that the ring was taken from her residence by the appellant?

31��� The learned Magistrate’s findings in relation to Mrs Black were as follows (LCT, 5 February 1997, 4.25-50):

“As to the evidence of Mrs Black, the mother of the plaintiff, that she had a conversation with the defendant in which the defendant said, amongst other things, that she intended to keep the ring. Mrs Black is a person of some 84 years of age. I’m well satisfied she gave her evidence to the best of her knowledge and belief but I am also satisfied from her demeanour in the witness box and her response to questions put to her in cross-examination that her evidence must be viewed in the light of the frailty of her age as well as her evidence that the plaintiff, her son, had helped her in regard to the conversation she gave evidence of and had prepared a statement for her to help her with her memory. But Mrs Black was not pressed in cross-examination as to these aspects of her evidence does not entitle the plaintiff to assert that her evidence as to the conversation stands unchallenged nor to that matter in my opinion does the failure of the defendant to give specific evidence in chief in denial of that conversation of itself require this Court to regard Mrs Black’s evidence of the conversation and its contents as unchallenged.
I believe the Court must look at the totality of Mrs Black’s evidence in chief and cross-examination and in re-examination and when looked at in totality while I have no doubts as to the honesty of Mrs Black I do have substantial reservations as to whether her evidence can be accepted as an accurate and reliable account of events said to have taken place about three years ago”.

32��� The learned Magistrate concluded his determination on the merits of the action as a whole which he had heard as follows (LCT 5-6):

“I am satisfied to find on the balance of probabilities that the ring was a gift given by the plaintiff to the defendant in consideration of marriage and that therefore the plaintiff was entitled to demand the ring, the return of the ring when the engagement to marry broke down. I come to this finding despite having reservations as to the accounts of both the plaintiff and the defendant as to the conversation each said took place when the ring was given. I consider the balance falls in favour of the plaintiff’s assertion that the ring was given in consideration of marriage taking place. When one has to regard to the evidence of the defendant that she would have returned the ring on demand had she had it in her possession.
As to the demands I’m satisfied on the balance of probabilities that demands were made by the plaintiff’s solicitor and by the plaintiff himself but that the first of those demands was not made until sometime after 31 May 1994. I do not accept that the plaintiff made demand for the return of the ring on 31 May 1994. No such evidence was given by him when giving evidence in chief and it was not until he was cross-examined that he maintained he sought the return of the ring on the night of 31 May 1994. I believe this was an instance of the plaintiff crafting his evidence to best serve his case.
As to the events of 31 May 1994 I am satisfied on the balance of probabilities that the plaintiff removed the ring, the subject of these proceedings, from the premises of the defendant and that from that date hence the defendant did not have possession of the ring thus making any demand for its return or claim for its value meaningless and any assertion that the defendant refused to return the ring an impossibility”.

33��� At the hearing before me the question arose as to the amendment of the Stated Case to include a seventh contention. That contention was to the following effect. On 6 November 1996 the appellant filed a Notice of Motion seeking orders that the Magistrate disqualify himself on the basis of a reasonable perception of bias on the part of the appellant and that the hearing be abandoned and that the proceedings be transferred to the Downing Centre with each side to pay its own costs. Two affidavits in support, one from Malcolm Carr, solicitor and one by the plaintiff (who is also a solicitor), were filed deposing to the perception of bias. The Magistrate refused to make the orders and dismissed the Motion. 34��� The proposed seventh question for determination would be:

7. Should the learned Magistrate have disqualified himself on 6 November 1996 on the grounds of reasonable perception of bias?

35��� The material in relation to the application before the learned Magistrate is set out in an affidavit sworn by the appellant on 25 June 1997, and in affidavit of Mr Carr sworn 14 July 1997 to which is annexed the relevant affidavits to which his Worship referred. 36��� It was on the second hearing day before his Worship, 6 November 1996, that the appellant moved on the Notice of Motion filed in the Local Court. His Worship had read the evidence before him carefully, heard submissions and came to the conclusion it had not been shown that the Court had conducted itself in such a way that a person would reasonably apprehend that the Court would not decide the matter impartially and without prejudice. The plaintiff’s Motion was dismissed. That was a determination, as I have said, made on 6 November 1996. The ultimate determination of the action heard by the learned Magistrate was constituted by his decision delivered on 5 February 1997. The first basis upon which the “amendment” of the Stated Case is to be approached is that the Stated Case itself relates to the decision of 5 February 1997. The proposed contention relates to the Magistrate’s order of 6 November 1996. 37��� I am persuaded by the submissions for the respondent that the application made for the appellant to amend the Stated Case is simply out of time by reason of the operation of s 69(2) of the Local Courts (Civil Claims) Act 1970 and s 102A of the Justices Act as it then operated. According to the affidavit of Mr Black it was not until 11 June 1997 that application was made to the Local Court to amend the Stated Case; that application was declined. All time provided by the legislation has expired and there is no basis upon which this Court can grant the amendment sought (cf. Saddi v Saddi & Ors (unreported, 1 June 1995, Dunford J)). 38��� In any event, I would not have been persuaded that there was any error committed by the learned Magistrate in declining to disqualify himself in the circumstances of the litigation over which he was presiding. It was a case that was founded in romance and evolved into recrimination of an intense personal quality. His Worship had the benefit of observing everything about the parties to it and none of the aspects of the way in which his Worship conducted himself, on any reasonable basis, could attract the requisite apprehension. It was perfectly open to the learned Magistrate, for example, to require a witness to give responsive answers, a fortiori, when that witness is a solicitor. It was equally open to his Worship to make recommendations that the parties, on a rational and objective basis, to explore the possibility of the resolution of the litigation before him by settlement. The affidavits in support of the Motions before his Worship, which I have read, contain a lot of emotive, rhetorical material. From the perspective of his Worship (I am not suggesting that this is the critical perspective), his Worship was entitled to form a view as to the propriety, fairness and impartiality of his own conduct. Upon reading the transcript of the proceedings before his Worship and taking into account the context in respect of which various matters the subject of complaint by the appellant came about, I am of the view that a reasonable and detached examination of the proceedings would not and could not lend itself to the conclusion that his Worship was acting otherwise than in accordance with his duty of impartiality and in accordance with his obligation efficiently, and in the interest of justice, to conduct the business of his Court. 39��� His Worship was sensible to the relevant principles (R v Watson; Ex Parte Armstrong (1976) 136 CLR 258) and properly applied them. The test, when bias is raised, is whether “in all the circumstances the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the matter before him” (Grassby v The Queen (1989) 168 CLR 1 at 20 per Dawson J). The apprehension is that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party (Australian National Industries Limited v Spedley Securities Limited (In Liq.) (1992) 26 NSWLR 411 at 427 per Samuels JA). The approach adopted by the plaintiff before his Worship and the appellant before me was founded in an entirely subjective view reached by the appellant in the context of his own interests being the subjective of an adverse finding. Further, I add that nothing in the conduct of the proceedings before his Worship would give rise to a view that his Worship had reached a state of pre-judgment as between the litigants during the course of the proceedings (in any of his interlocutory rulings (cf. R v Masters (1992) 26 NSWLR 450). 40��� The application to amend the Stated Case is refused and the Notice of Motion therefor filed on 25 June 1997 will be dismissed. 41��� I turn to the first matter in contention: the first question for determination relating to the “reopening” issue. 42��� The appellant’s position curiously commences with the proposition that the learned Magistrate was in error in allowing the appellant/plaintiff in the proceedings, over the objection of the defendant on 6 November 1996 (LCT 34), to cross-examine the defendant/respondent on the disputed conversation said to have contained admissions by the defendant to her neighbour Mrs Gorman. It is contended in this Court that the subject matter elicited in the cross-examination laid the foundation for the application to reopen. This “error” and one later dealt with in respect to a request for a voir dire, was not the subject of inclusion in the Stated Case. Both were the subject of reference, at least, in the proceedings in the Local Court. An appeal by way of Stated Case however is not limited to points of law actually taken at the hearing before the Local Court; any point of law arising out of the facts may be taken (George Hudson Limited v Australian Timber Workers Union (1923) 32 CLR 413; Wheeler v Cahill (1944) 61 WN (NSW) 1; Booton v Hosking (1948) 65 WN (NSW) 110; Cook v Evans (1948) 65 WN (NSW) 289). I am of the view that if the appellant took the position that the proceedings in the Local Court were infected by these two “errors” and that those errors could be characterised as errors of law, then they should properly have been included in the Stated Case. 43��� One basis of complaint throughout this matter is the submission made by the appellant that he was unaware of the position of the defendant in defence of the plaintiff’s claim in tort. True it is that the Magistrate had earlier made an order that the defendant provide particulars (with which there was no compliance), but to suggest ignorance on the part of the plaintiff as to the line the defendant was going to take in the action is ingenuous given the clarity with which the defendant’s position was made clear during the cross-examination of the plaintiff in the proceedings in the Local Court as to the defendant not being in possession of the ring by reason of the plaintiff having taken it. (It is to be noted in passing that concern has been expressed as to what is said to be the serious allegations of “theft” by the plaintiff. One short point of that matter is that in an action for detinue if the defendant was not in possession at the time of the demand or cannot be shown to be in a possession that was “wrongful” for the purposes of the tort, if it be the fact that the plaintiff did take the ring, one can seriously question whether on a reasonable basis an allegation of “theft” can be made given the apparent availability to the plaintiff of a “claim of right”). 44��� It is clear that the evidence was admitted on a “conditional” basis (LCT 6/11/96 16.50) though it is uncertain as to whether it was admitted on a conditional basis as provided by s 57 of the Evidence Act 1995 (NSW). In any event, his Worship made it clear that in the event of his disallowing an anticipated application to reopen no weight would be attached to the material. 45��� The application to reopen was not one limited to pursue the issue the appellant says wrongfully came about by the Magistrate being in error in allowing the cross-examination of Mrs Gorman. 46��� The application was made to reopen the case in chief. During the course of that application (LCT 6/11/96 44-46) no mention is made at all of Mrs Gorman though reference is made to seeking to call evidence of conversations “first of all that the defendant had with people who I intend to call as witnesses”. Those people, apparently, were to be called to state that they spoke with the defendant who said that she was not going to return the ring. Secondly, it was intended to call witnesses, or a witness, who would say that the defendant had attempted to get them to make false statements in relation to the proceedings. In other words, at this point , it is to be noted that the application to reopen was of a far wider ambit than the more focused issued the subject of the first contention in the Stated Case. 47��� If one focuses on the cross-examination of the respondent as to the alleged conversation with Mrs Gorman, at the time of that cross-examination it could only relate to a matter of credit. If it was sought otherwise to make it evidence as to a substantive fact in issue, as the respondent argues, it was clearly a matter one would have anticipated the plaintiff to have called evidence in chief in his case in the Local Court. 48��� During the course of proceedings before his Worship and myself reference was made to the decision of the High Court in Smith v NSW Bar Association (1992) 176 CLR 256 and the decision of the Court of Appeal Urban Transport Authority of NSW v Nweiser (1991) 28 NSWLR 471 in the context of the interests of justice to which both decisions refer. 49��� At this point I am content to remark that his Worship’s consideration of all aspects of the application to reopen (and I am not persuaded that there had been any partial reopening, nor am I persuaded that the application was one to call evidence in reply in a strict sense), properly applied the principles and came to a correct decision. 50��� The effect of a decision in the circumstances of the application as it was made to his Worship, to allow the plaintiff to reopen would have been to permit the plaintiff to split his case by calling, after the conclusion of the defendant’s case, evidence that would have properly been the subject of tender in the case in chief. 51��� It was argued that a correct approach should have been to admit the evidence “provisionally” pursuant to s 57 of the Evidence Act 1995 (NSW) and then to allow the appellant to call witnesses to make the evidence admissible by making it relevant. This proposition, of course, to a great extent begs the question. The evidence arose in cross-examination of the defendant after the closure of the plaintiff’s case. The proposition advanced for the appellant would have more weight and substance if some problem in relation to the evidence of Mrs Gorman had arisen at the appropriate time namely, during her being called to give examination-in-chief. 52��� I am persuaded by the defendant’s submissions that there was nothing before the learned Magistrate at the time of the making of the application to reopen by the plaintiff to indicate that the evidence of Mrs Gorman bore anything more than “peripheral” relevance. No date for the alleged conversation had been put to the defendant. Further, as I have indicated, the application to reopen was not limited (even implicitly) to Mrs Gorman but was rather couched in general terms and seemed to encompass the calling of a number of witnesses or several issues. 53��� As I have also said, the plaintiff cannot claim to have been taken by surprise or prejudiced by the defendant’s “position” in the litigation before the Magistrate when it was clear from the cross-examination of the plaintiff that both the plaintiff and his legal advisers were aware of the defendant’s claim that the plaintiff had removed the ring. Further the question of the need to call further witnesses was raised very late in the proceedings, and in general terms, and only in effect when the ambit of the cross-examination arguably exceeded the then bounds of relevance in any event in the light of the structure of the plaintiff’s case in chief. 54��� The reality is that the plaintiff, having heard the defendant’s evidence, including evidence on a subject made clear as to being an issue by reason of the cross-examination of the plaintiff, would clearly have been put in a disproportionately advantageous forensic position; that is, it would have been unfair to the defendant to permit the splitting of the case in this way. 55��� As his Worship in effect remarked a real prejudicial component in his consideration was the nature of the claim, the quantum of the claim and the increase in cost in extending the litigation of the peculiar and extraordinary case he was hearing. 56��� Whilst I am not persuaded by the argument for the respondent that the question of whether his Worship’s decision not to allow the plaintiff to reopen is one not amenable to consideration by this Court on a Stated Case by reason of it being merely a discretionary matter, I am persuaded that the exercise of discretion by his Worship was one attended by appropriate judicial considerations and a robust and sensible approach in the light of the evolution of the litigation before him to the end that the interests of justice favoured the refusal of leave (Nwesier at 475D) and his Worship was correct to do so. 57��� It was argued for the respondent that s 135 of the Evidence Act 1995 (NSW) would in any event have provided a basis for the proper exercise of a discretion in all the circumstances to exclude any such evidence that the plaintiff was otherwise seeking to call. This is a proposition to be noted but certainly one that does not have to be decided. 58��� The first questions for determination will be answered in the negative. 59��� I turn to the what are described as the second question and the fifth question for determination relating to the question of “weight” in relation to the evidence of Mr Carr and Mrs Black respectively. 60��� Assuming for the moment that these matters leading to the relevant questions are amenable to review on a Stated Case, it was argued for the appellant that in relation to Mr Carr’s evidence simply that it “should have been taken into account and weighed in the balance” by reason of his being a solicitor of the Court, by what is said to have been his clear recollection of events without reference to notes; the destruction of the notes being irrelevant unless he was disbelieved as to his evidence that he had destroyed them. Further there was a “ring of truth” about the evidence. There was no dispute in cross-examination of the defendant as to the conversation having occurred to the effect stated and Mr Carr’s account of destroying the records of the conversation and of the correspondence to the defendant, bearing in mind his professional relationship with the plaintiff and his understanding that the relationship between the parties had been “patched up” was not unreasonable and, it was argued, if anything is corroborative. 61��� As to the evidence of Mrs Black it is stated that it should have been given some weight by the Magistrate in balancing the probabilities and the mere fact that she was old (aged 85) and was related to the plaintiff was not a reason to reject her evidence altogether. The more so as she was not cross-examined to the effect that a conversation had not occurred and her version constituted corroboration of the version of Mr Carr and was is said to be the putative version of Mrs Gorman. 62��� It is argued that no suggestion having been put to Mr Carr (Browne v Dunn) it was not open to draw an inference to that to which Mr Carr deposed did not take place. This is not what the Magistrate found. He simply found Mr Carr’s evidence unconvincing and was unable to give it significant weight. 63��� I am persuaded by the submissions for the respondent that these matters of “weight” as stated in this case relate to fact finding rather than to any justiciable question of law on a case stated. His Worship’s findings were as a result of his proper consideration of testimony and the witnesses who gave it, and his rejection or acceptance of it by the giving of weight thereto. These matters relate to questions of fact exclusively within his province. Nor am I persuaded in relation to the Browne v Dunn point that absent challenge on that basis that which is asserted by the witness can be found to be conclusive and determinative evidence on that subject. 64��� As I have stated I am of the view primarily that these are not questions of law but rather questions of fact (Wheeler v Cahill (1944) 61 WN (NSW) 1; Taylor v Logwon Pty Limited (Court of Appeal, unreported, 9 February 1994)). In any event, no error to my mind has been disclosed in the approach adopted to these issues of fact. 65��� Accordingly, the second and fifth questions will be answered in the negative. 66��� I turn to the fourth question and matters of contention relating to the admissibility of the diary note. That the respondent made a diary note of the conversation was elicited in examination-in-chief (LCT 51.17). In cross-examination the following evidence was given (LCT 6/11/96 34.25-40):

“Q. And you say you took a diary note, did you, of the conversation?
A. Yes, I made a note.
Q. In your diary was it?
A. I believe so.
Q. Surely you remember writing it down?
A. Yes.
Q. Where did you write it down?
A. In my diary.
Q. Did you write down all your conversations that you had with Mr Black in your diary?
A. I think I write down things that particularly upset me”.

67��� After having the witness read the contents of the diary note (“Suing me for return of ring. He has ring but wants to hurt me”), his Worship admitted as Exhibit 8 in the proceedings that document (LCT 44.35). 68��� It was argued on behalf of the appellant that the defendant’s personal diary note contained her recollection of her “reactions to events”. It was not tendered and did not purport to be a transcript of any conversation. Thus it is argued that it was not relevant and not admissible pursuant to s 56(2) and s 55(1) of the Evidence Act 1995 (NSW). 69��� The relevant fact in issue was the contents of the conversation between the plaintiff and the defendant on 25 June. The evidence to be admitted was the diary note made on that day which is characterised by the appellant as “recording personal feelings and thoughts as to the conversations”. Therefore it is incapable of affecting directly or indirectly the assessment of the Court of the content of the conversation and is no more than a post-event emotional response recorded in a personal diary and had no rational connection as to proof of what was said (Instant Colour Pty Limited v Canon Australia Pty Limited (Federal Court of Australia, unreported, 30 October 1995 para 37); Fisher v Commonwealth Bank of Australia (Federal Court of Australia, unreported, 11 April 1990 per Beaumont J at par 17). 70��� It was argued additionally that the document was not used to refresh recollection (s 32 Evidence Act 1995 (NSW)) nor was it contained in a document called upon by the cross-examiner (ss 35 and 45(5))) nor was it contained in a business record (s 69). It was argued that the only purpose of the evidence was to attempt, not to corroborate, but to give “verisimilitude” to the defendant’s account. As such it possibly, although it is not conceded, went to her credit only and if otherwise admissible should have been excluded under s 102 or as hearsay under s 59 and 64(2)(b) or under the general discretionary exclusion in s 135. In this last mentioned context it was also submitted that if it was admissible it should have been admitted only by way of “reopening” and constituted an unfair result on the plaintiff to permit further cross-examination of the defendant. What further cross-examination of the defendant on the diary note could have been available on this critical basis for tender on the basis of reopening, is not readily apparent. 71��� I reject the appellant’s contention that the document itself is no more than a purely emotional response. It fairly can be viewed as a document recording the substance of the conversation. The reason she recorded it might indicate an emotional response to that which is recorded has having been said. 72��� In my view, it was open for the defendant in re-examination, the cross-examination on that subject having taken place in the way that it did, to dispel misconceptions that may have arisen out of that line of questioning. Misconceptions arising as to whether the defendant was telling the truth about the existence of the note or the fact that she made a note of the particular conversation. The evidence did not go merely to the defendant’s credit and s 108 of the Evidence Act 1995 (NSW) excludes the operation of the credibility rule in relation to evidence adduced in re-examination especially s 108(3)(b). 73��� The appellant argued what I perceive to be a matter not expressly raised in the Stated Case as to the wrongful refusal by the learned Magistrate to permit voir dire presumably under s 189 of the Evidence Act 1995 (NSW). The only observation I propose to make on this that had a voir dire been conducted within the proper limits of that section, the ultimate outcome could only have been what the Magistrate himself embarked upon at LCT 44.30 when he asked the witness to read out what was on the note. In any event, the witness’ examination-in-chief as to the fact of the conversation, her making a note of it and the reasons of making a note (it upset her), in my view, can be seen to cover the field. 74��� I am of the view that the diary note was properly admitted as Exhibit 8 in the Local Court proceedings for the reasons advanced by the respondent. Further, in the light of the remarks made by the learned Magistrate as to the significance he attached to it, and which I set out above, (para 26) even if I be wrong, the proceedings were not vitiated by the admission of this document as his Worship was clearly otherwise impressed by the account of the conversation which merely was “supported” by the diary note. The decision to admit, in my view, even if wrong, was one that did not otherwise affect the case (cf. Sangster v Henry (1920) 37 WN (NSW) 135; Ex Parte Sharah; Re Cox; Potato Marketing Boardv Sharah (1956) 73 WN (NSW) 283). 75��� Thus, what is described as the fourth question for determination is answered in the negative. 76��� I turn to the sixth contention and the sixth question for determination namely, the correctness of entering a verdict for the respondent/defendant. 77��� The preceding questions having been answered in the negative I have great difficulty in finding any basis upon which to impugn the decision reached by the Magistrate in his clearly stated reasons therefor, none of which has been shown to have been wrong in law. 78��� It is clear to me that his Worship (not having made any of the errors suggested) was conscious of the admissions made as to the relevant ingredients for the tort of detinue, properly weighed the evidence and impartially did so and came to a conclusion and a verdict that was open to him on it. 79��� The sixth question will be answered in the negative. 80��� A fair view of the proceedings before me can be stated as that in reality what was instituted as a Stated Case was sought to be made in effect a full appeal on the merits. The mechanism of the Stated Case was used, to put it simply, to mount a full complaint about the fact that the appellant lost his case before the Local Court. That is not the purpose of the Stated Case procedure. 81��� The second, fourth and sixth matters of contention, in my view, amount to the “stuffing” of the Stated Case with inappropriate bases: Cook v Evans (supra) at 290 (Col.1) per Jordan CJ. 82��� As I remarked at the beginning of these reasons this litigation has had an unfortunate and protracted history. The proceedings were commenced by way of Ordinary Statement of Claim in the Kogarah Local Court on 1 April 1996 and the record indicates that it was heard on 22 August 1996, 6 November 1996, 13 December 1996 and a verdict was given on 5 February 1997. 83��� Proceedings were instituted in this Court, as I have said, on 17 June 1997 and were heard by me in terms of hearing and the delivery of written submissions over the period 21 July 1997 to 10 March 1999. 84��� On 19 March 1998 a communication was received from the solicitors for the appellant advising that a Notice of Motion was to be filed seeking leave to reopen the appellant’s case. I was asked not to deliver my judgment in the interim. By 5 March 1999 it became clear as a result of a communication from the solicitors for the defendant/respondent that there had been a complete misunderstanding amongst the parties as to the status of any application apparently made for a further Stated Case from the Kogarah Local Court. The parties were advised that the matter therefore stood reserved as from 10 March 1999. Unfortunately by that time I myself was involved in the hearing of the case of Marsden v Amalgamated Television Services Pty Limited which at the time of the preparation of these reasons has not yet been completed in that submissions have not been made. 85��� I think it desirable to state these matters of history to account in some way for what, on its face, might appear to be an extraordinarily long delay since the conclusion of oral submissions in August 1997. Insofar as the last mentioned aspect of the history has hitherto precluded me from attending to the preparation of this judgment I express my regret as to any inconvenience caused thereby to the parties. 86��� The formal orders are:

1. Leave to amend the Stated Case is refused and the Notice of Motion filed 25 June 1997 seeking that relief is dismissed.

2. Questions 1(a), 1(b), 2, (there is no question 3), 4(a), 4(b), 5 and 6 are answered in the negative.

3. The summons is dismissed.

4. Exhibit A is returned to the appellant.

5. The appellant is to pay the respondent’s costs.

6. The decision of the Local Court of 5 November 1997 is affirmed.

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Last Modified: 12/21/2009