Campaniello v Campaniello No. DCCIV-96-1451 Judgment No. D3554

[1997] SADC 3554

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Reasons For Decision of His Honour Judge Bishop

Hearing

14/01/97, 23/01/97.

Catchwords

Minor civil action - application for review of the proceedings by a plaintiff dissatisfied with the judgment - magistrate unable to determine where the truth lay between the parties and, therefore, dismissed the action - duty of magistrate to submit the evidence to very close and careful scrutiny and analysis in order to arrive, if possible, at the truth of the matter - whether the magistrate properly considered relevant documentary evidence in that determination - application for review dismissed - plaintiff ordered to pay to the defendant costs fixed at $1500.

Representation

Plaintiff Paolo Campaniello:
Counsel: Mr A Rossi - Solicitors: Moody Rossi &; Co

Defendant Giuseppe Campaniello:
Counsel: Mr R Chiro and later Mr M G Pickhaver - Solicitors: Carabelas &; Co

DCCIV-96-1451

Judgment No. D3554

4 February 1997

On Appeal from Mr R H Kleinig SM

(Civil: Application For Review)

CAMPANIELLOvCAMPANIELLO

Civil

Judge Bishop

This is an application, pursuant to section 38 (6) of the Magistrates CourtAct 1991, by the plaintiff in a minor civil action for review of the proceedings in that action, the plaintiff being dissatisfied with the judgment there given.For convenience I shall continue to refer to the parties as the plaintiff and the defendant.

In the action, the plaintiff claimed that he and the defendant, who are brothers, had orally agreed that the costs of and incidental to the plaintiff travelling to Italy during late 1984 and early 1985, for the purpose of negotiating on their behalf with regard to the estate of their deceased father, be shared equally between them and that the defendant had refused to make payment to him of any contribution towards those costs.The defendant denied that any such agreement had been made between them.

In ex tempore reasons for judgment, the learned special magistrate dismissed the plaintiff's claim for $4,999.99, being unable to determine which of the brothers' evidence was to be accepted as truthful.The plaintiff here contended that his Honour failed properly to test and analyse the evidence that was before him and failed to make proper findings of credibility and fact.

After acknowledging the effect of the statutory requirements that the trial of a minor civil action "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" (Magistrates Court Act, section 38 (1)(a)) and that "the Court is not bound by the rules of evidence" (ibid, section 38 (1)(e)), in his reasons for judgment the magistrate referred to the conflicting evidence of the plaintiff and his wife, on the one hand, and of the defendant and his wife, on the other hand.His Honour also referred to the evidence of another brother, Carmine Campaniello, that "Between brothers things like this [alleged agreement] have never existed" (evidence, page 24) and that the plaintiff had lied, although he (Carmine) had not been present when the alleged agreement was made (evidence, page 25).His Honour continued,

"So I am simply left with the following situation where I don't know who to believe.Somebody is lying.I don't know who.....I do not have the wisdom of God and I do not know where the truth lies....You have put me in an impossible position.It doesn't often happen.

It does happen sometimes where the Court simply puts up its arms and says I don't know where the truth lies.More often than not the Court can smell a rat, can smell out the lie and can find that a person is lying but I have got two brothers accusing each other of lying, two spouses accusing each other and the other brother of lying and I have got an "independent" brother saying that one is lying.I am not going to say to anyone you are the liar...I am not in a position to decide where the truth lies."(My emphasis.)

His Honour then made reference to one of a number of documents which the plaintiff had sought to tender.He said,

"[The plaintiff] has purported to tender a number of documents which appear to have been notarised in Italy (e.g. Zapharano) [Zaffarano] but when I look at that document closely as transcribed into English it seems to me that Mr. Zapharano's (sic) evidence is only as good as the evidence of [the plaintiff]. In other words, the declaration by Mr. Zapharano (sic) is based upon hearsay and on any interpretation of my understanding of evidence in a small claims jurisdictionthat evidence has absolutely no weight whatsoever even assuming I regard it as admissible."

(My emphasis.)

The plaintiff has here contended that the learned magistrate failed properly to consider all of the documents which he (the plaintiff) had presented to the court and that, had he (the magistrate) done so, the combined effect of those documents was such that his Honour should have found that those documents provided independent support of the plaintiff's evidence which should, therefore, have been accepted.

Perusal of the transcript of proceedings in the magistrates' court indicated that the plaintiff did there seek to tender (at page 2) a bundle of documents. One of those documents was the declaration of Mr. Raffaele Zaffarano made on 23 April 1996 in Italy, to the English translation of which his Honour referred in his judgment.That document (together with the English translation) here became exhibit P2.(Unfortunately, none of the documents tendered in the magistrates' court was there given an exhibit number.That omission here made review of the proceedings more difficult.)In that declaration, Mr. Zaffarano said that,

"in 1986 [the defendant] came to Italy with [the plaintiff] ... and on that occasion agreed to pay 50% of the expenses incurred by [the plaintiff] in 1984/85 and at subsequent times because he came to Italy to look after the interest relating to the division of the inheritance."

(My emphasis.)

That declaration does not appear to have been put to the defendant by the learned magistrate.

Another of those documents which the plaintiff sought to tender before the magistrate was a letter from Mr. Zaffarano to the defendant, written in Italian from Italy on 1 May 1996.From the magistrates' court transcript (at pages 9 and 10), it would appear that his Honour asked the interpreter to translate into English only the last paragraph of that letter.That letter was not included in the bundle of documents which was forwarded to this court from the magistrates' court.(The absence of that letter from the bundle would tend to support the plaintiff's contention that the letter was left on the bar table and was not considered by the magistrate.)That letter (together with an English translation) here became exhibit P1.In that letter, Mr. Zaffarano wrote to the defendant about the defendant not having repaid the costs which he (Zaffarano) had incurred for advice obtained from an engineer, which costs the defendant was sharing with the plaintiff.That letter, which does not appear to have any relevance to the subject claim, was not put to the defendant by the learned magistrate.

Another of those documents, which the plaintiff sought to tender before the magistrate, was the declaration of Maria Campaniello, a sister of the litigants, made on 3 May 1996 in Italy, which was translated into English for his Honour by the interpreter (see transcript, pages 5 and 6).In that declaration which, together with an English translation, was here tendered (exhibit P3), Miss Campaniello said that,

"During various discussions with me, during his stay in Italy, [the plaintiff] confided in me that he was to cover all costs and his brother [the defendant] was to reimburse him 50%."

(My emphasis.)

That declaration, which was not referred to in the magistrate's reasons for judgment, was, if accurate, entirely self-serving of and for the plaintiff.

Another of those documents, which the plaintiff sought to tender before the magistrate, contained ex tempore reasons for decision of Mr. Cannon S.S.M. delivered on 17 April 1989, in another minor civil claim in which the defendant, who was there also a defendant, was disbelieved on his oath.That document, which here became exhibit P4, was not referred to by the learned magistrate in his reasons for judgment.

That it is the duty of a fact-finding tribunal to submit the evidence to very close and careful scrutiny and analysis, in an attempt to resolve the deceptive appearances of truth and to arrive at the truth of the matter if it can, is legally well-recognized (see, for example, Jacobs J in Samuels v Maple in 1981, reported in (1992) 165 LSJS 114; and Prior J in Nixon v Raftopoulos (1992) 165 LSJS 108).As Jacobs J observed in Maple's case (at 117),

"There can, of course, be no doubt that if, at the end of the day, when the evidence has been subjected to such analysis and scrutiny, the court is still left in doubt as to where the truth of the matter lies, then the person charged must be given the benefit of the doubt.Jurors are so directed every day.But that does not absolve the tribunal of fact from its responsibility to test and analyse the evidence in order to arrive at the truth of the matter if it can. ...In my opinion, a clear distinction must be drawn and maintained between a stage of uncertainty arrived at after a thorough analysis, and the same state reached without such an analysis at any stage."

Upon examination of the documents which the plaintiff sought to tender in the magistrates court, in my view the letter of Mr. Zaffarano (exhibit P1), the declaration of Miss Campaniello (exhibit P3) and the reasons for decision of Mr. Cannon S.S.M. (exhibit P4) were quite irrelevant to consideration of the credibility of the witnesses and need not have been considered by the learned magistrate for that purpose.The declaration of Mr. Zaffarano (exhibit P2), although admissible for that purpose, could not, and should not, be regarded, in my view, as possessing sufficient weight to swing the balance in an acceptance, on the balance of probabilities, of the evidence of the plaintiff and his wife against that of the defendant, his wife and their brother Carmine.

For these reasons, upon review of the proceedings before the learned magistrate, I do not consider that it appears just to set aside the judgment. I am not persuaded that his Honour did not properly test and analyse the relevant evidence in order to arrive at the truth of the matter; rather, having there done so, and been unable to determine where lay the truth of the matter, his Honour properly dismissed the plaintiff's claim against the defendant.

Upon review of the proceedings, I am also not persuaded that the learned special magistrate erred in the manner in which he exercised his discretion with regard to costs and made no order as to costs or ordered that each party bear his own costs.I do not consider that the defendant should have been regarded as "a successful party", within the proper construction of that expression in rule 106 (2) of the Magistrates Court Rules, because he did not there recover any amount in judgment against the plaintiff.For these reasons, the application of the defendant for review of the learned magistrate's decision not to award costs to the defendant is also dismissed.(In passing, it may be observed that the statutory review provided is "of the proceedings", not the judgment.)

With regard to the costs in this court, in view of rule 95.07 (e) of the District Court Rules (the court "may make such order as to the costs of the trial or the review proportionate to the amount in issue as it seems fit" (my emphasis)) and the submissions of counsel, I order that the plaintiff do pay to the defendant costs which are fixed in the amount of $1500.