Cartwright v Adelaide Hills Council - [2016] SADC 164

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
CARTWRIGHT & ANOR v ADELAIDE HILLS COUNCIL
[2016] SADC 164
Judgment of His Honour Judge Slattery
23 December 2016
ADMINISTRATIVE LAW - JUDICIAL REVIEW
Minor civil review.
The applicants are the owner of a residential property in the Adelaide Hills that was serviced by a septic system. Following the breakdown of the existing septic system, the applicants sought and obtained permission from the respondent council to install a new septic system. They engaged the services of a plumber, a Mr Little. The council approval required an area of 200m² of overflow soakage but the plumber allegedly with the permission of the council, installed a soakage area of 100m² and then used a system of surface sprays that required the addition of chlorine on health grounds. The male applicant is unable to live in an environment where chlorine is generally used. Mr Little alleged and the council denies that permission was given to Mr Little by council to install a soakage area of 100m². That soakage area system failed, causing the accumulation of overflow water in constantly saturate soil.
The applicants sued Mr Little for breach of contract and settled that action for a payment by Mr Little of the sum of $20,500 being the cost of repair or replacement of the septic system.
The applicants then sued the council for breach of duty and breach of statutory duty allegedly owed to them. This was a minor civil claim. The trial of the minor civil action was heard by a magistrate who received evidence on the first two days of the hearings. On the third day of hearings, the applicants applied to join Mr Little as a defendant and to plead the same causes of action against him. No application for joinder was served on Mr Little. The learned magistrate refused the application and adjourned the hearing for a week and then on the adjourned date for a further period of 8 weeks at which time the applicants renewed their application for joinder. That renewed application was refused.
On the third adjourned date and again in the absence of Mr Little or any application served upon Mr Little to join him to the proceedings, the learned magistrate invited the applicants to renew their application for joinder of Mr Little. The learned magistrate advised the parties that having reconsidered his position, he thought it appropriate to make in order to join Mr Little to the proceeding and in order to properly manage the action, he should declare a mistrial. An order would be made for Mr Little to be joined to the proceedings, the trial hearing terminated and the whole trial evidence would need to be heard again before another magistrate. Initially the applicants and the respondent did not object to the proposed orders. The learned magistrate made orders to that effect and the applicants then asked the learned magistrate to rescind those orders. The learned magistrate refused that application.
The applicants seek a minor civil review of the decision of the learned magistrate to order, inter alia, a mistrial.
Held:
1. The decision of the learned magistrate is a judgment for s 3 Magistrates Court Act.
2. A mistrial for cause is a well-known concept within the operation of the criminal law. Within the civil law, different considerations must be taken into account by a judicial officer hearing a dispute.
3. The duty at common law of all judicial officers is to hear and determine to completion by judgment any civil dispute between citizens then being heard before the court. It is not consistent with that duty to declare a mistrial of a civil action and require the whole of the evidence heard in court in that civil action to then be given again.
4. The decision of the learned magistrate to re-agitate the applicants’ joinder application was an error. The learned magistrate should have heard the applicants’ claim against the council to completion and left to the applicants the decision whether they wished to proceed separately against Mr Little. Alternatively, the learned magistrate should have made orders for the adjournment of the action to ascertain whether the applicants wished to proceed separately against Mr Little and then to ascertain whether, if the action against Mr Little was commenced, the two actions could be heard and determined together.
5. Orders rescinding the decision of the learned magistrate.
6. Order for the reinstatement of the action between the applicants and the council to be heard to completion and judgment.
Magistrates Court Act s 3, s 38; Limitation of Actions Act s 48; Public and Environmental Health (Waste Control) Regulations 1995 version: 1.7.2006 to 30.06.2008 Regulation 6(1)(b)(iv); Magistrates Court Rules R 3, R 23; Commentaries on the Common Law by Herbert Broome, 8th ed, WFA Archibald MA and Herbert W Greene MA, BCL; W Maxwell and Son, London 1888 at pp51-52; Law Reports Statutes vol XI 1876 39 and 40 Vict at p386; Criminal Law Consolidation Act s 281, s 289 ; Juries Act Generally; s 30 ERD Court Act 1993; Supreme Court Rules R87(1), R96B.02; District Court Act 1991 s 43, referred to.
Aon Risks Services Australia Limited v Australian National University [2009] HCA 27; Henderson Seed Co v Charles Sharpe and Co Limited (1988) 48 SASR 235, applied.
Salter Rex and Co v Ghosh [1971] 2 QB 597 ; [1971] 2 All ER 865; Hall v Nominal Defendant (1966) 117 CLR 423 ; [1966] ALR 705 ; Carr v Finance Corp of Australia Ltd (No 1) (1981) 147 CLR 246; Gibbons v Corradini (1986) 133 LSJS 274; Corporation of the City of Mitcham v Fusco [2001] SASC 164; R v Steffan (1993) 30 NSWLR 633; Stavropoulos and Anor v Morrow Investments Pty Ltd [2005] SASC 444; CGU Insurance Limited and Anor v Pettit [2009] SASC 187, discussed.
Marchesini v Grieger [2015] SADC 89; Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767; R v War Pensions Entitlement Appeal Tribunal; Ex Parte Bott (1933) 50 CLR 228; Belluco v Netting (2010) 267 LSJS 385, considered.

CARTWRIGHT & ANOR v ADELAIDE HILLS COUNCIL
[2016] SADC 164
JUDGE SLATTERY

Application for a review of a minor civil decision.
By application dated 5 September 2016 the applicants seek a review of orders made by a Magistrate in the Magistrates Court Mount Barker described as:-
1. The declaration of a mistrial;
2. Adjournment of the matter to a directions hearing dated 14 October 2016 to add Mr Little as co-defendant.
In the application the applicants seek the following orders:-
1.   That the review court is to hear the trial in its entirety allowing all evidence to be submitted together with all essential and necessary key witnesses prior to handing down its final judgment.
2.   That the review court allows all appropriate witnesses to be called and heard inclusive expert witnesses.
3.   That the review court authorises the issuance of summons to witnesses.
4.   That the review court make findings that:
a.    The court ordered a mistrial without supporting grounds to do so.
b.   The court failed to afford the applicant due process when ordering a mistrial following the evidence of a single witness, when the court has been advised by the applicant that the single witness had misled the court within their testimony.
c.   The court was not permitted to deny summons of essential key witnesses.
d.   That the court was misled by the testimony of Department of Health officer Mr Tony Farror and that Mr Farror committed perjury.
Grounds of appeal
The court erred in its judgment by:
a.Denying the applicants to summon witnesses.
b.Making a decision to call a mistrial without supporting grounds to do so.
c.Not allowing and/or hearing the evidence of the expert witness P Goss.
d.Failing to afford the applicant due process during the trial by denying them the right and by not providing appropriate assistance as unrepresented litigants to tender evidence as appropriate and to allow the calling of witness and or cross examine witnesses as appropriate and without undue restrictions.
e.Denying the plaintiffs’ request for the defendant to be called to give evidence.
f.Giving inappropriate allowance to the respondent without seeking appropriate information from the applicants.
g.Refusing to hear the opinion and expert evidence of P Goss.
h.Not allowing the applicant to cross examine the respondents’ only witness A Black.
i.Giving inappropriate weight to the respondent’s status as a council.
j.Failing to abide the Magistrates Court Civil Rules as relates to minor civil claim.
The application is brought pursuant to s 38 of the Magistrates Court Act. Section 38(6), (7), (8), (9) of the Magistrates Court Act read as follows:-
38—Minor civil actions
…
(6)The District Court (constituted of a single Judge) may, on the application of a party dissatisfied with a judgment given in a minor civil action, review the matter.
(7)     The following provisions apply to such a review by the District Court:
(a)     the right of a party to be represented by a legal practitioner at the review will be determined in accordance with subsection (4);
(b)     the Court may inform itself as it thinks fit and, in doing so, is not bound by the rules of evidence;
(c)     the Court may, if it thinks fit, re-hear evidence taken before the Magistrates Court;
(d)     in determining the matter, the Court may—
(i)    affirm the judgment; or
(ii)rescind the judgment and substitute a judgment that the Court considers appropriate; or
(iii)if the review arises from a default judgment or summary judgment, rescind the judgment and—
(A)    substitute a judgment that the Court considers appropriate; or
(B)remit the matter to the Magistrates Court for hearing or further hearing;
(e)     in hearing and determining the review, the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(8)     A decision of the District Court on a review is final and not subject to appeal.
(9)     However, the District Court may reserve a question of law arising in a review for determination by the Full Court of the Supreme Court which may determine the question and make any consequential orders or directions appropriate to the circumstances of the case.
It is now well recognised that in conducting a minor civil review, I am required to act in an inquisitorial way. The same approach is to be applied by the magistrate conducting the hearing of the matter at first instance. I am required to adjust the procedure applicable to this application according to the circumstances of the action before me. The matter is not strictly an appeal before me and therefore I am required to review the reasons for decision of the magistrate for reaching his conclusion. If there are no reasons before me for the decision, then strictly, there is no decision.[1] However, as I read s 38(6) MCA, any party who is dissatisfied with the “judgment” may ask the District Court to review the “matter”. In that sense, I am not strictly only reviewing a judgment, I am reviewing the whole “matter” based upon dissatisfaction of a party with the judgment received by that party. I acknowledge that this expressed view is not necessarily consistent with what fell from Kourakis CJ in Kedem v Johnston Lawyers Legal Practice Pty Ltd.[2] However, in Kedem, Kourakis CJ did not address the question of the use by Parliament of the different expressions “judgment” and “matter” in s 38(6) MCA. Thus far, my researches have not provided any authority on that topic.
[1] Marchesini v Grieger [2015] SADC 89.
[2] (2014) 121 SASR 118 at [43].
The principles which guide my approach in this matter are thoroughly set out in the decision of Blue J in Harradine v District Court of South Australia[3] particularly at [51], [52] and [53]. I also refer to the decision of Doyle J in Wilczynski v District Court of South Australia[4] at [45] and the decision of Kourakis CJ in Kedem v Johnson Lawyers Legal Practice Pty Ltd[5] at [42] and [43]. Also it is clear enough that under 6DCR 279A(10)(g) I may exercise any procedural or other power that the court or tribunal had in relation to the original proceeding, 6DCR 279A must also be read in light of 6DCR 6(1) and 6(4).
[3] [2012] SASC 96.
[4] [2016] SASC 51.
[5] (2014) 121 SASR 118.
I think it is worthwhile in this instance to set out a part of the text of 6R 279A under the District Court Rules 2006 – Minor Civil Actions. The relevant parts of that rule are set out hereunder.
279A—Reviews
(1)     …
(2)     …
(3)     …
(4)     …
(5)     …
(6)     …
(7)     …
(8)     …
(9)     …
(10)    The Court may exercise, in relation to a review, any of the following powers—
(a)     the Court may order that a particular person be joined as a party to the review;
(b)     the Court may order an applicant for the review, or a party filing a cross-notice under subrule (6), to give security for costs;
(c)     the Court may correct an error or omission in a notice or cross-notice;
(d)     the Court may ask the court or tribunal from which the review lies or the Minister to make a report (which is to be made available to the parties) on the subject matter of the review or on specified aspects of that subject matter;
(e)     the Court may exercise any procedural or other powers that the court or tribunal from which the review lies had in relation to the original proceedings;
(f)    the Court may set aside a judgment or decision of the court or tribunal from which the review lies or the Minister and give such judgment or directions as may be just in the circumstances;
(g)     the Court may make an order for the costs of the review.
I refer in particular to the content of 6R 279A(10((a), (e) and (f). As will become clear in these reasons, I express an opinion below that an error has been made by the learned magistrate in failing to ensure that an application for joinder was served upon a Mr Little and that he was then given an opportunity to be heard on any such joinder application. I would not exercise the powers reposed in me to join Mr Little as a party to the review nor would I exercise any procedural or other power in relation to the original proceedings before the learned magistrate for such joinder. I have set out below the reasons for so finding.
For the sake of completeness, I accept that generally speaking, apart from 6R 279A, the District Court (Civil) Rules are largely inconsistent with the approach that I am required to take in deciding a review of a minor civil action or, for that matter, the minor civil action itself. Those rules would not be applied at large when regard is had to the operation of s 38(7) MCA and 6R R279A.[6] That is the approach that I have adopted here.
[6] Harradine at [53].
An interlocutory order, interlocutory judgment and judgment: MCA
Section 3 of the Magistrates Court Act (MCA) is the dictionary provision of that Act. As from 5 August 2012, “judgment” is defined to mean “an order, decision and includes an interlocutory judgment”.[7] In the same Act, “interlocutory judgment” is defined to include “an interlocutory order and an order or ruling relating to the admissibility or giving of evidence”.
[7] See amending Act 17 of 2012 s 23, opn 5 August 2012.
As may be seen, Parliament has intentionally broadened the scope of matters falling within what may be considered to be a “judgment” under the MCA. By the inclusion of the words “interlocutory judgment” and its definition, a party may seek a review of an interlocutory order made by a Magistrate in a minor civil matter. In my view, this overcomes the dichotomy that previously existed when deciding whether an order or judgment was interlocutory or whether it was final.
That is significant on a number of levels. The orders made by the learned magistrate were that there would be a mistrial of an existing trial, that a new defendant (a Mr Little) could be joined to the action and then the whole of the action including the evidence to date, would have to commence again before a different magistrate. This order was made following a formal refusal earlier by the same learned magistrate to allow the applicants’ application to join Mr Little as a defendant because it would interfere with the course of a trial that had already gone for two days.
The learned magistrate then later decided that he would reverse that decision, declare a mistrial and then require the whole matter to be commenced again.
One issue that arises is what is the proper description of the order made by the learned magistrate. The respondent contends that it is not an interlocutory judgment or order but may be likened to an order made for rejecting the admission of evidence.
There are a myriad of issues arising from this brief recitation of material facts and in no particular order they are: the status of the decision; its effect and operation; the status of Mr Little as a person joined to a proceeding without any knowledge of that fact; on what basis under the orders made can the action proceed and if so, before which magistrate.
I consider that the decision of the learned magistrate is in the nature of an interlocutory order at least. On one view it is an order that disposes of the whole action. That is a peculiar situation but it tends to flow from the fact that the learned magistrate requires by his order for the whole action to start again in evidence.
In the opinion that I have formed, the order complained of by the applicant in this application is a judgment because it is an interlocutory judgment or order and therefore falls within the definition of interlocutory judgment and judgment within s 3 MCA. On that basis, I will proceed to hear and determine the matter.
The proceedings and the pleadings
Prior to the orders made by the learned magistrate, the last filed claim was called the further amended claim and it is dated 15 June 2016. The particulars of the further amended claim are something of a rambling discourse. The plaintiffs in the application are the applicants in this application, Colin Cartwright and Christine Cartwright. The defendant is named as the Adelaide Hills Council, the respondent in this proceeding. The proceedings appear to involve the replacement of a septic system on the property owned by the applicants. A plumber recommended an installation of a particular type of aerobic septic waste water system with a system to dispose of waste water that provides for 200m² of shallow subsurface irrigation disposal using no chlorine.
Work commenced in February 2008 and some time on 18 February 2008 the plumber, a Mr Little, advised the applicants that he had been directed by an officer of the council to reduce the shallow subsurface waste water disposal area to 100m². There was no written direction from council to that effect and there was no record of any authorisation by council to reduce the subsurface irrigation area.
The subsurface irrigation system using a subsurface waste water disposal area of 100m² was unsuccessful and there was pooling of waste water with the system failing. The plumber’s workmanship was faulty. It was also alleged that authority had been given by council on an application by Mr Little for a 200m² subsurface system and surface sprays which required treatment of waste water with chlorine. It was said that this was the only way the whole of the waste water generated in the system could be dispersed. The male applicant is unable to live in an environment where chlorine is generally used. The applicants then allege that the whole system as approved by council was contrary to prescribed codes and Regulations under the Waste Control Regulations 1995. The code was the South Australian Health Commission Code, Waste Control Systems – Standard for Construction Installation and Operation of Septic Tank System in South Australia. The Regulation was the South Australia Public and Environmental Health (Waste Control) Regulations 1995 version: 1.7.2006 to 30.06.2008 Regulation 6(1)(b)(iv).

There is then a series of general allegations some of which appear disconnected and in the end, an allegation is made that the appropriate area for subsurface irrigation was 336m² but now legislation has increased that figure to a greater square meterage requirement. The applicants pled that they relied upon the council performing its role to oversee the application and to stipulate for compliance with the Standards and Regulations. An allegation is made that the council gave approval to the plan but that plan did not comply with legislation. Although no specific allegation of breach of duty is made, the particulars of loss and injury in paragraph 24 plead that in consequence of the council’s negligence, certain steps will need to be taken by the applicant. These include the loss of use of their home, landscaping necessary to install extra waste water subsurface irrigation and front fencing. Damages in an amount for landscaping and extra materials required of $25,000 are claimed.
Although not expressed as such, it appears that the claim of the applicants is for breach of duty or breach of statutory duty. There is a distinct difference between the two causes of action but there appears to be no discernment by the applicants between the two. I need not develop that matter further.
In its amended defence dated 13 April 2015, the council plead contrary versions of fact to those alleged by the applicants. The council pleads that the plumber Mr Little was instructed to install a minimum 200m² subsurface soakage system and that he also used an area between the rear of the applicant’s premises and a fence as surface disposal. The plumber did not indicate to the council that a plan had been made to use the front area of the applicant’s premises. There was no discussion with anyone from council about the installation of emergency sprays. The council alleged that at no time did the council representative indicate that its approval for this system would permit a no chlorine system where sprays were involved and sprays would become necessary if the plumber could not achieve a 200m² subsurface soakage system. The council denied that at any time any of its representatives advised Mr Little that a system of underground soakage of 100m² was acceptable. This allegation also contravened the approval given by council of a minimum requirement of 200m² of soakage area. The council says that the plumber failed to comply with the approval condition specified by the council. The council had some contact with the applicants and Mr Little concerning blocked filters and that advice was given by council that the manufacturer’s service agent should be contacted. The council also points to a legal action between the applicants and Mr Little in which Mr Little settled for a payment to the applicants of a sum of $20,500.
The council alleges that contrary to the allegations of the applicants, all original approvals, including original approval forms, plans, information sheets, surface irrigation set up and care requirements were sent to the plaintiffs on 18 February 2008. The council first learned in 2014 that the signature on the application was, allegedly, not that of the male applicant. Any approvals given by council in 2008 were based upon the application submitted and following site meetings. The approvals given by council were based upon the application submitted to it and not upon site meeting agreements. The council denies contravention of any Act or codes, admits that the plans submitted were only in handwritten form but because the existing system was failing, and there were public health issues at large, it was necessary for the council to act quickly based upon the information given by the applicants’ plumber Mr Little.
The council says that at all times, it was necessary for the underground soakage area to be of a minimum 200m², the Australian Standard was not relevant in 2008 and the council was permitted to approve subsurface irrigations in 2008 because the code did not apply. The council denied any liability to the plaintiffs.
Also on file is a document entitled further amended defence of the defendant. It is the first exhibit to an affidavit of Joanne Clift, solicitor dated 8 July 2015. I was informed during the hearing that this document had not been filed.
The pleadings within that document give further particularity to the council’s pleadings concerning the inapplicability of the code and also make allegations in amended paragraph 20 of a failure by the applicants to properly maintain the system. I need not consider those matters further.
In the Magistrates Court, the trial of the action commenced before the learned Magistrate at Mount Barker on 4 December 2015. The learned magistrate adopted an inquisitorial style as required. He first received evidence from Mr Colin Cartwright. The matter continued on 9 February 2016. Mr Cartwright continued to give his evidence on that day and evidence was also taken from Mr A Farror who was examined and cross examined. Mr Farror was from the Department of Health and Aging of the Government of South Australia. He confirmed[8] that the council was authorised to approve subsurface systems in 2008. Mr Farror was examined by Mr Cartwright and questioned by the court. He was not cross examined by Mr Verow, the representative of the council. On my reading of the transcript Mr Farror did not give any evidence that damaged the case of the council or lent any support to the case put by the applicants. This appears to have been a common theme on my reading of the whole of the evidence.
[8] T33.12.
The applicants then called evidence from Mr J Hopkins, who is an environmental health officer. Mr Hopkins gave evidence and he was briefly cross examined by Mr Verow. Mr Hopkins was also re-examined. The matter was then adjourned on 9 February 2016 to Friday 27 May 2016 at 10.00am.
At the next hearing before the court on 27 May 2016, the applicants brought an application in the following terms:-
1. The plaintiffs request to be given leave to file the amendment of adding the defendant Mr Steve Little (Steve Little Plumbing) to the claim to be served on the defendant.
2. Such further or other orders as this honourable Court deems fit.
The application is supported by an affidavit which appears to be sworn by the applicants. The basis of the affidavit is that the applicants now say that Mr Little is jointly and or severally liable for the claims of the applicants. This is because Mr Little failed in 2008 to provide an adequate shallow subsurface waste water irrigation installation that was fit for purpose. The applicants claim that if Mr Little and or the council had acted in a diligent manner in 2008, then additional costs would have been avoided. The affidavit also suggests that in 2014 Mr Little accepted liability and paid for the subsurface irrigation area to be increased to 200m², and he also paid for his existing faulty workmanship to be corrected. The complaint of the applicants was that once that settlement had been achieved in 2014, the necessary square meterage of subsurface irrigation had increased to 336m² and Mr Little was not prepared to pay for the extra 136m². Mr Little maintained that the council was at fault and he had received an authority from the council to reduce the irrigation area to 100m². This is an apparently internally contradictory position to take on the part of Mr Little. The applicants further complained that the requirement for a subsurface soakage area has now been increased from 336m² to 426m².
The learned magistrate commenced to consider the application on 27 May 2016. At that time, Mr Little was not before the court. He appears not to have been served with any application as far as I can tell from the papers. After hearing some argument, the learned magistrate indicated that he thought it would be unfair, on this third day of the hearing and after a number of witnesses had been examined and cross examined, to now join Mr Little. The learned magistrate suggested[9] that the only other avenue would be to ask for a mistrial and then institute proceedings afresh including Mr Little as a defendant. The learned magistrate asked Mr Cartwright whether he was seeking to make that application.
[9] 27 May 2016 T3.16.
With respect to the learned magistrate, I do not think that is the correct question. The correct question is whether, in light of the state of the proceedings, the applicants press their application for the hearing of the interlocutory application for joinder to continue but after the application is served upon Mr Little and Mr Little is given an opportunity to be heard upon that application. The only person not represented before the learned magistrate at the time of this application was Mr Little and in my view, on no basis could the court proceed to hear and determine the application in the absence of Mr Little. One important feature here is that the court was being asked to exercise its discretion to join a party but was purporting to hear and determine that application in the absence of that party.
In the end, the learned Magistrate refused the application.[10] In particular, the learned magistrate took into account that Mr Little had been subpoenaed and would be a witness in the trial called by either the applicants or by the respondent.[11]
[10] 27 May 2016 T3.37.
[11] 27 May 2016 T5.21-35.
After hearing the decision of the learned magistrate, Mr Cartwright asked for at least a weeks adjournment so that he could speak with his legal advisers and decide what to do. Having heard those submissions and after receiving further submissions from Mr Cartwright about not wanting a mistrial, the learned magistrate indicated that he would need to weigh up whether he would continue with the matter to a conclusion or whether the matter is terminated and that fresh proceedings be issued against Mr Little but after the determination of the issues against the council. The council, through its representative, announced that as Mr Little had already been successfully sued and compensation paid, that there was a real possibility of a double up in any claims against Mr Little. Thus, it was argued, there is really no point to the joinder because at the time of the settlement with Mr Little, the applicants must have been aware of any alleged rights against him concerning the greater square meterage of the water soakage area.
The learned magistrate acceded to the application of the applicants for an adjournment of the matter after having refused their application for leave to join Mr Little. The learned magistrate left open the possibility that the separate action against Mr Little could be heard at the same time as the action against the council. The learned magistrate confirmed[12] that he would not allow Mr Little to be joined as a defendant but left open the possibility of the applicants’ argument that these proceedings be halted and new proceedings be commenced against the council and Mr Little or alternatively that the same proceedings continue at a later time with Mr Little joined as a defendant and that the same evidence be canvassed again.
[12] 27 May 2016 T12.13-22.
There are many obvious difficulties with the approach of the learned magistrate. The first is that it was known by the court that the applicants had already separately proceeded in an action for a claim against Mr Little. The question arises whether, in that context, any fresh proceeding against Mr Little would fall foul of the principles of Anshun estoppel and res judicata or the doctrine of merger. Secondly, the suggestion by the learned magistrate fails to take into account the attitude of the council and whether, for example, the council would plead some form of estoppel in respect of the second proceedings. The council could not be bound to accede to some second proceeding against it when the applicants had already commenced a proceeding against it that had been conducted over at least two days of evidence and was now in its third day of hearing. Another is that Mr Little was not before the court. It was essential that he be heard on this application.
After further discussion, the matter was adjourned to 14 January 2016 at 2.15pm. On that day, the applicants appeared in person and Ms J Clift, solicitor appeared. Initially there was discussion in relation to summonses for witnesses and it appears that the applicants wished to subpoena to give evidence the witnesses of the council who according to an undertaking given to the court by the solicitor, would be called as part of the council’s case. On that day, there was a discussion about whether or not the applicants wished the learned magistrate to disqualify himself. Earlier in the day,[13] an allegation of favouritism being shown by the learned magistrate was made by the male applicant Mr Cartwright. Nothing seems to have come of that suggestion. Then later that day,[14] the learned magistrate said:-
I have already made my ruling. The trial is partway through. I have made my ruling in relation to Ms Black (the principal witness of the defendant council) last time. It is for the court to decide how the trial should be run and I am satisfied that Ms Black will be there. If not, then in the usual course of events, there is options open to me but I am satisfied by the undertaking that she will be (present). She is an employee (of the council). She is naturally the witness for the defence (the council)… I just see this as purely a backdoor way by you (the applicants) of trying to get around the ruling that you didn’t like by bringing this application and now by saying that effectively the court is favouring the defence over you, implying that the court has an axe to grind in the matter which is simply not the case. Get your legal advice, make any application you want on the next occasion but the court will be in a position to proceed…[15]
[13] 14 January 2016 T6.3.
[14] 14 January 2016 T8.
[15] 14 January 2016 T8.8-36.
The matter was convened again on 24 June 2006. On that day,[16] the learned magistrate identified that the matter was put off to that day so that the applicants could consider their application to join another defendant. That was not completely correct. The matter was put off for the purposes of the applicants deciding whether or not they would apply for a mistrial and so decide to commence a new proceeding in which the existing defendant council and another, Mr Little, would be joined in the proceedings. The learned magistrate said:-[17]
…you need to decide in light of my ruling (refusing leave to join Mr Little as a defendant in these proceedings), whether you want to continue against the present defendant (the council) or whether you want a mistrial or argue for one and you can then start another proceeding. It is pretty clear. Have you thought about that?
[16] 24 June 2016 T1.
[17] 24 June 2016 T1.28.
The applicants then applied for an 8 week adjournment which was granted to them. However, at T4.32 on that day, the learned magistrate said he was listing the matter for trial and it would continue on that day. The matter was adjourned to Tuesday 16 August 2016 for further hearing.
Having already confirmed his decision on at least two occasions, on 16 August 2016 the learned magistrate convened the court and at T1 that day said to the applicants:-
…now on the last occasion I made a ruling about your application to join another defendant. In hindsight, I will hear that application again. Tell me why you want to join the new defendant from your point of view?
Notwithstanding that it appeared the court was functus officio about the refusal of permission to the applicants to join a new defendant, the court was inviting the applicants to reinstate their application without notice either to the respondent council or to Mr Little.
Following the invitation from the learned magistrate, the male applicant then made a series of assertions against Mr Little to the effect that the council and Mr Little were, effectively, cooperating to defeat the interests of the applicants. Allegations were made of forgery and fraudulent conduct by Mr Little and then unsupported and unsubstantiated allegations of deceit were then made from the bar table against the council. The learned magistrate then said:-[18]
Alright, so you suspect or think that Mr Little had something to do with the council because both of them had made that error. Is that what you want to explore at trial?
[18] T4.10.
The relevant error referred to by the learned magistrate was that the appellants contended that although the council officer knew the applicants wanted subsurface irrigation of the overflow of effluent water, the council officer’s notebook reflects a stated desire (presumably of the plumber Mr Little) for surface and subsurface disposal of water. I consider that this is no more than unsupported speculation on the applicants’ part absent a proper examination of the whole of the background of these entries made by this officer. These only record what appear to be a desire on the part of the plumber but I do not need to decide that issue.
In considering these circumstances the learned magistrate appears not to have had further regard to the pleaded case of the council that the only reference received by it for the surface disposal of overflow water came from the plumber Mr Little who recommended the disposal of some overflow water through a surface irrigation system at the rear of the applicants home which in turn would not have affected the applicants’ use and enjoyment of their home. The point of distinction between Mr Little and the council was that the council said that where any form of surface disposal of water (through sprays and other such methods) was to be employed, then the use of chlorine was mandatory for health reasons. The learned magistrate does not appear to have turned his mind to the pleadings in that respect.
Then at T6.13 the learned magistrate said:-
I think it does make sense that the matter is heard against Mr Little as well as because your case involves the suggestion of, by someone, possibly him, of forgery, possible collusion between Mr Little and the council.
The male applicant then disclaimed any suggestion of collusion but said “obviously a tie up”. From my reading of all of the papers there is no substance in or basis for any suggestion of any collusion between Mr Little and the council. There is certainly no evidence of a “tie up” whatever that actually means and there was no discernment of what the difference in those allegations might be. None of them rise above what may best be described as idle speculation. The submissions are not a basis for a court to act in any particular way. And all of the documents indicate quite the opposite: that Mr Little knew of his obligations but for reasons best known to himself, failed to comply with his obligations as a plumber. The learned magistrate then went on to say:-
What I’m concerned about is that if that doesn’t happen (the joinder of Mr Little in the proceedings) we have a lengthy hearing on this matter and then you institute proceedings against him (Mr Little) and then a lot of the same ground is traversed… it is unfair to drag him in part way through a trial when he’s given no response, no documentation and wouldn’t know what has transpired so in those circumstances I am thinking of declaring a mistrial, adjourning it and you can join him and then everything can go ahead together. Do either of you want to make any submissions in relation to that proposed course of action?
The learned magistrate was then informed by Mr Verow on behalf of the council that no suggestion had ever been made that Mr Little blamed the council for anything at all. The council relied upon the fact that the applicants had sued and settled with Mr Little and he had accepted full liability for all the problems with the system. He had made a payment of compensation of $20,500 to the applicants. The council disclaimed any possibility of bringing in Mr Little as a party to the claim because the trial was part heard, witnesses had been called and they had been led in evidence and have been cross examined. Mr Little had not had the benefit of hearing that evidence or comprehending it from his own point of view. His Honour then said at T10.14 as follows:-
…I have to consider the interests of justice, getting the right decision, finality, hearing a matter at once that includes all of the potential major players and it is regrettable but I declare a mistrial and I’ll adjourn this matter for a directions hearing and I’ll give leave for you to now join Mr Little as a defendant.

There was some further exchanges between the parties but that order stands.
Immediately following the announcement by the learned magistrate of his decision, the male applicant said: “can we not do that?”[19] An application was then made to withdraw the application that had failed at first instance and which failure had on at least two occasions been confirmed; it had now been successful. The learned magistrate refused permission to the applicants to withdraw their application, after he made this decision. This was the same position that the learned magistrate was in at the commencement of the hearings in court after the application was initially refused. It appears that in the absence of Mr Little and of the court’s own motion, his Honour decided to reconsider that application and heard submissions on it. Those submissions again took place in the vacuum of the attitude of Mr Little. It is a strange result that the learned magistrate would think that he could not allow the same party/parties who had made the application to withdraw it when at the same time his Honour considered that having made a decision in respect of which he appears to have been functus officio, he could reopen the matter of his own volition and reverse his decision.
[19] 16 August 2016 T11.16.
I refer to the orders sought by the applicant in this application that I set out at the commencement of these reasons. Paragraphs 1 and 2 of the application are not within the purview of this court. They are matters to be raised with the trial court. The same applies to paragraph 3. In relation to paragraph 4 the only relevant matter is paragraph 4(a). I would understand that paragraph to seek an order on review under s 38(7) MCA that this court reverse the order made by the learned magistrate that there should be a mistrial. The balance of the matters within paragraph 4 are also not within the purview of this court and therefore any ground of appeal set out in paragraph 3 of the application.
Rule 3 MCR reads as follows:-
DUTY OF COURT
3.     (1)     (a)     In interpreting, applying and enforcing observance of these Rules, the Court and Registrar must in all things promote the expeditious, economical and just conduct and resolution of an action or proceeding by negotiated agreement or judicial determination.
(b)     These Rules are not intended to defeat the proper action brought in good faith of any party and are to be interpreted accordingly.
(2)     A person may not commence more than one action in respect of the same or a substantially similar cause of action and the Court must attempt to resolve multiple actions involving a party and determine all matters in dispute in an action so as to avoid multiplicity of actions.
I refer in particular to MCCR 3(2). The requirement to avoid multiplicity of actions is consistent with the District Court and Supreme Court Rules as well as with common law principles. The proscription against commencing more than one action in relation to the same or substantially similar causes of action recognises the rules of issue estoppel, Anshun estoppel and the doctrine of res judicata. Earlier in these reasons I have made reference to s 38 MCA. Section 38(1) MCA reads as follow:-
38—Minor civil actions
(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;
(f)    the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
The requirement in s 38(1)(f) MCA that the court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms is a broadly based requirement. This subsection sets out the scheme under which the court must act in determining minor civil actions where neither party is entitled to be represented (except with leave). The forms of expression used there have been considered in other contexts but in a way which I think is informative. In Gibbons v Corradini,[20] in context, the court said that substance over form is the correct approach. Procedures must not dominate the enquiry for truth and the administration of justice. The attaining of substantial justice must be the goal of the tribunal which is in a similar position to, for example, an administrative tribunal.[21] A court acting according to equity and good conscience is really doing no more than having complete regard to substance over form and what must reasonably be done in order to complete the court’s enquiry into the substance of a matter.[22]
[20] (1986) 133 LSJS 274.
[21] R v War Pensions Entitlement Appeal Tribunal; Ex Parte Bott (1933) 50 CLR 228 at 256 per Evatt J.
[22] Belluco v Netting (2010) 267 LSJS 385.
I do not think any of these principles which are to be applied as the guiding standards for the operation of s 38(1) MCA can be in doubt. On one view, the words in this subsection hardly need explanation. That however does not mean that a court would ignore some of what I consider to be some basic fundamentals of the administration of justice, the rules of natural justice and the requirement to do justice between the parties before the court.
In the criminal law, the concept of a mistrial is very well understood. A mistrial will occur in many different circumstances but usually where by accident (or design) some evidence has been put before the jury (for example) which should not have been received by the jury and which is so substantially prejudicial that it puts at sufficiently serious risk the possibility of an accused obtaining a fair trial. A mistrial is not a term of the civil law, the guiding principles of which operate in almost a diametrically opposed way. The duty of a judge or magistrate in a civil law matter, in whichever jurisdiction the claim is commenced and litigated is to hear and dispose of the matter and the issues in dispute between the parties in a way that is fair, just and in accordance with equity, good conscience and the substantial merits of the case. There is a well settled rule of the common law that any judicial officer who embarks upon the hearing of a civil trial is, unless cause be shown that the judicial officer should disqualify himself for good reason, required to hear all of the evidence, the submissions and deliver a judgment so that the civil claim between citizens of this country is finalised. That is the duty of every serving judicial officer. I consider it to be anathema to that principle that a judicial officer would choose to declare a “mistrial” in respect of a civil claim between parties that had reached the third day of its hearing and where the plaintiffs had sought unsuccessfully to join a new defendant to the proceedings.
This rule of the common law was codified by statute 39 and 40 Vict. C. 59, s 17, which enacted that “…every action and proceeding in the High Court of Justice and all business arising out of the same.. shall so far as is practicable and convenient, be heard, determined and disposed of before a single judge and all proceedings in an action subsequent to the trial and down to and including the final judgment shall be had and taken before the judge who presided at the trial of the court.”[23]
[23] See Commentaries on the Common Law by Herbert Broome, 8^th ed, WFA Archibald MA and Herbert W Greene MA, BCL; W Maxwell and Son, London 1888 at pp51-52; see also the Law Reports Statutes vol XI 1876 39 and 40 Vict at p386.
There are now very well settled rules concerning amendment of pleading immediately before or during a proceeding. The decision of the High Court in Aon Risks Services Australia Limited v Australian National University[24] has now set out quite clearly the considerations that a court would take into account when considering applications for amendment of pleadings.
[24] [2009] HCA 27.
The same types of rules surround the determination of questions about joinder of parties to the proceedings but those rules may operate more strictly than in a pleading sense. The reason is obvious enough. The addition of a party to a part heard action is almost certain to create difficulties of organisation and management of the court process of the most egregious kind. It is usually the case that the overriding principle is that multiplicity of proceedings are to be avoided but the exercise of the court’s discretion under these principles is a very wide one. In the general case, the correct question to address is whether a joint trial would be inconvenient, on the assumption that the party sought to be joined is joined in the proceedings rather than whether separate trials would be more convenient. The court usually must take account of the possible prejudice from a joint trial and whether it outweighs the additional expense of two trials. The court may make an assessment of those causes of action that could be dealt with together leaving others to be dealt with subsequently and that, for example, some orders could be made to excuse a defendant from attendance at some part of the proceedings.
These are all considerations that come into play when a party moves a court for the joinder of another party to the proceedings however, although there is no strict prohibition within the rules upon joining a party late in proceedings (and particularly after two days of hearing and on the third day of the trial), considerations of convenience and fairness must have a large part to play. I have earlier mentioned Rule 3 MCCR. The Magistrates Court is required, when interpreting, applying and enforcing the rule to “…promote the expeditious, economical and just conduct and resolution of action or proceeding by a… judicial determination.” Those considerations are all matters of fact and degree that vary according to the particular fact circumstances. The Full Court has held in Henderson Seed Co v Charles Sharpe and Co Limited[25] that a joining of other parties might be justified to avoid multiplicity of proceeding but these are all questions of fact.
[25] (1988) 48 SASR 235.
When looking at the justice of a case, consideration must be given to questions of justice as they apply to all parties to a proceeding. This is particularly so when the application that requires a consideration of the issues of justice arises on the third day of the hearing. Thus, under MCCR 23(2), the court can order the joinder of any party to the proceeding at any time in order to avoid multiplicity of proceedings but that order for joinder must not cause the existing parties unreasonable expense or delays.
I consider that at the time that the applicants took their application for joinder of Mr Little, the proceedings had reached a point where to have made that order would have caused the existing parties unreasonable expense and delay. This is because if such an order was made, Mr Little would have to be served with the application, be heard on the application for joinder and then a decision made on the merits of the application. If the application was decided favourably to the applicants, there would be a delay in the determination of the action which in the circumstances of this case would have been completely unacceptable. This is because the events which are the subject of the claims arose in 2008. This trial was being heard in 2016, some 8 years later. The common law recognises the unfairness of asking parties to attempt to remember matters too long after the event. The courts do recognise that memories fade, the power of suggestion may indicate that a particular event occurred in a way which is not accurate and in the end, they accept that memories are not always, if ever, completely accurate.
And it is to be recalled that the applicants here are suing for breach of statutory duty and breach of duty against the council. The evidence to be led by the council on the claim is essentially factual. It will rely upon the council records as well as the memories of council officers. The courts accept that the memories of those council officers will fade over time and must be refreshed (if that is possible) from the ordinary business records held by the council. Absent such an ability to refresh memories, then the position of the council would be prejudiced. I consider that such prejudice increases exponentially over time. I also consider that so much time has expired since the relevant date of the alleged breaches that on no basis would the court have been justified in making an order for the joinder of Mr Little to the proceedings. I consider that the applicants should have been left with their right to bring a separate action against Mr Little in relation to the damages allegedly caused by him based on the appropriate cause of action. I also consider that no sufficient prejudice would have been suffered by the applicants if such an order had been made. That was the effect of the first order made by the learned magistrate which I consider was correct when it was made.
What occurred then was that the learned magistrate decided to reverse his decision and to initiate an application by the applicants here for an order for the joinder of Mr Little, to have then made that order and then ordered what he described as a “mistrial”. I consider that, having regard to the rules and especially R 3 and R 23 of the MCCR, and s 38 MCA, the only appropriate order for the magistrate to have made, if he considered that Mr Little was an essential part to the proceedings, was to have required the service upon Mr Little of an application for joinder, to have heard Mr Little and then to have made a decision about that application for joinder. Absent that procedure, I consider that an unacceptable unfairness would be worked both to Mr Little, the applicants and to the respondent to this application. I consider that the only other appropriate alternative was for consideration to be given to adjourning the proceedings before the learned magistrate to give the applicants an opportunity to commence separate proceedings against Mr Little. The applicants could then seek an order of the court that the two actions could be heard together. Having regard to the flexibility required by s 38, the court was in a position to fashion orders to protect both the interests of Mr Little and the parties to these proceedings.
I further consider that the learned magistrate was not in a position to make any order for the termination of the trial. The effect of the order of the learned magistrate was (even though it was not necessary to commence a fresh action) to require a separate trial proceeding to be commenced by the applicants against the same parties and Mr Little in respect of the same causes of action. I consider this to be a fraught exercise for many reasons including prejudice to the parties and especially the council, the status of the proceeding to date and the evidence led thus far and whether any form of estoppel arises against any party from trying to, as it were, re-litigate the whole matter afresh but on a different basis. The court, at the least, required that the existing proceedings remain on foot and that some order was made for the joinder of the plumber Mr Little under MCCR23, thereby observing the imperative of MCCR3 and s 38 MCA. I consider that in so acting, the learned magistrate fell into error. This error is regrettable for a number of reasons. Foremost amongst those reasons is that the case of the applicants is incredibly weak, is largely internally inconsistent and, on my reading of the transcript, no basis has been made out against the council for any breach of duty or for any breach of statutory duty. Assuming only for the purposes of discussion that the council gave permission for a septic system to be installed with a 200m² overflow soakage area, it could not be said that a duty would later be owed by the council to one of its ratepayer to anticipate that in the future rules, regulations and specifications would change which would require a greater area that 200m². In my view, such a claim would require a council to have a level of foresight which is both unreasonable and impossible to satisfy. I consider that at least for these reasons and for many others, the claim of the applicants would be difficult to make out. However, in the end that is a matter for the learned magistrate.
In its submissions, the respondent focussed upon the fact that permission had been granted to join a party where a trial is part heard. In those circumstances it was necessary to take steps to avoid any prejudice, unfairness and injustice to the proposed new party. I agree with those submissions which I have addressed earlier in these reasons. The respondent contends that the only way for prejudice to the new party to be avoided was to order a mistrial. The respondent contends that this conduct was to observe the requirement to act with equity, good conscience and the substantial merits of the case. I am unable to accept that submission. In my view, the order for the mistrial was an error. The only appropriate order for the court to have made was to either refuse the application, it coming partway through a trial where no sufficient prejudice would have been suffered by the applicants in commencing a fresh proceeding against Mr Little or making an order for the commencement of the application for joinder, serving of it on Mr Little, the setting of a date for argument and a resolution after argument. I consider that the order the court made breached the spirit and intention of MCCR3.
The respondent submitted alternatively that if the applicants no longer sought to join Mr Little, then an order could be made pursuant to s 38 MCA that Mr Little give evidence with both parties having the ability to cross examine him at trial. I am unable to accept that submission. I consider that no order could be made under s 38(7) MCA to that effect. In my view any question of the evidence to be received by the court is a matter for the management of the trial magistrate. My understanding of the transcript is that Mr Little was subpoenaed to give evidence or alternatively some order had been made that required him to attend to give evidence in the trial. It is really unimportant who calls Mr Little and who may cross examine him. But that is not to the point. In even contemplating such an application the court must have due regard to the interests of all parties, the state of the proceedings and the interest of justice balanced as best as can be by the court.
On the question of the trial issues, the respondent submitted that it was inappropriate for this court, on a review, to make findings regarding a part heard trial. The respondent then submitted that the trial issues raised were not the subject of any reviewable judgment made by the court. I am again unable to accept those submissions which, to an extent, are internally contradictory. My reading of the transcript is that the situation reached is that there is now not a part heard trial. On the orders made by the learned magistrate, the trial but not the action before the court is at an end. The learned magistrate declared what he described as a mistrial. From my researches, the concept of a mistrial is not known in the civil law, although as I have said, a mistrial is a concept well known in the criminal law.[26] The intention of the learned magistrate appears to be that a new trial will commence in the present action in the Magistrates Court naming the present respondent council and Mr Little as defendants. But as I have already pointed out, such an order fails to have regard to MCCR3 and to the questions that may arise about legal issues, prejudice and inconvenience which are matters that will be ventilated and will likely cause delay to the applicants in this matter.
[26] Viz s 281 and s 289 Criminal Law Consolidation Act; see also the Juries Act generally.

On the question raised by the respondent of whether the trial issues raised are not the subject of any reviewable judgment, the orders made by the learned magistrate are that he declares a mistrial and adjourns the matter for a directions hearing and gives leave to join Mr Little as a defendant. As the concept of a mistrial is unknown in civil law, it is difficult to understand what connection there is between the declaration of the mistrial and the leave to join Mr Little as a defendant. It is not clear to me why it was necessary to declare a mistrial instead of dealing with the matter on the basis that the court would entertain an application to join Mr Little as a defendant, make consequential orders for an application to be filed to join Mr Little, for there to be an argument about that application including hearing Mr Little and then making a final decision.
It is unusual that a court would make an order to join a party to a proceeding when that party had not been heard before on that topic. The thrust of the respondent’s submissions is that whatever be the nature of the order made by the learned magistrate, it is not an interlocutory judgment but is merely an incidental ruling given in the course of the hearing. It is suggested that rulings on adjournment applications, the time and place of hearings, admissibility of evidence and the exclusion or otherwise of witnesses from a hearing as well as decisions on matters of fact, law or procedure made during the course of the hearing are not judgments or orders for the purposes of the MCA and therefore s 38(6) MCA. For the reasons developed below I am unable to accept these submissions.
The respondent then made two further submissions after I had asked for further submissions. The two further submissions were that there was no relevant decision under review. That was followed by a submission that it would not be appropriate for this court to substitute its decision and to make a direction. It is certainly not the intention of this court to substitute its own decision for the decision of the learned magistrate. As I have pointed out above, under s 38(6) MCA, I am reviewing the matter and under s 38(7)(d) I may affirm the judgment or rescind the judgment. It is not my role to make directions except where they are necessary or ancillary to the decision I make.
The second submission made by the respondent is that no prejudice would flow to the applicants because a mistrial has been ordered and no final orders will be made determining the action without a fresh trial of all of the evidence. There are two obvious responses. First, as I have already indicated, the concept of a mistrial is unknown in the civil law in absence of any suggestion of a basis for a magistrate to disqualify himself from further hearing the matter. This appears not to be the position in this case. The second is that the respondent is completely correct when it says on the orders as they stand no final orders will be made determining the action without a fresh trial of all of the evidence and it will be necessary for the action to be heard afresh with Mr Little being present as a party. That has all the hallmarks of a fresh action because of the obvious differences in those two positions. I consider that decision about declaring a mistrial is an error. The requirement that the respondent proceed to a second trial and litigate afresh the same evidence as has already been received by the court in the extant trial is the reason why error has been shown in the exercise of the discretion by the learned magistrate. The appropriate orders for the learned magistrate to have made was to dismiss the application of the applicants.
I turn to the respondent’s supplementary written case.
The respondent confirmed that the trial issues before me for my consideration here do not concern judgments because they are non-reviewable rulings or directions or are issues which arise only once an action has been determined. Neither of those matters are able to be considered on a review by the District Court. The respondent continues to rely upon the distinction to be made between a judgment which is an order or decision and includes an interlocutory judgment on the one hand and incidental rulings given during the course of a hearing. It is necessary to examine the authorities relied upon by the respondent in that respect.
In Corporation of the City of Mitcham v Fusco,[27] Debelle J sitting in the Land and Valuation Division heard an appeal from a ruling by the Environment Resources and Development Court (the ERD Court) that the evidence of three proposed witnesses should not be admitted. The question before his Honour was whether the appeal was competent. The issue before the ERD Court was an enforcement notice issued by the City of Mitcham to the respondent Fusco alleging a change of use of land without development approval. This change of use concerned the planting of an olive orchard on some 1.2hectres of a 15hectre area which had otherwise been used for residential purposes.
[27] [2001] SASC 164.
In support of its enforcement notice, the council sought to lead evidence from three expert witnesses which it contended were relevant to the question of whether the use of the land for the olive orchard was reasonably incidental to the use of the land for residential purposes. The ERD Court had ruled that the evidence was not relevant and the council appealed that decision. The appeal was brought under s 30 of the ERD Court Act 1993. Under s 30(1)(a) an appeal lay from an interlocutory decision of the ERD Court to a single judge of the Supreme Court.
At [6] and following, Debelle J discussed the meaning of an interlocutory order and the distinction between such an order and a final order. His Honour said that although it is difficult to define an interlocutory order, he does not think that it includes a ruling that evidence of a witness is inadmissible. His Honour adopted the reasoning of the Court of Criminal Appeal of New South Wales in R v Steffan.[28] There, the Court of Criminal Appeal said that it was not immediately self-evident as a matter of ordinary usage how a ruling on the admissibility of evidence could be entered in the records of the court as a judgment or how it commands that anything be done (or not done) in the sense of an order of the court. A ruling accompanied by elaborate reasons will attract the description of a judgment but that denotes the reasons which have been expressed rather than a formal act of the court.
[28] (1993) 30 NSWLR 633 at 635-636.
At [7] Debelle J emphasised that rulings on admissibility of evidence are capable of being changed as the hearing proceeds and that proceedings should not be interrupted by appeals about rulings on admissibility of evidence. As well, an ultimate decision of the court might render it unnecessary to examine the correctness of the ruling on evidence. His Honour therefore concluded that a ruling on the admissibility of evidence did not meet the expression “interlocutory order”. I consider that there is a clear point of distinction here. The task before the learned Magistrate did not involve any question of this nature about evidence, but more fundamental questions about the need to completely rehear evidence (already put before the court) because it may make a decision to join a party. That means that the two decisions were seen as interrelated and were fundamental to the progress of the whole action.
In Stavropoulos and Anor v Morrow Investments Pty Ltd,[29] Debelle J considered an appeal against a refusal by a magistrate to grant permission by leave to reinstate a counterclaim. The action at first instance by Morrow was for repayment of outstanding rental plus damages for repairs, interest on arrears and security bond. Morrow alleged that the appellants had vacated the premises. Those appellants filed separate defences. McNamara said that the lease had been terminated by an agreement and this was to take effect from 24 October 2003 because the premises had already been leased to a third party and there would be no penalty. McNamara also counterclaimed for a declaration that the premises were not suitable for use as a restaurant and for remedies for the consequences of misrepresentations made in the course of negotiations leading to the entry into the lease. Stavropoulos filed a defence to the same effect as McNamara but did not file a counterclaim. During the course of negotiations between the parties, McNamara withdrew his counterclaim and on the day before trial, Morrow obtained an order permitting it to amend its particulars of claim. The trial was listed to commence on 28 November 2005 and on 8 June 2005 McNamara applied to reinstate his counterclaim. That application was heard and refused on the basis that, as the magistrate thought, the filing of a notice of discontinuance was a final judgment on the counterclaim.
[29] [2005] SASC 444.
On 16 August 2005, Stravropoulos applied for leave to file the counterclaim but that leave was refused by a different magistrate. By a notice of appeal of 15 September 2005 both McNamara and Stavropoulos appealed against the separate orders dismissing their respective applications.
His Honour characterised the judgments the subject of the appeal as “interlocutory judgments” rather than final judgments and therefore R96B.02 Supreme Court Rules applied.[30] No certificate had been obtained from a magistrate under sub-rule (1) nor leave of the court obtained under sub-rule (2). As well the appeals were out of time. Debelle J held that, under the specific operation of MCRR88, the discontinuance of a counterclaim had the effect of a judgment but that was not a final judgment. It is a judgment capable of being set aside under R87(1). To that extent, the magistrate had fallen into error. But Debelle J considered that there was not sufficient prejudice suffered by Morrow to refuse an order reinstating the counterclaim whatever the level of prejudice that could be shown. Debelle J considered that it was not so late in the proceedings that McNamara should be prevented from reinvigorating his counterclaim. There is an obvious point of distinction. In Stavropoulos the counterclaim was brought between the same parties to the proceeding and the counterclaim had been ventilated previously in the action. That is not the situation in the case at bar. Any allegation to be made against Mr Little, though predictable will be new matters. And there is no basis to ascertain what he may do about any cross claim against the respondent.
[30] Leave for interlocutory appeals - 96B.02
(1)    Unless a Magistrate has certified that the proposed appeal involves:
(a)    A point of law of difficulty or importance; or
(b)   A point of sufficient importance in the proceedings to warrant an interlocutory appeal being dealt with before final judgment in the action,
any appeal against an interlocutory judgment under Section 40 of the Act is subject to leave being obtained from the Supreme Court.
(2)    Such leave may be granted by a single Judge in chambers ex parte or upon such notice to the other parties as the Court may direct:
(a)    Upon a summons which is to be issued within 14 days of the making of the judgment complained of;
(b)   On an application taken out within 14 days of the making of the order complained of in any proceedings already before the Court involving the same parties and relating to the subject matter of the proposed appeal.
(3)    Immediately upon initiating the proceedings seeking such leave the party seeking the leave shall serve such proceedings upon the Registrar of the Magistrates Court who shall thereupon forthwith forward the Magistrates Court file on the matter to the Registrar of the Supreme Court, or, if the file has been maintained in an electronic format, afford electronic access to it by the Registrar of the Supreme Court and the Judge to whom the appeal has been assigned.
(4)    Where such leave has been granted ex parte Rule 94.04 is to apply to any rescission of that leave.
(5)    Where all necessary parties are represented on the hearing for leave to appeal the single Judge may treat that hearing as the argument on the appeal and determine the appeal accordingly.
(6)    Upon any summons under subrule (2) (a) or any application under subrule (2) (c) the Court may;
(a)    Direct that the appeal be referred to the Full Court for determination;
(b)   Stay any proceedings or order in the Magistrates Court which are related to the appeal.
On the appeal of Ms Stravopoulos the court found that the legal limit of the jurisdiction of the Magistrates Court was a bar to her intended appeal. His Honour therefore decided that it would not be appropriate to grant an extension of time in which to institute that appeal.
In CGU Insurance Limited and Anor v Pettit,[31] Doyle CJ considered a claim by a plaintiff for injuries suffered by her when she assisted a Mr Pettit, the driver of a prime mover to unload goods from a refrigerated trailer. She alleged that she was struck by a door of a refrigerated trailer when it hit her on the head. It was common ground that the trailer had been towed to the place where the accident happened by Pettit but there was no finding made that the trailer was then still attached to the prime mover. The matter was heard on a preliminary point in the District Court and a judge of that court determined that the two insurance companies, CGU and Vera Insurance were liable to indemnify Pettit in respect of any liability that Pettit had to the plaintiff. There was an appeal against that decision. The appeal was dismissed. Doyle CJ considered the competence of the appeal from [19] onwards. The right of appeal to a justice of the Supreme Court on a decision of a District Court judge is regulated by s 43 District Court Act 1991.[32] His Honour considered the question whether the order the subject of the appeal was an interlocutory judgment or was a final judgment. With some great reluctance, Doyle CJ accepted the argument that the judgment was interlocutory. His Honour considered the decision of Carr v Finance Corp of Australia Limited[33] that I have discussed above. His Honour then compared the question for decision before the District Court judge which was based upon the acceptance of the allegations in the statement of claim filed by the plaintiff. If those allegations were not made out, then the judgment by the District Court judge on the preliminary point would not bind the insurers because the basis for the claim of insurance had not been made out. That is, if the trailer was proved to be separated from the prime mover, then the matter would have to be considered afresh.[34] His Honour held at [29] and [30] as follows:-
[29] The point is that the judgment of the District Court does not finally determine the rights of the parties. From a practical point of view it may well do so, but from a legal point of view it does not and cannot. At this stage the most one can say is that it might have that effect. In effect, the Judge has determined the meaning of the Policy under certain assumed circumstances, which circumstances might or might not be the circumstances as ultimately found at the trial of the plaintiff’s action.
[30] In the light of all that, I considered whether I should decline to decide the appeal. But in the end, as both parties joined in submitting that the appeal should be decided, I have determined to proceed to decide the appeal, although with some reluctance and hesitation about the propriety of doing so.
[31] [2009] SASC 187.
[32] 43—Right of appeal
[33] (1981) 147 CLR 246.
[34] In that instance it is difficult to comprehend why the preliminary point argument proceeded and its utility.
As is plain from the last sentence of [30], his Honour had real difficulty with the issues. The point of distinction in the case at bar is that in Pettit the judgment on the preliminary point did not inform the final judgment that may be given. This is not that case.
I consider that the further point of distinction here is that the learned magistrate has purported to declare a mistrial. The practical effect of his orders is that he has required the issues to be litigated afresh in the next hearing in the same action but with an extra party and before a different magistrate. Practically speaking, this is little different from saying that the original proceeding is effectively at an end because the whole of the issues litigated thus far in the proceedings must be litigated afresh (as if a new proceeding had been commenced). The original proceedings remain on foot but where Mr Little is joined and the whole matter commences again. That is a very different situation than an order for the joinder of a party to a proceeding and the same proceeding continuing with that extra party being present.
The inadvisability of such an order is readily apparent when someone such as Mr Little would in such circumstances be required to catch up to the proceedings, as it were and continue as a party to the proceedings as if from the commencement of the action. That discussion underscores the correctness of the view that the appropriate order was to refuse the application for the joinder of Mr Little and for the matter to have proceeded to judgment in accordance with usual common law principles. I do not have any doubt about the correctness of the principles enunciated by Debelle J in City of Mitcham v Fusco and Stavropoulos and the judgment (however hesitatingly it is expressed) of Doyle CJ in Stavroploulos. I consider that the principles deriving from those cases are of no assistance here and those cases are readily distinguishable on their facts.
I am satisfied that the decision of the learned magistrate is a judgment for s 3 MCA because it is an interlocutory order as defined in the same section. I consequently consider that the application for review is competent. I consider that under s 38(7)(d)(ii) MCA I should rescind the judgment and substitute a judgment that I consider appropriate. That judgment is that the orders of the learned magistrate be set aside and that the matter concerning the lis between the applicants and the council only be reinstated for completion of hearing to judgment before the learned magistrate as soon as possible. It will be necessary for the parties to attend a directions hearing before the learned magistrate so that directions can be given preparatory to the recommencement of the hearing in this matter.
I consider that there are really only two choices open to the magistrate. The first is to hear the action to completion. The second would be to ascertain wehther before the completion of the action, the applicants are prepared to issue a fresh action against Mr Little. If that be the case and, subject to the views of the council, the learned magistrate may hold a directions hearing to ascertain whether any action commenced against Mr Little could be heard together with the earlier action commenced against the council. These are all matters for the ascertainment of the attitude of the applicants and then the exercise of discretion having regard to the material facts then before the learned magistrate.
I will hear the parties as to consequential orders including as to costs.

(1) A party to an action may, in accordance with the rules of the appellate court, appeal against any judgment given in the action.
(2)The appeal lies—
(a)in the case of a judgment given by a Master or the Court constituted of a Master—to the Court constituted of a Judge;
(b)in the case of an interlocutory judgment given by a Judge—to the Supreme Court constituted of a single Judge;
(c)in any other case—to the Full Court of the Supreme Court.
(3) The appeal lies as of right, or by permission, according to the rules of the appellate court but, in the case of an appeal against a final judgment of the Court in its Administrative and Disciplinary Division, permission is required to appeal on a question of fact.

(4) A right of appeal conferred by this section extends to a legal practitioner, witness or other person against whom an order under section 42 is made.