Commane v Department of Public Transport Services - [2014] SADC 196

District Court of South Australia
(Civil: Minor Civil Review)
COMMANE v DEPARTMENT OF PUBLIC TRANSPORT SERVICES
[2014] SADC 196
Judgment of His Honour Judge Beazley (ex tempore)
18 November 2014
MAGISTRATES
Minor Civil Review
Purpose and objectives of s 38 of the Magistrates Courts Act 1991 considered - the Act evinces a general intention that a Magistrate, sitting as the trial court, should proceed broadly in accordance with an inquisitorial model as opposed to an adversarial model - discussion of the nature of an application for review in the District Court - it is not in the nature of an appeal stricto sensu - it is an enquiry to determine whether a full and fair enquiry was conducted by the court below.

PROCEDURE - JUDGMENTS AND ORDERS - IN GENERAL
Judgment entered in a minor civil action for the respondent for the sum of $1,549.00 in addition to costs - the applicant and the respondent had entered into an agreement on 31 August 2005, whereby the applicant was licensed to sell to the public, tickets for use in the respondent's public transport system - the applicant was supplied with tickets to the value of $2,149.00, for which payment was not required until the termination of the agreement - respondent asserted at trial that the applicant breached the terms of the agreement by ceasing to trade on 3 October 2006 - agreement terminated by respondent because of that breach - applicant asserts that his shop was 'burgled' between 2 and 4 October 2006 - applicant reported the alleged losses to police on 5 October 2006 - applicant asserts that he is entitled to credit for the respondent's full claim of $1,549.00 pursuant to clause 4.6 of the agreement.
The learned Magistrate concluded that the applicant was not entitled to credit pursuant to clause 4.6 aforesaid.
Held: The learned Magistrate determined that there was no evidence to support the applicant's assertion that his shop was "forcibly entered" and accordingly the condition precedent to relief by the applicant was not satisfied - judgment of the learned Magistrate clearly correct - accordingly Judgment affirmed - application for review dismissed.
Magistrate's Court Act (1991) s 38; District Court (Civil) Rules (2006) Rule 6 DCR 279A, referred to.
Harradine v District Court of South Australia [2012] SASC 96; Lock v Territory Insurance Office [1997] NTSC 22; Dino Services Ltd v Prudential Assurance Co [1989] 1 All ER 422; Karger v Paul [1984] VR 161; Mandie v Memart Nominees Pty Ltd [2014] VSC 290, considered.

COMMANE v DEPARTMENT OF PUBLIC TRANSPORT SERVICES
[2014] SADC 196
Introduction

This is an application brought by Matthew Commane, (‘the applicant’) pursuant to s 38 of the Magistrates Court Act 1991 seeking that this Court review a judgment delivered by a Magistrate against him in Minor Civil Action, No 9055 of 2013 in the Adelaide Magistrates Court.
The applicant was the defendant in those proceedings.
The action involved a liquidated claim by the respondent against the applicant for the value of tickets supplied to him by the respondent, pursuant to the terms of a written agreement between them.
On 26 November 2013, a Magistrate entered judgment in favour of the respondent, in the total sum of $1,800.75, inclusive of costs on the Summons.
The applicant filed the within application for a Minor Civil Review on 17 December 2013.
The background
On 31 August 2005, the applicant and the respondent entered into a written agreement, namely a ‘Licensed Ticket Vendor Agreement’, whereby the applicant was licensed to sell to the public, tickets for use in the respondent’s public transport system.
Pursuant to the terms of that agreement the applicant received, from the respondent, initial stock to the value of $2,149.00, which he could sell as part of his retail business at North East Road, Holden Hill. He was not required to reimburse the respondent for those initial tickets until the agreement was terminated. The terms of the agreement provided that as the applicant sold those tickets, he would purchase replacement tickets, for cash, so as to ensure that his stock levels would be kept, at least, to a 50% level.
As it transpired, the applicant did not, at any time, purchase any replacement tickets from the respondent. Accordingly the respondent became concerned, and, on or about 16 June 2006, it wrote to him noting that there had been no orders placed for a three month period. It invited him to contact departmental officers by 30 June 2006. There was no response from the applicant, and on 27 September 2006, the respondent’s officers attended at the applicant’s premises. At that time the premises appeared to be unattended, indeed closed.
On 3 October 2006 the respondent’s officers returned to the subject premises. The premises were again unattended. The telephone had been disconnected. Mail and other items were left on the floor of the premises. The respondent’s officers reached the inevitable conclusion that the business had ceased, and that the premises were abandoned.
Accordingly, later on 3 October 2006, the respondent treated the abandonment as a breach of the agreement, and elected to formally terminate the agreement. It issued an invoice for the payment of the sum of $2,149.00 for the initial supply of tickets.
As it transpired, the applicant attended at the Holden Hill Police Station, two days later, on 5 October 2006 to report a ‘break-in’ at his premises. In that statement, he explained that when he had attended at about 9.00am on 4 October 2006, he had discovered that the front door remained locked and secured. He did not identify when it was that he had previously attended at the premises. By inference it must have been some time prior to the attendance of the respondent’s officers on 3 October 2006.
He alleged to the police that a cash drawer was open and damaged. He said that cash in the sum of $500.00 had been stolen from that drawer. He claimed that $2,150.00 worth of tickets had also been stolen. Finally he claimed that computers and other equipment had also been stolen.
Of particular relevance, is that the applicant had told the police that the back door was open at about 9.00am on 4 October 2006.
However he said that ‘the method of entry was unknown’, (my emphasis).
The applicant did not tell the respondent about the alleged ‘break-in’ until about 2 years later. The respondent had in the meantime pressed the applicant to repay the debt. In June 2010 the applicant paid the sum of $100.00; in September 2010 a further $200.00; and in December 2010, a final payment of $300. This left a debt of $1,549.00 owing by the applicant to the respondent.
The proceedings
On 26 June 2013 the respondent issued proceedings in the Magistrates Court claiming the sum of $1,549.00 in addition to the costs on the Summons.
On 18 July 2013 the applicant filed a defence to the respondent’s claim, in the following terms:
These bus tickets have been stolen from my shop and the department has been given a copy of the police report.
As is plain from the wording of the defence the applicant does not take issue with the respondent’s claim, save for one matter only. He asserts that the respondent was obliged pursuant to the terms of the agreement to, in effect; forgive his debt to the respondent. In that respect he relies solely upon clause 4.6 of the agreement.
Clause 4.6 of the Agreement
This clause provides as follows:
4.6The ticket in the Vendor’s possession will be at its sole risk in all things, provided that if any are stolen, lost, spoiled or damaged, then [the department] may in its absolute and unfettered discretion, replace the affected tickets at no cost to the Vendor (or, if applicable, credit the Vendor with the value of those tickets … if it is satisfied in all the circumstances, of the following matters:
(a)     that the loss or damage was not caused by the Vendor’s negligence or                 default;
(b)     that the loss or damage was caused by fire, flood, tempest, other natural disaster, armed robbery, burglary, riot, looting or other civil disturbance;
(c)     that if the loss or damage was caused by a burglary of the premises, then there was forcible entry to the premises;
(d)     that the tickets were kept in secure and locked storage when the premises was ‘not open for business’; and in the case of burglary or robbery, the Vendor has provided a police report number.
The nature of a minor civil action
·The nature of a minor civil action
Section 38 of the Magistrates Court Act, details the provisions which are applicable to the trial, and any Review of a Minor Civil Action, as follows:
(1)(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.
(2) At or before the trial of a minor civil action, the Court should explore any possible avenues of achieving a negotiated settlement of the matters in dispute.
(3)     After giving judgment in a minor civil action, the Court—
(a)     should advise the unsuccessful party of his or her right to apply for review of the proceedings by the District Court; and
(b)     should give the successful party any advice or assistance as to the enforcement of the judgment that the Court considers appropriate in the circumstances; and
(c)     if there is a judgment debtor who is present, should proceed immediately to investigate his or her means of satisfying the judgment and to take any further action that appears appropriate in view of the results of that investigation.
(4)     The following provisions govern representation in minor civil actions:
(a)     representation of a party by a legal practitioner will not be permitted unless—
(i)     another party to the action is a legal practitioner; or
(ii)      all parties to the action agree; or
(iii) the Court is of the opinion that the party would be unfairly disadvantaged if not represented by a legal practitioner;
(ab) however, the Court may, in its discretion, permit representation of a party by a legal practitioner at the hearing of an interlocutory application;
(b)     if a party to the action is a body corporate, the Court must, if the party seeks to be represented by an officer or employee who is not a legal practitioner, permit such representation;
(c)     if a person is subrogated to the rights of a party, the Court will permit that person to appear in the proceedings on behalf of that party and to be represented in the same way as if that person were a party;
(d)     the Court will permit a party, or a person subrogated to the rights of a party, to be assisted by a person who is not a legal practitioner but only if that person is not acting for fee or reward.
(5)In a minor civil action costs for getting up the case for trial, or by way of counsel fees, will not be awarded unless all parties were represented by counsel, or the Court is of opinion that there are special circumstances justifying the award of such costs.
(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.
In Harradine v District Court of South Australia,[1] Blue J, detailed the legislative history of the minor civil action, and explained that the role of the Court is that of an inquiry by the Magistrate rather than that of managing an adversarial contest between the parties. The clear policy of the Act is to provide an efficient and economical means by which small claims can be determined in the Magistrates Court. His Honour noted that Parliament had devised this system in consequence of the increasing costs of litigation. Accordingly some of the protections provided by legal practice in the general jurisdiction ‘may be sacrificed to the necessity of relating the cost to the amount of the claim’ in a Minor Civil Action.
[1] [2012] SASC 96 at [40]-[49].
The inquiry, in respect of a minor civil action, is therefore to be conducted on a more informal basis with the court acting according to equity, good conscience, and the substantial merits of the case without regard to technicalities. It must be a fair hearing by an unbiased tribunal; one which identifies and determines the ‘real’ issues between the parties; and one which ensures that all available evidence is presented to the court.
The conduct of the subject trial
The Minor Civil Action was heard by the Court on 26 November 2013, some 7 years after the alleged theft of the tickets. The applicant gave evidence to the learned Magistrate. He said that a fire had occurred at the business in early 2006 which caused the ‘business to be out of action for five to six months’. He asserted that he only reopened the business about 2 weeks before the ‘break-in’. He had not mentioned the fire to the respondent prior to that day in Court. He did not advise the respondent about the ‘break-in’ until nearly two years afterwards on 16 January 2008.
The applicant was asked why it was that the report to the police recorded that he did not know the method of entry into the store by the ‘burglars’.
The applicant said that he did not turn his mind to that question because he had believed that all he needed to do was to make a report to the police. The respondent’s Ms Horvat explained that as the respondent had not been told about the ‘break-in’ until 2 years later, it could not be in a position to exercise its discretion to waive the debt pursuant to clause 4.6 of the agreement.
She said that had there been earlier notice given by the applicant, the respondent’s officers would have attended to make an assessment of the premises.
In the subject case the applicant could not even produce a single document evidencing how many tickets had been sold.
She submitted that even if the applicant could bring himself within clause 4.6 of the agreement the respondent had exercised its ‘unfettered’ discretion against the applicant’s claim.
The learned Magistrate’s Decision
The learned Magistrate delivered his Reasons Ex Tempore. He noted the ‘coincidence’ of the alleged ‘break-in’ having occurred on 4 October 2006 – just one day after the termination of the agreement on 3 October 2006. He concluded that he did not need to resolve the vexed question as to whether the ‘break-in’ had occurred at all. He described it as the ‘important issue’ that as no notice of the ‘break-in’ had been given until 16 January 2008, the respondent was entitled to exercise its discretion in clause 4.6 against waiving the moneys owing for the tickets.
He was not satisfied that the premises had been ‘forcibly entered’ on the evidence of the applicant. Indeed there was no proof that the tickets were kept in secure and locked storage on the premises.
He accordingly entered judgment for the respondent in the sum of $1,549.00 in addition to costs in the sum of $251.75.
The application for Review
A legal practitioner sought leave to appear for the respondent upon the Review. While he was a manager employed by the respondent, he was also a legal practitioner holding a current practising certificate. I declined leave, and the respondent appeared by Ms Horvat, who had appeared for it in the Magistrate’s Court. I explained the procedure to the applicant.
He said that he did not wish to call any further evidence, but instead would rely upon clause 4.6 of the agreement.
Having said that, he proceeded to tell the Court, for the first time, that he ‘believed that there had been some ‘jemmying’ of the back door’.
He did however concede that,[2] ‘the police couldn’t have said that [in their report] because the door was old, had many marks from previously being used’.
[2] T. p 9.
He also conceded that he did not keep a record of the sale of tickets. His best estimate was that he had sold somewhere between $350.00 and $500.00 worth of tickets before the ‘break-in’.
Discussion
It is for the applicant to establish that he falls within the terms of clause 4.6 of the agreement, and, if so, whether in the circumstances which had arisen the respondent ought to have exercised ‘its absolute and unfettered discretion’ in his favour.
In my opinion the learned Magistrate was, with respect clearly correct, in finding that the applicant had not established that the premises had been ‘forcibly entered’. See Lock v Territory Insurance Office;[3] and Dino Services Ltd v Prudential Assurance Co.[4]
[3] [1997] NTSC 22
[4] [1989] 1 All ER 422.
The learned Magistrate only had before him the police report which noted that ‘the mode of entry was not known’.
While the applicant did suggest otherwise on this review, I cannot find on that vague evidence that the premises had been ‘forcibly entered’.
That finding is enough, on its own to dispose of the Application to Review.
I will briefly mention the discretion vested in the respondent even if the applicant could have established ‘forced entry’.
It is, of course, expressed in the widest possible terms ‘absolute and unfettered’.
In Karger v Paul,[5] McGarvie J said:
In my opinion the effect of the authorities is that, with one exception, the exercise of the discretion in these terms will not be examined by the Courts so long as the essential are present. Those essential parts are present if the discretion is exercised in good faith, upon real and genuine consideration and in accordance with the purposes for which the discretion was conferred.
[5] [1984] VR 161 and followed in Mandie v Memart Nominees Pty Ltd [2014] VSC 290.
In my opinion there is no error in the Magistrate's Reasons. The applicant did not bring himself within the terms of clause 4.6 of the agreement. He could not establish that there had been ‘forcible entry’. Further not only did the respondent exercise its discretion in good faith in rejecting the applicant’s claim for waiver of the moneys owing, it was the only decision it could have made given the vague nature of the applicant’s assertions and the gross delay.

Accordingly in all the circumstances there was no arguable defence to the respondent's claim, as found by the learned Magistrate. Pursuant to s 38(7)(d) of the Act, there is no other alternative but for me to affirm the judgment and the orders of the Magistrate.
It therefore follows that I must dismiss the Application for Review.
Costs
In Minor Civil Actions costs ought not be awarded unless there are special circumstances. In my opinion the appropriate order is that each party ought bear its own costs.
Formal Orders
In those circumstances the formal orders are:
1.      The decision of the learned Magistrate is affirmed.
2.      The Application for Review is dismissed.
3.      Each party bear its own costs of the Application for Review.