Constant Tsai Shi Wong v Carter

SUPREME COURT OF VICTORIA

CAUSES JURISDICTION

Not Restricted

No.6748 of 1997

CONSTANT TSAI SHI WONG	Appellant
v
C. CARTER	Firstnamed Respondent
and
PETER DUNCAN	Secondnamed Respondent
and
BRIAN QUIRK	Thirdnamed Respondent
JUDGE:	BALMFORD, J.
WHERE HELD:	Melbourne
DATE OF HEARING:	29 and 30 July 1998
DATE OF JUDGMENT:	24 August 1998
MEDIA NEUTRAL CITATION:	[1998] VSC 38

CATCHWORDS: Appeal against an order of the Magistrates’ Court - Sheriff’s office seized the plaintiff’s car due to non-payment of fines from traffic infringement notices - plaintiff claimed wrongful seizure - Magistrate dismissed the plaintiff’s complaint - whether the Magistrate had erred in law.

Magistrates’ Court Act 1989 (Vic) s109

Buzatu v. Vournazos [1970] VR 476
Thomson v. Lee [1935] VLR 360
Protean (Holdings) Ltd & Ors v. American Home Assurance Co [1985] VR 187
Adam P Brown Male Fashions Pty Ltd v. Philip Morris Inc (1981) 148 CLR 170
Bloch v. Bloch (1981) 37 ALR 55
McColl v. Lehmann [1987] VR 503
Maxwell v. Keun [1928] 1 KB 645
Briginshaw v. Briginshaw (1938) 60 CLR 336
Devries & Anor v. Australian National Railways Commission & Anor
(1993) 177 CLR 472
R v. Mazzone (1985) 21 A Crim R 32

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P. R. Moloney	Maria Philips
For the Respondents	Mr M. A. Robins	Victorian Government Solicitor

HER HONOUR:

This is an appeal under section 109 of the Magistrates’ Court Act 1989 against an order of Mr Michael Smith in the Magistrates’ Court at Melbourne made on 25 July 1997. The background of the matter appears from the introductory paragraphs at pages 1 to 2 of the Magistrate’s written Decision, which read as follows:
The plaintiff seeks damages from the defendant arising from what he claims to be the wrongful seizure of a motor vehicle CCK 046 (“the vehicle”); such vehicle was seized on 19 April, 1995; it is not disputed that the vehicle was in the possession of the plaintiff at the time of seizure.
The Firstnamed Defendant is the officer of the Sheriff who effected the actual seizure. The secondnamed defendant was the Sheriff at the time of seizure, and the thirdnamed is the present Sheriff of the Supreme Court of Victoria.
In addition to the special damages arising from the seizure of the vehicle, such as the cost of taxi fares and certain items of solicitors costs incurred in the long running dialogue with the Sheriff’s office prior to seizure, the plaintiff claims aggravated and exemplary damages arising from the unlawful seizure and from the conduct of the defendant in so acting without proper authority and, as the plaintiff’s claim expresses it:
“have acted in contumelious disregard of the plaintiff’s rights
and have caused the plaintiff hurt to his feelings and dignity.”
The plaintiff claims that there being no lawful occasion for the vehicle to be seized, the seizure was a trespass to goods both in the possession of and owned by the plaintiff, and damages flow from this act of trespass.
The position of the defendants is that seizure of the vehicle by the Sheriff was lawful; the plaintiff cannot therefore recover any damages said to flow from, or be consequent upon trespass.
The Sheriff seized the vehicle in execution of a warrant, one of a large number of warrants issued to the Sheriff in respect of the non payment of fines following upon traffic infringement notices processed through the PERIN system. The warrants were in the name of John D. Young and were executed upon the plaintiff.
It is not in issue that liability for the infringements falls upon the owner of the vehicle at the relevant time.
The principal question in issue was thus whether the appellant was the owner of the vehicle at the time of the several infringements. As the Magistrate said at page 6 of his Decision:
Essentially this proceeding concerns ownership; by whom, at what time, and for how long.
The vehicle had been released to the appellant on 12 May 1995, 23 days after seizure under “walking possession” (an expression the meaning of which was not explained to the Court) and on his undertaking not to dispose of it.
The hearing in the Magistrates’ Court occupied six days, 23 to 27 and 30 June 1997, and the Magistrate reserved his decision. At that hearing the parties were represented by the same counsel as before this Court. The order of the Magistrate was that the appellant’s complaint be dismissed, that there be judgment for the respondents and that the appellant pay the respondents’ costs and deliver up the vehicle.
The evidence before this Court was contained primarily in the affidavit in support sworn by the appellant and his solicitor, Ms Philips, and the affidavits in opposition sworn by Sheriff’s Officer Jacotine and Ms Sahinidis, together with the exhibits thereto. Where either of the affidavits in response contradicts or expands the material contained in the affidavits in support, I have preferred the former, in accordance with what Newton J in Buzatu v Vournazos [1970] VR 476 at 478 described as:
. . . the arbitrary rule that where there is a material conflict between the parties’ affidavits as to the evidence or other proceedings in the court of petty sessions, the version which supports the decision of the court of petty sessions should be accepted, in the absence of any fair and practicable method of resolving the conflict . . .
It was not suggested that there was here (as there was in Thomson v Lee [1935] VLR 360 at 362) any reason to depart from that rule. The remaining affidavits are those of Messrs Louey and Hobbs, (to which Mr Robins, for the respondents, formally objected) which are relevant to questions (5)(a) and (5)(b) and are considered further in that context.
On 16 September 1997 Master Wheeler ordered that a number of questions of law were to be decided on this appeal. It is convenient to deal with those questions seriatim.
Question (1) Did the learned Magistrate err in failing to require the “splitting” of the case in circumstances where the defence was based on fraud and the Plaintiff was thereby being compelled to anticipate the particulars and the evidence upon which the defendants relied?
In the Magistrate’s Court Mr Moloney for the appellant requested that the case be split, citing Protean (Holdings) Ltd and Ors v American Home Assurance Co [1985] VR 187. The ground for his submission was that the respondents’ case, as set out in the amended particulars of defence filed on 16 May 1996, pleaded inter alia that the appellant used the name of ‘John D. Young’ as an alias in connection with the exercise of his rights of ownership and possession of the vehicle prior to June 1994, registering it under the name of the alias. This defence, he submitted, was essentially based on fraud and required the appellant to prove a negative. Accordingly, the appellant should be able to lead evidence after the respondents had closed their case. That request was refused by the Magistrate.
Mr Moloney submitted that, as in Protean Holdings, the matters to be proved by the appellant were relatively simple; they were, the appellant’s identity, his purchase of the car, and that the car was seized under warrants addressed to Young. If the Magistrate had accepted that the onus was on the respondents to prove that the appellant’s identity merged with that of Young, either because Young never existed or because the appellant assumed his name, that was an appropriate case for the exercise of the court’s discretion to allow the appellant to split his case.
Courts of appeal are reluctant to interfere with the exercise of a discretion on a matter of practice or procedure. In Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Gibbs CJ, Aickin, Wilson and Brennan JJ said at 177 on this question:
We would merely repeat, with approval, the oft-cited statement of Sir Frederick Jordan in In re the Will of FB Gilbert dec (1946) 46 SR (NSW) 318 at 323:
. . . I am of opinion that, . . . there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.
. . . It is safe to say that the question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration.
Mr Moloney expressly did not press this ground of appeal as justifying the setting aside of the decision of the Magistrate. I note that Protean Holdings was cited to the Magistrate and that both counsel addressed him on the question as to whether he should exercise his discretion to allow the splitting of the appellant’s case. In all the circumstances, and noting the passage cited above from Adam P Brown Male Fashions, I am satisfied that the answer to question (1) should be No.
Question (2) Did the learned Magistrate err in failing to require the Defendants to adhere strictly to the Particulars of Defence (following assurance given on behalf of the Defendants that the Amended Defence and the Further and Better Particulars filed in support thereof were complete)? (See paragraph 6 Philips affidavit).
Mr Moloney drew the Court’s attention to paragraph 10 of the amended particulars of defence and the further particulars thereof, which indicated that the respondents asserted that the appellant used the alias “Young” from approximately January 1985 to June 1994. If I understood him correctly, his submission was that in accepting that assertion in paragraph 5 of his Decision, the Magistrate had expanded the range of dates within which the appellant was said to have assumed the alias, but that there was no evidence to support that finding, and the respondents had not been required to comply with the particulars of defence. It does not appear to me that there was any expansion by the Magistrate, in his finding, of the content of the particulars. The answer to Question (2) is accordingly No. The matter of evidence is best dealt with under question (7)(b).
Question 3 During the Defendants’ case did the learned Magistrate err in ruling the Defendants be permitted to amend paragraph 5 of the Amended Particulars of Defence (Exhibit “CW2”) to include a further 55 warrants and to rely on same? (See paragraphs 99-100 of Philips affidavit).
Mr Moloney submitted that this amendment had the effect that instead of a single warrant of limited monetary value, the findings in the case now related to a vastly expanded number and value of warrants, which the evidence in other places suggested was some $23,000, although there was then a question of which were and which were not current. He referred to Rule 9.01(4)(c) of the Magistrates’ Court Civil Procedure Rules 1989 (“the Rules”) requiring that a notice of defence must “state particulars of [the defendant’s] defence which must include a summary of the material facts upon which the defendant relies”. He submitted that by allowing the amendment the Magistrate was permitting the respondents to reinvent the case as it proceeded, to the detriment of the appellant. It is not in issue that there was no cross-examination on any of the warrants nor that counsel for the appellant conceded that the only issues before the Magistrate were the use of the alias and the formal service of the warrants according to the PERIN court procedures. Thus in the context of the proceeding before the Magistrate and of this proceeding it cannot be said that the Magistrate erred in allowing the amendment. The answer to Question (3) is accordingly No.
Question (4) Did the learned Magistrate err in permitting the Defendants to shift the basis of the defence from the proposition that John D. Young had never existed to the proposition that John D. Young had existed but that at some stage the Plaintiff commenced to use that name as an alias? (See paragraph 89 Philips affidavit).
The evidence in paragraph 89 of the affidavit of Mr Jacotine is that paragraph 89 of Ms Philips’ affidavit is inaccurate in this regard. It reads:
Contrary to what is implied therein, Mr Robins did not indicate then for the first time that the defence wished to keep open “an alternative basis”. Rather, Mr Robins conceded that the evidence by that point had probably established that a Mr Young existed and that, at some stage, the Appellant assumed the use of Mr Young’s name for his own purposes. Mr Robins further conceded that this probably dispensed with his first alternative defence. Up to this point, the case had been opened by Mr Moloney and conducted by both counsel on the basis that the Defence was founded on the alternatives that either there was no John D. Young, or, if there was, the Appellant simply used Young’s name in respect of the car.
For the reason set out in paragraph 4 above I accept the evidence of Mr Jacotine.
Accordingly, Question (4) does not arise and does not require an answer.
Question (5a) Did the learned Magistrate err in ruling against the application which was made on behalf of the Plaintiff for adjournment in order that the Plaintiff could:
(a) himself give further evidence;
(b) procure and adduce further evidence from other relevant
witnesses;
when it became clear that the Defendants’ case had not been confined to the Particulars filed and that the matters in the Defendants’ case had not been put to the Plaintiff or his witnesses? (See paragraphs 225-244 Philips affidavit).

Question (5b) Did the learned Magistrate err in ruling that the
Plaintiff would not be allowed to adduce evidence:
(a) as to the accuracy of the immigration records;
(b) as to the presence of John Young in Australia after 1986;

(c) as to the Plaintiff’s mistaken [identification] of the girl named

as Amanda as being identical with the female depicted in exhibit
number 4;

(d) from a handwriting expert as to the authenticity of signatures said to be those of John D. Young?

These two questions are conveniently dealt with together. The circumstances of the application for an adjournment and the submissions thereon made by Mr Moloney are set out at length in the paragraphs referred to, which are supplemented, and to some extent contradicted, in paragraphs 180 to 187 of Mr Jacotine’s affidavit. Mr Moloney indicated to the Court that the affidavits of Mr Hobbs and Mr Louey which are referred to in paragraph 4 above were before the Court not as evidence of their content, but as indicating the evidence which the respective deponents would have given had the application been granted. The affidavit in support by the appellant was also relevant in this context.
As to question (5a) (a), the appellant deposes that he wished to give evidence correcting his identification of the witness Amanda Whiting as a Canadian student who used the vehicle and that he wished to have further enquiries made and appropriate evidence led regarding the presence of John Young in Australia, immigration records and handwriting. Mr Hobbs is an expert on immigration matters, and his affidavit essentially goes to the likely accuracy of the information provided by the Department of Immigration and Multicultural Affairs. Mr Louey is a retired restaurateur, and his affidavit relates to a dinner in his restaurant as to which he deposes that John Young and the appellant were both present and that it took place between 1988 and 1994. All of this material is referred to specifically in paragraphs (a) to (d) of question (5b).
Mr Moloney informed the Court that the reason for the application was that the appellant had been taken by surprise in a number of respects. The Magistrate had stated (see paragraph 230 of Ms Philips’ affidavit) that that was not a basis for an application to reopen the case. Mr Moloney submitted that Rule 9 of the Rules was designed to avoid people being taken by surprise, and full particulars of the evidence to be called ought to have been included in the amended defence or else the material ought to have been put. As evidence was called which took the appellant by surprise, he submitted that the Magistrate should have granted the application for an adjournment to enable the calling of the evidence referred to in the preceding paragraph. The Magistrate did allow the appellant to be recalled in order to give evidence as to one specific matter.
In Bloch v Bloch (1981) 37 ALR 55 Wilson J, with whom Gibbs CJ, Murphy J and Aickin J agreed said at 58-9:
The decision whether to grant or refuse an adjournment lies in the discretion of the trial judge, and it is indeed seldom that an appellate court will feel justified in reviewing such a decision. In Maxwell v Keun [1928] 1 KB 645 at 653; [1927] All ER Rep 335 at 338-9, Atkin LJ stated the rule in terms which have won general acceptance:
I quite agree the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned judge on such a question as an adjournment of a trial, and it very seldom does do so; but, on the other hand, if it appears that the result of the order made below is to defeat the rights of the parties altogether, and to do that which the Court of Appeal is satisfied would be an injustice to one or other of the parties, then the Court has power to review such an order, and it is, to my mind, its duty to do so.
In McColl v Lehmann [1987] VR 503 Kaye J, following Bloch v Bloch and Maxwell v
Keun, said at 506:
However, the result of refusal to grant an adjournment might be to prevent the party seeking it from presenting his case or defence: in some circumstances such result could constitute an injustice. This is so because it is essential to the fair trial of an action - whether civil or criminal - that all parties are able to present their case as fully as necessary and within the limits of the law. To overcome an injustice so brought about or threatened, an appellate court will interfere with the trial judge’s discretion.
In Maxwell v Keun the application for adjournment which had been refused was made on the ground that at the date fixed for the trial the plaintiff would be serving with his regiment in India. The Court of Appeal upheld the appeal. However, in Bloch v Bloch the High Court did not interfere with the refusal by the trial judge of an adjournment requested by a party who might possibly never return to Australia and where the other parties were elderly. Naturally each such application must be considered on the basis of the relevant facts and circumstances.
Having considered the material before me, in the light of the other material before the Magistrate and the findings which he made, I am not satisfied that the likely effect of the obtaining and presenting of the evidence in question was of such significance as to justify the grant of an adjournment to that end. I note that the Magistrate did permit the appellant to be recalled in respect of one matter. Given the view of the High Court and of the [English] Court of Appeal that an appellate court should be “very slow indeed” to interfere with the discretion of the court below, I do not consider this case as being one of those occasions where this is appropriate. Accordingly the answer to questions (5a) and (5b) is No.

Question (6) In determining whether the Plaintiff was guilty of fraudulent
conduct did the Magistrate apply the appropriate standard of proof?

Mr Moloney submitted that as the respondents’ case involved allegations of fraudulent and criminal conduct, while the civil standard of proof applied, that proof ought to be “clear”, “strict”, “certain” or “exact”. He relied on the passage from Briginshaw v Briginshaw (1938) 60 CLR 336 at 362-3 where Dixon J said (omitting references to authorities):
It is often said that such an issue as fraud must be proved “clearly”, “unequivocally”, “strictly” or “with certainty” . . . This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues . . . But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.
These illustrations show the good sense of Professor Wigmore’s statement that, in civil cases, it should be enough to say that the extreme caution and the unusual positiveness of persuasion required in criminal cases do not obtain.

The Magistrate heard the evidence over 6 days and had the opportunity of observing the various witnesses. I am not in a position to find that he did not have in mind, in reaching any relevant findings of fact, the matters referred to by Dixon J in Briginshaw, or that he did not apply the appropriate standard of proof.
Question (7) On the whole of the evidence would a reasonable Magistrate have found in favour of the Defendants in particular (inter alia) would he have found the following (in each case the page reference refers to the Reasons for Decision set forth in Exhibit MP3 [that is, the document described by the Magistrate as Decision and so described herein]) -
(a) At page 3 that on the day following 30 January 1985 the registered address of the vehicle was changed to 67 Wilson Road, Glen Waverley (See paragraphs 125, 133 and 135 of Philips affidavit and Exhibit MP 37).
(b) At page 4, that the vehicle commenced to incur parking infringements from 1985 (see Exhibits MP8, MP27 and MP29).
(c) At page 5, in observing that the Defendants’ position was put “initially” in the alternative, when in fact the Defendants did not put forward the alternative until the close of the Plaintiff’s case (See paragraph 59 [it is to be presumed that this is an error for 89] Philips affidavit).
(d) At page 9, having regard to the uncontradicted evidence of Stone, inferentially finding that no relevant meeting between Wong and Young took place, (See paragraphs 78-80 Philips affidavit).
(e) At page 13, against the background of application made on behalf of the Plaintiff for adjournment to enable expert handwriting evidence to be presented, proceeding without expert assistance and without seeking submissions from Counsel about this course, to examine signatures and to draw an “inference” while in fact purporting to act as an expert.
(f) At page 14, in circumstances where application had been made on behalf of the Plaintiff to adjourn proceedings to enable the calling of expert evidence upon immigration records (to which inter alia, the learned Magistrate had indicated that he did not regard such records as “bullet proof”) nevertheless proceeding to accord “significant weight” to such records.
(g) At page 15, in circumstances where no issue was taken during the course of proceeding by either member of Counsel about the availability or date of a roadworthy certificate, nevertheless apparently drawing an inference adverse to the Plaintiff by reason of failure to call evidence from the garage about the roadworthy certificate.
The question falls into two parts: first the general question as to whether a reasonable magistrate would have found in favour of the respondents, and second the specific questions numbered (a) to (g). In considering those matters I have kept in mind the principle enunciated by Brennan, Gaudron and McHugh JJ in Devries & Anor v Australian National Railways Commission & Anor (1993) 177 CLR 472 at 479 in the following terms (omitting references):
More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.
Question (7)(a)
There was a conflict in the evidence on this point. It was open to the Magistrate to accept Exhibit 34 rather than Exhibit 37. This finding in part depended on the evidence of Mr Mathews, which the Magistrate had the advantage of hearing.
Question (7)(b)
Mr Robins conceded that the evidence disclosed that the vehicle commenced to incur parking infringements in 1987, not 1985. He submitted that this was a slip by the Magistrate and was as to a peripheral point only; the real finding was that the vehicle incurred infringements during the period before the appellant became registered as owner but during which he owned and controlled the vehicle. I accept that submission.
Question (7)(c)
This matter is dealt with in paragraph 12 above. As I have said, I accept the evidence of Mr Jacotine, for the reason set out in paragraph 4 above.
Question (7)(d)
The Magistrate had the advantage of hearing the evidence of Stone and there is no basis upon which I could reach a different finding.
Question (7)(e)
In R v Mazzone (1985) 21 A Crim R 32 at 37 ff Bollen J, with whom King CJ agreed, considered at length whether a jury was entitled to compare samples of handwriting for itself and form conclusions as to whether a particular piece of handwriting was that of the accused. In the light of that consideration, which it is not necessary to reproduce here, I am satisfied that the Magistrate was entitled to make such a comparison for himself and to draw the inference which he did draw. I have not, of course, myself had the opportunity of doing so, as the Magistrate did.
Question (7)(f)
I see no reason why a reasonable Magistrate could not, in all the circumstances, have relied, to the extent that the Magistrate did rely, upon the immigration records.
Question (7)(g)
Mr Jacotine’s affidavit makes clear that matters relating to the roadworthy certificate were ventilated. The inference was open to the Magistrate.
Generally
Having considered the matter, and on the basis of the material before me, I am unable to find that a reasonable magistrate would not have found in favour of the respondents either generally, or in respect of the separate matters raised under this head.
Conclusion
For the reasons given, the appeal will be dismissed.

[1998] VSC 38

24 August 1998