Cosic v Fernandez

SUPREME COURT OF VICTORIA

CAUSES JURISDICTION

Not Restricted

No. 7287 of 1997

DANNY COSIC	Appellant
v
AVITUS THOMAS FERNANDEZ	Respondent

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JUDGE:	Ashley, J.
WHERE HELD:	Melbourne
DATE OF HEARING:	7 August 1998
DATE OF JUDGMENT:	24 August 1998
CASE MAY BE CITED AS:	Cosic v. Fernandez
MEDIA NEUTRAL CITATION:	[1998] VSC 42

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CATCHWORDS:

Magistrates' Court - Appeal - Question of Law - Sufficiency of evidence - Adequacy of reasons - Exercise of costs' discretion - Appeal dismissed

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APPEARANCES:	Counsel	Solicitors
For the Appellant	MR R. APPUDURAI	D.E. Phillips
For the Respondent	MR R.S. LANCY	Trumble Szanto Braham

HIS HONOUR:

The Appeal

This is an appeal brought pursuant to s.109 of the Magistrates' Court Act 1989 from a final order of the Magistrates' Court at Moe made on 5 September 1997 by which the appellant's civil claim for damages was dismissed and the appellant was ordered to pay the respondent's costs on a party party basis up to 25 February 1997, and thereafter on a solicitor client basis. On 3 October 1997 a Master stated a number of questions for determination by the court. Counsel for the appellant abandoned the question lettered (g). The other questions were as follows:
(a)        Whether the Learned Magistrate erred in holding that the Defendant should not have been sued, and was not liable, in his personal capacity?
(b)        Was it open to the Learned Magistrate to hold that the Plaintiff's action founded on breach by the Defendant on his duty as bailee of the property was not established?
(c)         Was it open to the Learned Magistrate to hold that no personal undertaking, as alleged by the Plaintiff, was given by the Defendant?
(d)        Having regard to the whole of the evidence, would a reasonable Magistrate properly instructed have dismissed the Plaintiff's claim?
(e)        Whether the Learned Magistrate gave adequate reasons for his decision?
(f)         Whether the Learned Magistrate erred in founding his decision to dismiss the claim upon the view that the trailer and truck washer had to have been "..substantially different in condition than when seized by the Sheriff." in order for the claim to succeed?
(h)        Did the Learned Magistrate err in relying on the evidence given by Mr Nankerville concerning an alleged threat of violence made to Mr Symmons, to found his adverse findings as to the Plaintiff's credit, when no evidence of such a threat having been made was given by Mr Symmons himself?
(i) Whether the Learned Magistrate, in all the circumstances of the case, erred in the exercise of his discretion, pursuant to Section 131 of the Magistrates' Court Act 1989 and Rule 15.02.2 of the Magistrates' Court Rules, in ordering that costs be paid by the Plaintiff on a solicitor and client basis from the date of the Offer of Compromise?
The background to the proceeding
At relevant times the appellant conducted business from premises of about six acres overall at Tramway Road, Morwell. On part of the premises there was a large workshop. Sometime in the early 1990s the appellant constructed a trailer, such as is hauled by a prime mover. A roadworthy certificate was never obtained, but according to the appellant's case the amount needed to be spent to bring the trailer up to roadworthy standard was small.
During the early 1990s, also, pursuant to some arrangement whose details are unimportant, part of the appellant's premises were occupied by P & C Symmons Pty Ltd. That company went into liquidation in December 1994. By then, as I understand it, the company was no longer occupying any part of the appellant's premises. At the outset of the liquidation there were joint liquidators - Messrs Geoffrey Harrison and Avitus Fernandez.
The liquidators came to believe that certain property of the Symmons company was in the possession of the appellant, that property including the trailer to which I have referred. They brought a proceeding in the County Court by which they sought an injunction preventing the appellant from disposing of the property, and an order for its delivery up. The proceeding was brought by the liquidators in their own names, although the title to the proceeding, and paragraph one of the statement of claim, described them as liquidators of the Symmons company.
In February 1995 a judge in the County Court made orders requiring the appellant to deliver up possession of the property. On 16 February 1995, in reliance upon that order, and upon the instructions of the respondent (who was by then the sole liquidator) a Sheriff's officer seized property - including, importantly, the trailer and a truck washer. The property was conveyed to the premises of Stable Engineering at Morwell - premises also situated in Tramway Road. Mr Symmons had been with the Sheriff's officer when the property was seized, in order to identify the property the subject of the liquidator's claim and the court order. It was he who arranged for the storage of the trailer and washer at Stable Engineering.
On 7 April 1995 the Full Court set aside the order for delivery up made in the County Court, and ordered that Mr Fernandez take all necessary steps to preserve the property pending trial of the proceeding or further order of a County Court judge. Thereafter, the property remained at Stable Engineering.
The proceeding came on for trial in the County Court on 30 January 1996. It was settled on the second day. Written terms of settlement, dated 21 February 1996, were signed by Mr Fernandez. By the terms Mr Fernandez relinquished any claim to possession of, inter alia,
(a)        item (a) of the property - 1990 Cosic trailer with tipper body (more particularly identified as the white trailer depicted in the photographs tendered and marked Exhibit "A" in the trial before His Honour Judge Shelton on 30 and 31 January 1996);
(b)        item (c) of the property - the tipper body, sold by the Defendant to Mr Mark Moyes;
(c)         item (e) of the property - the truck washer;
(d)        item (f) of the property - the two fuel tanks; and
(e)        item (g) of the property - the compressor."
By clause 7(a) of the terms the appellant was at liberty to reinstate the proceeding in the event that, inter alia, Mr Fernandez failed to comply with clause 3 - the latter of which provided that Mr Fernandez must take all necessary steps to ensure that items including the trailer and truck washer were made available for collection by the appellant from Stable Engineering, and in a timely way. Clause 7 provided for the relief that the plaintiff could obtain in such a situation - declaratory relief and an order for delivery up.
On 23 February 1996, the appellant attended at Stable Engineering to collect the property. The trailer and the truck washer were, according to his case below, quite altered from their condition at the time of their seizure by the Sheriff almost exactly 12 months' earlier. The appellant refused to accept his property. In the event, on 27 February a conference was held on site - attended by, inter alia, the appellant, Mr Fernandez and the plaintiff's then solicitor. What was said at the conference was much disputed below. What is clear is that the appellant did not collect his property until 3 April 1996. According to his evidence below, the trailer had been fitted in the intervening period with second-hand and sub-standard parts, and was still missing some parts altogether. All the essential parts had been removed from the truck washer. The appellant took possession of his property whilst reserving his right to seek damages by reason of its condition.
The appellant's case
The appellant's claim in this proceeding arose out of the circumstances which I have described. The proceeding was brought against Mr Fernandez as an individual. The appellant sued, inter alia, on the agreement constituted by the terms of settlement, alleging breach thereof. Whilst the terms dated 21 February 1996 were described as "the agreement", the agreement was said to be "oral, in writing, and to be implied". Its oral content was what was agreed between the parties on 31 January 1996. Its written contents was the terms. Its implied content was a term as follows:
"It was an implied term of the Agreement that Fernandez would make available for collection Cosic's property in the condition in which those items of property had been seized by the Sheriff and, in particular, that the trailer would be made available for collection in the condition depicted in the photographs tendered and marked Exhibit 'A' in the trial before His Honour Judge Shelton on 30 and 31 January 1996."
The appellant's counsel told me that there was nothing in the oral content of the agreement which added to or detracted from the written content of the agreement. The implied content was to be implied so as to give business efficacy to the agreement. Further, counsel told me, the implied term, although expressed in language apt to make the respondent an insurer of the goods, was not in fact of that nature. That had not been the appellant’s case below. The appellant’s contention was that the implied term bound the respondent to take all reasonable steps to return the goods in the state in which they had been when seized.
The respondent, by his defence, denied that there was an implied term in the agreement as was alleged by paragraph 5 of the particulars. He further denied that the goods were returned in a condition other than their condition when seized.
The appellant’s case was laid in other ways. Paragraph 8 of the particulars of claim (the particulars) alleged that on 27 February 1996 the respondent undertook to restore the trailer to its condition at time of seizure. The undertaking was oral and to be implied. According to the appellant’s counsel the undertaking referred to in paragraph 8 was contractual. Just how that was so was not explained.
The respondent by his defence denied giving an undertaking as alleged.
I turn to paragraph 15 of the particulars. It alleged that Mr Fernandez was a bailee of the appellant’s property between 31 January 1996 and 3 April 1996, and was under a duty to safely keep or take proper care of Cosic’s property such that it was preserved in the condition in which it had been when seized by the Sheriff. Paragraph 16 alleged breach of that duty.
Paragraph 17 must next be referred to. It alleged that Mr Fernandez, by himself, his servants or agents, was guilty of negligence whereby the trailer and truck washer were not preserved in their condition at time of seizure.
Paragraph 18 alleged that by reason of the matters alleged “in paragraphs 14-17 (both inclusive)”, the appellant had suffered loss and damage. Paragraph 17 might be thought to suggest that a claim was laid in the tort of negligence independently of any claim founded on alleged bailment. At one point in his submissions counsel for the appellant contended that such was the case. But later he resiled from that contention.
The respondent by his defence denied that he had been a bailee of the respondent’s property and denied any breach of duty as a bailee, denied negligence and denied that any breach of duty as a bailee or negligence had caused loss and damage to the appellant.
Hearing and Resolution of the Appellant’s Claim in the Magistrates' Court
The hearing in the Magistrates' Court occupied all or part of five days. The appellant gave evidence, as did some 10 witnesses on his behalf. The respondent gave evidence. So also did three witnesses on his behalf. The truthfulness of some witnesses was directly challenged. The accuracy of the evidence of others was put in issue. Quite apart from attacks made on the credit of, for example, the appellant and Mr Symmons, the learned Magistrate had to assess the reliability of evidence given by persons in 1997 concerning observations made by them as to the condition of the trailer years earlier. Resolution of such matters required careful evaluation of the evidence. In that task, the learned magistrate had the great advantage of seeing and hearing the witnesses. This court is at a particular disadvantage when asked to consider questions which turn upon the evidence. Not only does it neither see nor hear the witnesses, the account of the evidence available to it is ordinarily (as in the present case) provided by affidavit rather than by a transcript.
At the conclusion of the hearing his Worship adjourned the matter so that counsel could make written submissions. Extensive submissions were made. The appellant’s counsel submitted that the central issue was:
“ ... the determination of the condition in which the trailer and the truck washer were seized by the Sheriff. This issue will, it is submitted with respect, fall to be determined upon whether or not the Court accepts that the trailer had been 'cannibalised' (as claimed by Fernandez, in reliance upon the evidence of Mr Bill Nankerville) prior to removal by the Sheriff in preference to the evidence called on behalf of Cosic. The condition of the trucker washer, similarly, falls for determination upon whether or not the Court accepts Mr Nankerville's evidence in preference to that of Cosic's evidence in that regard. The Court heard evidence concerning this issue from several witnesses and those matters will be canvassed below."
Counsel submitted that this issue should be resolved in favour of the appellant. He provided many reasons why, upon the evidence, there should be such a resolution. He called in aid, additionally, Browne v. Dunn (1893) 6 R 67 and Jones v. Dunkel (1959) 101 C.L.R. 298.
Apart from the “central issue”, thus identified, counsel for the appellant made submissions as to the personal liability of Mr Fernandez (this was dealt with at length), “Liability” and “Quantum”. So far as “Liability” is concerned counsel made this submission:
“ ... the Court should find Fernandez liable in damages in that he has failed to deliver the trailer and the truck washer in the condition in which they had been sized (sic) by the Sheriff. Fernandez, in his evidence, accepted that he was required to return those items in just that condition. He is, accordingly, in breach of the Agreement. Fernandez is also, alternatively, in breach of the undertaking. Fernandez said in cross-examination that at the meeting on 27 February 1996, he told Mr Chakera that he would investigate the matter and rectify the trailer. Mr Chakera gave evidence (including, in cross-examination) that Fernandez gave his undertaking that he will put it right.
Alternatively, Fernandez is in breach of his duty as bailee of the trailer and truck washer."
The submission made below, in respect of the term which the appellant contended should be implied into the agreement, suggested that the respondent was thereby to assume the role of an insurer. As I have said, before me counsel for the appellant denied that the implied term was to such an effect.
In the submissions made below nothing was said as to the circumstances in which a term may be implied into an agreement. It was baldly asserted that the implied term “operates by force of law, the terms of the agreement and the conduct of the parties”. In this last connection it was submitted for the appellant, and denied for the respondent, that the respondent had by his conduct made certain admissions.
The way in which the “undertaking” could found a cause of action was not explained in the submissions made below.
Nothing was said as to the nature of the duty said to have been cast upon the respondent as a bailee. There was a fleeting reference to the liquidator having taken no steps positively to secure the safety of the goods apart from entrusting them in Symmons’ care.
In his submissions in reply, counsel for the appellant called in aid the terms of the preservation order made by the Full Court. That order was not said to be a source of the appellant’s right to a remedy; nor was it contended that those terms in some way assisted in implication of the term upon which the appellant relied.
The learned Magistrate determined that:

(1) The appellant’s case that the respondent was personally liable “as a result of
his conduct of the County Court action is ill-founded”.

(2)

No personal undertaking was given by the respondent at the meeting held on 27 February 1996 “to rectify the trailer to any state now described by Mr Cosic as the condition of the trailer prior to its seizure by the Sheriff.”

(3)

“The liquidator has acted reasonably in respect of Cosic’s goods the whole time that ownership was disputed. This finding defeats any claim of a breach of duty as bailee. Without the necessity of determining the actual point as to whether a liquidator who stores goods seized under warrant by the Sheriff could indeed be a bailee (which in passing I could not so find, especially in cases where the ownership of those goods was not determined).”
(4) As to the condition of the trailer and the truck washer at the time of seizure
“the evidence of Mr Nankerville is preferred to that supplied by Mr Cosic.”

(5)

The plaintiff had not successfully discharged the onus “for a finding to be made that the trailer and truck washer, when ultimately returned to Cosic, were substantially different in condition than when seized by the Sheriff” (as to the use of the word “condition”, see paragraph 5 of the particulars).
Resolution of the Appeal

Subject only to question (i), which deals with a costs issue, and question (e), which relates to alleged inadequacy of the reasons for decision, a negative answer to question (d) would be fatal to this appeal. That would be so even if affirmative answers were given to all or some of questions (a), (b), (c) (f) and (h). In the event, it is desirable that I first consider question (d). It is to be understood as requiring the appellant to establish an absence of evidence upon which the learned Magistrate could reasonably have reached the decision he did and on which the final order was made. The authorities establishing that proposition are very usefully summarised in Keep v. Pozzebon (McDonald J, 1 September 1994, unreported) at 12-14.
Within question (d) lies the question whether there was any evidence to support the Magistrate’s conclusion - express or implied - that the appellant had not made out liability against the respondent on any of the bases alleged in the particulars. To that sub-question I now turn.
The appellant’s claim was, as I have earlier noted, put on three bases. They had this in common: they alleged that the respondent had been obliged to make the property (or in the case of the undertaking, supply the trailer) available to the appellant in the condition in which it had been seized by the Sheriff; and that he had not done so.
The Reasons for Decision of the learned Magistrate dealt expressly with two of the three bases of claim - those founded upon the “undertaking” and alleged bailment. In respect of the first of those, his Worship found as a fact that no personal undertaking had been given to rectify the trailer “to any state now described by Mr Cosic as the condition of the trailer prior to its seizure by the Sheriff". There was dispute as to what had been said by the respondent at the meeting on 27 February 1996. The appellant gave no direct evidence of an undertaking in the terms alleged (see paragraph 16 of his affidavit sworn 1 October 1997). His solicitor gave evidence that he had been told by the respondent that he would “put it right”. The respondent gave evidence that he had only told the solicitor that he would “investigate the matter” - that is, conflicting assertions made as to the state of the trailer at the time of its seizure. In the circumstances, I do not doubt that it was open to his Worship to conclude, positively, that no undertaking as was alleged had been given. The respondent’s later instructions to Mr Symmons that, if parts needed replacing, they were to be identified and replaced with similar parts (see appellant’s affidavit, paragraph 74 and see also the variant account at paragraph 103) did not compel a contrary conclusion.

His Worship was, then, entitled to make a finding that he did in respect of the undertaking allegedly given. But even if that had not been so, as the appellant brought his case I cannot see that the undertaking could have founded a right to relief. No contract centred upon the undertaking was alleged by the particulars, nor developed in argument - either in the Magistrates' Court or before me.
I turn to the claim founded on the existence of an alleged bailment. Let it be assumed that the circumstances could have given rise to a bailment. The nature of the duty alleged by the particulars was at best only characterised by the inference to be drawn from the reference to negligence at paragraph 17 of the particulars (remembering that counsel ultimately submitted before me that no claim was laid in the tort of negligence, paragraph 17 being part of the bailment claim). Nothing was said about onus of proof, as to which see, for example Fankhauser v. Mark Dykes Pty Ltd [1960] V.R. 376 at 377 and Port Swettenham Authority v. J.W. Wu & Co (M) Sdn Bhd [1978] All E.R. 337 (PC). Nor was the want of care particularised. In all the circumstances, it seems to me entirely understandable that the learned magistrate should approach the claim founded in bailment on the basis that the appellant sought to prove some want of reasonable care on the part of the respondent. That appears to have been his Worship's approach. His finding that “the liquidator has acted reasonably in respect of Cosic’s goods the whole time their ownership was disputed” was undoubtedly an attempt to deal with the claim founded in bailment.
Counsel for the appellant submitted that the finding was based on an obvious misconception. The alleged bailment only commenced when the County Court proceeding was compromised - that is, on 31 January 1996. It continued until the appellant retook possession of the property in early April 1996. The reference in the Reasons to the period of disputed ownership of the good was directed to the period before 31 January 1996. That was emphasised by the contingent finding that the respondent could not have been a bailee when the ownership of the goods was not determined.
Counsel's submission was in my opinion correct. But what flows from it? There was evidence as to where and in what circumstances the property had been stored immediately after its seizure. The property continued at that place of storage throughout. The respondent first saw the property at its place of storage in February 1996. It was then a matter of dispute whether the property was in any different condition to its condition at the time of seizure. It was not a situation where there had plainly been a change in the condition of the property - such as might suggest to the respondent that security at the place of storage was inadequate. In the event, the respondent did not order any change in the place or manner of storage. If the respondent acted reasonably to protect the goods during the period before 31 January 1996 - that is, before the alleged duty of care arose - I think that a similar conclusion would extend into the period in which the duty was alleged to exist.
There was, in my opinion, evidence upon which the magistrate was entitled to conclude that, in respect of the earlier period, the respondent had taken reasonable care (had "acted reasonably", as his Worship put it) for the preservation of the appellant's property. The respondent's evidence was that, whilst he had not met Mr Buhagiar (the principal of Stable Engineering) before February 1996, and whilst he had no formal agreement with Mr Buhagiar to store the property at Stable, he had, in substance, required that a secure and cost effective arrangement be made for the delivery of the property seized by the Sheriff. Mr Symmons had made the arrangements to store the property at Stable knowing of this requirement. When the Full Court made the preservation order (on 7 April 1995) the property was already at Stable, and it "seemed to be secure". The appellant had not complained, when the terms of settlement were signed, that Stable was not an appropriate storage site. In cross-examination Mr Symmons had given some evidence about the storage of the property; but apparently he was not asked any questions about security at Stable.
The respondent and Mr Symmons apart, some evidence touching on the storage of the property was given by the appellant, his solicitor, Mr Buhagiar and Mr Middlemiss. The appellant's evidence was that his trailer had been stripped whilst at Stable; and that his truck washer had been gutted. He did not give any evidence as to security arrangements at those premises. The solicitor's evidence did not touch upon that last matter. Nor did the evidence of Mr Middlemiss, who said only that he had obtained permission from Stable to inspect the trailer in about April 1995. Mr Buhagiar gave evidence that he had stored the property as a favour to Mr Symmons, free of charge. His yard was a large one. He had not been responsible for the property stored in his yard (appellant's affidavit, para. 51); but the trailer had been securely kept at his yard during the relevant period (respondent's affidavit, para. 32).
Upon the state of the evidence that I have described, which in part extended to the period after 31 January 1996, the learned magistrate was not constrained to hold that the respondent had failed to take reasonable care to preserve the property in the period before that date. There was evidence that the respondent had addressed the question of security of the property, that he had given Symmons appropriate instructions, and that the property had in fact been stored securely. There was no evidence directly suggesting want of reasonable security in fact. The appellant's case was really no more than that damage to his property required an inference that the respondent had failed to take reasonable care to preserve it. Even if the magistrate had concluded that there had been damage to the property (which he did not) that would not have been a required inference.
For reasons described, the magistrate's justifiable conclusion applied as much to the period after 31 January 1996 as to the period before that day. There was certainly evidence upon which a conclusion adverse to the appellant could have been reached.
I should add this: The duty of care was alleged to have arisen on 31 January 1996. There was no evidence that the condition of the property deteriorated in the period between 31 January 1996 and early April 1996. The evidence in respect of the period 23 February 1996 to early April 1996 was positively to the contrary. It could be no more than speculation that any change in the condition of the goods found to be present on 23 February 1996 had occurred after 31 January 1996. So, had there been any proved breach of the postulated duty, it appears to me that the appellant must in any event have failed upon this aspect of his claim (even if the magistrate's conclusion as to the condition of the goods at time of seizure and at time of their being recovered was untenable).
The learned magistrate did not expressly deal with the appellant's claim based upon breach of an implied term in the agreement. Implicitly, however, he did so - adversely to the appellant. The appellant's case reliant upon the implied term was, I think, incompletely and confusingly developed below. I have the gravest doubt whether the term alleged could be implied. The observations of Mason, J in Codelfa Constructions Pty Ltd v. State Rail Authority of New South Wales (1982) 149 C.L.R. 337 at 345-347 are in point; see also BP Refinery (Westernport) Pty Ltd v. Shire of Hastings (1977) 180 C.L.R. 266. In argument, counsel for the appellant told me that the implied term was not intended to cast the respondent in the role of insurer. Yet the term alleged would suggest to the contrary. This uncertainty highlights the difficulty in implying the term alleged (or any term) into the agreement. The appellant's reliance, in proof of the alleged term, upon an alleged admission by the respondent founders on the facts. The respondent denied that, in his evidence, he made the alleged admission. In accordance with accepted practice, his version of the evidence ought be accepted by me.
Let it be assumed, however, that the term alleged could be implied. The content of any duty it imposed was not clearly formulated. I think it was entirely understandable that the magistrate should approach the matter on the basis that, if there was any such term in the agreement, it was a duty to take reasonable care to return the goods in their pre-seizure condition, a duty which arose not earlier than the date of the agreement. Such a duty equated with the duty claimed to arise by reason of the alleged bailment. A disposition of the one by a finding that the respondent had acted reasonably was a disposition of the other. That, it seems to me, was probably the magistrate's approach. It is improbable that he did not deal with the claim founded upon the agreement. If he dealt with it in the way that I have surmised, his conclusion was maintainable. But if he did not, there was certainly evidence enabling such a conclusion.
In the event, I consider that question (d) should be answered adversely to the appellant. It is unnecessary to consider any of questions (a), (b), (c), (f) or (h).
Question (i) asks whether the learned magistrate gave adequate reasons for his decision. As counsel developed this matter, the complaint was, first, that the magistrate did not adequately deal in his reasons with submissions made in respect of the personal liability of the appellant. Second, that there was uncontradicted evidence called for the appellant that the trailer was returned stripped of electric wiring, hydraulics, mudflaps and light lenses with which it had been fitted when seized. The magistrate, concluding that the appellant had not established that the trailer had been returned in substantially different condition to its condition at times of seizure, had not commented upon the uncontradicted and inherently probable evidence to which I have just referred. He was not entitled to reject that evidence without explanation. Third, that the evidence of a number of witnesses was not addressed at all in the reasons.
The magistrate was obliged to give adequate reasons for his decision. Failure to abide that obligation would be an error of law. The correct approach to determining the adequacy of reasons, or the converse, is in my respectful opinion clearly and accurately summarised by Gillard, J in Bevis v. Alex Gregson Roof Tiles Pty Ltd (judgment 19 June 1997, unreported) at pp.4-7. Applying that approach to the present case, I think that there is nothing to the first aspect of the complaint. The magistrate dealt with so much of the pertinent submissions as appeared to him to be necessary. So far as the second aspect of the complaint is concerned, it is at least arguable that a minor part of the damage allegedly done to the trailer whilst it was out of the appellant's hands was the subject of uncontradicted and inherently probable evidence. Let it be supposed that it was then obligatory for the learned magistrate, if he intended to reject that evidence, to say why. Let it be supposed that he did not do so - either expressly or by imputation - and that thereby he erred in law. Even so, it would be inappropriate to allow the appeal and to remit the matter for re-hearing. For the outcome of the appeal depends upon the answer to question (d), an answer unaffected by the second aspect of the question (i) complaint. The same is true in the case of the third aspect of that complaint. I emphasise, in respect of the second and third aspects, that I need not and do not decide that the reasons were in fact deficient.
Question (k) seeks to challenge the exercise of the broad discretion conferred on the magistrate in respect of costs. This court has had occasion, more than once, to comment upon the use of s.109 of the Magistrates' Court Act as a vehicle for revisiting argument put below in connection with costs: Redl v. Toppin (O'Bryan, J, judgment 29 April 1992, unreported), Norton v. Morphett (Court of Appeal, judgment 31 October 1995, unreported), particularly per Ormiston, JA at 2, Phillips, JA at 19-20 and Hayne, JA at 7-8).
In the present case the exercise of the discretion is unimpeachable. The order was consonant with the ordinary operation of R15.02.2 of the Magistrates' Court Civil Procedure Rules 1989. Counsel for the appellant submitted that unexpected evidence by the witness Nankerville justified a departure from such operation. Whether or not that consideration might have been brought about a different order is not in point. I am quite unable to say that failure to consider it decisive shows that there was an erroneous exercise of discretion.
Conclusion
The appeal must be dismissed.

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[1998] VSC 42

24 August 1998