Crocker v Dabu - [2016] SADC 77

District Court of South Australia
(Civil: Minor Civil Review)
CROCKER v DABU
[2016] SADC 77
Judgment of His Honour Judge Soulio (ex tempore)
23 May 2016
MAGISTRATES - APPEAL AND REVIEW
Review of a Minor Civil decision pursuant to s 38 of the Magistrates Court Act 1991 (SA)
Application for review dismissed.
No order as to costs.
Magistrates Court Act 1991 (SA) s 38, referred to.
DeVries v Australian National Railways Commission (1993) 177 CLR 472; Fox v Percy (2003) 214 CLR 118; TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267, considered.

CROCKER v DABU
[2016] SADC 77
Introduction

This is an application to review a decision of Mr Millard SM delivered ex tempore on 4 March 2016 dismissing a claim for monies owed. For ease of reference, I will refer to the parties by the designations applied to them at the trial.
The plaintiff and the defendant are both originally from the Philippines. The plaintiff is the defendant’s aunt. The plaintiff married Mr Crocker and has resided in Australia for many years. The defendant came to Australia more recently, after meeting and marrying Mr Squire. The plaintiff issued proceedings, claiming the sum of $2,665 said to be monies loaned to the defendant at various times from the period from May 2013 to December 2013. The plaintiff alleged that the amount owing had been previously acknowledged by the defendant in a signed summary dated 18 February 2015.
Evidence at Trial
The signed summary was said to be an itemised list of debts accumulated by the defendant and was set out as follows:
To Alexis and Vernon Squire, please find below an itemised list for all your debt that you have accumulated with me during the last few years.
In respect of Vernon, the amounts were said to be:
Airfare from the Philippines to Australia for Alexis and Raphael, 13 December 2013, $350; airport exit fee and terminal fee, 4,340 pesos, $140; food and transportation, $100.
In respect of Alexis, the amounts were said to be:
Money borrowed from Nanay, $100; my mum's necklace, $800; engagement ring, $175; Nanay's money that I sent and you took, $350; money borrowed from Rosell, $100; clothes and miscellaneous for you and Raphael, including medical expenses, $500; credit at the store next-door, $50.
The document went onto say:
I would like to inform you that I would like for you to pay this debts as shown above within 60 days or I will let a debt collector deal with you. I, Cecilia Crocker, have informed and given you enough notice to pay me. This letter has been witnessed and agreed by Merna Pinno, who is willing to testify that everything that has been written and said above are true.
The document was signed by the plaintiff and the defendant and witnessed by Ms Pinno.
The plaintiff's claim was supported by the plaintiff's husband, who provided a statutory declaration stating that between May 2013 and December 2013 the plaintiff had used money provided by him to retrieve jewellery items from pawn shops. Further, said Mr Crocker, on 4 December 2013 the defendant's husband attended at the plaintiff's house and asked to borrow $350 because he did not have sufficient funds to purchase airfares for the defendant and her son to travel to Australia from the Philippines.
Ms Pinno provided a declaration, stating that she had personal knowledge of the defendant's debt to the plaintiff. She said “I knew about Cecilia's surprise visit to her family in May 2013.” She went onto say that the defendant told Ms Pinno about how the plaintiff had saved her by paying for redemption of jewellery from a pawn shop. Ms Pinno said that in November 2014 there was a discussion between the plaintiff and the defendant, at which Ms Pinno was present, regarding the repayment of the debt owed by the defendant. She said that on 18 February 2015 she witnessed the plaintiff hand the list of debts to the defendant, and that the defendant acknowledged the monies owed and signed the document.
Ms Velasquez provided a declaration, sworn in the Philippines, and witnessed by a notary public. She said that the defendant had borrowed money from her. She said that in May 2013, the plaintiff travelled to the Philippines to surprise her family. She said that the defendant asked the plaintiff to assist the defendant’s return travel to Australia, and the defendant borrowed from the plaintiff to pay for clothes, suitcases and the like, as well as money to pay for the hospitalisation of the defendant’s son.
The defendant relied on a statutory declaration made by Ms Helena Turner on 2 July 2015. Ms Turner said that when the plaintiff’s brother died in the Philippines the plaintiff wished to fly to the funeral with the defendant. The defendant did not have enough money for the airfare. Ms Turner and her husband agreed to lend the sum of $1500 to the defendant through the plaintiff who was organising the tickets.
The plaintiff asked Ms Turner for a loan of $500, on the plaintiff’s own account, for spending money. Ms Turner agreed on the condition that repayment would be made in a timely way. She said that after returning from the Philippines the defendant and her husband repaid her the sum of $1,500 for the airfare within a period of less than one month. Ms Turner said she had still not received the sum of $500 from the plaintiff and sent her a text message asking for payment. Thereafter, the defendant’s husband contacted her, stating that the plaintiff had asked him to repay the $500 loan. Ms Turner said that it was not his obligation but rather that of the plaintiff. The plaintiff did not repay the money. The defendant’s husband repaid her the sum of $500 on behalf of the plaintiff.
The learned magistrate heard evidence from the plaintiff and the defendant and some evidence from the bar table from the defendant’s husband. He took into account the statutory declarations.
The defendant gave evidence that Ms Velasquez had no direct knowledge of events and could only have been recounting events on the basis of rank hearsay. The defendant denied that the account given by Ms Velasquez was a truthful account of events in any case.
The Magistrate’s Decision
As to the weight to be accorded to the evidence contained in the statutory declaration of Ms Velasquez, the magistrate said:
It is clearly difficult to form any clear conclusion as to the reliability of the account given in the statements tendered from the Philippines-based witnesses. It is not possible to determine with any degree of clarity the independent nature of those witnesses.
In relation to Mrs Turner, he said:
Although it may have been possible to direct Ms Helena Turner be called, I formed the view that delaying the trial for that purpose was not justifiable. I note her statement is relatively comprehensive. It’s corroborated by Ms Dabu and Mr Squire’s evidence and in certain parts is also consistent with the plaintiff’s own account of events, albeit the plaintiff, of course, denies that she’s in any way responsible to pay Ms Turner any monies.
The learned magistrate made an assessment of the witnesses and said:
I frankly found that neither Mrs Crocker nor the defendant, Ms Dabu, were witnesses upon whom a court could make reliable findings of fact. Both, in my view, displayed such a degree of emotional attachment to the matters that it is hard to determine the conflict between their accounts. I formed, however, a much more favourable impression of the evidence and information provided to me by Mr Squire. I consider him a witness of truth. I found his account of events to be reliable and accurate. I find that the document that the plaintiff claims is an acknowledgement of debt is not an acknowledgement of debt but is a document that identifies moneys claimed to be owed. I accept it was not intended to be a concession that the moneys were owed. I accept Ms Crocker has been repaid all moneys she actually did loan to Ms Dabu.
The magistrate dismissed the plaintiff’s claim
The Application for Review
The plaintiff applied to review the magistrate’s decision pursuant to s 38 of the Magistrates Court Act 1991, which sets out the powers of this Court on an application for review.
In particular, the Court may inform itself as it thinks fit and is not bound by the rules of evidence. On a hearing of an application for review, the Court must act in accordance with equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
I am obliged to accept the advantage enjoyed by the magistrate in a situation where the decision is based upon his impression as to the credibility of witnesses. In particular, a finding of fact by the magistrate based on the credibility of a witness may only be set aside on appeal where the decision is either manifestly wrong by reason of error indicated by incontrovertible facts or uncontested testimony or is glaringly improbable or is contrary to compelling inferences in the case. See, for example, Devries v Australian National Railways Commissions.
However, as was observed in Fox v Percy (2003) 214 CLR 118:
An appellant court is in as good a position as a trial judge to decide on the proper inference to be drawn from facts which are undisputed or which having been disputed are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellant court will give respect and weight to the conclusion of the trial judge but once having reached its own conclusion will not shrink from giving effect to it.
Any inference drawn or relied upon must reasonably arise from proven facts or circumstances, see TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267.
The Grounds
The application to review the decision contains a conflation of the orders complained of, and the grounds of appeal, and was expressed as follows:
1)   Time frame taken into account by Magistrate K.A. Millard is incorrect. The claim is for debt incurred in 2013, not 2014.
2)   Although the plaintiff was not privileged to see the statutory declaration by Ms. Turner, it was implied that the monies related to 2014, and there is no claim being made for that time frame.
3)   Remarks made by Mr. Squire at the Bar were offensive, included forging of documents, sworn statements containing untruths and questioning the sincerity of the plaintiffs marriage.
4)   No evidence whatsoever of any amounts being repaid.
5)   No mention of Ms. Myrna Pinno statement who was a witness at the acceptance and signing of the list of debt, and has personal knowledge of the debts incurred in the Philippines.
6)   Paragraph 12 of the Decision states “I reject the plaintiffs’ assertion she is still owed money for the Philippines trip in 2014”. There is no claim for monies from 2014.
The Hearing
Upon the hearing of the review, the plaintiff, Mrs Crocker, appeared as did the defendant, Ms Dabu. Their respective husbands also attended.
Although there is a power to rehear evidence taken before the Magistrates Court should the court determine to do so, in the present case there was no such application and I do not consider, in any event, that there was any necessity to do so. The parties reiterated the matters that had been put to the magistrate and repeated the arguments that had been put to the magistrate. They confirmed at the hearing that that was the case.
The plaintiff had provided a comprehensive statutory declaration at the time of the trial, setting out the events leading up to what was said to be the lending of money to the defendant. She said that all occurred in 2013, including the ‘surprise’ trip to the Philippines.
Ms Turner’s declaration referred to a trip to the Philippines after the plaintiff’s brother, who lived in the Philippines, had died. The plaintiff’s brother is the defendant’s father. The plaintiff’s brother in fact passed away in 2014. The ‘funeral’ trip was quite separate and occurred after the ‘surprise’ trip. The statement of Ms Turner has no real bearing on the issues to be decided in relation to the debt claimed.
During the course of the review hearing Ms Dabu made a submission, that was a repetition of what was put to the magistrate, that she had acknowledged or signed the document said to be the signed summary, in circumstances where she was pregnant, was overborne by the plaintiff and had sought advice from her grandmother who urged her to simply comply with whatever the plaintiff requested because otherwise the plaintiff would persist in the harassment of the defendant.
The document is in English and I apprehend that the defendant, while able to speak English, after a fashion, was unlikely to have understood the import of the document, nor to have understood the legal implication of an acknowledgment of debt. In any event as I have said, the magistrate found that the document was not an acknowledgment of debt, but rather an acknowledgement of the claim. He was entitled to do so.
An examination of what was said to be the itemised list of debts is informative. The claim for monies said to be owed by the defendant’s husband, Vernon, as set out in the signed document, was not pursued at the review hearing, and in fact had been abandoned at trial.
As to the remaining items, the matter is made more complicated by the fact that the transactions in question are said to have taken place in the Philippines. It is correct that proceedings may be issued where the defendant has a close connection with the jurisdiction and here of course, both the plaintiff and the defendant reside in South Australia. Proceedings were issued in the Magistrates Court in Port Pirie, and jurisdiction was acknowledged by the defendant. Generally speaking in applying the appropriate law the court may take into account factors such as the place of contracting, the place of performance of the contract, the language and the form of the contract and the place of residence of the parties to the contract.
The complexities which exist because the transactions took place in the Philippines, rendered the task of the magistrate much more difficult. He quite properly had reservations about acting on the statements of witnesses from overseas, without the opportunity to test their evidence.
Further it appears that many of the itemised claims may not in fact give rise to any entitlement on the part of the plaintiff.
For example, referring to the itemised list:
A claim for $100 in respect of money borrowed from Nanay, refers to money said to have been borrowed by the defendant from the plaintiff’s mother. That in my view does not give rise to an entitlement in the plaintiff.
The claim for $800 said to have been the amount paid by the plaintiff to redeem her mother’s necklace from a pawn broker. It seems to be common ground that the plaintiff’s mother requested that that necklace be pawned in order to obtain money to enable the plaintiff and defendant’s family to travel for the purposes of the funeral. In my view that does not give rise to an entitlement, in the plaintiff, to recover the money from the defendant.
There was a dispute about whether the plaintiff had redeemed the defendant’s engagement ring from a pawn broker in the Philippines. The plaintiff asserted that she did. The defendant denied that that was the case. The magistrate did not make specific findings about that item, but was obviously unable to resolve that issue due to the difficulties which he outlined. Given that the onus of establishing an entitlement rested upon the plaintiff, the magistrate was entitled to dismiss that part of the claim.
The claim for $350 said to be money sent by the plaintiff to Nanay and taken by the defendant, was, during the course of the hearing, acknowledged to have been taken by the plaintiff’s mother’s housekeeper, although it was asserted by the plaintiff that the defendant had some involvement in taking the money. Again it does not seem to me that that claim is well founded.
The sum of $100 said to be money borrowed by the plaintiff from Rosell, again does not found a claim in the plaintiff.
The amount of $500 for clothes and medical expenses for the defendant and her son was said by the defendant to have been a gift for which the plaintiff subsequently claimed reimbursement. The plaintiff said that that was a loan. That was put to the magistrate, and I must infer that he did not accept that any such payment constituted a loan.
The amount of $50 for ‘credit at the store’ related to a store in the Philippines where the family apparently obtained goods on credit. The plaintiff said that she paid that amount out of embarrassment. It is not apparent that that properly founds a claim in the plaintiff, for recovery from the defendant.
As I have said, having heard the evidence, the magistrate found that the document of 18 February 2015 was not an acknowledgement of debt. He must be taken to have accepted the defendant's evidence, repeated in argument before me, that the document was signed by her when she was pregnant, was overborne by the plaintiff, who she regarded as the matriarch of the family and signed merely as an acknowledgment of a claim, rather than an acknowledgment of a debt.
In all of the circumstances it seems to me that despite the magistrate placing reliance upon Ms Turner's statutory declaration, which for reasons I have already outlined, had no bearing on the issue for decision, the ultimate decision to dismiss the claim was open to him, and the application must be dismissed.
In all of the circumstances I consider that it is appropriate that there be no order as to costs.