Dodd v Angle Park Vets Pty Ltd - [2024] SADC 72

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
DODD v ANGLE PARK VETS PTY LTD
[2024] SADC 72
Decision of her Honour Judge Deuter
28 June 2024
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA
Application for a review – minor civil decision dismissing a claim for damages brought by the appellant. Review conducted pursuant to s 38 of the Magistrates Court Act 1991 (SA).
Appellant’s claim was for losses caused by the Respondent’s failure to ensure semen extracted from his pedigree dog complied with all requirements for export to New Zealand.
Held:
Application Dismissed.
Decision of the Learned Magistrate affirmed.

DODD v ANGLE PARK VETS PTY LTD
[2024] SADC 72

This is a review of a minor a civil claim seeking damages for negligence, and/or breach of contract arising from alleged misrepresentations. The Appellant, Mr Dodd, alleges the Respondent, Angle Park Vets caused losses of $5,074, including an additional $162 in court fees, by their actions. The Appellant claims his losses arise from vet procedures, storage costs of samples taken, and a loss of chance in future sales of dog semen taken from his dog (Duke) by the Respondent.
On 7 July 2023, Magistrate Semmens dismissed Mr Dodd’s claim. His Honour gave written reasons for his decision.
Mr Dodd now seeks review of that decision pursuant to s 38 of the Magistrates Court Act 1991 (SA) (MCA).
Application for Review
The review is conducted pursuant to ss 38(6) to 38(9) of the MCA. The Court may inform itself as it thinks fit, and in doing so, is not bound by the rules of evidence. 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 technicality and legal forms’.[1] It is important to note that this review is a review of the matter and not a review of the judgment.
[1] Section 38(1)(f) of the MCA.
Section 38(1) of the MCA sets out further provisions which are applicable to the conduct of a minor civil action. These are as follows:-
(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;
…..
(e) the Court is not bound by the rules of evidence;
Sections 38(6) and 38(7) of the MCA require that the review be an examination of the process undertaken by the Magistrate. This is to determine whether there had been a trial by the Magistrate in accordance with those provisions.
In Gillott v District Court of South Australia, Peek J discussed the meaning of the phrase ‘equity, good conscience and the substantial merits of the case…’.[2] He noted that the phrase must be construed in the context of the nature of the issues involved and, where appropriate, the most clear purpose of the relevant statute. In most cases the Court is ‘…to adopt a broad approach of common sense and common fairness, eschewing all legal or other technicality…’.[3]
[2] [2019] SASC 132 at [22].
[3] Ibid at [44].
Given the nature of the minor civil review and its purpose to achieve an economical and efficient disposition of the matter, I consider that the phrase ‘equity, good conscience and substantial merits of the case’ requires the Magistrate to act according to good sense and the natural justice of the matter. To do what is necessary to achieve fairness between the parties in relation to their legal rights, whilst avoiding legal, or other technicalities. Regard must be had to the substance of the claim while ensuring a fair trial, including permitting the parties to have an opportunity to address the real issues in dispute.
The decision of this Court on review is final and is not subject to appeal. I may affirm the judgment of the Magistrate, or rescind it, and substitute the judgment of this Court. I cannot remit the matter to the Magistrates Court.
Conduct of the Review
In Wilczynski v District Court of South Australia[4] Justice Doyle found that s 38 of the MCA contemplated a range of different approaches that may be taken by the Judge on review. Those approaches included:
1.   Re-hearing all the evidence and deciding the matter entirely on that basis.
2.   Hearing no evidence and determining the matter based entirely on the evidence of the Magistrates Court.
3.   Adopting some hybrid approach involving the receiving of some evidence or the hearing or receiving of some additional evidence, but also having regard to the evidence before the Magistrate.
[4] [2016] SASC 51.
Doyle J held that there may be more than one approach open to the Judge on review, and that the Judge has a broad discretion as to how to proceed with the review.
In the circumstances of this case, I considered that the hybrid model was the appropriate way to proceed. The trial had proceeded by the parties’ giving their account of the relevant events, in relation to the extraction of the semen from Duke. It was therefore important that I formed my own view as to the credibility and reliability of the parties. I heard lengthy explanations and submissions from Mr Dodd, and from staff of the respondents. Ms Madalinski the manager of the respondent’s veterinary practice, and Ms Miller a veterinary nurse. I also reviewed in detail the transcript of the evidence before the Magistrate.
I am not as constrained as an Appeal Court in interfering with findings that are based on the credibility of a witness. I am not limited to interfering with the Magistrate’s finding of facts in circumstances only where they are demonstrated to be wrong, by incontrovertible facts or uncontested testimony, or are glaringly improbable or contrary to compelling disadvantage of not having seen or heard the relevant witnesses.
Issues to be determined
Mr Dodd alleges that he has suffered losses due to various actions of the Respondent. These have been particularised as the following:
·Angle Park Vets made assurances that they would confirm, and complete checks and requirements required for the exportation of Duke’s semen to New Zealand.
·Angle Park Vets, by failing to scan Duke’s microchip at the time of the semen collection, caused the samples to not comply with the requirements for exportation to New Zealand.
·By paying for the freezing, transportation, and storage of the semen samples whilst awaiting exportation, Mr Dodd incurred costs of $2,574.
·Mr Dodd also suffered a loss of profit of approximately $2,500 in not being able to sell the five semen samples in New Zealand.
As outlined by the Magistrate in his reasons, the primary issue is whether Mr Dodd ever told the practice vet, Dr Moore that the semen was for export to New Zealand prior to, or during, the two semen collections. Mr Dodd said he told Dr Moore on several occasions of the purpose of the semen collection. He argues that the evidence of Dr Moore, who stated he did not recall being informed of this fact, is unsatisfactory.
Extension of time
In the background of those facts, I must consider the question of the extension of time for the issue of this application to review a minor civil decision. Rule 214.1 of the Uniform Civil Rules, sets out that any application to review or appeal a decision must be lodged within 21 calendar days after the judgment the subject of the review. Mr Dodd’s application was made some five months out of time, thus requiring him to apply for an extension of time alongside his application for review.
Mr Dodd did not apply for an extension of time in his application. I sought to address the issue at the start of the review. Mr Dodd had no reason for the lengthy delay, except that he had been on holiday in England and busy upon his return. He found the court processes complicated.
The respondent did not take issue with the delay in bringing the review, and did not make submissions regarding the appeal being out of time.
In those circumstances, and given that the parties made submissions on the issues that formed the basis of the review, I decided to grant leave for an extension of time for Mr Dodd to file his application for review.
Findings of Magistrate and Factual Summary
Mr Dodd engaged the Respondent vet service to collect dog semen from Duke, his pure-bred British Bulldog. Mr Dodd intended to export the semen to New Zealand via service called ‘Canine Breeding Services’ in Queensland, for a profit.
Semen samples were collected by Dr Moore on 16 and 24 February 2022. He completed collection documents 1 & 2. I rely on the bundle of documents provided by the Respondent, and will refer to the bundle as ‘R1’.
Canine Breeding Services in Queensland receive, store, and export dog semen on behalf of breeders. Mr Dodd sent Duke’s semen samples, as taken by Dr Moore, to Canine Breeding Services for export. They were however unable to export the samples as they were not compliant with New Zealand export requirements.
Magistrate Semmens accepted the evidence of Dr Moore, who stated that there are various export requirements for each country, and he does not know all of the requirements for all countries. He also accepted Dr Moore’s evidence that if a client has advised him of certain export requirements, his usual practice would be to advise the client that any export compliance requirements were a matter for them.
In addition, Magistrate Semmens found that Duke’s pedigree papers were never produced by Mr Dodd. This meant that Dr Moore could not fulfill the required, and important, task of identifying Duke by cross-referencing his microchip with his pedigree papers. This was never done, and the export of the semen could not proceed.
Consideration and decision
Mr Dodd presented in a florid and disorganised manner. He provided the court with multiple documents seeking to support his case, and to demonstrate that he approached his dealings with Angle Park Vets in good faith, and with diligence. Whilst that might be the case, none of the documents assist me in determining where the breakdown in communication occurred between the parties in relation to the export requirements.
I find that even if Dr Moore had made assurances that checks would be completed, the relevant paperwork provided by Mr Dodd had not been filled out correctly, as would be required by any reasonable diligent breeder.
I accept that the pedigree papers required by the respondent clinic were not supplied, despite several requests. If Mr Dodd was not aware of ever having them, as he stated during the review hearing, I am of the view that it was his responsibility to obtain the required pedigree papers and provide them to the respondent.
I am also of the view, that even if the vet clinic was aware of Mr Dodd’s intention to send the semen samples overseas, they could never certify the samples as required, as Mr Dodd did not provide them with the required pedigree documents.
The implication of this evidence is clear. Mr Dodd’s assertions that he completed all that was necessary of him in the semen collection process for export is not supported by the documents and email correspondence. This clearly demonstrated that he did not provide the relevant pedigree papers (despite stating that he was perfectly willing and able to do so); and he had not done his due diligence in understanding the requirements of international exportation of semen samples.
Orders
I find that the Magistrate was justified in the making of his finding that Mr Dodd had failed to prove his case on the balance of probabilities. I affirm his decision.
The application for review is dismissed in favour of the respondents.