Giamarelos v Motor Accident Commission - [2015] SASC 114

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
GIAMARELOS v MOTOR ACCIDENT COMMISSION
[2015] SASC 114
Judgment of The Honourable Justice Bampton
7 August 2015
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS OF COURT - REMISSION FOR REHEARING
A Magistrate awarded damages to the appellant for personal injuries sustained in a motor vehicle collision on 26 March 2007 – no allowance was made for loss of future earning capacity – that decision was appealed – the appeal was allowed – the Court found that the proper assessment should increase the figure for non-economic loss and include an allowance for loss of future earning capacity – judgment was set aside and the appeal Court ordered on 12 September 2013 that the matter be referred to a different Magistrate for assessment of damages based solely on the transcript of evidence and the exhibits taken in the previous hearing together with the appeal Court’s reasons.
After discussion regarding the nature of the rehearing the Magistrate proceeded to rehear the matter based solely on the transcript of evidence and the exhibits taken in the previous hearing together with the reasons of the appeal Court and the submissions of the parties – the Magistrate awarded damages in the sum of $8,400 to the appellant for non-economic loss but made no allowance for loss of future earning capacity.
The appellant appeals this decision on the grounds that the parameters of the rehearing had been clearly established by the 12 September 2013 order and the Magistrate misconceived the nature and scope of the rehearing and did not assess damages as directed by the appeal Court.
Held:
1. The parties agreed to a rehearing limited to two heads of damages but did not agree credit findings could be made on the rehearing. As such the matter should have proceeded to a full rehearing with respect to the assessment of non-economic loss and loss of future earning capacity.
2. Appeal allowed, judgment of the Magistrate set aside, matter remitted for retrial before a different Magistrate.
Civil Liability Act 1936 (SA) s 5; Magistrates Court Act 1991 (SA) s 40; Motor Vehicles Act 1959 (SA) s 113(1); Supreme Court Civil Rules 2006 (SA) r 286, referred to.
CSR Ltd v Della Maddalena (2006) 224 ALR 1; Fox v Percy (2003) 214 CLR 118; Khneiger v Cookson [2009] SASC 203; Waterways Authority v Fitzgibbon (2005) 221 ALR 402; Giamarelos v Motor Accident Commission [2013] SASC 138, considered.

GIAMARELOS v MOTOR ACCIDENT COMMISSION
[2015] SASC 114
Magistrates Appeal: Civil
BAMPTON J.

On 26 March 2007, Mr Giamarelos was the passenger in the front seat of a motor vehicle, driven by Mr Ferlas, which was stationary in traffic on North East Road, Windsor Gardens when another vehicle collided with the rear of the vehicle (the collision).
The proceedings
Mr Giamarelos issued proceedings in the District Court on 18 November 2008 for damages for the injuries he suffered in the collision.
On 9 November 2009, the Motor Accident Commission (the MAC) was substituted as a defendant pursuant to s 113(1) of the Motor Vehicles Act 1959 (SA) (the MVA).
Mr Giamarelos was 22 years old at the time of the collision and worked in his family painting business. He was also playing A Grade soccer at the time of and after the collision. He claimed that he suffered injury to his neck and/or cervical spine including pain, discomfort, and restriction of movement. He sought damages for pain and suffering, past and future economic loss and the loss of earning capacity and/or a reduction in his employment options in the open market as a result of his injuries.
Liability was admitted by the MAC. The MAC disputed Mr Giamarelos’ claim for damages arguing that the vehicle driven by its insured only bumped or “touched” the rear of the vehicle in which Mr Giamarelos was a passenger. The MAC pleaded that the collision was so minor that it could not cause the injury alleged by Mr Giamarelos or in the alternative the collision merely aggravated Mr Giamarelos’ pre-existing conditions temporarily or to an insignificant degree, or if there was injury it was of a minor nature and would resolve.
The matter was first listed for trial on 1 August 2011. The trial date was vacated by consent on 2 November 2010. A further trial date was set for 12 September 2011. That date was vacated by consent on 5 April 2011 and the matter relisted for hearing on 30 January 2012. By consent on 1 November 2011 the trial date was again vacated and the proceedings were transferred to the Magistrates Court.
The trial before Magistrate Gumpl
The trial commenced on 25 June 2012 and was heard by Magistrate Gumpl over 13 days. Judgment was delivered on 12 April 2013.
Magistrate Gumpl found that Mr Ferlas, sitting next to Mr Giamarelos, sustained no injury, suggesting a minor impact. He found that “the single event which occurred on 26 March 2007, which was of a minor nature, was not responsible for any pain [Mr Giamarelos] may have suffered after December 2007”.[1] He found there to be a finite injury with symptoms lasting nine months. Magistrate Gumpl rejected Mr Giamarelo’s claim for loss of a chance to be an elite soccer player. He said:[2]
As to the plaintiff’s credibility, I have already referred to various spurious answers he gave in cross-examination which has cast real doubt over his truthfulness. Although I have serious reservations about the plaintiff’s veracity, this case is not so much about the embellishment of symptoms as it is about the inability of the plaintiff and his many witnesses to establish the fact that the symptoms complained of years after the collision were attributable to the 26 March 2007 incident. As indicated, the preferred evidence establishes a finite injury with temporary symptoms for a finite period, namely nine months.
Magistrate Gumpl also commented that all of the medical reports relied on by Mr Giamarelos “without exception, were predicated on the truthfulness of the plaintiff’s narrative”.[3]
[1]    Giamarelos v Motor Accident Commission (Unreported, Magistrates Court of South Australia, Magistrate Gumpl, 12 April 2013) at [114].
[2]    Giamarelos v Motor Accident Commission (Unreported, Magistrates Court of South Australia, Magistrate Gumpl, 12 April 2013) at [121].
[3]    Giamarelos v Motor Accident Commission (Unreported, Magistrates Court of South Australia, Magistrate Gumpl, 12 April 2013) at [122].
Magistrate Gumpl attributed the numerical value of three to the injury on the scale of general damages for non-economic loss prescribed by the Civil Liability Act 1936 (SA).[4] This entitled Mr Giamarelos to $7,500 for non‑economic loss. Magistrate Gumpl awarded $2,280 for past-economic loss as a result of having to take three weeks off work and interest.
[4] Civil Liability Act 1936 (SA) s 52.
Mr Giamarelos appealed the award of damages on the basis that the Magistrate erred in:
·making an inadequate award of damages on account of non-economic loss; and
·failing to award any damages on account of future loss of earning capacity.
Mr Giamarelos contended that Magistrate Gumpl erred in his analysis of the evidence and in respect of his application of the principles of causation. Mr Giamarelos also complained that Magistrate Gumpl exhibited an apprehension of bias in his handling of the matter. This ground was dismissed on appeal and is not relevant to this appeal.
The appeal before Justice Anderson
Justice Anderson heard an appeal on 8 August 2013 and delivered judgment on 5 September 2013 allowing the appeal.[5] In allowing the appeal, Anderson J:
·found that Magistrate Gumpl had erred in reaching his conclusion that Mr Giamarelos had recovered from accident-caused disabilities by December 2007;[6]
·determined that Magistrate Gumpl had misused his advantage of seeing and hearing the witness and accordingly had not correctly weighed the evidence;
·determined that the appellant’s demeanour did not play any significant role in Magistrate Gumpl’s consideration of the evidence and that, in the context of findings as to the appellant’s credibility, the trial process did not confer any particular advantages upon Magistrate Gumpl as compared to his ability to evaluate the appellant’s evidence with evidence contrary to the appellant’s evidence;[7]
·determined that the award of damages for non-economic loss was inadequate;[8]
·reached the conclusion that the failure to award the appellant damages for future loss of earning capacity was an error;[9]
·determined that the proper assessment should increase the figure of three for non-economic loss and include an allowance for loss of future earning capacity.[10]
[5]    Giamarelos v Motor Accident Commission [2013] SASC 138.
[6]    Giamarelos v Motor Accident Commission [2013] SASC 138 at [64]-[70].
[7]    Giamarelos v Motor Accident Commission [2013] SASC 138 at [71]-[72].
[8]    Giamarelos v Motor Accident Commission [2013] SASC 138 at [73]-[75].
[9]    Giamarelos v Motor Accident Commission [2013] SASC 138 at [78].
[10] Giamarelos v Motor Accident Commission [2013] SASC 138 at [79].
Justice Anderson set aside the award of damages and stated it was not appropriate for him to reassess damages unless the parties consented to him doing so. This was because the parties had disclosed the offer to consent to judgment during argument on the question of costs. His Honour said:[11]
It is regrettable therefore that the matter must be remitted for assessment of damages before a different magistrate.
I would hope that the parties having considered these reasons would agree that the magistrate assessing damages should do so on the basis of the evidence called in the trial and having regard to my comments as to where the magistrate appealed from has erred.
[11] Giamarelos v Motor Accident Commission [2013] SASC 138 at [81]-[82].
The sealed orders made by Anderson J on 5 September 2013 were:
1.Appeal allowed.
2.Award of damages made by the magistrate set aside.
3.Question of damages to be remitted to the Magistrates Court for reassessment by a different Magistrate.
4.Costs of the trial to be stayed until the matter has been finalised.
5.Costs of the appeal to be stayed until the matter has been finalised.
6.Further hearing be adjourned to 12 September 2013 at 9.00 am for mention only.
Hearing before Justice Anderson on 12 September 2013
At the hearing before Anderson J on 12 September 2013, counsel for Mr Giamarelos said:[12]
Out of the options that your Honour outlined on 5 September, the appellant’s position is that he would be willing for your Honour to make the assessment yourself and failing that for the matter to be remitted back to a different magistrate, hopefully with a hearing on the papers and no further oral evidence which I rather understood was your Honour’s preference if that was to happen.
[12] T2/1-8.
Counsel for the MAC informed Anderson J that his instructions were to ask that the matter be remitted to the Magistrates Court to be determined on the papers rather than there be a rehearing. Counsel also raised the possibility of his Honour mediating the matter. Justice Anderson encouraged the parties to attempt to resolve the matter.
Justice Anderson told the parties he would send a note to the Chief Magistrate asking that the rehearing be expedited. His Honour checked the orders he made on 5 September 2013 and varied the order for remittal ordering the reassessment be based solely on the transcript of evidence and the exhibits taken in the previous hearing together with his reasons for judgment.
The sealed order dated 12 September 2013
The orders sealed by the Court on 21 October 2013 in respect of the amended order made by Anderson J on 12 September are:
1.the matter is referred to a different magistrate for reassessment of the damages based solely on the transcript of evidence and the exhibits taken in the previous hearing together with the reasons of this Court
2.the question of all costs in the Magistrates Court are stayed until further order
3.the costs of the appeal to be the appellant’s costs to be paid by the respondent.
On 12 September 2013, Anderson J wrote to the Chief Magistrate requesting that the listing of the matter be expedited, saying that he had allowed the appeal and that “unfortunately the matter has to be reassessed by a new magistrate”. His Honour informed the Chief Magistrate that:
… the present agreement by the parties, encouraged by me, is that the magistrate does not have to hear any further evidence but should make an assessment of damages based on the transcript of evidence taken before Mr Gumpl and the exhibits in that trial.
The assessment should be made based on that evidence and my reasons as to why Mr Gumpl’s assessment should be increased.
The hearing on remittal
Following the order for remittal to the Magistrates Court, the matter was listed for hearing before Magistrate Milazzo on 4 March 2014.
The hearing before Magistrate Milazzo
At the commencement of the two day hearing the parties discussed the nature of the hearing and Magistrate Milazzo’s role. I will return to that discussion later.
On 19 May 2014, Magistrate Milazzo delivered his reasons for judgment and adjourned the matter for an argument on costs on 27 May 2014. On 27 May 2014, Magistrate Milazzo ordered:
1.Judgment for the plaintiff in the sum of $8,400.
2.The plaintiff is to pay the defendant’s costs of action on the usual scale to be agreed or taxed.
3.Stay of the judgment and costs order until further order or the hearing of the appeal in the Supreme Court whichever first occurs.
In his reasons for judgment, Magistrate Milazzo explained that he had assessed the damages based on the transcript of evidence and the exhibits taken in the previous hearing together with the reasons of Anderson J. He further explained that:[13]
The parties did not agree that the rehearing should proceed on the basis that I was bound by His Honour’s comments. I have had regard to Anderson J’s comments as to where the Magistrate erred, but in arriving at my findings of facts I must ultimately arrive at my own conclusions.
[13] Giamarelos v Motor Accident Commission (Unreported, Magistrates Court of South Australia, Magistrate Milazzo, 19 May 2014) at [4].
Magistrate Milazzo did not accept the submission made by Mr Giamarelos’ counsel that, as he was determining the matter by reference to the transcript, he was unable to make any findings as to credit. He stated in his reasons that he made findings as to credit where it was necessary to determine the evidence he preferred when it was in conflict with other evidence.
Magistrate Milazzo decided that Mr Giamarelos possibly had symptoms referrable to the accident for a 12 month period, but that post June 2007 those symptoms were minimal.
Magistrate Milazzo increased the numerical value attributed to the plaintiff’s non-economic loss to four. He made the following findings as to loss of future earning capacity:[14]
Although the learned Judge on appeal indicated that a proper assessment should include an allowance for loss of future earning capacity his Honour made that remark without having been referred to Dr Fry’s second report.
Based on the above findings there can be no allowance for loss of future earning capacity.
[14] Giamarelos v Motor Accident Commission (Unreported, Magistrates Court of South Australia, Magistrate Milazzo, 19 May 2014) at [70] – [71].
This appeal
Mr Giamarelos now appeals the judgment of Magistrate Milazzo.
Mr Giamarelos’ submissions
Mr Giamarelos submitted on appeal that when the order of 12 September 2013 was made “the parameters of the rehearing were clearly established, namely reassessment of the damages based solely on the transcript and the exhibits, together with the reasons of this Court”. Mr Giamarelos contended:
1.That the Magistrate erred in law and in fact in finding that the appellant suffered symptoms for a finite period of time, namely 12 months.
2.The Magistrate erred in law and in fact in making adverse credit findings. The Magistrate misconceived the nature and scope of the rehearing and failed to take into account the reasons and findings of Anderson J in his reasons for decision of 5 September 2013.
3. The Magistrate erred in law and in fact in assessing damages which were manifestly inadequate, failed to make any allowance for loss of earning capacity, which repeated an error of Magistrate Gumpl and which was inconsistent with the medical evidence, and failed to make any or any sufficient allowance for past special damages, future medical expenses and non-economic loss.
4.The learned Magistrate erred in law in that he gave inadequate reasons for findings on credibility and factual conclusions and for his reasons for rejecting the evidence of the appellant’s witnesses and medical evidence.
5.The learned Magistrate ought not to have relied upon conclusions of Magistrate Gumpl that are inconsistent with the analysis and conclusions of Anderson J on appeal.
6.The Magistrate erred in law and in fact in failing to conclude that the injuries sustained in the accident were a cause of the appellant’s ongoing symptoms in his neck and upper back and erred in concluding that pre-accident condition was exacerbated by painting and sporting activities beyond March 2008, which:
6.1    was against the evidence and the weight of the evidence;
6.2    had not been put to the appellant in his evidence before Magistrate Gumpl;
6.3    was inconsistent with the evidence of the appellant and his witnesses;
6.4    was not supported by any finding as to pre-existing injury or condition.
7.The Magistrate erred in failing to conclude on causation that there was a shifting evidentiary burden to the respondent.
8.The Magistrate erred in law and in fact in concluding that the appellant was dishonest, his evidence deliberately inaccurate, that his evidence was inconsistent with the evidence of Dr Fry and that his asserted dishonesty limited the probative value of the appellant’s medical evidence, given that:
8.1    the appellant did not give oral evidence before him;
8.2    the conclusions were inconsistent with the reasons for decision of Anderson J on appeal;
8.3    Dr Fry had given evidence that the appellant gave a straightforward history; that the pre-accident history was one of normality and that there was nothing in pre-accident medical history that might be considered to be relevant; and
8.4    was inconsistent with evidence of lay witnesses and medical witnesses.
9.The Magistrate erred in his reasons for decision of 27 May 2014 insofar as he awarded costs to the respondent.
Mr Giamarelos submitted that as a consequence of his errors the Magistrate did not reassess damages as directed by Anderson J but reinstated the wrong findings of Magistrate Gumpl.
Mr Giamarelos argues that the Magistrate was bound by Anderson J’s findings and directions, and that he erred in determining that he could not assess damages other than on the basis of his factual findings when relevant factual findings had been made by Anderson J which Magistrate Milazzo was bound by and ought to have acted upon.
Mr Giamarelos seeks an order that the Magistrate’s orders be set aside and that this Court reassess the damages and substitute the assessment for a sum it deems fit. He also seeks the costs of the trial, the rehearing and of this appeal.
The MAC’s submissions

The MAC submitted that Magistrate Milazzo’s discretion upon reassessment was not and could not be fettered by the reasoning of Anderson J, although the Magistrate paid due respect to those reasons.
It was submitted that the Magistrate correctly found the appellant had embellished his claim. His lack of credibility was thus an issue which undermined the opinions of both the medical and lay witnesses called in support of his case.
It was submitted that the Magistrate was, in the unusual circumstances that gave rise to the necessity for a reassessment, put in the same position as an appeal court hearing an appeal by way of a rehearing. The Magistrate was obliged to conduct a “real review of the evidence and to undertake the task of weighing competing evidence in coming to his own conclusions”.[15] The Magistrate was thus obliged to bring his own judgement to bear on the evidence and was not constrained by the reasoning of Anderson J. It was argued that Magistrate Milazzo correctly identified the task he was asked to embark upon, namely, to weigh the contested evidence against incontestable background matters.
[15] Fox v Percy (2003) 214 CLR 118 at 127.
Analysis
Mr Giamarelos, as a party to a civil action, is entitled to appeal as of right against the decisions of the Magistrates Court.[16]
[16] Magistrates Court Act 1991 (SA) s 40(2).
Such appeal lies to a single Judge of the Supreme Court in accordance with the rules of the Supreme Court.[17]
[17] Magistrates Court Act 1991 (SA) s 40(1), s 40(3).
Rule 286 of the Supreme Court Civil Rules provides the appeal is to be by way of rehearing and:
(2)Subject to any limitation on its powers arising apart from these Rules, the Court may determine an appeal as the justice of the case requires despite the failure of parties to the appeal to raise relevant grounds of appeal, or to state grounds of appeal appropriately, in the notice of appeal.
(3)Subject to any limitation on its powers arising apart from these Rules, the Court may—
(a)     draw inferences of fact from evidence taken at the original hearing and, in its discretion, hear further evidence on a question of fact;
(b)     amend or set aside the judgment subject to the appeal and give any judgment that the justice of the case requires;
(c)     remit the case or part of the case for rehearing or reconsideration;
(d)     make orders for the costs of the appeal.
It is clear that Anderson J had the power to order remittal for rehearing or reconsideration limited to certain issues.[18] The parties agreed to a rehearing limited to non-economic and future economic loss. However, Mr Giamarelos’ credibility was a central issue in this matter. His credibility was said by Magistrate Gumpl and the MAC to underlie the medical opinions and the lay witnesses. As it transpired the parties had not and did not agree that credit findings could be made on the rehearing.
[18] Waterways Authority v Fitzgibbon (2005) 221 ALR 402 and CSR Ltd v Della Maddalena (2006) 224 ALR 1.
In my opinion, unless Mr Giamarelos and the MAC agreed to be bound by the credit findings made by Magistrate Gumpl, the only way to proceed was by way of rehearing. Contrary to Mr Giamarelos’ submission, Magistrate Milazzo could not be bound or constrained by Anderson J’s findings “that the proper assessment should increase the figure of 3 for non-economic loss and include an allowance for loss of future economic capacity”.[19] Having conducted a review of Magistrate Gumpl’s judgment, in ordering remittal, the Court had, in the particular circumstances of this case divested itself of the final task on a Magistrates Appeal of “weighing conflicting evidence and drawing ... inferences and conclusions” and making findings that bind the parties.[20]
[19] Giamarelos v Motor Accident Commission [2013] SASC 138 at [78].
[20] CSR Ltd v Della Maddalena (2006) 224 ALR 1, [16] (Kirby J).
What was discussed before Magistrate Milazzo before the hearing of the reassessment
At the commencement of the hearing before Magistrate Milazzo on 3 March 2014, Mr James, counsel for the MAC, suggested, and Magistrate Milazzo agreed, that the Court deal with two preliminary issues:
For example, the status of Magistrate Gumpl’s judgment and then the status of Justice Anderson’s decision. The decision of Justice Anderson in my respectful submission puts this court in a very difficult position.
Mr James told Magistrate Milazzo that the parties had agreed to limit the rehearing to future economic loss and non-economic loss as suggested by Anderson J. The exchange continued:[21]
MR JAMES:… of course even to consider those issues you are going to have to consider a whole broad range of other relevant evidence.
HIS HONOUR: The problem is that it has been remitted to me on a particular basis, so, the court, if you like, is functus officio but for the fact that Justice Anderson has heard an appeal and he has sent it back on a limited basis.
MR JAMES:And I must say I am not aware of a matter which is sent back for rehearing where the Magistrate or the Judge rehearing is directed to make an allowance for a particular head of damage. The most that could be done is that the appeal just itemises or identifies errors by the original trial judge and refers it back for rehearing which may include the current Judge on the rehearing coming to the same conclusion.
HIS HONOUR: Or a lesser amount.
[21] T2-3.
Mr Saies, for Mr Giamarelos, told Magistrate Milazzo that the parties were worlds apart on the scope of his Honour’s jurisdiction and the extent as to which he could make findings. Mr Saies submitted that it was Mr Giamarelos’ position that Anderson J:
… clearly directed and it was something that was made clear to the parties in the course of the appeal, that the matter ought to go back for rehearing in circumstances where there needed to be an increase in the assessment, points assessment on non-economic loss and also necessarily that your Honour ought, which ever Magistrate would be assigned the case, would make it an assessment of future loss of earning capacity.
Magistrate Milazzo said that his reading of Anderson J’s judgment was to appraise the rehearing Court of the errors made by Magistrate Gumpl.
Magistrate Milazzo said it seemed to him that it was still a full rehearing subject to an agreement as to how it should be limited. Mr Saies submitted that, in light of the findings and comments made by Anderson J, Magistrate Milazzo’s hands were tied to the extent that he ought to accept Mr Giamarelos’ evidence at face value, that is, at its highest. It was submitted that, in light of the findings made by Anderson J,[22] Magistrate Milazzo had to necessarily discount or disregard the evidence of the doctors called by the MAC in the trial before Magistrate Gumpl to the extent that that evidence was inconsistent with Anderson J’s findings regarding non-economic loss and future economic loss. This was because, it was submitted, the Magistrate could not deal with any credibility issues that may arise on the transcript.
[22] Giamarelos v Motor Accident Commission [2013] SASC 138 at [75] and [78].
When Magistrate Milazzo expressed his concern about adopting this course, the following exchange occurred between him and Mr Saies:
MR SAIES:If your Honour’s right, this can only proceed by way of a full rehearing on oral evidence. In my submission your Honour can’t do that in light of the directives from his Honour Justice Anderson.
…
HIS HONOUR:    What happens is, the judges only jurisdiction is to send it back for rehearing unless there was an agreement between the parties there will have to be a full rehearing. He even expresses the hope that you will agree to a limited rehearing and that’s my understanding of what’s occurred.
MR SAIES:I must say your Honour that’s not my understanding and whether we need to put some affidavit evidence before your Honour on this very point.
HIS HONOUR:    I will read to you. ‘It’s agreeable the matter must be remitted for assessment of damages before a different magistrate’. That’s the outcome. Then he says ‘I would hope that the parties, having considered these reasons, would agree that the magistrate assessing damages should do so on the basis of the evidence called in the trial’. So if you don’t agree then I have to hear the whole trial again. I understood that you had agreed.
MR SAIES:If your Honour is right then it’s not, in my submission, it’s not possible to make sense in what’s in para. 75 and 78 because what you’re saying is that it’s up to the parties to agree to this issue and that we have reassessment on two heads of damages. Where we’re taking a view that the matter can just be decided on all the evidence, irrespective of those comments. Indeed where your Honour has to make findings of credibility, we’re not agreeable to that. So we might have to revisit that your Honour.
HIS HONOUR:    How else can I solve it? I told you this was difficult but [apparently] you don’t seem to want to accept it’s difficult.
…
The matter has been listed today, it’s gone on too long already. There has been too many hearings, namely three, and it will go on today; absolutely it will.
Discussion took place concerning the orthopaedic surgeon Dr Fry’s opinion and Magistrate Gumpl’s findings. Mr Saies then asked for a preliminary ruling, saying “We are clearly at logger heads, we are miles apart”. Magistrate Milazzo said he would give a ruling because “both parties need to understand on what basis I am hearing it”, whereupon Mr James said:
We’ve agreed that it’s on the transcript and we’ve agreed your Honour’s review or rehearing to be limited to future economic loss and non-economic loss. Everything else is by way of a usual rehearing, that is your Honour will look afresh at the matter.
Mr Saies then handed to Magistrate Milazzo a copy of the sealed order made on 12 September 2013 and submitted that paragraph 1 of the order:
MR SAIES:… doesn’t only refer to the transcript of evidence and the exhibits taken but together with the reasons of this court. Where I think we’re at logger heads is what significance and what interpretation do you place upon the reasons of his Honour Anderson J. One of the principal reasons we seek a ruling from your Honour is that if it turns out we come to this hearing today under some misapprehension about what ought to occur and what the scope of it is and that that affects the so-called agreement that your Honour was referring to that the parties can be taken to have come to before this hearing, I might be instructed to resolve the matter and call oral evidence. So we look forward to your Honour’s preliminary ruling because that may well affect the extent to which we then make some further application.
HIS HONOUR: Have you seen the sealed order before?
MR JAMES:I have seen the sealed order. It doesn’t take it any further.
HIS HONOUR: It does a bit.
Magistrate Milazzo was in an invidious position. He said he had understood, based on his reading of Anderson J’s judgment, that Anderson J had remitted the matter for full rehearing, and had invited the parties to make the process shorter by agreeing the transcript. He said that this understanding was not reflected by the sealed 12 September 2013 order. Magistrate Milazzo said, “I think I am bound by the sealed order of the court”. Mr James agreed and Magistrate Milazzo said:
I don’t know having regard to this sealed order it’s appropriate to make a ruling but I make it perfectly clear that I will hear submissions from both parties, I will consider very carefully everything Anderson J said about the evidence in his reasons for allowing the appeal, but I will have to read all of the evidence as well and ultimately I have to make the assessment on the basis of the evidence having regard to what the learned appellate judge said. As I say, I disagree with what he says in para. 70. So I can’t ignore evidence, I can’t ignore what Dr Fry said in his second report which was his overall considered opinion and I have to make the reassessment on that basis. But before I do it on that basis, I will look very carefully at what Anderson J says and make sure that I disagree, but if I do disagree so be it.
Following this, Mr Saies sought a specific ruling regarding whether Magistrate Milazzo proposed to consider Mr Giamarelos’ credibility on the transcript. Magistrate Milazzo said he would have to consider whether the evidence was credible by looking at the evidence to see if it was probative and consistent.
Magistrate Milazzo confirmed, in response to Mr Saies’ question, that this meant that in considering the transcript he might take the view that Mr Giamarelos was lacking in credibility on a particular topic and therefore discount his evidence on that issue.
Mr Saies then asked for a short adjournment to discuss matters with instructing solicitors and said that he might be instructed to call oral evidence. Magistrate Milazzo said, “I will let you consider whether you’re going to make that application but I can indicate on the basis of the sealed order of the Supreme Court, I don’t see that I am permitted to do that”.
After an adjournment, Mr Saies made an application that Magistrate Milazzo disqualify himself on the basis of perception of bias. Magistrate Milazzo refused and the hearing of the reassessment proceeded.
Conclusion
What transpired in the Magistrates Court before Magistrate Milazzo was brought about by the 12 September 2013 order.
Magistrate Milazzo, upon being handed the 12 September 2013 sealed order, understandably considered with significant disquiet that he was bound by it. Prior to this it would appear he was going to, as the parties were not in agreement, convene a full rehearing with respect to the assessment of non‑economic and future loss of earning capacity.
Regrettably, the matter did not proceed to a full rehearing on these heads of damages.
I am obliged on an appeal to determine this matter myself if I can and only order a retrial if I cannot do so.[23]
[23] Fox v Percy (2003) 214 CLR 118.
I have concluded that, despite the cost and further delay in finality, fairness dictates that there be must be a rehearing. Consequent upon Magistrate Gumpl’s, Anderson J’s and Magistrate Milazzo’s judgments, there needs to be a re‑evaluation of Mr Giamarelos’ evidence and that of his witnesses. I am not satisfied I can safely arrive at the correct judgment by drawing my own inferences of fact and attempting to resolve the issues in dispute on an examination of the record. [24]
[24] Khneiger v Cookson [2009] SASC 203.
The parties must be restored to the position they were in when Anderson J allowed the appeal, set aside the award of damages and remitted the matter for rehearing on 5 September 2013.
I allow the appeal, set aside the judgment of Magistrate Milazzo and remit the case for rehearing on the question of damages before a different Magistrate.