Hamilton-Smith v George No. DCCIV-03-1444

Hamilton-Smith v George
[2003] SADC 157
Judge Herriman
Minor Civil Review

This matter has had a somewhat unusual history and, in all the circumstances, it is appropriate that I describe it:
(1)Nov./Dec. 2000 – the respondent asserts that she loaned the applicant the sum of $5,000, repayable in three weeks’ time, to enable the applicant “to pay out the loan for a blue Ford Probe”. The applicant denies negotiating or receiving that loan, but says a financial arrangement was concluded between the respondent and the applicant’s former husband, Donald Osborne (“Osborne”).
(2)12.1.01 – the applicant hands $1,000 to the respondent in part‑repayment of loan. This payment is not denied by the applicant, but she says it was paid by her at the direction and on behalf of the borrower, Osborne, and from a company cheque book.
(3)12.11.02 – the respondent issues the summons in this action seeking recovery from the applicant of $4,329.80, being the balance she says is due on the loan, with interest and costs.
(4)4.12.02 – the applicant files a defence, denying she was a party to the loan.
(5)4.2.03 – a directions hearing takes place in the matter in Mount Barker Magistrates Court. The respondent says that during the course of mediation, the applicant walked out of court, that the court officer was asked to bring her back, that there was a scene of some kind and she was brought back. For her part, the applicant says that the hearing had finished and that she was leaving when she was confronted out the front of the courthouse by a man who appeared to be a sheriff’s officer and who committed upon her “a very serious assault which lasted about five minutes”. She said the assault was witnessed by the magistrate, who did not intervene. As a result of it, she says, she suffered injuries, including cuts and bruises to her arms, throat and ankle, and was obliged to seek medical attention for her physical and mental injuries.
An order is later made transferring the hearing of the matter to Adelaide Magistrates Court and it is listed there on 17 June 2003.
(6)13.6.03 – a specially returnable application is filed by the applicant to vacate the trial date of 17 June 2003 and fix a directions hearing for October 2003. The application is supported by an affidavit of the applicant’s solicitor, Mr Viscariello, which asserts that the applicant is unable to attend at the trial and that she continues to receive medical treatment in consequence of the alleged assault, and it exhibits a report of a consulting psychologist, Dr Cayley, of 3 June 2003, who expresses the opinion that “Ms. Hamilton‑Smith is not well enough to attend court at this time”. The report does not say when Ms Hamilton‑Smith might be able to attend.
The application is heard that day, but the presiding magistrate is not satisfied that the application has been served on the respondent, the application is dismissed and the adjournment question is left to the trial magistrate.
(7)17.6.03 – the matter is listed before Dr A J Cannon DCM at Adelaide Magistrates Court. The applicant is represented by a solicitor, who is without instructions to do any more than seek an adjournment. His Honour notes the prior such application and the materials submitted in support of it. He decides to hear the respondent’s case in chief and will then decide upon the further conduct of the matter.
His Honour then hears the respondent’s evidence and that of her witness John Hatchman (“Hatchman”). The respondent says that at the time of the alleged transaction, she had been a friend of the applicant for about five years. She (the respondent) was also then in a relationship with Hatchman. She says the applicant first approached Hatchman to borrow moneys to pay off a car loan, but he refused her. The applicant then asked her if she could get the money from Hatchman and lend it to her. The respondent decided that as the loan was to be for a short time, she would lend the money. She got it from Hatchman and advanced it to the applicant in cash and without any confirmatory documentation. When the money was not repaid after three weeks, she herself repaid Hatchman by a cheque for the sum of $5,000 from her overdraft account and effectively took over the loan.
She produces her Citibank statement indicating the drawing of a cheque of $5,000 on 20 November 2000. That same account records a receipt, which she says relates to a part‑repayment of the loan made by the applicant in the sum of $1,000 on 12 January 2001.
She had loaned the $5,000 to the applicant because she was a friend and she trusted her. The applicant had herself known Hatchman for longer than she had.
The respondent says that the applicant verbally acknowledged the debt to her on a number of occasions and several times promised to repay it but, once the formal demand for payment was made for the first time, she denied it.
The respondent then speaks of Osborne, the applicant’s ex‑husband. She says he has refused to come to court over the matter because he is then in dispute with the applicant over child custody.
The respondent says that she did not press the applicant for repayment for a long time because she was a friend and she trusted her to repay it, but in February of 2002 she needed money in connection with a real estate purchase and she then demanded it. The applicant said she would repay it, but was waiting on a settlement.
Hatchman then gives evidence of his relationships with the respondent and the applicant. He speaks of the applicant approaching him and asking him for $5,000 to pay out something on a car. He refused, but he later discovered that his partner, the respondent, had loaned her that sum from moneys in the safe. He was unhappy about that and, in consequence, the respondent repaid the money from her own resources. Not long after that, he and the respondent separated.
He then speaks of a visit that he and the respondent made to Osborne at a butcher’s shop in Coromandel Valley, when Osborne wrote out a letter which he (Hatchman) then produces to the court. It reads as follows:
“I Donald Osborne, was aware that Tanya Osborne (Hamilton Smith) borrowed $5,000 from Heidi George in Nov 2,000. I was not aware what the money was for. Tanya did not ask me to make any payments. I did not ask Tanya to make any payments on my behalf.”
The document has a signature which purports to be that of Osborne and purports to be witnessed by one Terence Cunnington.
That completes the evidence in chief of Hatchman.
The magistrate then asks the applicant’s solicitor, Mr Viscariello, about her ability to be present in the future. Mr Viscariello says he is not in a position to say that, albeit that he acknowledges he knows her personally.
The magistrate then adjourns the trial part‑heard to 25 August 2003 and directs that the transcript of evidence be posted to the parties. He intimates (T13) that:
“any application for adjournment of the trial for medical reasons should be received as early as is reasonably possible in the circumstances prior to the trial and must be accompanied by sufficient medical evidence. I make is (sic) clear that I do not regard the medical evidence I have today as sufficient. It may be necessary for any medical advisor to attend in person to give evidence to convince me that the trial should be adjourned”.
His Honour goes on to say (T14):
“I need convincing that she doesn’t have the capability to be here and the short report I have in my view is unconvincing, but in the circumstances, I have allowed her an adjournment. It might be useful if you were here as well Mr Hatchman in case she wants to contradict any of the things you have said”.
(8)18.8.03 – an affidavit of Osborne is filed in the action. He deposes to having read the pleadings and the transcript of the hearing on 17 June 2003. He says as follows:
(a)The loan was not for $5,000, but for $3,000, and it was “not made to the applicant but was made to me to assist me payout the residual of the loan on a Ford Probe motor vehicle that I had sold”.
(b)The $1,000 repayment was made by the applicant “at my instruction and direction from monies owed to me by a Company that the applicant was a director”.
(c)He denies the applicant approached the respondent or Hatchman to borrow moneys to pay off a car loan, albeit he does not say how he is able to say that. He says it was he who approached the respondent in that respect.
(d)He denies there was any friendship between the applicant and Hatchman.
(e)He denies that he refused to come to court on the hearing because of a child custody dispute, albeit he acknowledges there had been trouble with the applicant over other matters.
(f)The Ford Probe vehicle was “recorded in my name because it was my vehicle” and he needed the loan to assist the payment out of the residual on it.
(g)He speaks of matters of information and belief relating to the relationship between the respondent and the applicant and of Hatchman’s alleged involvement in drugs.
(h)He agrees with the evidence of Hatchman that the respondent and Hatchman approached him at his shop in Coromandel Valley and says that the respondent then asked for repayment of the “$2,000” outstanding on the loan she had made to him. He denies saying he knew nothing about it. He simply replied that he had no moneys.
(i)He says a conversation then ensued with the respondent, in the course of which she said that if she could not get the money from him, he would “have to help (her) get it off Tanya”.
(j)He says the respondent then made numerous derogatory remarks about the applicant which led him to also become upset about the applicant and they then both made derogatory statements about her, statements which he says he later realised were false. At the time, he says, he was suffering from depression and looking for someone to blame so he agreed to help the respondent get the money from the applicant. The respondent then said she would write a letter for him confirming that the loan had been made to the applicant and not to him. He said he would help, but he says he has heard nothing further and he did not write or sign anything, and any suggestion he did so is false.
(9)22.8.03 – the applicant’s solicitors file in court an affidavit of Dr Cayley, psychologist, speaking of her learning and specialisation in anxiety and depression and saying that she is treating the applicant “in relation to psychological problems which she has developed as a consequence of” the alleged assault at Mount Barker Magistrates Court. She considers the applicant is suffering from a post‑traumatic stress disorder and an adjustment disorder with depressed mood, and she is of the opinion that an appearance in court is “not in the best interests of the applicant’s emotional well‑being and may indeed hinder her progress in therapy”. She goes on to say that the applicant has said that she is concerned that “the court may not be taking her condition seriously or believes that her condition is not genuine” and that she is attempting “to improperly delay these proceedings”. Notwithstanding her strong advice, she says the applicant had told her that she intends to appear in court at the resumed hearing to clear her name and dispel any such implication.
(10)25.8.03 – the trial resumes in Adelaide Magistrates Court and the magistrate notes the affidavits of Dr Cayley and Osborne and ensures they are produced to the respondent. He then asks the applicant whether she wishes to give evidence. She says she will do so and is not being pressured. She has not thought to ask Osborne to come to court as a witness. The magistrate then says he will hear her evidence and decide what to do about Osborne.
The applicant gives evidence. She speaks of her marriage to Osborne and how they separated, but continued to live under the same roof for some considerable time. She says the Probe motor vehicle was his and she was told by him that a payout had to be made on it to the finance company. She had nothing to do with that.
She has known Hatchman for years, but any suggestion she approached him for a loan is nonsense because she was herself operating a very successful company at the time and did not need to borrow. Further, she denies approaching the respondent for a loan, but agrees she repaid her $1,000 from “a company cheque book on behalf of Don, he asked me to pay it, the company owed him some money and I paid a cheque to her yes, on behalf of Don” (T18/19). She did not ask more about it and was not interested in the transaction. She did not think it was an unusual transaction at the time and did not question it, nor did she know what it was about. She was just following Osborne’s instructions. She is unable to proffer any reason why Osborne would seek to borrow (on his account) $3,000 from the respondent, but says that she had recently paid his ex‑wife the sum of $40,000, so she was not surprised Osborne did not seek a loan from her.
She is then shown Exhibit P1, being the handwritten letter purportedly written by Osborne. She says the handwriting looks similar to Osborne’s, but it has been many years since she had seen his handwriting. She goes on to say that Osborne was then on the point of bankruptcy and many of the creditors were trying to chase her for his debts. She says there is nothing else she wishes to add and she does not wish to ask the respondent anything about her evidence.
The respondent then asks her some questions and these develop into a short conversation between them, in the course of which the respondent gives some further evidence about requests made of the applicant for repayment of the loan and the applicant’s reassurances about it. The applicant denies that such occurred. There are other matters of discussion, but they are of marginal relevance.
Hatchman is also present in court during this evidence and is asked by the court about the visit by him and the respondent to Osborne’s butcher shop. He says that the respondent went in there and “... decided to ask for a letter explaining what was going on. That’s basically my extent of the letter there (sic) but I saw it being produced” (T26).
The respondent intervenes at that point to say that she asked Hatchman to come with her to visit Osborne so she would have a witness as to what he said. She did not go there to get money from Osborne. The applicant then intervenes in the matter, proffering some evidence about a matter of marginal relevance, namely, the relative solvency of Hahndorf Smallgoods and Hahndorf Gourmet Foods.
At that point, the magistrate asks the parties whether they have any view about Osborne being brought to court. Neither of them objects. He then says to the respondent that the corroborating evidence in Osborne’s affidavit does not favour her.
He then asks the applicant whether she first approached Hatchman to borrow moneys. She denies it.
The magistrate then seeks information as to Osborne’s whereabouts and decides to telephone him from the courtroom. Osborne is called and is not sworn, but the transcript records a conversation with him. In the course of it, the magistrate identifies himself and the court case, to which the response from Osborne is first that he cannot hear. The transcript then appears to disclose that he could hear what follows, as he appears to respond appropriately to questions put to him. He is told he is on a speaker phone and what he says is going to be recorded.
He says the Ford Probe car was his and he wanted to pay out the finance on it. The amount owing was “about $3,000 or $5,000”. He was in financial trouble at the time and had actually returned the car to the financier. He is asked (at T30):
“Q.Where did you get the money from that.
A.Where did I get the money?
Q.Yes.
A.Well Tanya organised with Heidi, I’m not sure I don’t know what the story was, I was running a business at the time and yes.
Q.So Tanya organised it for you.
A.Well yes.
Q.So it’s about –
A.I’m not sure what the figure was or anything you see.
Q.Did someone come and talk to you about when paying that money back some time.
A.No never.
Q.You signed a letter at one stage.
A.Yes but that was under duress, I’m under medication at the moment, so.
Q.That letter, who came and saw you with that.
A.Heidi and John.
Q.John Hatchman was there too.
A.Yes.
Q.What were they there for.
A.Well I hadn’t seen them for a long time and they wanted me to give evidence and all this and I said well, you know, I explained to them that I can’t but I did it under duress because they were saying all these things and Heidi, as I said, you know, I wasn’t really – wasn’t, it was only a draft of what she wanted, it wasn’t an actual reference.”
He goes on to say that the respondent then wanted the money from him because, as he apprehended it, the car had been in his name. The transcript then proceeds (T31):
“Q.But I think you have told me that you didn’t borrow the money from her, you got it from Tanya.
A.No, yes but the car was in my name.
Q.But Tanya organised it, didn’t she.
A.Yes but the car was in my name.
Q.But she organised the money, there is no doubt about that.
A.Yes.
Q.That Tanya organised the money.
A.Yes.
Q.So then if the money was borrowed from anyone it was Tanya who borrowed it you’d think, wouldn’t you.
A.Yes but it was to pay out my debt.
Q.You didn’t borrow it from anyone.
A.No well theoretically no but it was to pay out that car.
Q.No-one actually paid cash to you.
A.No.
Q.Except Tanya organised the pay-out.
A.Yes but it was for the car.”
He says he does not know anything about the applicant repaying to the respondent $1,000 off the loan.
The magistrate then asks the respondent whether she wishes to ask any questions of Osborne, but she does not wish to.
The applicant then examines him and the transcript records the following (T32):
“Q.The money that was borrowed was to pay out the Ford Probe, you borrowed it, I didn’t.
A.Yes for me, as I said it was for me, you are right.
Q.A thousand dollars that I paid out of the company account if you recall was wages I owed you and you told me to pay Heidi.
A.You are right too, I’d forgotten, yes you are right, it was wages because I was on the wages, yes you are right.”
There is then a passage which is equivocal in its effect (lines 24 to 26):
“HIS HONOUR
Q.It seems to be clear it was you who got the money in the first instance.
A.Yes, she got the money from me.”
Then at line 28:
“MS HAMILTON-SMITH
Q.I never approached John Hatchman or Heidi for the money.
A.Well as I said it was a long time ago I’ve completely forgotten what happened, as I said it’s nearly three years ago. See I know I had to get rid of the car so I’ve forgotten, completely forgotten.
HIS HONOUR
Q.         You signed an affidavit here, how did that happen, that’s got a different version now from what you are now telling her.
A.No, well I had borrowed the money but as I said it was a few years ago but I did – it was for me, the money was for me, it was for my car.
Q.But it was actually paid to Ms Hamilton‑Smith if it was a loan at all and she then gave it to the finance company.
A.Well it was in my account name I think, I think it was in my account name, I’m not sure, I know that a thousand dollars was paid out of my wages.
Q.Paid back to whom.
A.Paid back to Heidi because I was on a wage, I wasn’t a director or anything, I was only a worker there or manager there.”
That concluded that part of the hearing.
(11)25.8.03 – the magistrate enters judgment in favour of the respondent in the sum of $4,079.80. In his reasons, he comments, amongst other things:
“In my view Mr Osborne in the conversation I had with him that has been recorded, totally discredited his affidavit. I think that Mr Hatchman has no obvious axe to grind in these proceedings. I accept the evidence of Mr Hatchman that Ms Hamilton-Smith did initially approach him for money. That sets a background that discredits Ms Hamilton-Smith and makes the evidence of Ms George the evidence that I accept on the balance of probabilities.”
His Honour then goes on to find that the applicant borrowed $5,000 from the respondent and then repaid her $1,000. His Honour is satisfied that the applicant borrowed the money for Osborne’s benefit (to assist in his car payout), but he is satisfied that the loan was nevertheless a direct one between the respondent and the applicant.
(12)15.9.03 – the applicant files an application to review the magistrate’s decision. I will not repeat here the various grounds upon which the review is sought. I will discuss them in due course. For the moment, I will proceed to the history of proceedings before me.
The matter was first listed for hearing at 12 noon on 21 October 2003.
(13)17.10.03 – the court receives a letter from the applicant’s solicitor saying that an adjournment is sought and that the applicant has retained Mr Robert Sallis as counsel. The adjournment is sought because Mr Sallis has been briefed and has full knowledge of the matter, because he is unexpectedly detained in another matter in this court and because the applicant is suffering from a medical condition (as evidenced in the Cayley affidavit) and is unable to represent herself on the application. Certain proposed adjournment dates suitable to Mr Sallis are then proffered.
(14)20.10.03 – the letter of 17 October 2003 is brought to my attention and I direct the court to inform the author of the letter that the matter will be called on for hearing in the usual way on Tuesday, 21 October and counsel is referred to the provisions of s.38(7)(a) of the Magistrates Court Act.

That history then brings the matter to the point where the review was first listed before me on 21 October 2003.
Upon that hearing I was handed by the applicant a document titled “Application to Adjourn Hearing”. That document is on the court file and I will not refer to it in detail, but the reasons for the adjournment application substantially repeat those in the above letter. The applicant contends in it that she will be “unfairly disadvantaged and prejudiced if not represented by a legal practitioner”. Further, she seeks time to file further affidavit material from herself and Osborne in support of her application and says that time is needed to enable her counsel to settle that documentation.
I considered that document and heard from the applicant to the effect that she felt disadvantaged, that she was not able to represent herself because of her medical condition referred to in the report of the psychologist.
I intimated that, ordinarily, a medical report, as opposed to that of a psychologist, would be submitted in support of such an application. The applicant said she was not alive to that, nor to the provisions of s.38(7)(a) of the Magistrates Court Act concerning representation.
The respondent said she did not consent to the applicant being legally represented, so it became a question of whether the applicant could satisfy me pursuant to s.38(4)(a)(iii).
The applicant said she was in no state of mind to speak to the grounds of appeal already lodged, nor had she been told there were problems connected with having a solicitor represent her.
I provided her with a short adjournment to consult with her solicitors, noting that Mr Viscariello was present in court.
She returned to say that she could not contact her solicitor, Mr McNamara, nor Mr Sallis.
I then advised her that in the ordinary course, proper medical evidence was needed to support an adjournment, that I would not likely be satisfied by the affidavit of a psychologist and that the affidavit was two months old, anyway, and provided no indication of when the applicant would be sufficiently recovered to be able to appear.
I reminded her of my task under s.38 of the Magistrates Court Act and said that I would need “great persuasion” that she should have legal representation and, further, that there would be no prospect of achieving an adjournment on the ground of availability of counsel, anyway.
I then adjourned the hearing for two days to enable her to take advice about her position and observed that there was already a substantial submission from her contained in the grounds of appeal settled by counsel, that it might be that she could proceed in two days’ time by putting written submissions before me.
THE SECOND HEARING OF THE REVIEW
The matter then resumed before me on 23 October 2003. There were then filed three further affidavits on the applicant’s behalf, one of Dr Cayley, one of Donald Osborne and the other of the applicant herself.
The applicant’s affidavit had been prepared by solicitors, settled by counsel and effectively contained her submissions on the review.
The affidavit of Dr Cayley provided more detail about her qualifications as an expert, particularly in the fields of anxiety and depression, referred to her prior testing of the applicant, which had resulted in the diagnoses I mentioned above, and confirmed that the applicant was receiving ongoing treatment. It further expressed the opinion that when the applicant gave evidence in the Magistrates Court on 25 August 2003, “her ability to follow the proceedings and respond appropriately was likely to be significantly impaired, in comparison to her pre‑morbid level of functioning”. Further, it expressed the opinion that “it was also not at all appropriate for her to attend and represent herself at the District Court Appeal on 21 October 2003 as it was not in the best interests of her mental health and well being” and that she was “not fit, competent or capable of conducting her Appeal at this time without the risk of adversely affecting her medical condition from which she suffers”.
The affidavit of Osborne disclosed that he had read the transcript of 25 August 2003. He said that at the time he received the mobile telephone call from the Magistrates Court he was at work in a noisy environment and he “was in the middle of preparing an urgent order and was keen to get off the phone”. He had not anticipated the telephone call, nor been given any warning of it. He went on to say “It was difficult to hear and fully understand the nature and effect of the questions being asked because the mobile telephone reception was poor at best, I was surrounded by noisy machines and my workmates were making signs at me to hurry up and get off the phone and I was in the middle of an urgent order”. He then went on:
“4.4I was confused about the nature, effect and purpose of the questions being asked of me because I thought that I had made my position perfectly clear in relation to the matter of the loan made to me in the sum of $3,000.00 ...
“4.5... I thought that I was being asked questions about who had arranged the original loan finance for the Ford Probe which loan finance had in fact been arranged by the Applicant.
“4.6If I had fully understood the nature, effect and purpose of the questions being asked by the Magistrate I would have and now HEREBY DO REAFFIRM, AND DEPOSE to the entire contents of my August Affidavit ...
“4.7... I am prepared to attend Court at any time for the purpose of giving any further evidence or confirming the sworn evidence contained herein and/or in my August Affidavit.”
He proceeded to say he would not have approached the applicant herself for a loan because of their separation and financial problems, but he had approached the respondent because he had known her and knew that she and Hatchman kept large amounts of cash. It went on to make some scurrilous and unsupported allegations about the conduct of the respondent and Hatchman and dealt with a number of matters of hearsay or irrelevancy relating to that issue and to the business of Hahndorf Smallgoods.
At the outset of the hearing, copies of those affidavits were provided to the respondent for her to consider. The applicant then said her submissions on the review were those contained in her own affidavit, upon which she had taken legal advice. She said she did not wish to put any further matters to the court.
I sought to ask her about the content of the transcript of the telephone call between the magistrate and Osborne, but she said she did not want to answer questions about it because she was not fit to be present.
She then sought a brief adjournment, which I allowed her.
I then called upon the respondent, but she did not wish to put any further submissions, beyond denying the scurrilous allegations made by the applicant and Osborne. The applicant then sought to interject and address that issue again, but I prevented her from doing that.
I then ordered that, in so far as the applicant may have been seeking an adjournment of the hearing on 23 October, that application was refused and, in so far as there remained any application afoot for legal representation, that application was also refused.
Before I come to discuss the merits of the review application, I should state the reasons for those refusals.
As to the application for legal representation:
(1)It was plain that neither placita (i) nor (ii) of s.38(4)(a) of the Magistrates Court Act were available grounds upon which the application might be made. The respondent was not represented and objected to the applicant being represented.
(2)I therefore considered the application under placitum (iii) of that subparagraph, the test being whether “the Court is of the opinion that the party would be unfairly disadvantaged if not represented by a legal practitioner”. In considering that, I took account of the following matters:
(a)the fact that, apparently from the commencement of the proceedings in the Magistrates Court, the applicant had had access to continuing legal advice, had had a solicitor present in court with her on all but perhaps one occasion and, more latterly, had had the advice of counsel. Her review application itself had been prepared by solicitors and settled by counsel and was lengthy and detailed. Following my comments at the first hearing, she brought with her, in an affidavit prepared by solicitors and settled by counsel, lengthy and detailed written submissions;
(b)the fact that, contrary to her psychologist’s advice, she had appeared in Adelaide Magistrates Court on 25 August 2003, had given evidence at some length concerning the matter, had been cross‑examined by the respondent and had, indeed, herself asked questions of the respondent. The transcript of that appearance does not appear to me to raise any suggestion she was then acting under a disability and, indeed, she steadfastly adhered to the factual position pleaded by her. She was asked at the outset by the magistrate whether she felt able to give evidence and she replied that she did;
(c)I was not unmindful of the affidavit material of Dr Cayley, which in part supported the applicant’s claim that she was unable to represent herself, but it was deficient in a number of respects. It did not set out a detailed history of the applicant’s alleged injuries in the assault, her course of treatment (particularly any medical/psychiatric and/or psychological treatment) or any detail as to her past or present symptoms (apart from a reference to the results of a standardised assessment procedure with clinical interview). Significantly, it contained no prognosis or information as to the likely time when the applicant might be in a position to present or represent herself in court.
In some circumstances, it might be appropriate to rely upon evidence that is not strictly medical in making a determination under subsection 38(7)(a), but in the particular circumstances of this matter, given those inadequacies and the matters referred to above, I considered the substantial merits of the case did not support her claim under that section for representation.
As to the application for an adjournment, to the extent that it relied upon the applicant’s request for legal representation, I have already dealt with it. To the extent that it relied upon the unavailability of counsel, a similar response must be made. That is rarely a proper ground for adjournment and much the less so in these particular circumstances.
To the extent that she relied upon a notional, albeit unexpressed, claim that she was not in sufficiently good health to conduct her appeal, I refer to my above remarks concerning the materials that were put before me and, as well, concerning the report of Dr Cayley. She tendered on the review careful and detailed submissions which had been prepared by solicitors and settled by counsel. There was no indication in either of Dr Cayley’s affidavits as to when it might be that the applicant would be fit to attend court and, in all the circumstances, having regard to the requirements of s.38(7)(e), I considered that the interests of justice were best met by refusing the adjournment, but receiving the applicant’s written submissions as her case on the review.
I turn then to the merits of the application.
There can be no doubt that the progress of this matter to judgment in the Magistrates Court was an unusual one, and for these reasons.
(1)The magistrate elected to proceed with the hearing in the absence of the applicant (albeit that she had a solicitor present in court whilst it proceeded). Having heard the evidence of the two respondent witnesses and asked most of the questions himself, he then directed that copies of the transcript be sent to the applicant for her attention. When later, on 25 August 2003, the applicant attended the resumed hearing, she was afforded the opportunity to cross‑examine the respondent. She declined that opportunity, albeit that she later did ask some questions of Ms George in the course of what became something of an open forum. The applicant and respondent asked each other questions, then Hatchman was asked some further questions. There can be no doubt that the magistrate did not specifically invite the applicant to herself ask questions of Hatchman. Having said that, however, the magistrate did put to Hatchman what I apprehend to be the applicant’s primary contention with respect to him, that she at no time approached him for money. He denied it.
(2)The magistrate received into evidence the affidavit of Osborne proffered by the applicant and, indeed, I was called upon to receive and consider a further affidavit from Osborne, which I did. Neither of the parties, in particular the applicant herself, had sought to bring Osborne to court on this second occasion and the magistrate considered whether he should have him brought. He then chose instead to telephone him, apparently at his place of work. The transcript discloses a conversation with Osborne which opens with a claim that he cannot hear properly, but then appears to proceed on loudspeaker phone without interruption or any apparent misunderstandings. In particular, after his opening remark, Osborne neither suggests that he has trouble hearing what is going on, nor that he is being pressured to get off the phone. He is asked questions by the magistrate and by the applicant. On the face of the record, it is plain and I am satisfied that he knew what was then occurring.
The statutory regime for the determination of minor civil claims envisages (s.38(1)) that:
“(a)the trial will take the form of an inquiry by the Court into 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;
(c)the Court may itself call and examine witnesses;
(d) the parties are not bound by written pleadings;
(e) the Court is not bound by the rules of evidence;
(f) the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.”
Whilst the two procedures adopted by the magistrate and outlined above would be quite inappropriate in ordinary civil proceedings, having regard to s.38(1), I am not persuaded that the magistrate erred in the manner in which he conducted this hearing. He was entitled to inform himself by “inquiry”, to “call and examine witnesses”, he was not bound by pleading or evidentiary rules and was overall bound to act “according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.”
Although the applicant was not present when the respondent’s two witnesses gave evidence, she was given access to the transcript and they were present at court on the following occasion. She had the opportunity then to cross‑examine the respondent and at first chose not to. There followed a free exchange of questions between each of them and then some further questions asked of Hatchman. I have already commented upon this. Otherwise, the essence of the dispute between respondent and applicant was whether the respondent had dealt with the applicant or Osborne over the loan.
Further to that, I am satisfied the magistrate was entitled to pursue and obtain unsworn evidence from Osborne by a telephone call. The matter had by then been listed for a second time, he had not appeared on either occasion but had, on the second occasion, sought to have his version put before the court in an affidavit form, his evidence was important and the interests of justice and expedition of the dispute, along with the s.38(1) criteria, justified the magistrate acting as he did.
I turn then to the individual grounds of the applicant.
Ground 2.1
The allegation that the magistrate failed to provide procedural fairness, natural justice and a fair trial really goes to the root of the review application and I will deal with it in my overall reasons.
Ground 2.2
This ground is not particularised, either as to the alleged unfairness (if it is meant to be additional to any of the other grounds pleaded) or as to the additional evidence which the applicant was prevented from leading (if it is not otherwise dealt with in the existing grounds). To that extent, I am not prepared to deal with it otherwise than in a general sense in reviewing the whole matter.
Ground 2.3
There was no evidence before me, nor, so far as I am aware, before the magistrate, as to whether either party had provided lists of documents. If, indeed, it occurred that the respondent did not provide such a list of documents, I am not persuaded that, in all the circumstances and having regard to s.38, she was under any procedural or other obligation to do so. The applicant was represented by solicitors and she does not seek to assert that her solicitors sought discovery and that it was not provided. In any event, given the delay in the hearing, the applicant had an opportunity to take advice about the three documents that were tendered and relied upon by the respondent. She did not seek to challenge the bank documents and, as to Exhibit P1, she sought to respond to it by herself tendering an affidavit of Osborne dealing with it, instead of calling him. I am not satisfied this ground is made out.
Grounds 2.4 to 2.8
These grounds go to the heart of the dispute and I will deal with them in my general remarks.
Ground 2.9
Plainly, the action turned principally upon the evidence of the respondent as opposed to that of the applicant, but it would be wrong to say that there was no corroboration of the respondent’s account. She was supported, at least in part, by the evidence of Hatchman to the effect that the applicant had first approached him for a loan, by the two bank statements, which were consistent with her claim to have repaid $5,000 to Hatchman and her receipt of the $1,000 repayment from the applicant, and by the document Exhibit P1.
I will deal with the admissibility of P1 at a later point, but Hatchman’s claims as to the manner in which it came into existence were, at least in part, supported by Osborne, who acknowledged that he was asked to write something down about the matter and that he signed a letter, and by the applicant herself, who said that the handwriting on it appeared to be similar to Osborne’s.
There was thus some documentary evidence, albeit going to peripheral matters, which had the capacity to support the respondent’s claim.
Ground 2.10
The evidence of the applicant’s medical condition which was first placed before the magistrate was by way of a letter of Dr Cayley of 3 June, where the opinion was expressed that the applicant was “not well enough to attend court at this time. I would appreciate it if arrangements can be made for someone to attend in her place ... At this time I cannot indicate when Ms. Hamilton‑Smith would be able to attend in person ...”
The magistrate, correctly in my view, did not regard that as a sufficient basis for an adjournment of the initial hearing and when the matter came back on before him on 25 August 2003, an affidavit of Dr Cayley of 22 August 2003 had been filed foreshadowing that the applicant would attend court. On the resumed hearing on 25 August, the magistrate enquired of her whether she was in a position to give evidence and she said she was. He emphasised that he was not wishing to put pressure on her, but she said she was prepared to proceed. In those circumstances, I am not persuaded that he erred in allowing the matter to proceed from that point, nor does the transcript of proceedings disclose any apparent disability, distress or ineptitude on the part of the applicant as that hearing went on.
Ground 2.11

I am not persuaded that the magistrate acted improperly in receiving into evidence the letter said to have been written by Osborne, and for these reasons:
(1)on Hatchman’s evidence, it was written out and signed by Osborne in his presence and then given to him and the respondent. At that point, its contents were not admissible per se, but nor is it apparent the magistrate so regarded them;
(2)the applicant herself did not bring Osborne to court to deny or explain it, but instead sought to rely upon his affidavit filed on 18 August 2003;
(3)the document was put to the applicant in the course of her evidence and she expressed the opinion that the handwriting was similar to Osborne’s;
(4)Osborne himself, in his unsworn evidence, agreed that he had “signed a letter at one stage”, albeit claiming that it was “under duress” and that it occurred when the respondent and Hatchman came to see him. He went on to say it was “only a draft of what she wanted”.
In all the circumstances, and in particular in the exercise of his powers under s.38(1), I am satisfied that the magistrate was ultimately entitled to receive into evidence that letter and did properly so receive it.
Ground 2.12
The impugned evidence was, of course, hearsay, but that does not disentitle the magistrate to take account of it (s.38(1)). For all that, I am not persuaded that he did so in making his findings. He does not say that and, indeed, appears satisfied with having gained access to Osborne via his affidavit and the telephone call. True it is that Osborne had denied, in his filed affidavit, that he refused to come to court on the prior occasion for the reasons stated by the respondent, but he was not tested on that in the telephone conversation and I am far from persuaded that this aspect of his evidence was treated by the magistrate as material.
At all events, it seems, from the manner in which the matter proceeded, that Osborne was, indeed, for one reason or another, reluctant to come to court. He did not come with the respondent on 17 June 2003, nor with the applicant on 25 August, nor did he come on either occasion when the matter was called on before me. Each time, the applicant sought to introduce his evidence by means of an affidavit.
Ground 2.13
This submission relies upon an alleged conflict between the evidence of Hatchman and that of the respondent as to their purposes in visiting Osborne at his Coromandel Valley butcher shop.
The quoted passages do not represent the whole of the evidence. In particular, at pages 25.30 through to 26.17, Hatchman explains that he and the respondent went to see Osborne because the applicant was not responding to demands for repayment of the money. That evidence needs to be seen, as well, against the background that, by all accounts, the parties well knew (and, indeed, it became common ground) that the vehicle which had been the subject of the outstanding residual payment had been registered in Osborne’s name. The respondent was herself challenged by the applicant at page 26.25 to 26.27 and she responded: “I never approached Don for the money because I never gave it to him that was –”. Further, it appeared that at the time the loan was made, the applicant and Osborne had some kind of continuing business and personal relationship.
Viewed against that background, I do not regard the quoted passages of evidence as being in conflict.
Ground 2.14
This paragraph points to what is, prima facie, a conflict in the evidence between the respondent and Hatchman as to how the respondent accessed the $5,000 she said she paid to the applicant. On the respondent’s account, Hatchman gave her cash in the sum of $5,000, she did not tell him what the money was for, but she thought he would have been aware what it was for because the applicant had previously asked him for a loan. On Hatchman’s account, he returned from interstate to find that the money had been taken from the safe, to which the respondent herself had access, and when he found out about it he was not happy. In consequence of his concerns, the respondent repaid him the money from her own funds.
This inconsistency in the evidence is, indeed, not reflected in the magistrate’s reasons and I have considered its implications. In the end, I am not persuaded that it is a material conflict, for these reasons:
.in giving her account of things, the respondent was speaking of an incident that had occurred some two and a half years previously;
.in her evidence, the respondent was challenged about Hatchman simply giving her $5,000 in cash and she responded (at 4.2), “It was a long time ago –”, inferring, as I take it, that the details of how she came to acquire it were not fresh in her mind;
.if Hatchman’s evidence is accepted at face value, he and the respondent both had access to the safe where the cash was kept and hence it would not have been a matter of particular note or concern that the respondent had simply chosen to remove the cash. His concern was rather the use to which she had put it, that is, “lending friends money” (T11.26). That view of the evidence is consistent with the respondent’s decision to repay him that amount soon afterwards.
In that context, it does not strike me as remarkable that one or other of the respondent or Hatchman is not clear on the exact circumstances in which the respondent accessed the $5,000. They are consistent at least to the extent that the cash belonged to Hatchman, that Hatchman might not have been fully aware at the time it was given or taken (as the case may be) of its intended use and that, because of his concern about the making of the loan using his moneys, the respondent chose to soon afterwards repay him.
Grounds 2.15 to 2.17
These grounds collectively challenge the magistrate’s decision to take evidence from Osborne by speaker telephone. That decision needs to be viewed in these contexts:
(1)Osborne had not been present when the matter was first called on for hearing before him on 17 June 2003. The respondent said she had asked him to come, but he could not (whatever may be said of his suggested excuse);
(2)After that hearing, Osborne had been provided with copies of the pleadings and the transcript of 17 June 2003.
(3)Notwithstanding that the applicant had chosen to attend court and present her case on 25 August 2003, she had not sought herself to call Osborne and was instead seeking to rely upon his affidavit which had been filed the week before. When asked whether he was available as a witness, the applicant replied, “I didn’t think to ask him, to be honest with you” (T16.11). In considering that answer, I keep in mind that the applicant had been continuously represented by solicitors from the time of filing her defence.
(4)In the nature of these proceedings, I do not consider it was incumbent upon the magistrate to afford the applicant another adjournment in order to call Osborne, as he had put his version of events on record in the filed affidavit which the magistrate had elected to receive. In the context of the provisions of s.38(1), I am not persuaded that the magistrate erred in electing to make a telephone call to Osborne for the purposes of discussing the matter further with him on an open line, albeit that it was not under oath. It was perhaps an unusual course to adopt, but it really flowed from the applicant’s own conduct in seeking to put Osborne’s evidence before the court in the form of an affidavit, without calling him. On her account, they remained on friendly terms so her reasons for not bringing him to court must be called into question.
As to the particular objections in paragraph 2.17, I am not persuaded by any of them. True it is that Osborne’s initial response was to say he could not hear, but it is evident to me from the manner in which the conversation then proceeded that he responded to the questions subsequently put to him by the magistrate and the applicant in such a manner as to demonstrate he had heard and understood what was asked of him. He was told that he was on a speaker phone and that what he said would be recorded and I am not persuaded there is anything in any of the transcript which indicates to me any apparent misapprehension or misunderstanding of what he was being asked about.
Somewhat remarkably, having expressed dissatisfaction about this aspect of the magistrate’s conduct of the proceedings, instead of bringing him before me personally on the review application, the applicant once again sought to put his evidence before me by means of an affidavit.
I have considered the contents of that affidavit. Osborne complains of a lack of awareness of his situation in dealing with the phone call, of the noisy, busy and pressurised work environment in which he was placed and of being confused about what was being put to him. Apart from his initial comment about hearing, none of those complaints emerge from the transcript of the conversation.
He repeats in his later affidavit that the borrowing was his, and for an amount of $3,000 only, and proffers: “I thought that I was being asked questions about who had arranged the original loan finance for the Ford Probe which loan finance had in fact been arranged by the Applicant” (paragraph 4.5).
In the first place, as I have already observed, his responses to the questions put to him by the magistrate and, indeed, the applicant, disclose no apparent confusion about what he was being asked. Secondly, I should say that his explanation that he thought he was being asked about “original loan finance” is totally at odds with the content of the telephone transcript. It is as plain as can possibly be that that discussion was about the surrendering of the vehicle and the liability to pay out a residual sum, and his attempt to explain it in another way in paragraph 4.5 of his later affidavit simply enlarges the grave doubts I have about his credibility generally.
Ground 2.18
There is no doubt that Osborne said that the respondent (in the quoted passage) wanted money from him (when the visit to his shop occurred), but that response has to be seen in the context of his saying that the payout of the residual sum had been organised on his behalf by the applicant (a statement quite consistent with and, indeed, strongly corroborative of the respondent’s account), that he had not previously been asked to pay the money back, that the respondent and Hatchman approached him to give evidence about the matter (which I infer was to be in support of their claim that the debt was owed by the applicant) and that he apprehended that the respondent wanted the money from him because the car had been in his name (albeit, as he said, that the applicant had arranged the borrowing “to pay out my debt”) (T31.25).
Viewed in that light, I am not persuaded his evidence was consistent with his affidavit.
Grounds 2.19 and 2.20
Those grounds go to the general issue which I will discuss at the conclusion of my reasons.
Ground 2.21
I am satisfied that it was open to the magistrate to make a finding in those terms and, indeed, my own observations about the credibility of Osborne, in particular relating to paragraph 4.5 of his affidavit of 23 October 2003, are consistent with that observation. In the telephone discussion, Osborne, in the plainest possible terms, says that the applicant arranged the loan for him and that he did not “borrow it from anyone” (T31.26).
He was then asked questions by the applicant going directly to that matter and, at T32.10:
“Q.The money that was borrowed was to pay out the Ford Probe, you borrowed it, I didn’t.
A.Yes for me, as I said it was for me, you are right.”
That answer seemed to me to be a prevaricating one, as, indeed, did his answer at line 28:
“Q.I never approached John Hatchman nor Heidi for the money.
A.Well as I said it was a long time ago I’ve completely forgotten what happened, as I said it’s nearly three years ago. See I know I had to get rid of the car so I’ve forgotten, completely forgotten.”
then, in answer to the magistrate at line 35:
“Q.You signed an affidavit here, how did that happen, that’s got a different version now from what you are now telling her.
A.No, well I had borrowed the money but as I said it was a few years ago but I did – it was for me, the money was for me, it was for my car.
Q.But it was actually paid to Ms Hamilton‑Smith if it was a loan at all and she then gave it to the finance company.
A.Well it was in my account name I think, I think it was in my account name, I’m not sure, I know that a thousand dollars was paid out of my wages.”
The prevarication is manifest.
Ground 2.22
There is but a grain of merit in this objection. Plainly, Hatchman was not present during the respondent’s principal evidence and this emerges from page 9 of the transcript. At page 23 of the transcript, the magistrate invited the respondent to cross‑examine the applicant, but as that cross‑examination proceeded, it became a series of questions and answers between those two parties, in the course of which the respondent proffered some further evidence. Much of that further evidence bore no relationship to the alleged involvement of Hatchman in the history of the matter, but it is correct to say that some of it related to the visit of the respondent and Hatchman to Osborne at his butcher shop. It formed part of what might I have called an open discussion in court involving the magistrate, the applicant, the respondent and Hatchman.
Having said that, it is not apparent that there is any matter of substance arising out of that discussion that was not advanced in the prior evidence of the respondent and Hatchman. I am not satisfied this ground raises any matter of substance.
Ground 2.23
It is a valid criticism that the magistrate did not specifically invite the applicant to cross‑examine Hatchman. At the same time, the relevant part of Hatchman’s evidence as to the applicant’s claimed approach to him for the loan was squarely put to the applicant and she denied it, and the transcript from T27.26 through to T28.12 discloses some discussion about that issue. Beyond putting to Hatchman that his evidence as to that approach was false, it is difficult to see what else the applicant might have asked him because, on her account, she played no part in any of the dealings concerning the loan, apart from the $1,000 repayment and nor was she present at the Osborne visit, nor did she ask the respondent questions about it.
I am not satisfied that this ground raises any matter of substance.
Generally
I turn then to the general grounds of appeal, a consideration of which I have deferred in my discussion of specific matters.
I have kept firmly in mind the provisions of s.38(1). Whilst they enable the court to conduct its inquiry without being bound to comply with ordinary evidentiary and procedural rules, that is not to say that the court should not have any regard to them. It should use them as far as appropriate so “as to achieve substantial justice” (cf The King v The War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228 at 256). I apprehend this to mean that the court is encouraged to adhere to ordinary procedures and principles so far as is reasonably possible, but to take into account the provisions of s.38(1), the fact that the hearing is not adversarial, but inquisitive, that the parties are for the most part unrepresented and unfamiliar with the laws of evidence, and that it is desirable the dispute be disposed of without undue formality, with reasonable dispatch and in compliance with the overriding concerns of equity, good conscience and the substantial merits of the matter.
In the context of this matter, upon the initial hearing the magistrate found he was not satisfied that there was any proper ground for an adjournment, but he then took steps which were designed to alleviate any prejudice or embarrassment to the applicant in not being present. Noting that she had a solicitor present in court, albeit he did not appear formally, he proceeded to take evidence‑in‑chief from the respondent and her witness and then arranged for that evidence to be sent to the applicant. The applicant thus had the opportunity to consider and consult with her legal advisers about the hearing and that transcript and, despite the expressed concerns of her psychologist, she chose to attend on the resumed hearing and represent herself.
She was afforded the opportunity to cross‑examine the respondent and, whilst she was not specifically invited to cross‑examine Hatchman, for reasons expressed above I am not persuaded that she suffered any substantial prejudice arising out of this. For her own reasons, but against a background of legal representation, the applicant chose not to bring Osborne to court with her, but instead to seek to rely upon the contents of an affidavit sworn by him and previously filed in the court. Plainly, Osborne was a very material witness in the applicant’s case and a party whom the court would ordinarily expect she would call. The magistrate was, however, entitled, under s.38(1), to so receive that affidavit and I keep in mind that that was pursuant to the applicant’s own implied request. Having done so and in the face of what was said by Osborne, he considered it appropriate to “inquire” further into the matter and he chose to do so by telephoning Osborne and putting him on an open line. Of course, he might have adjourned the matter to hear further from Osborne, but against that, it had twice been called on and it was plain to him that Osborne was not being brought forward to give oral testimony.
The applicant had herself sought to adduce his evidence, which was vital to her case, by the simple tender of an affidavit and, in all the circumstances, I am persuaded the magistrate acted according to equity, good conscience and the substantial merits (s.38(1)) in deciding to open that evidence to further examination by establishing the telephone link. Viewed from that perspective, it does not behove the applicant to complain of informality.
I turn then to the magistrate’s assessment of the weight of the evidence.
There was a small issue as to the amount of the loan, however made. The respondent said it was for $5,000 and Osborne said it was for $3,000. There was ample evidence supporting the respondent’s account and it came from Hatchman, the respondent’s own bank transaction record and the failure of the applicant to challenge the respondent as to that amount and Exhibit P1, which Osborne ultimately acknowledged but claimed to have completed “under duress” (T30). It appears to me that it is one thing to say that he acted under duress in asserting that the borrower was the applicant and quite another to misidentify the amount involved as $5,000. All in all, I am satisfied that there was ample evidence before the magistrate on the basis of which he could find that the loan was for an amount of $5,000.
As to who was the borrower, the applicant and the respondent obviously gave conflicting accounts and there was evidence which, if accepted, was capable of corroborating each conflicting account. From the applicant’s viewpoint, that corroborating evidence was the affidavit evidence of Osborne containing his claim that he had borrowed the money and not her. In so far as such evidence was challenged by the existence of the document P1, the applicant sought to rely upon Osborne’s claim that he had been misled and pressured into executing it. In so far as it was challenged by the contents of the telephone connection between Osborne and the court, she said that the court should not have proceeded in that manner and, in any event, should have taken proper account of a claim by Osborne that he could not hear what was going on and misapprehended the nature of the line of questioning.

For her part, the respondent’s case was potentially corroborated by these factors:
(1)the evidence of Hatchman that the applicant had personally approached him in the first place for a $5,000 loan;
(2)the document P1, which she said was executed and given to them by Osborne;
(3)the unchallenged fact that it was the applicant herself who made the first repayment of $1,000; and
(4) the contents of the telephone conversation between Osborne and the court.
The magistrate found, on the balance of probabilities, that Hatchman was a relatively independent witness and he accepted what he had to say. Further, he found that Osborne had discredited himself by giving evidence (unsworn) that conflicted with his affidavit filed in court.
I can see no reason to disturb the magistrate’s findings and, indeed, in light of the material that has come before me from Osborne, there is even more reason to uphold them.
Having concluded that the magistrate was, in the circumstances, entitled to proceed as he did in having the open telephone connection with Osborne and having regard to his unsworn evidence, it is plain that, on any account, Osborne not only was quite aware of what he was responding to, but that he contradicted what he had earlier said in his affidavit. The explanation he then gave appeals to common sense, anyway. Plainly, the car was his and, plainly, he had the liability to repay the residual, but he was saying that he asked the applicant if she would assist him to borrow the moneys to repay that residual. That is quite consistent with what the respondent says the applicant did in first approaching Hatchman and then her. The fact that the applicant also repaid the first instalment of the loan, from whatever moneys, also supports this.
Had there been any doubt about the magistrate’s findings as to Osborne’s credit, it was dispelled, in my view, by the contents of his later affidavit, when he proffered, as I find them to be, unconvincing, bordering on farcical, explanations about the telephone conversation. It is a matter of significance, too, that when the applicant has had the opportunity to call or seek to call Osborne as a witness, she has avoided it, preferring to rely upon affidavit material.
All in all, for the reasons expressed, the application to review the magistrate’s decision is refused and it is affirmed.

[2003] SADC 157

27 November 2003