Honey v Malbren Pty Ltd
[2009] TASSC 44
•10 June 2009
[2009] TASSC 44
CITATION: Honey v Malbren Pty Ltd [2009] TASSC 44
PARTIES: HONEY, Stephen
HONEY, Tania
v
MALBREN PTY LTD t/as GILES ELECTRICAL
CONTRACTORS
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: 140/2009
DELIVERED ON: 10 June 2009
DELIVERED AT: Hobart
HEARING DATE: 21 May 2009
JUDGMENT OF: Tennent J
CATCHWORDS:
Magistrates – Appeals and review – Tasmania – Appeal from decision in respect of minor civil claim – Refusal of magistrate to allow party to re-open case – Circumstances where discretion to refuse will be interfered with.
Magistrates Court (Civil Division) Act1992 (Tas), s28.
Footersville Pty Ltd v Miles (1986) 4 SASR 211; Murray v Figge (1974) 4 ALR 612, followed.
Aust Dig Magistrates [270 – 274]
REPRESENTATION:
Counsel:
Appellant: D Grey
Respondent: K Stanton
Solicitors:
Appellant: Zeeman Kable & Page
Respondent: Shields Heritage
Judgment Number: [2009] TASSC 44
Number of paragraphs: 18
Serial No 44/2009
File No 140/2009
STEPHEN HONEY and TANIA HONEY v MALBREN PTY LTD
t/as GILES ELECTRICAL CONTRACTORS (ACN 072 645 008)
REASONS FOR JUDGMENT TENNENT J
10 June 2009
The respondent filed two minor civil claims in the civil division of the Magistrates Court. By those claims, it sought to recover payment for electrical work it had carried out on the appellants' home. The claims were heard together by a magistrate and, subject to one small adjustment, the respondent was successful in obtaining a judgment for what it claimed.
Neither party was represented at the hearing before the learned magistrate. During the course of the hearing, Mr Honey questioned witnesses and cross-examined the respondent's representative, Mr Giles. When he did so, he made reference to a number of photographs, at times showing them to the witnesses. I infer from the transcript of evidence that Mr Giles had already seen the photographs. However, Mr Honey did not formally tender the photographs into evidence. The hearing was conducted on 24 November 2008. At the conclusion of the hearing, the learned magistrate reserved his decision to 15 December 2008.
As I understand from the material put before this Court, very shortly after the hearing concluded, Mr Honey contacted the Magistrates Court and indicated that he had meant to hand up a document during the hearing but that he had overlooked doing so. That document was in fact a folder, the first page of which was entitled "List of Grievances – Re Giles Electrical Work". It contained the photographs which Mr Honey had used in the hearing, invoices and a summary of the appellants' complaints. According to Mr Honey, when he contacted the court, he was told to send the folder in, and he did so. When the matter came back before the learned magistrate on 15 December 2008, the following exchange occurred:
"HIS HONOUR: Now Mr Honey you've caused me something of a problem in that you sent in a list which I think was entitled 'List of Grievances', is that correct?
MR HONEY: Ah the information that we had, that's correct.
HIS HONOUR: Yes, you sent it in after the hearing?
MR HONEY: That's right, I misunderstood what was to happen and left it there on the desk.
HIS HONOUR: Well it's caused me great difficulty because I can only proceed on the basis of the evidence that was before the court and that was not received by the court as evidence, it's something you later, had an afterthought about it I suppose, and decided to send in, that isn't the way things work. It doesn't work like that for the very reason, I haven't read it by the way, except to note the top piece which says, 'List of Grievances', I think, which I took to be grievances against how Mr Giles did the work.
MR HONEY: Correct.
HIS HONOUR: Basically. Now if you want to rely on that I'm going to have to reopen this case again at some future date. You're also, if, I don't know what's in this document, it wouldn't have been proper for me to read it, but if it deals with specific complaints, which I suspect it does given the volume of it, does it?
MR HONEY: It was the information that we'd discussed in the court, and –
HIS HONOUR: No, does it deal with specific complaints about the workmanship?
MR HONEY: Yes it does. Correct your Honour.
HIS HONOUR: Right. Well I would suspect also that you would need to get your expert to go through it and deal with each specific matter so that he can give an opinion on it. Also Mr Giles should have a chance to comment on what these complaints are that you've listed and therefore you should give him a copy so that at least he's informed about what the specifics are. Are you with me?
MR HONEY: I understand you, yes.
HIS HONOUR: Right. And then I'll reconstitute the court, resume the hearing, take this further evidence, and then give a decision. Now either I do it that way or I say 'no it's too late you had your chance to put in these complaints and you didn't', and I'll proceed to make a decision on what evidence there is before the court. So which course – I imagine Mr Giles would want me to take that course?
MR GILES: Well Mr Honey has just indicated it was matters we'd discussed in court, your Honour, and –
HIS HONOUR: Well I don't know that because I haven't read the document and does it go any further than that which was raised in court?
MR HONEY: No, your Honour, it was the same information and the photos etc that we had during the court, but I had two copies and at the conclusion I'd realised that it was left up on there, and that's why I rang the next day or the day after to ask whether that was proper –
HIS HONOUR: Has Mr Giles ever had a copy of this document?
MR HONEY: He's certainly been well aware, as far as it's entirety –
HIS HONOUR: Please answer the question. Has he ever had a copy of it?
MR HONEY: Not in the fullness, no.
HIS HONOUR: You can provide him with a copy?
MR HONEY: I can, yes, your Honour.
HIS HONOUR: Please. And you can do that before Christmas. I will see if I can find a date now for resuming this hearing. Sometime in January if possible, late January probably. Right, the matter is adjourned for further hearing to the 29th January at 9.45. Mr Honey let Mr Giles have a copy of that document, a faithful copy of it. If you want to respond to that you can put your response in writing and let Mr Honey have a copy of that response. And if that could be attended to before the 29th January and we'll resume the matter then. So I'm sorry to disappoint in not being able to give a decision but it's for that reason."
The matter was adjourned to a date at the end of January. According to the learned magistrate, the further date allocated was for the purpose of "resuming this hearing" and for a "further hearing". It can be seen that the learned magistrate then asked Mr Honey to let Mr Giles have a copy of the document, invited Mr Giles to respond to it in writing if he wished, and told Mr Giles to give Mr Honey any written response he prepared. The learned magistrate then told the parties that he would resume the matter on a date at the end of January. On 29 January 2009, the following exchange occurred between the learned magistrate and Mr Honey:
"HIS HONOUR: Well Mr and Mrs Honey did you wish to pursue that extra material you sought to put before the court or not?
MR HONEY: Yes please.
HIS HONOUR: Right. What is it going to add?
MR HONEY: Beg your pardon?
HIS HONOUR: What is it going to add to the evidence I've already heard?
MR HONEY: It basically just reinforces the information that we've –
HIS HONOUR: I'm not interested in anything just being reinforced, is there fresh material or is it the same material?
MR HONEY: The material that was submitted was the same.
HIS HONOUR: The same?
MR HONEY: Yes, correct.
HIS HONOUR: Right. Well I can't allow it in that case because if it's the same it's just going over ground that has been dealt with.
MR HONEY: It goes into greater detail with regards to the accounts etc which was discussed.
HIS HONOUR: Well why should you be given a second bite of the cherry, so to speak? You had your chance to give your evidence, you've done that. You know, the courts are interested in bringing proceedings to an end rather than having them go on for ever and ever. And that's why there's a rule such as that, that once the evidence is completed, that's it, you can't come back and try and introduce even fresh material. But you tell me this isn't fresh material, it may go into greater detail but essentially it's covering the same ground as that which was covered in the evidence. Is that fair to say?
MR HONEY: In the main, correct, but it helps identify the breakdown because it's hard to give for example the –
HIS HONOUR: Well you had your chance to put that in, in evidence, during the hearing and you didn't do it then.
MR HONEY: I understand that, but I didn't realise at that time that it actually got left behind.
HIS HONOUR: No I am not going to allow it, there's no justification for it, nor I think would it be fair and part of my duty is to ensure a fair trial between the parties, nor do I think it would be fair to the claimant. So it's not really going to take this matter further from your point of view it would seem to me.
MR HONEY: From my point of view I believe that it would clarify it considerably because as we discussed the information in the courtroom I was questioning Malcolm Giles with regards to the information that we talked about, but at no time did you see those pictures, so that reinforces the information that we'd discussed.
HIS HONOUR: Well reinforcing and so on, they're not legal terms. No I am not going to allow it. So are you ready if I give a decision now?
MR HONEY: At this stage are we allowed to introduce any other information as we discussed with regards to –
HIS HONOUR: No because, Mr Honey, don't you understand that the evidence has been given, people have been cross-examined upon the evidence they've given and the cases, your case and the claimant's case has concluded, over and done with, and I deal with the matter on the evidence as it is before the court.
MR HONEY: I apologise for inconsistencies with the procedures of the court being unfamiliar with how the procedure and hence why that phone call that I made the day after to clarify and to see whether that was okay for me to present that information, at that point I got a phone call back that indicated that it was fine, they apparently had talked to you, it was my understanding, and that is why I handed the –
HIS HONOUR: Well I was certainly wrong about that, if I said that, we're all capable of making mistakes and if I said that then certainly I was in error –
MR HONEY: And that was the only reason –
HIS HONOUR: In that the evidence had concluded.
MR HONEY: That I submitted it on that basis because I did ask.
HIS HONOUR: Well you're using terms like it reinforces things, it goes into greater detail, it – and so on. No I'm not going to allow it, that's my ruling. All right. So I will give a decision here and now shall I?
MR HONEY: What options do we have, is there –?
HIS HONOUR: Well you don't have any.
MR HONEY: Well that –
HIS HONOUR: You don't have any, this is a final judgment."
His Honour then gave a very brief judgment.
On 24 February 2009, the appellants' solicitors filed a document entitled "Notice To Review", by which they sought to review the learned magistrate's decision. No issue was taken at the hearing before this Court that the notice to review should have been a notice of appeal, since this could only have been an appeal from the learned magistrate's decision under the Magistrates Court (Civil Division) Act 1992 ("the Act"), s28, or that the appeal was out of time. An order was made by consent extending time for the filing of the appeal, and the notice to review was treated as a notice of appeal.
The grounds of the appeal were in the following terms:
"1 The learned Magistrate erred in law in that he did not provide the Applicants with natural justice, specifically he denied them the opportunity to tender documents and photos which the Applicants had cross-examined the Respondent/Claimant upon.
2The learned Magistrate erred in law in failing to exercise his discretion to allow the Applicants to re-open when:
(a) The Claimant/Respondent did not oppose such application to re-open;
(b) The Claimant/Respondent did not assert any prejudice;
(c) The materials sought to be tendered had been made available to the Claimant/Respondent and had been cross-examined upon;
(d) The matter before the Court was a minor claim and the Applicants were not represented by Counsel;
(e) Section 31AB of the Act (Magistrates' Court (Civil Division) Act 1992) provides that the proceeding is to be conducted with as little formality and technicality and with as much expedition, as the requirements of this Act, the Rules of Court and a proper consideration of the issues in dispute permit."
The appeal was confined to the issue of whether the learned magistrate made an error in failing to allow the appellants to re-open their case and tender the document entitled "List of Grievances". The emphasis was on the appellants' inability to tender the photographs contained within the relevant folder. There were no other bases for the appeal. Counsel for the appellants was given an opportunity to consider whether his clients might wish to amend their notice to include further grounds. He discussed that issue with his clients, and advised the Court that he was not instructed to seek to do so.
The appeal was argued in the context of some authorities dealing with circumstances in which a party might be permitted to re-open their case, and the type of proceedings in which the application to re-open was made. These were minor civil claims. The Act, s31AB, sets out the procedure for such claims. It provides that:
"31AB Procedure for minor civil claims
(1) The following provisions apply to a proceeding in respect of a minor civil claim:
(a)the Court is not bound by the rules of evidence but may inform itself on any matter in any manner that it considers appropriate;
(b)the Court may 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 proceeding is to take the form of an inquiry by the Court into the matters in dispute between the parties rather than an adversarial contest between the parties;
(d)the Court may itself call and examine witnesses;
(e)the Court may, at the expense of the Crown, appoint a person to inquire into, and report upon, any question of fact arising in the proceeding;
(f)the proceeding is to be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act, the rules of court and a proper consideration of the issues in dispute permit."
Clearly what the provision intends is that minor civil claims be dealt with expeditiously and with as little formality as is possible.
As to relevant authorities, counsel for the appellants referred to two in particular in support of his submission that the learned magistrate erred. The first was Footersville Pty Ltd v Miles (1986) 41 SASR 211. Legoe J there dealt with an appeal from a refusal by a magistrate to allow a party to re-open its case. He allowed the appeal and, in doing so, referred to a decision of Muirhead J in Murray v Figge (1974) 4 ALR 612, dealing with a similar matter, which was the second case to which counsel referred. In Murray's case, Muirhead J, after canvassing a number of authorities, set out three tests he determined were applicable to this type of application. These were whether the fresh evidence sought to be admitted was so material that the interests of justice required that it be admitted, whether the evidence, if believed, would have affected the result, and whether the evidence could not have, by reasonable diligence, been discovered before. His Honour also dealt with the issue of inadvertence of counsel in failing to tender material before closing. His Honour said that he would also consider admitting evidence, where inadvertence was clearly established, the evidence was admissible, and could be admitted on conditions which ensured no prejudice to the other party by reason of its introduction so late in time, and provided always that the interests of justice required it to be admitted.
In Footersville, Legoe J said at 213 that he was satisfied that the discretion of a magistrate to refuse to allow a party to re-open should only be interfered with in the clearest of cases.
The learned magistrate in this case refused to permit Mr Honey to re-open the appellants' case for the purpose of tendering the folder. His reasons for so doing could be summarised as follows:
-the appellants had already had an opportunity to present the evidence,
-the court needed to bring proceedings to an end,
-the material was not fresh evidence,
-it would not comply with his duty to give a fair trial to the parties,
-it would not be fair to the claimant, and
-it really would not take the matter any further.
Counsel for the respondent did not dispute that Mr Honey's failure to tender the material in the first place was through inadvertence on his part. It seems clear that, once he realised his error, Mr Honey acted quickly to rectify it. When the matter came back before the learned magistrate, with respect, it seems to me, from what transpired, that there was no question that the learned magistrate intended to permit the appellants to tender the material. He set up an arrangement whereby the respondent could consider the material and provide a written response if it wished to. The learned magistrate adjourned the further hearing of the matter to allow that to occur. For whatever reason, he changed his mind on the next occasion.
There was no suggestion the material in itself was inadmissible or that, having regard to the provisions of s31AB generally, the material could not have been tendered. There was no suggestion the respondent would in any way be prejudiced were the material admitted. It seems Mr Giles, the respondent's representative, may already have seen the material and he had been given an opportunity to respond to it in writing. The issues really were whether, were the material admitted, would it have made a difference to the outcome of the proceedings, and whether the interests of justice required that it be admitted. The learned magistrate took the view, no doubt based on Mr Honey's description of the material, that the admission of the material would not have taken the matter further and, I infer, that the interests of justice would not be served by its admission.
Both counsel made reference to the material sought to be admitted and made submissions as to whether that material might have impacted upon the final outcome. The list of grievances at the front of the folder was typed by reference to the 37 photographs which followed. Many of those photographs had comments on them. By my count only about 11 of them were actually shown to Mr Giles in court. In relation to what was depicted in those photographs, Mr Giles acknowledged errors had occurred and were shown by some photographs, he did not know what others related to and, as to others, he disputed that they recorded a problem for which his company should be responsible. The rest of the photographs were not the subject of the questioning of this witness by direct reference to them. The issues the photographs were said to highlight were, however, the subject of questioning.
As to the photographs shown to Mr Giles, given his responses, they would not add anything to the evidence. As to those not shown to him, but which are in the folder, the photographs themselves, even with the comments on them, are unlikely to have assisted the appellants. What would have been required in addition would have been evidence from Mr Honey as to what they depicted, and expert evidence as to whether in fact they represented a defect relevant in the case. Mr Honey had called an expert, Mr Williams, and he had taken him through some of the photographs. He did not take him through all of them, which he could have.
As to the other documents in the folder, they included the respondent's invoices which were already before the court, a copy of a defect notice the respondent admitted existed in relation to some work, a letter from Mr Williams about defects, about which he gave oral evidence, and quotes for remedial work. Again Mr Williams gave some evidence about that, as did Mr Honey. There were also some emails between the appellants and Aurora about the defect notice.
While I accept that the manner in which the learned magistrate treated Mr Honey at the end of the proceedings was unfortunate, and while generally his Honour did not perhaps provide to the appellants a decision by which they could have felt their case was considered with thoroughness, in this case, it is not for this Court to interfere with the learned magistrate's discretion to refuse the appellants leave to re-open unless the admission of the material would have made a significant difference to the outcome of the proceedings and it would be in the interests of justice to admit the material. I am not satisfied for the foregoing reasons that the admission of the material would have had any real impact on the outcome. I am also not satisfied that it would be in the interests of justice to allow the admission of the material. It would result in further delay, the appellants would need to lead additional evidence beyond what is sought to be tendered for the material to be of any possible use, and the extra costs would not be justified, given the opportunity the appellants had to present their case in the first instance.
In all the circumstances, the appeal is dismissed.
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