Iacovou v Alphonse - [2021] SADC 27

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
IACOVOU v ALPHONSE & ANOR
[2021] SADC 27
Judgment of his Honour Judge Burnett
19 March 2021
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA
EVIDENCE – ADMISSIBILITY AND RELEVANCY – IN GENERAL – EVIDENCE UNLAWFULLY OR IRREGULARLY OBTAINED
COMMUNICATIONS LAW - SURVEILLANCE AND INTERCEPTION OF COMMUNICATIONS - DEALING IN INFORMATION
The applicant in this Court, Mr Iacovou, sought a review of a minor civil action concerning a motor vehicle accident. Ms Alphonse, the second respondent in these proceedings (and the second respondent by counterclaim in the Magistrates Court), was the driver of the other vehicle. Her husband, Mr Antony, the owner of her vehicle, was the applicant and first respondent by counterclaim in the Magistrates Court. Mr Iacovou had parked his truck, facing in an easterly direction, in a parking lane on Nottage Terrace, about 180 metres from the intersection of Main North Road. Ms Alphonse was travelling in an easterly direction along Nottage Terrace, when the truck driven by Mr Iacovou pulled out into the driving lane and the two vehicles collided. The parties gave different versions of how the accident occurred.
The Magistrate found that Mr Iacovou was primarily liable for the accident. The Magistrate found that Mr Iacovou was 75% liable for the accident and Ms Alphonse was 25% liable. Accordingly, the Magistrate gave judgment in favour of Mr Antony on his claim in the Magistrates Court in the sum of $9,604.49 and gave judgment in favour of Mr Iacovou on his counterclaim in the sum of $2137.
In his Notice of Review, Mr Iacovou raised three broad grounds of complaint. They were:
1. The Magistrate should have accepted his version of how this accident occurred and rejected the version put forward by Ms Alphonse.
2. A recording made by Mr Iacovou of a conversation that he had with Ms Alphonse immediately following the accident should have been admitted into evidence.
3. The Magistrate should have considered and taken into account a letter that Mr Iacovou sent to the Magistrate after the trial which provided evidence of a conversation between Mr Iacovou and Mr Antony about 15 minutes after the accident.
Held:
1. The review is dismissed and the decision of the Magistrate is affirmed.
2. As the review involved matters of credit, it was appropriate for this Court, on the review, to adopt a hybrid approach in which the Court heard evidence from each of Mr Iacovou, Ms Alphonse and Mr Antony, but still had regard to the evidence given and the findings made in the trial.
3. The Court on review therefore was in a better position than an Appeal Court to overturn findings of fact made by the Magistrate as it was able to hear the relevant witnesses and form its own impressions on matters of credit. This Court was therefore not at a forensic disadvantage.
4. The Magistrate was correct in finding that Mr Iacovou was 75% liable for the accident and that Ms Alphonse was 25% liable.
5. The Magistrate was correct to reject the evidence of the recording of the conversation between Mr Iacovou and Ms Alphonse. The evidence was not admissible for two reasons. First, the recording was very unclear and no relevant admissions could be ascertained. It would have been misleading to admit a portion only of the recording. Secondly, the recording was made of a private conversation and not all parties had consented to it being made. In these circumstances, s 4(1) of the Surveillance Devices Act 2016 (SA) (SDA) prohibited its use in these proceedings and in the trial in the Magistrates Court. The exception provided by s 4(2) of the SDA did not apply as the use of the listening device was not reasonably necessary for the protection of the lawful interests of Mr Iacovou. Rather, he sought to obtain a tactical advantage in the event of a dispute arising, as it did, about the cause of the accident.
6. The Magistrate did not err in failing to have regard to the letter sent by Mr Iacovou to the Court after the trial had been completed. If that evidence had been received by the Magistrate, it would have required the re-opening of the case and further evidence from other witnesses. Given that the evidence would not, in any event, have altered the result and that it would have been contrary to the quick and economical resolution of the matter, there was no error in not receiving the evidence. In any event, the issue was superseded because in the review before this Court, the parties all gave evidence and Mr Iacovou gave evidence on the subject matter of the letter.
Magistrates Court Act 1991 (SA) s 38; Surveillance Devices Act 2016 (SA) s 3, 4, 6, referred to.
Harradine v District Court of South Australia [2012] SASC 96; Gillott v District Court of South Australia [2019] SASC 132; Trittenheim Pty Ltd v H & H Gill Nominees Pty Ltd (1994) 63 SASR 434; Griggs v Noris Group of Companies (2006) 94 SASR 126; [2006] SASC 23; Wilczynski v District Court of South Australia [2016] SASC 51; Wilczynski & Anor v District Court of South Australia [2017] SASCFC 102; Lawrence v Sambevski (1996) 189 LSJS 451; Robinson Helicopter Co. Incorporated v McDermott [2016] HCA 22; (2016) 90 ALJR 679; (2016) 331 ALR 550; Thomas & Ors v Nash [2010] SASC 153; Alliance Craton Explorer Pty Ltd v Quasar Resources Ltd [2010] SASC 266, considered.

IACOVOU v ALPHONSE & ANOR
[2021] SADC 27

Civil
Introduction

This is a review pursuant to s 38(6) of the Magistrates Court Act 1991 (SA) of a minor civil action. That action involved a motor vehicle accident in which the applicant in the Magistrates Court, Mr Phelorama Antony (Mr Antony), claimed damages from the respondent, Mr Evangelos Iacovou, in the sum of $11,009.65. The respondent, Mr Iacovou defended that claim and made a counter claim for damages suffered to his vehicle in the sum of $6,273.69. Ms Geo Soosai Alphonse, the wife of Mr Antony, was the driver of the motor vehicle owned by Mr Antony at the time that it was involved in the accident.
Although she gave evidence at the trial, Ms Alphonse was not, at that time, a party to the proceedings. The respondent, after the trial, made an application to join Ms Alphonse as the second respondent by counterclaim. That application was not opposed and Ms Alphonse was joined as the second respondent by counterclaim.
In her reasons, the Magistrate found that Mr Iacovou was 75% liable for the collision and that Ms Alphonse was 25% liable for the collision. As a result of that finding, the Magistrate entered judgment in favour of Mr Antony against Mr Iacovou in the sum of $9,604.49, inclusive of costs and interests on the claim. The Magistrate also entered judgment in favour of Mr Iacovou (who was the applicant by counterclaim) against Ms Alphonse, the second respondent by counterclaim, as the driver of the other vehicle, on the counterclaim in the sum of $2,137.00, inclusive of costs and interest.
Mr Iacovou, the respondent in the proceedings in the Magistrates Court, has sought a review of the decision of the Magistrate, both in relation to the claim and counterclaim.
In his Notice of Review, Mr Iacovou raised the following complaints about the judgment of the Magistrate.
1.The Magistrate did not consider a letter provided by Mr Iacovou after the trial.
2.The Magistrate should have preferred Mr Iacovou’s version of the accident rather than the version put forward by Ms Alphonse and Mr Antony.
3.The evidence of Mr Antony should have been rejected as it was inconsistent with other evidence.
4.The evidence of Ms Alphonse should not have been accepted.
5.The recording that Mr Iacovou made of a conversation that he held with Ms Alphonse soon after the accident should have been admitted into evidence and supported his version of the accident.
There was no complaint about the findings of the quantum of the claim and counterclaim.
Application for Review
This review is conducted pursuant to s 38(6) to 38(9) of the Magistrates Court Act. On this review, the Court may inform itself as it thinks fit and in doing so is not bound by the rules of evidence. The Court may, if it thinks fit, rehear the evidence taken before the Magistrates Court. In hearing and determining this review, the Court must act according to equity, good conscience and the substantial merits of the case, without regard to technicality and legal form. It is important to note that this review is a review of the matter and not a review of the judgment.
Section 38(1) of the Magistrates Court Act sets out provisions which are applicable to the conduct of the minor civil action. These provisions provide as follows:
(1)     The following provisions are applicable to the trial of a minor civil action:
(a)     the trial will take the form of an inquiry by the Court into the matters in    dispute between the parties rather than an adversarial contest between the    parties;
(b)     the Court will itself elicit by inquiry from the parties and the witnesses, and by examination of evidentiary material produced to the Court, the issues in dispute and the facts necessary to decide those issues;
(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.
Sections 38(6) and 38(7) of the Magistrates Court Act require an examination of the inquisitorial process undertaken by the Magistrate to determine whether there had been a trial by the Magistrate in accordance with those provisions. The conduct of a minor civil action must be considered in the context of the statements made by Blue J in Harradine v District Court of South Australia[1] that the role of the Magistrate in such an action is that of an inquirer rather than managing an adversarial contest between the parties.
[1] [2012] SASC 96 at [40].
In Gillott v District Court of South Australia,[2] Peek J discussed the meaning of the phrase ‘equity, good conscience and the substantial merits of the case’ and quoted from the decision of Olsson J in Trittenheim Pty Ltd v H & H Gill Nominees Pty Ltd,[3] in which His Honour noted that the meaning of that phrase must be construed in the context of the nature of the issues involved and, where appropriate, the clear purpose of the relevance of the relevant statute. Olsson J went on to hold that in certain cases the phrase required that the Court should adopt a broad approach of common sense and common fairness, eschewing all legal or other technicality. In Griggs v Noris Group of Companies,[4] White J referred to the phrase in the context meaning good sense and natural justice of the matter. At times, he held the expression that the decision maker was empowered to do whatever he or she might think necessary to achieve fairness between the litigants.
[2] [2019] SASC 132 at [40]-[46].
[3] (1994) 63 SASR 434.
[4] (2006) 94 SASR 126; [2006] SASC 23 at [31].
Given the nature of the minor civil review and its purpose to achieve an economical and efficient disposition of the matter, I consider that the phrase ‘equity, good conscience and essential merits of the case’ is used in the context described above, namely requiring the Magistrate to act according to good sense and the natural justice of the matter and to do whatever was necessary to achieve fairness between the parties in relation to their legal rights, eschewing legal, or other technicalities. Regard must be had to the substance of the claim while ensuring a fair trial including permitting the parties to have an opportunity to address the real issues in dispute.
The decision of this Court on review is final and is not subject to appeal, pursuant to s 38(8) of the Magistrates Court Act.
On this review, I may affirm the judgment of the Magistrate or rescind it and substitute the judgment of this Court or rescind the judgment in its entirety.
Conduct of the Review
In Harradine v District Court of South Australia,[5] Blue J set out the principles that apply to a review by the District Court of a minor civil action. In relation to the relevance of the facts found by the Magistrate, Blue J held:
1.The review is not in the nature of an appeal stricto sensu.
2.The review is not necessarily a hearing de novo in that the Court is entitled to have regard       to the evidence adduced before a magistrate and “may” rehear that evidence.
3.The review is not necessarily an appeal by way of rehearing in that it is a “review” (not an “appeal”), the Court may inform itself as it thinks fit, the Court must act according to       the substantial merits of the case and the Court may rehear evidence without being     confined by the “fresh evidence” rules which apply to appeals by way of rehearing.
4.The Court can tailor the nature of the hearing to the circumstances. In a case where       the review will not turn on findings of fact or credibility of witnesses, the Court might        simply have regard to the evidence adduced before a magistrate and a magistrate’s findings of fact. In a case which does turn on disputed issues of fact or credibility, the Court might simply proceed to hear the evidence afresh.
5.If the District Court concludes that a magistrate made an error vitiating the judgment      and had not made findings of fact necessary to determine the matter, it will be     necessary for the Court itself to hear the evidence relevant to those findings of fact    (as it does not have power to remit the matter for rehearing).
6.To the extent that the Court does itself hear evidence, it should proceed in a similar manner to that provided by section 38(1), namely adopting the form of an inquiry by the Court rather than an adversarial contest between the parties. This is because section 38(7) provides that the Court may inform itself as it thinks fit and also because it would be incongruous if the District Court were to adopt a radically different approach to the hearing to that required to be adopted by a magistrate at first instance given that there is no power of remitter.
[5] [2012] SASC 96 at [40].
These principles were considered by Doyle J in Wilczynski v District Court of South Australia.[6] Although that decision was reversed, for other reasons, on appeal,[7] Doyle J held that s 38 of the Magistrates Court Act contemplated a range of different approaches that the judge on review may take. Those approaches included:
1.Re-hearing all the evidence and deciding the matter entirely on that basis.
2.Hearing no evidence and determining the matter based entirely on the evidence in the Magistrates Court.
3.Adopting some hybrid approach involving the receiving of some evidence or the hearing or receiving of some additional evidence, but also having regard to the evidence before the Magistrate.
[6] [2016] SASC 51.
[7] Wilczynski & Anor v District Court of South Australia [2017] SASCFC 102.
Doyle J held that there may be more than one approach open to the judge on review, and that the judge has a broad discretion as to how to proceed with the review.
In the circumstances of this case, I considered that the hybrid model referred to by Doyle J was the appropriate way to proceed. This was because the nature of the review involved the parties’ account of the accident and it was therefore important that I form my own view as to the credibility of the parties. I therefore heard evidence from Mr Iacovou, Ms Alphonse and Mr Antony.
I am mindful this was a review of the matter and not a re-hearing of all the evidence. Judge Lunn in Lawrence v Sambevski[8] held that it would defeat the purpose of the expedition and minimisation of costs of minor civil actions, if a party could introduce fresh evidence on a Review that goes to issues that were not opened up in the trial and explored before the Magistrate. I take this to mean that while the Court on the review is not confined to the fresh evidence rules which normally apply on appeal, it will exercise some caution in admitting fresh evidence on the review. Much will depend on the nature of the appeal (whether it involves matters of credit) and the nature of the fresh evidence and how it was related to issues that were explored at trial. In this review, the evidence given by the parties was in relation to topics that had been explored at the trial.
[8] (1996) 189 LSJS 451 at 453-4.
I also do not consider that I am as constrained as an Appeal Court in interfering with findings that are based on the credibility of witnesses. I am not limited to interfering with the Magistrate’s finding of facts in circumstances only where they are demonstrated to be wrong by incontrovertible facts or uncontested testimony or are glaringly improbable or contrary to compelling inferences.[9] I also do not suffer, in conducting the review, from the disadvantage of not having seen or heard the relevant witnesses.
[9] Robinson Helicopter Co. Incorporated v McDermott [2016] HCA 22; (2016) 90 ALJR 679; (2016) 331 ALR 550 at [43].
The Magistrate therefore does not have the forensic advantage that the trial judge would normally have.
That said, I have had regard to the findings of the Magistrate which were made after the trial and hearing the evidence of both parties.
Conduct of the trial in the Magistrates Court
The trial in the Magistrates Court was conducted in an inquisitorial style as required by s 38(1)(a) of the Magistrates Court Act. Mr Iacovou, Ms Alphonse and Mr Antony all gave evidence.
In addition, a number of documents were tendered, comprising the following:
1.Letter from Alliance Insurers to Mr Antony dated 16 August 2019, in which he described the accident and made a sketch of the accident.
2.A bundle of photographs of Mr Iacovou’s truck, showing the damage to the truck, where the accident occurred, the car of Mr Antony showing the damage to that vehicle and photographs of the scene.
3.A collision report from Mr Iacovou which includes his account of the accident as well as a diagram of the scene of the accident and also attached a copy of his defence and counterclaim filed in the Magistrates Court proceedings.
4.A recording made on a recording device by Mr Iacovou of a conversation that he had with Ms Alphonse immediately following the accident.
The findings of the Magistrate
The Magistrate made the findings set out below.
The accident occurred at about 4:00pm on 5 June 2019 at Nottage Terrace, Medindie Gardens.[10]
[10] Reasons of the Magistrate at [1] and [12].
Immediately prior to the accident, Mr Iacovou, who was driving a truck, was parked in the parking lane on Nottage Terrace, facing an easterly direction.[11] He was about 100-180 metres from the intersection.[12] Ms Alphonse was driving in a north bound direction along Main North Road, turning right at the traffic lights at the intersection into Nottage Terrace and then proceeding in an easterly direction along Nottage Terrace.[13]
[11] Ibid at [19] and [28].
[12] Ibid at [28].
[13] Ibid at [13].
The collision occurred when the left middle panel of Ms Alphonse’s motor vehicle collided with the right-hand side of Mr Iacovou’s truck.[14]
[14] Ibid at [22], [23] and [29].
The parties have different versions as to how the collision occurred. Ms Alphonse said that she stopped at a red light at the intersection of Main North Road and Nottage Terrace. She was the third or fourth car in line.[15] When the lights turned green she followed the other vehicles around into Nottage Terrace. She drove in the same lane for about 100 to 150 metres from the intersection when the truck of Mr Iacovou pulled out from the side of the road and collided with her vehicle.[16] She said she was travelling at about 55 kilometres per hour immediately prior to the collision.[17] Ms Alphonse said she did not see the truck prior to impact.[18]
[15] Ibid at [13].
[16] Ibid at [15].
[17] Ibid.
[18] Ibid.

Mr Iacovou’s version of the collision was very different. He said he had parked his truck on the left-hand side of Nottage Terrace near the kerb (in a parking lane) about 180 metres from the intersection.[19] He had parked there to look at a street map.[20] He said that before moving off, he looked in his right-hand mirror to check for oncoming traffic and said that the road was clear.[21] He said that he was three quarters of the way into the eastern bound lane when the collision occurred.[22] Mr Iacovou said that the collision was caused by Ms Alphonse failing to apply her brakes to stop behind him, but instead accelerating and attempting, unsuccessfully, to overtake the truck on the right-hand side.[23] Mr Iacovou said that Ms Alphonse’s motor vehicle was the first vehicle that was stopped at the traffic lights.[24]
[19] Ibid at [19].
[20] Ibid.
[21] Ibid.
[22] Ibid.
[23] Ibid.
[24] Ibid.
The Magistrate found that the collision occurred as a result of Mr Iacovou leaving the parking space and moving away from the kerb and attempting to merge into the lane in which Ms Alphonse was travelling.[25] She found that on his own evidence, Mr Iacovou had not fully completed the move into the lane at the time of the impact.[26]
[25] Ibid at [24].
[26] Ibid.
The Magistrate found that although she accepted he looked into his side mirror, he should have known that vehicles were entering a busy road at a busy time of day into Nottage Terrace from Main North Road and would be accelerating towards him and may not be visible in the right-hand side mirror.[27] The Magistrate found that the damage to the vehicle was ambiguous.[28] It was consistent with Ms Alphonse’s evidence and version of the collision. It was also consistent with Mr Iacovou’s version of the collision. The Magistrate found that even if Ms Alphonse attempted to overtake his truck as Mr Iacovou claimed, this was a reaction to an immediate danger created by him failing to give way to her and moving into the middle of the road.[29]
[27] Ibid at [26].
[28] Ibid at [29].
[29] Ibid at [30].
The Magistrate found that Ms Alphonse contributed to the collision, to a lesser extent, by failing to keep a proper lookout.
Determination of the Review
In my view, the Magistrate’s findings were in accordance with the evidence before her. Those finding are also in accordance with the evidence that was heard by me. In my view, it is clear that in the short distance between the lights and the place where Mr Iacovou had parked his car, it would have been impossible or very unlikely that Ms Alphonse could have accelerated to an unsafe speed. There was no evidence that she had done so, Mr Iacovou not having seen her vehicle prior to the collision. It is merely speculation on his part to say that she was speeding. In my view, the proper conclusion from the evidence was that Mr Iacovou pulled his truck into the lane when it was not safe to do so. By his own evidence he had not completed this manoeuvre at the time of the accident.
I agree with the Magistrate’s finding that even if Ms Alphonse had attempted to overtake his truck, as claimed by Mr Iacovou, that action was a reaction to the immediate danger created by Mr Iacovou in moving into the eastern bound lane of Nottage Terrace. I agree also with the Magistrate’s apportionment of responsibility for the accident.
Mr Iacovou’s version of the collision is inconsistent with the evidence of Ms Alphonse that she was the third or fourth car at the traffic lights. I accept her evidence in that regard. There is no evidence that Ms Alphonse’s vehicle was not the third or fourth vehicle at the lights. If she was the third or fourth vehicle at the lights, it would have been highly unlikely that she would have performed the manoeuvre suggested by Mr Iacovou.
I note that there is a dispute between Mr Iacovou and Mr Antony in relation to their conversation after the accident and in particular where Mr Iacovou had parked his truck. Since Mr Antony was not present at, and did not observe, the accident, he was not in a position to make any admissions or assertions about the accident. There is no suggestion that he did so. In the circumstances, I do not have to determine whether Mr Iacovou or Mr Antony was correct as to where Mr Iacovou parked his truck following the accident. I do not consider that the matter assists in determining who was responsible for the accident.
A further issue raised on the review by Mr Iacovou was that the Magistrate erred in refusing to admit into evidence the recording of his discussion with Ms Alphonse after the accident.
In my view, the Magistrate was correct in refusing to admit the recording into evidence. This is for two reasons. First, as the Magistrate explained in her reasons, the recording was of very poor quality. When I listened to the recording, I could not determine that admissions were made by either party which would assist in the resolution of the dispute. In fact, given that large parts of the recording were inaudible, it would have been quite misleading to admit some portion of the recording when it was clearly not the full recording of the conversation. As I said, in any event, I cannot ascertain any admissions that would have assisted either party in their arguments.
Further, I do not consider that the recording would have been admissible under the terms of the Surveillance Devices Act 2016 (SA).
Pursuant to s 4 of the Surveillance Devices Act:
(1) Subject to this section and section 6, a person must not knowingly install, use or cause to be used, or maintain, a listening device -
(a)……
(b)     to record a private conversation to which the person is a party.
(2)     Subsection (1) does not apply -
(a)     to the use of a listening device by a party to a private conversation to record the conversation if-
(i) all principal parties to the conversation consent, expressly or impliedly, to the device being so used; or
(ii)the use of the device is reasonably necessary for the protection of the lawful interests of that person; or
(iii)…..
A ‘private conversation’ is defined in s 3 of the Surveillance Devices Act to mean:
a conversation carried on in circumstances that may reasonably be taken to indicate that at least 1 party to the conversation desires it to be heard only by the other parties to the conversation (but does not include a conversation made in circumstances in which all parties to the conversation ought reasonably to expect that it may be heard by a person who is not a party to the conversation)
Section 4(1) does not therefore apply to the use of a listening device to record a private conversation if the use of the device is reasonably necessary for the protection of the lawful interests of that person.[30]
[30] Section 4(2)(a)(ii).
In Thomas & Ors v Nash[31] the court considered the equivalent provision under the Listening Devices Act. In that case, Doyle CJ found that the conversation was private. Doyle CJ held:
The definition of “private conversation” indicates that a conversation is private if the conversation, as it takes place and progresses, is intended to be confined to the parties to the conversation, or known participants in the conversation.
A conversation can be private even though the participants are at liberty to tell others about it later. In the Act, “private” is used not in the sense of “secret” or “confidential”, but in the sense of “not public”. A telephone conversation with a friend is a private conversation, even though the friend is at liberty later to tell another about it. On the other hand, a telephone conversation on talkback radio is not a private conversation.
There is no reason to give a narrow meaning to the concept of “private conversation”, bearing in mind the objects of the Act.
[31] [2010] SASC 153.
In my opinion, the recording was of a private conversation between Mr Iacovou and Ms Alphonse. Ms Alphonse had not given, either expressly or impliedly, her consent to the conversation being recorded as she did not know the recording was being made
Doyle CJ considered the expression ‘lawful interest’ and held that the desire to gain an advantage in civil proceedings would not normally amount to a lawful interest, although of course each case had to be considered on its facts.
In Alliance Craton Explorer Pty Ltd v Quasar Resources Pty,[32] Sulan J approved this approach and held that simply making a recording in contemplation that it might be used if there was some form of litigation in the future was not a lawful interest.
[32] [2010] SASC 266 at [48].
I consider that in the present case the conversation was a private conversation. Insofar as Mr Iacovou now seeks to rely upon that conversation to his advantage in the civil proceedings I do not consider that he has done so in the protection of his lawful interests. The exception therefore does not apply. It was not reasonably necessary to protect his lawful interests to make a recording of a conversation with Ms Alphonse. There was nothing at the time that the recording was made to suggest that Mr Iacovou’s lawful interests were at risk. Mr Iacovou was simply seeking to obtain a forensic advantage if proceedings were later issued. In these circumstances, it would defeat the purpose of the prohibition in s 4 of the Surveillance Devices Act if the recording could be used.
Under s 6 of the Surveillance Devices Act, the prohibition in s 4 also does not apply to the use of a listening device, if the use of the device is in the public interest.
There is nothing to suggest that it is in the public interest that Mr Iacovou be allowed to use the recording in these proceedings. These proceedings did not have any element of public interest and involved a dispute between two individuals.
In his last ground of Review, Mr Iacovou complains that a letter written by him to the Magistrate after the trial, was returned by the Magistrate perhaps, without any consideration.
The letter is undated so it is unclear whether it was received prior to judgment being delivered. On the assumption that it was sent prior to judgment, it is in effect an application to re-open the trial to tender further evidence. That evidence related to the evidence of Mr Antony which was to the effect that the truck, after the accident, was parked on Nottage Terrace, when Mr Iacovou said that it was parked in Victoria Street. Mr Iacovou said in the letter that this evidence showed that Mr Antony was lying.
I do not consider that the Magistrate erred in not considering the letter. The trial had been completed and consideration of the letter would have required the recalling of the parties for further evidence. The letter did not raise matters that were, in my opinion, critical to the determination of the dispute. However, the position is different on the review. Given that the trial had examined all matters relating to the accident and on this review, I heard the evidence of the parties, I allowed Mr Iacovou on the review to explore the matters raised in the letter, even though they had not been raised at the trial.
Therefore, the complaint has been superseded in that I allowed Mr Iacovou and Mr Antony to give evidence on the review, including on this topic. Mr Iacovou’s further evidence was fully addressed on the review, even if it was not considered by the Magistrate.
As I said earlier in these Reasons, this conversation between Mr Iacovou and Mr Antony does not advance the matter any further as Mr Antony was not present at the time of the collision and cannot give evidence on how the collision occurred.
Conclusion
For the reasons that I have expressed, I dismiss the application for review and affirm the judgment of the Magistrate.