Lawrence v Sambevski No. DCCIV-96-1427 Judgment No. D3548

[1997] SADC 3548

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Reasons of His Honour Judge Lunn

Hearing

17/12/96.

Catchwords

COSTS Cancellation fee for medical witness - relevant criteria for quantum - award of $600 upheld. MEDICAL PRACTITIONERS Claim against a defendant for $1,500 by surgeon on a quantum meruit for a cancelled attendance at Court - award of $600 upheld on a minor civil action review. PRACTICE AND PROCEDURE Minor civil action review - right to adduce fresh evidence on review - nature of review process considered - further evidence not allowed.

Representation

Applicant JULIE LAWRENCE:
Counsel: MR E REINBOTH - Solicitors: STANLEY &; PARTNERS

Respondent GORDANA SAMBEVSKI:
Counsel: MR A REDFORD - Solicitors: SCALES &; PARTNERS

DCCIV-96-1427

Judgment No. D3548

17 January 1997

On Appeal from MR K MILLARD SM

(Civil)

LAWRENCE v SAMBEVSKI

Civil

Judge Lunn

Minor civil action review

The plaintiff is a specialist surgeon who had treated the defendant. A prosecution against the defendant for making an alleged false claim to her employer about her injuries and disability was listed for trial in the Adelaide Magistrates Court on 2 November 1995. In August 1995 the solicitors for the defendant arranged with the plaintiff for her to attend at the Adelaide Magistrates Court at 11.30am on 2 November to give evidence for the defence. On 1 November the defendant's solicitors advised the plaintiff that her attendance on 2 November was not required and requested an account for a cancellation fee. The plaintiff sent an account for $1,500. She justified this on the grounds of an AMA recommended rate of $300 per hour and from her having cancelled a full morning's operating list from which she had expected to earn about $2,000. The defendant disputed the amount claimed. There had been no prior agreement about the rate at which any cancellation fee would be assessed. The plaintiff sued the defendant in a minor civil action in the Adelaide Magistrates Court (Civil) for the $1,500. A trial was held on 16 October 1996. The plaintiff did not attend, but her practice manager represented her. A number of documents were handed to the Magistrate on behalf of the plaintiff including an affidavit from her. No oral evidence was given, or sought to be given. The Magistrate decided the question on the contents of the documents handed up and everyone involved acquiesced in this course. On 30 October he delivered a reserved judgment in which he gave judgment for the plaintiff for $600 for the cancellation fee plus some costs. The plaintiff brought an application in this Court for a review of that decision contending that she should have been allowed the full $1,500 claimed. The defendant did not cross appeal. At the hearing before me the plaintiff did not pursue the first ground of review, "That the special Magistrate erred in accepting into evidence material presented by the defendant without giving the plaintiff an opportunity to read or consider the said documents."

Fresh evidence

At the commencement of the review hearing counsel for the plaintiff sought to tender an affidavit of the plaintiff's practice manager supplementing the evidence which was before the Magistrate. I refused to allow such fresh evidence to be adduced on the review. I now give my reasons for this ruling.

The precise nature and scope of a review of a judgment in a minor civil action under Section 38(6) of the Magistrates Court Act 1991 has never been authoritatively determined. There are a number of uncertainties about what precisely is involved in this review process. In considering these questions it must always be kept in the forefront of the mind that the underlying purpose of s38 is to set up a special, and somewhat unique, procedure whereby claims involving less than $5,000 are to be resolved by expeditious and cheap procedures which substantially truncate many of the procedures usually employed for determining ordinary civil actions. The procedures laid down for ordinary civil actions are those which Parliament and the Rules of Court have, with the benefit of long experience, accepted to be the best and most practicable means reasonably available to achieve justice to all parties through a judicial process. However, because much of what has otherwise been seen as desirable for achieving justice in more substantial cases has had the consequence of producing substantial costs and delays s38 has renounced some of these procedures in the interests of reducing costs and obtaining speedier results. A necessary consequence of this is that the Courts are deprived, at least in part, of some of the procedures which are desirable to ensure that justice is done as best as can be in every case. Hence the ability of both the Magistrates Court in dealing with minor civil actions, and the District Court in dealing with reviews, to produce the best possible determination in accordance with justice is substantially impaired. While there is often a strong temptation to think that if all of the time-honoured procedures of judicial proceedings had been employed in a minor civil action a result more consistent with justice may well have been produced, it is not for the Courts to resort to such procedures where it is contrary to the clear intention of Parliament in s38 that they are not to be used. As was stated about the predecessor to s38 in Csordas v Galvanising Industries (1990) 157 LSJS 350 at 353 what is needed for justice is to be balanced against the cost of it. Section 38 can only produce second best justice and the Courts and the parties have to live with that. While better justice could probably be achieved it would only be at a higher price, which Parliament has decreed is not to be paid.

Section 38(6) provides that the District Court has power to "review" a judgment in a minor civil action. (Section 38(7) refers to the process as "the appeal" which indicates that Parliament was treating the review as a species of appeal.) "Review" is not defined by the Act. There are many instances of powers of review being conferred on Courts and like bodies in other legislation. While there are reported cases about the meaning given to "review" in other pieces of legislation it is clear that many of the finer points of the definitions there given turn on the actual wording of the legislation in question and are not therefore usually of general application: eg Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580; Colpitts v Australian Telecommunications Commission (1985) 70 ALR 554 at 565-6; Re Brindle ex parte F B & F A McMahon Pty Ltd (1992) 108 ALR 470; Smith v St Johns Ambulance (1991) 162 LSJS
404 (but the question of the nature of a review in that case was left open by the Full Court (1992) 166 LSJS 231.) Insofar as the cases have considered "review" in relation to administrative, as distinct from judicial, functions they are of limited application to "review" of judicial or quasi judicial acts: Boston Clothing v Margaronis op cit at 587D. The starting point in the various cases has been the dictionary definition of "review" as "the act of looking over something again, with a view to correction or improvement .... a judicial re-examination, as by a higher Court, of the decision or proceedings in a case": Re Brindle op cit at 473, but beyond this the cases are not of general application on the meaning of "review" in its context in s38(6) of the Magistrates Court Act 1991.

In respect of the related concept of "appeal" it has been held that appeal is a word of flexible meaning for which there are three broad categories, being firstly a strict appeal where the issue was whether the judgment was right when it was given on the material which was then before the lower Court, secondly an appeal by way of rehearing where there is a limited power to receive further evidence and the issue is whether the judgment ought to be overturned in the light of the material before the appeal Court, and thirdly an appeal de novo in which the appeal Court conducts a fresh hearing of the whole matter. Ultimately it is a question of statutory interpretation as to the precise nature of an appeal which has been created by a particular statute and whether it falls into one of the three categories mentioned or is a hybrid of some sort: Wigg v Architects Board (1984) 36 SASR 111 at 112-114; D M & A J Bell Pty Ltd v Motor Fuel Licensing Appeal Tribunal (1988) 50 SASR 39 particularly at 45. Likewise it is possible for a review to fall into similar categories or to be some form of hybrid depending on the proper construction of the particular statute.

Some reference was made to the decision of Matheson J in Smith v St John Ambulance (above) on the meaning of review. There the question was the meaning of "review" as contained in the Equal Opportunity Act 1984. However, the comments made there may not translate into s38(6) of the Magistrates Court Act because of the differing contexts. In particular Matheson J referred to a previous related statute which had excluded an appeal being by way of rehearing and he placed some weight on the fact that it was a review of a specialist tribunal, which the Magistrates Court is not. I do not consider that that case is authority for a review under s38(6) not being by way of rehearing or something akin to it.

I only need to pursue this question of the nature of a review under s38(6) insofar as it is relevant to the reception of fresh evidence on a review. Ultimately it must turn on the proper construction of s38. There is nothing in the authorities on "review" in other contexts which assists me on this point. I need not attempt to solve the whole problem. It is sufficient for the purposes of this matter to make the following points:

(1) Section 38(6) does not create a review by way of a hearing de novo in which the District Court is obliged to hear all of the relevant evidence about all of the issues and make up its mind about them. Although there are references in s38(6) and (7) to "further hearing" and "re-hearing" they are confined to where the Court finds grounds of review made out and it is then necessary to take further evidence to determine what judgment should be given on the review.

(2) The scope of any fresh evidence to be taken on a review cannot exceed that which the Magistrate was required to take on the trial of a minor civil action. It would defeat the objects of expedition and minimisation of costs if on a review a party could adduce fresh evidence which could go into all sorts of relevant issues which were not opened up in the trial before the Magistrate. Almost every party who loses an action would like the opportunity to re-run the trial on expanded evidence and arguments, but this would mean that there could be reviews in almost every minor civil action and potentially increase the costs and delays enormously. The basic rule must be that parties are bound by the conduct of the trial before the Magistrate and that good reason is required for any additional evidence to be admitted. It was suggested that because s38(1)(a) and (b) requires the trial to be an inquiry by the Court there was an onus on the Magistrate to see that all relevant evidence was adduced at the trial. While there is such a duty on a Magistrate on crucial and essential issues (Park v Evans (1993) 173 LSJS 432), it is not for the Magistrate to conduct the cases for the parties or to give them advice on evidence: Csordas v Galvanising Industries (above) at 353. It would make minor civil actions far more complicated and expensive than Parliament intended them to be if a Magistrate was obliged to ensure that all possible evidence was adduced on any issue to which he might ultimately have regard in the determination of the action. Ultimately, the duty of the Magistrate is to decide the claim on the material which is properly before him at the conclusion of the trial. If in his reasons he goes outside of that evidence, that may well be a ground for a District Court on a review to interfere with his findings on the basis that they were not justified by the evidence, but it is not in itself, as was contended here, a justification for a party to lead fresh evidence on the review on any such topic.

(3) Section 38(6) gives the District Court power on a review to "set aside the judgment and give any judgment that should .... have been given in the first instance." The reference to "in the first instance" seems to indicate that the District Court is primarily concerned with what should have happened as at the date of judgment in the Magistrates Court. It is contrary to a construction which would allow a rehearing at large so that the District Court determined the matter on the evidence given before it at the time of the review. I need not go into whether this reference to "in the first instance" precludes the usual rights on an appeal by way of rehearing to adduce fresh evidence where that evidence was not reasonably available at the time of the trial: see "Civil Procedure South Australia", volume 1, [para R95.15.10]; Csordas v Galvanising Industries (above). It was not suggested here that the intended fresh evidence was not readily available at the trial.

(4) In Park v Evans (above) Nyland J said at 438:

"Each of these decisions makes it clear that the power of review is wider than an appeal and I believe therefore it is open to a reviewer to hear such further evidence in the hearing of an application for review as he or she may consider appropriate."

This suggests that there may be other special circumstances which would justify fresh evidence being adduced on a review, but none were suggested here.

In these reasons I am not dealing with a situation of where a Magistrate on a minor civil trial has expressly refused to allow a party to adduce further evidence. That situation raises different issues which I do not need to consider.

Quantum of the cancellation fee

The amount of the cancellation fee was to be determined on a quantum meruit of what was reasonable in all of the relevant circumstances. The onus was on the plaintiff to put sufficient evidentiary material before the Magistrates Court to enable it to determine the proper amount to be awarded. Insofar as the plaintiff did not put forward material which fully dealt with all of the relevant circumstances the Magistrate was entitled to act on such inferences as were reasonably open to him on the material which he did have before him.

The assessment of a cancellation fee on a quantum meruit is no different in law from fixing a proper witness fee which would have been payable if the plaintiff had given evidence subject to any proper deductions for the actual use she could have made of the time set aside through not having to attend at Court. Therefore the authorities on witness fees are applicable. As there was no scale fixed by the Magistrates Court for such witness fees a judicial discretion would have had to be exercised to fix the appropriate amount.

The authorities on the fixing of witness fees indicate there are a number of factors which the Court must take into account in assessing what is a reasonable fee. These are:

1. The actual loss incurred by the witness. Most of the argument on this review centred around what were the proper findings to be made on this issue. The defendant's counsel submitted that various inferences could be drawn from the documents which were adverse to the plaintiff's assertions, but as there was no application to cross examine the plaintiff at the trial, and the case was allowed to proceed on the unchallenged documents, it would not be fair under the rule in Browne v Dunn ("Civil Procedure South Australia", volume 2, para [17,520.5] to act on any such adverse inferences. The plaintiff placed material before the Magistrate to show that on a number of other nearby similar mornings she had been able to gross fees from operating in the vicinity of $2,000 on each such morning. On the morning in question she had spent the time reading the Journal of Hand Surgery which was not directly productive of remuneration. There was no evidence that she had other work available, such as writing reports, which she could have done in that time. However, as the Magistrate correctly comprehended the true legal measure of her loss was not simply the income which she could have generated in that period if she had conducted an operating list, but was her overall loss of earnings in the whole of her practice as a result of her not being available to operate on that morning. What the material put forward by the plaintiff did not disclose was whether she did accommodate, or could have accommodated, the patients who would have been in the operating list for 2 November in other lists and whether because that list was not conducted whether some of those patients were lost to the plaintiff. On the evidence it was impossible to make any arithmetical calculation about this aspect of the plaintiff's alleged loss, but it was a factor to which the Magistrate was entitled to give substantial weight in discounting the earnings lost for that morning.

2. The Australian Medical Association ("AMA") recommended a scale of charges. A scale of charges issued by a witness' professional body is an indication of what is fair and reasonable, but, while the scale is to be taken into account by the Court, it is only one factor and it is not binding on the Court: The Corporation of St Peters v Dangerfield (1971) 1 SASR 583 at 588. Although the Magistrate did not expressly say that he had regard to this scale there were a number of references to it in the material before him and in his reasons. There appears to be some confusion about this scale. The Magistrate quoted from para [2,395] of "Legal Costs South Australia" and references there to a "Medico-Legal Joint Statement" and to a scale of guideline fees which had not in fact been published. My research has also indicated that while there is a "Medico-Legal Joint Statement" published jointly by the AMA and the Law Society of South Australia concerning court attendances by medical witnesses and payment of their fees there is no scale of fees which is part of that statement. I presume that the references in the documents of the plaintiff to an hourly rate of $300 emanates from something published by the AMA, but such a document was neither before the Magistrate nor this Court. I do not know whether that amount is a maximum or whether it applies to time spent in preparing to give evidence and in travelling time as well as to time to be spent in Court. However, as the defendant did not challenge the assertions made by the plaintiff about this scale the references to it can be used in a general way as a factor pointing towards what is reasonable.

3. The nature of the proceedings and of the issues in them. As a matter of public interest, and to ensure the proper working of the judicial system, fees to witnesses in less important cases may need to be moderated so that they are not out of proportion to what is in issue in the proceedings: Kores v Franzi
(1971) 17 FLR 445. The proceedings in which the plaintiff was to give evidence were either for a summary or a minor indictable offence. There is no evidence about the nature of the prosecution case or the amounts in issue, but it was clearly towards the lower end of the range of litigation. It would not be expected to attract as great a witness fee as litigation in a higher Court where more was at stake.

4. What would be allowed for witness fees in other similar jurisdictions. In criminal matters the Court can have regard to the scales laid down in comparable civil jurisdictions: Norton v Morphett (1995) 83 A Crim R 90. Under the Scale of Witness Fees laid down in the 3rd Schedule of the Magistrates Court (Civil) Rules 1992 for civil claims up to $60,000 the amount to be allowed for "professional, scientific or other expert witnesses per day" is "$350 or such other amount ordered by the Court." There was nothing in the evidence here to suggest that there was anything out of the ordinary which would have justified a witness fee of substantially greater than the amount prescribed for a full day. Under s190 of the Summary Procedure Act 1921 and the Summary Procedure (Witness Fees) Regulations 1992 there is a scale of witness fees for prosecution witnesses in proceedings in the criminal jurisdiction of the Magistrates Court, but it does not apply to witnesses to be called by a defendant. The scale provides a maximum daily rate of $100 for any witness, but there is a discretion to allow more as is "just and reasonable in the circumstances." The Magistrate did not expressly advert to these comparable tables of witness fees as a relevant factor, but they support his conclusion.

There is one passage in the Magistrate's reasons with which I cannot agree. He said:

"The other issue which concerns me is the plaintiff's bare assertion in her affidavit that she could not reasonably undertake any professional duties on the morning of 2 November 1995 which produced income. I would have thought that any surgeon apparently as busy as the plaintiff would benefit from a break in her surgical or consulting list to undertake the transcription of (perhaps even physically writing) reports to referring practitioners and specialists and medico-legal reports. There is no indication as to why the plaintiff could not have utilised the morning of 2 November 1995 to undertake these tasks which must be reasonably incidental to her practice - and hence to her earnings."

The plaintiff had made the assertion referred to in her affidavit and the defendant did not challenge it at the trial. If it had been challenged, there may have been all sorts of explanations put forward by the plaintiff why she might not have been able to use the time in question for writing reports or the like. It was not for the Magistrate to engage in speculation and conjecture to reject an unchallenged assertion that the plaintiff could not have mitigated her loss in this way.

On the material which was properly before the Magistrate, and having regard to the four factors mentioned above, I consider that on a quantum meruit the reasonable cancellation fee in the circumstances would not have exceeded $600. This accords with the Magistrate's conclusion. Accordingly the review is dismissed.

It was agreed at the conclusion of the review hearing that I would make a provisional costs order without hearing the parties, but give them liberty to apply to vary the order for costs if they wished to do so. I order that the defendant have her costs of the review which I fix at $200 plus a witness fee for herself of $22, but with liberty to the parties to apply within fourteen days to vary this order.