Lim & Lim v Percy P. Priest & Son Pty Ltd No. DCCIV-97-831 Judgment No. D3669

[1997] SADC 3669

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Reasons For Decision of His Honour Judge Sulan (ex tempore)

Hearing

09/09/97.

Representation

Applicant S.H. LIM:
Counsel: PETER J GEYER - Solicitors: MR P. GEYER

Applicant L. LIM:
Counsel: PETER J GEYER - Solicitors: MR P. GEYER

Respondent PERCY P. PRIEST &; SON PTY LTD:
In Person

DCCIV-97-831

Judgment No. D3669

9 September 1997

(Civil)

LIM and LIM v PERCY P. PRIEST & SON PTY LTD

Civil

Judge Sulan

HIS HONOUR: This is an appeal by the defendant from a decision of a magistrate, which the magistrate determined in favour of the plaintiff.

The claim is a minor civil action in which the plaintiff, PC Priest and & Sons Pty Ltd, sued for payment for plumbing work performed at the defendant's premises at 14 Princes Drive, Holden Hill, at the request of the defendant, through her tenant, Stacey Webb.The claim was in the sum of $123.50.The defendant agreed that the work had been performed by the amount charged was excessive for the time spent.

At the trial of the action the plaintiff, called three witnesses.They were Mr AK Priest, Mr JP Miller, and Mr J Davis.They gave evidence as to the work performed at the premises and the time taken to perform such work.

Mrs L. Lim, who was at the hearing, gave evidence.She also called her brother, Mr S.H. Lim.However, she did not call Stacey Anne Webb, the tenant, who had requested the work to be done.She attempted to tender an affidavit of Ms Webb, and indicated to the magistrate that Ms Webb was unavailable to give evidence because of work commitments.

The magistrate refused to accept the affidavit of Ms WebbHe did not inform Mrs Lim that Ms Webb ought to be called, or that Mrs Lim might apply for an adjournment in order to call Ms Webb.

He went on to determine the case.In his judgment, he commented that the defendant, Mrs Lim, did not call, direct evidence, as to the time which the plaintiff's employee spent on the job, and he was, therefore, left only with the evidence from the plaintiff.

He said, in his judgment:

'Stacey Webb is not available to give evidence.She would be the only witness who was there with the plumber, and who may be able to help this court with the times, if she had recorded the times when the plumber was there.She is not here to give evidence, so I don't have any evidence to, in fact, counteract the times, and the evidence given by the plumber, Mr Miller, and Mr Priest.'

There are a number of grounds of appeal.The ground relied upon by the defendants is that the learned magistrate misdirected himself in not taking into account the sworn affidavit of the defendants' key eyewitness, Stacey Webb. The affidavit of Stacey Webb contains direct evidence of the plaintiff's work, in particular the time spent, which the learned magistrate failed to take into account.

During the course of this application I have been shown the affidavit of Stacey Anne Webb that Mrs Lim would have intended to rely upon.That affidavit supports the contention of the defendants that Stacey Webb took a note of the time, and the time spent by the plumber was 45 minutes, plus a further 10 minutes when he sat in his van outside the property.

It is not my function to determine where the truth of the matter lies, and I make no finding about that.

S.38(1)(a) and (b) of the Magistrates Court Act 1991, as amended, provides:

S.38(1) 'The following provisions are applicable to the trial of a Minor Civil claim;

(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 illicit, by inquiry from the parties and by the witnesses and by examination of evidentiary material produced to the court, the issues in dispute, and the facts necessary to decide those matters.'

'Evidentiary material' is defined in s.3 of the Act as follows:

'Evidentiary material means any document, object or substance of evidentiary value in proceedings before the court, and includes any document, object or substance that should, in the opinion of the court, be produced for the purpose of enabling the court to determine whether or not it has evidentiary value.'

The magistrate failed to consider the affidavit of Stacey Webb.He refused to admit it without giving reasons for his refusal to read or admit it.Nor did he give Mrs Lim the opportunity of applying for an adjournment in order that Stacey Webb could be called.

The failure of the magistrate to consider that evidence, or to give the defendant an opportunity to seek an adjournment in order to call Ms Webb, has resulted in an error.

The learned magistrate should have read the affidavit and then decided whether he would rely upon it or what weight it should be given.He should have explained to the defendant how evidence is weighed and that an affidavit without the deponent being cross examined carries less weight than vive voce evidence.He should have explained why he refused to admit the affidavit.He should have given the defendant an opportunity to call Ms Stacey, or at least to make an application for an adjournment, in order that she could be called.

In all the circumstances, I consider that the learned magistrate erred in determining the matter as he did. As I have indicated, I make no finding about the strength or weaknesses of either the plaintiff's or the defendants' respective cases.

I determine that the application should be allowed.The appeal is allowed, and I order that the matter be remitted to the Magistrates Court for a rehearing. I reserve the right to edit these reasons.

MR GEYER: The only incidental orders that would follow from that is that I ask you make an order that the existing judgment be set aside.

HIS HONOUR: I make an order that the judgment be set aside; the matter be remitted for rehearing; and that the amount of $450, paid into the District Court be paid to the defendant.