Lyme v Tran - [2019] SADC 138

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
LYME v TRAN
[2019] SADC 138
Judgment of His Honour Judge Beazley
13 September 2019
MAGISTRATES
Minor Civil Review
Purpose and objectives of s 38 of the Magistrates Court Act 1991 considered - the Act evinces a general intention that a Magistrate, sitting as the trial court, should proceed broadly in accordance with an inquisitorial model as opposed to an adversarial model - discussion of the nature of an application for review in the District Court - it is not in the nature of an appeal stricto sensu - it is an enquiry to determine whether a full and fair enquiry was conducted by the court below.

PROCEDURE - JUDGMENTS AND ORDERS
Judgment entered, in a minor civil action for the respondent in the sum of $2,200 being the sum owing to the respondent after setting off the appellant's claim for concreting services against the respondent's counter claim for damages.
Held: There was no appealable error in the manner in which the learned Magistrate conducted the hearing - judgment of the learned Magistrate clearly correct - judgment accordingly affirmed - application for review dismissed.
Magistrates Court Act 1991 (SA) s 38; District Court (Civil) Rules 2006 R6 DCR 279A; Building Work Contractors Act 1995 (SA) ss 6 and 32; Building Work Contractors Regulations 2011 (SA) Reg 4(1)(b), referred to.
Harradine v District Court of South Australia [2012] SASC 96; Adamson v EDE [2008] NSWSC 767; Byrne v Kendle [2011] HCA 26; Pacific Carriers Ltd v BNP Paribas (2014) 218 CLR 415 at 461-462; ABC v XIVth Commonwealth Games (1998) 18 NSWLR 540; Attorney-General (SA) v Marmanides [2019] SASCFC 3; Philp v DM Aston & Co [2010] SASC 114; Frankos v Hosking [2000] SASC 128; Queensland University of Technology v Project Constructions (Aust) Pty Ltd [2002] QCA 224; Kane Constructions Pty Ltd v Sopov [2005] VSC 237; Hills Industries Ltd v Hiley & Co [2012] SADC 148; W Cook Builders Pty Ltd v Lumbers [2005] SADC 153; Aberdeen Group v Bluestone Property Service [2009] NSWCCA 386, considered.

LYME v TRAN
[2019] SADC 138
Introduction

This an application brought by Stuart Allan Lyme (the applicant), pursuant to s 38 of the Magistrates Court Act 1991 (SA), seeking an order that this Court review a judgment entered by a Magistrate against him, in Minor Civil Action No 500 of 2017, in the Elizabeth Magistrates Court.
The applicant was the plaintiff in those proceedings in which he claimed the sum of $2,360, as monies allegedly outstanding to him for concreting services, provided to Vinh Tran (the respondent) in the month of August 2017. The respondent filed a defence in which he denied liability to the applicant, asserting that the concrete work was defective. He counterclaimed the sum of $9,463 from the applicant as the cost of rectification.
On 17 January 2019, a Magistrate entered judgment in favour of the respondent in the sum of $2,200, inclusive of $200 for an expert report. The judgment sum, in effect a set off, was the difference between the sum of $2,360 claimed by the applicant, and the sum ultimately assessed by the Magistrate as the cost of rectification.
The Magistrate made no other order as to costs having regard to her findings on both the claim and the counterclaim.
Extension of time
Pursuant to Rule of Court, 6 DCR 279A(2), an application for review of a judgment in a minor civil action must be commenced within 21 days of the date of delivery of the said judgment. The reasons for the decision had been posted to him on 17 January 2019.
The applicant did not file the subject application within the requisite period, namely by 7 February 2019.
He accordingly seeks an order extending the time to make the subject application.
He had initially, but mistakenly, filed a Notice of Appeal to the Supreme Court on 21 February 2019, rather than the requisite Application for Review to this Court.[1] It then took some weeks before the jurisdictional error was brought to his attention. It was not until 5 April 2019 that the purported ‘appeal’ to the Supreme Court was administratively transferred to this Court, and listed as a Minor Civil Review.
[1] Attorney-General (SA) v Marmanidis [2019] SASCFC 3.
The applicant explained that he had only become aware of the subject judgment on 6 February 2019, and that he filed the purported appeal within 15 days.
During submissions, it became apparent that the applicant had, for some time, suffered from a serious illness which required intensive medical treatment. This explains the delay, and indeed his absence from some directions hearings in this Court.
In Frankos v Hocking,[2] Gray J said that ‘when considering the reasons for delay, regard will be had to whether the delay is attributable to the party. It must however be consistently borne in mind that the discretion [to extend time] is a wide one and the Court must do what the interests of justice require’.
[2] [2000] SASC 128.
In my opinion, the application for an extension of time ought to be granted. While the delay has been annoying for the respondent, he has not been significantly prejudiced. It is plainly in the interests of justice to do so. Accordingly, I extend the time for instituting the Application for Review to 5 April 2019, nunc pro tunc.[3]
[3] Philp v DM Aston & Co [2010] SASC 114.
Background
The background to the proceedings in the Magistrates Court was not in dispute. Indeed, it is detailed in the various documents tendered by each of the parties in the respective exhibits, D1, D2, D3, D4, P5, and D6 together with a report from the appointed building expert, Mr Jankovic, dated 9 February 2018.
The respondent had engaged the applicant to undertake concreting services at his house at Salisbury North. The total area that needed to be excavated and concreted was 72 square metres. It involved concrete paving along the back of the house, which would allow a space for brick paving, and along the side and front of the house, and along the driveway.
The respondent had accepted a quote from the applicant in August 2017, for those services, in the total sum of $5,460, said to be ‘inclusive of the cost of ‘Bobcat’, concrete pump 25 HP, Mesh and Labour’.
The applicant engaged the bobcat operator, contracted with the concrete supplier, and commenced the work under the agreement on 25 August 2017.
The applicant had undertaken the concreting work with the assistance of David Wing and Dennis Webber. There was no dispute that the applicant and Mr Wing were both experienced concreters.
The respondent expressed his concern to the applicant as to the quality of the concrete work. He did however pay the bobcat operator, direct, the sum of $600.
He paid the applicant the sum of $2,500 soon after the completion of the work, however, he retained the balance of $2,360 while he awaited a report as to whether the concrete work was defective.
The proceedings in the Magistrates Court
On 5 September 2017, the applicant issued the subject proceedings against the respondent claiming the outstanding balance. The applicant provided the following particulars:
[The defendant] is complaining about 12 sqm of concrete which is $720 worth. He is holding a lot more money and is refusing to pay when the work is A-1 perfect.
I repeat that the total area that needed to be excavated and concreted was approximately 72 square metres.
The respondent engaged Rob Davey of One Stop Inspections to inspect the work. He was described as a building inspector and member of the ‘HIA’. Mr Davey attended at the site for the inspection on 8 September 2017. He referred to the Australian Building Standards AS 4349.1–2007.
It was common ground that Mr Davey did not hold a current builder’s licence.
Mr Davey provided a written report which included colour photographs of the concrete. He addressed the concern by the respondent of water flowing down to, and entering the garage. It was plain that a 25mm water invert or strip drain ought to have been installed. The applicant accepted that but submitted that it was the respondent’s responsibility and not part of his work. The applicant stated that he was not a licensed plumber. He did concede that ‘10 or 20 mm square of the concrete might be a problem, the rest is perfect’.[4]
[4] T43.
Amongst a number of what he described as ‘critical other errors’, Mr Davey had highlighted a failure to provide ‘a base preparation in the driveway’ which he opined would ‘guarantee cracking’.
Mr Davey noted that at places the concrete was at the same level as the damp course. There was a need to dig deeper before the concrete was laid. He noted that the ‘fall’ was towards the home – not away from it as required. He also opined that the drains had been set at different levels, and were of a very poor finish; the concrete itself was of an inadequate thickness; and the rainwater tank footing was not level; nor of the required width, nor thickness.
The report was tendered as Exhibit D3.[5] While there was some dispute about the expertise of the author of the report, the report did include photos of the alleged defective work, which photos were regarded as helpful by the Magistrate, and by me on the Review.
[5] Report of Rob Davey – One Stop Inspections dated 8 September 2017.
The respondent’s Defence and Counterclaim mirrored the above report, when claiming against the applicant, the cost of rectification as follows:
1.   The plaintiff’s defective concrete work needs to be removed at an estimated cost of $4,680.
2.   The plaintiff must repay the sum of $3,100 already paid.
3.   The plaintiff has damaged a water pipe – cost $300.
4.   The defendant seeks reimbursement of $400, the cost of Mr Davey’s report.
The nature of a minor civil action
Section 38 of the Magistrates Court Act details the provisions which are applicable to the trial, and any Review of a minor civil action, 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.
(2)At or before the trial of a minor civil action, the Court should explore any possible avenues of achieving a negotiated settlement of the matters in dispute.
(3)After giving judgment in a minor civil action, the Court—
(a)     should advise the unsuccessful party of his or her right to apply for review of the proceedings by the District Court; and
(b)     should give the successful party any advice or assistance as to the enforcement of the judgment that the Court considers appropriate in the circumstances; and
(c)     if there is a judgment debtor who is present, should proceed immediately to investigate his or her means of satisfying the judgment and to take any further action that appears appropriate in view of the results of that investigation.
(4)The following provisions govern representation in minor civil actions:
(a)     representation of a party by a legal practitioner will not be permitted unless—
(i)another party to the action is a legal practitioner; or
(ii)all parties to the action agree; or
(iii)the Court is of the opinion that the party would be unfairly disadvantaged if not represented by a legal practitioner;
(ab)   however, the Court may, in its discretion, permit representation of a party by a legal practitioner at the hearing of an interlocutory application;
(b)     if a party to the action is a body corporate, the Court must, if the party seeks to be represented by an officer or employee who is not a legal practitioner, permit such representation;
(c)     if a person is subrogated to the rights of a party, the Court will permit that person to appear in the proceedings on behalf of that party and to be represented in the same way as if that person were a party;
(d)     the Court will permit a party, or a person subrogated to the rights of a party, to be assisted by a person who is not a legal practitioner but only if that person is not acting for fee or reward.
(5)In a minor civil action costs for getting up the case for trial, or by way of counsel fees, will not be awarded unless all parties were represented by counsel, or the Court is of opinion that there are special circumstances justifying the award of such costs.
(6)The District Court (constituted of a single Judge) may, on the application of a party dissatisfied with a judgment given in a minor civil action, review the matter.
(7)The following provisions apply to such a review by the District Court:
(a)     subject to paragraph (ab), the right of a party to be represented by a legal practitioner at the review will be determined in accordance with subsection (4);
(ab) if, in the case of a review that relates to a minor civil action in respect of a transferred proceeding within the meaning of Part 3A of the South Australian Civil and Administrative Tribunal Act 2013, a party was represented by a legal practitioner at the proceeding, then the party may be represented by a legal practitioner at the review by the Court;
(b)     the Court may inform itself as it thinks fit and, in doing so, is not bound by the rules of evidence;
(c)     the Court may, if it thinks fit, re-hear evidence taken before the Magistrates Court;
(d)     in determining the matter, the Court may—
(i)affirm the judgment; or
(ii)rescind the judgment and substitute a judgment that the Court considers appropriate; or
(iii)if the review arises from a default judgment or summary judgment, rescind the judgment and—
(A)substitute a judgment that the Court considers appropriate; or
(B)remit the matter to the Magistrates Court for hearing or further hearing;
(e)     in hearing and determining the review, the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(8)A decision of the District Court on a review is final and not subject to appeal.
(9)However, the District Court may reserve a question of law arising in a review for determination by the Full Court of the Supreme Court which may determine the question and make any consequential orders or directions appropriate to the circumstances of the case.
In Harradine v District Court of South Australia,[6] Blue J, detailed the legislative history of the minor civil action, and explained that the role of the Court is that of an inquiry by the Magistrate rather than that of managing an adversarial contest between the parties.
[6] [2012] SASC 96 at [40]-[49].
The clear policy of the Act is to provide an efficient and economical means by which the small claims can be determined in the Magistrates Court.
His Honour noted that Parliament had devised this system in consequence of the increasing costs of litigation. Accordingly, some of the protections provided by the legal practice in the general jurisdiction ‘may be sacrificed to the necessity of relating the cost to the amount of the claim’ in a minor civil action.
The inquiry, in respect of a minor civil action, is therefore to be conducted on a more informal basis with the Court acting according to equity, good conscience, and the substantial merits of the case without regard to technicalities. It must be a fair hearing by an unbiased tribunal; one which identifies and determines the ‘real’ issues between the parties; and one which ensures that all available evidence is presented to the Court.
The trial in the Magistrates Court
I do not need to detail the evidence of each witness. I have thoroughly read the transcript.
The learned Magistrate swore in as witnesses the applicant and the respondent simultaneously. It was entirely appropriate, in accordance with the policy under the Act for the Magistrate to examine them together.
Each witness was given a full opportunity to put their respective cases to the other.
The applicant called Mr Wing to give oral evidence, and the statutory declaration of Mr Webber dated 8 August 2018 was tendered to the Court.
The respondent tendered the report of Mr Davey, and the remaining exhibits to the Court.
The Magistrates Court, prior to the trial had sought and obtained an independent report from a recognised building expert, Mr Peter Jankovic. That report dated 9 February 2018 followed his inspection on site on 29 January 2018.
Mr Jankovic noted that the appropriate Standard was not that referred to by Mr Davey, but AS 3727–1993 which related to Residential Pavements, and the Guide to Concrete Practices 2010 version.
He also informed the Court that he had investigated the applicants licence. He said that any contractor carrying out such work was obliged to be licensed.[7] He reported that the applicant had been granted a licence but that licence was cancelled on 19 February 2016. The absence of such a licence and its effect upon the claim was not referred to thereafter. As it transpires I do not need to address it either.[8]
[7] See Building Work Contractors Act1995 (SA), s 32. Paving fell within Building Work Contractors Regulations 2011 (SA), Reg 4(1)(b).
[8] See discussion in W Cook Builders (in liq) v Lumbers [2007] SADC 20 and [2008] HCA 27.
The applicant was critical of the report of Mr Davey. He explained that both he and Mr Wing had well over 30 years’ experience in providing concreting services. He said that the respondent should have explained to him any unusual features such as the intention to do tiling in due course, before the work started and to the fact that a water invert was required. He explained that it was not part of the agreement. He also complained that the photographs produced by Mr Davey were ‘misleading’.
In his report Mr Jankovic explained that he had conducted his inspection on 29 January 2018, in contrast to that of Mr Davey on 8 September 2017. He did not accept a number of the alleged ‘defects’ referred to by Mr Davey. He did however note:
·The front end of the driveway kerb had not been formed properly.
·The applicant had been granted a Builder’s Licence for concreting paving work on 19 December 2005 but that it was cancelled on 19 February 2016.
·The grades in the concreted driveway had allowed water to pool against the garage and verandah, and accordingly, it is non-compliant not to have a strip drain in place. Further, it was the responsibility of the paver to address that issue with the owner before the work started.
·It was not necessary for the paving to be 75 mm below the damp course, contrary to the report of Mr Davey, as there was a compliant termite barrier in place.
·The failure to provide for a base preparation is non-compliant.
·The paving undulates and, in the absence of strip drains, is non-compliant.
·The surface finish on ‘tooled areas is poor … and considered faulty building work’.
·The rainwater tank pad is compliant, contrary to the report of Mr Davey.
He expressed the view that the paving had not been carried out in a proper and workmanlike manner, and there was a need for most of it to be replaced.
The Magistrate’s decision

The learned Magistrate correctly, with respect, defined the dispute as being first whether the concrete work was defective, and secondly, who was responsible.
Her Honour noted that the independent expert, Mr Jankovic, did not accept some of the criticisms by Mr Davey as to the thickness of the concrete and the appropriate use of steel reinforcement. Other criticisms, namely that the spanning of controlled joints in the driveway and the tiling in the veranda area, were not defective in contrast to the report of Mr Davey.
She did however conclude that the applicant had failed to provide a proper base preparation for the driveway and that accordingly that work was non-compliant and defective. She also accepted Mr Jankovic’s report to the effect that at the southern end of the driveway, where the paving abutted the garage and veranda, the water drained towards the building rather than falling away from the house. A suggestion by the applicant that a water invert at the garage entrance would ensure that no water would enter the garage was tested but was not successful. In any event, the question of the drain ought to have been addressed prior to the work commencing.
Her Honour relied upon the photos taken by Mr Davey only to the extent of showing inconsistencies in the height of the paving around the house compared to the bottom of the fence line and poor finishing of the concrete edges.
The applicant and the two witnesses, Mr King and Mr Webber, deposed that the rough edges could be easily fixed and that while one corner of the concrete path was thinner, the rest was ‘fine’.
Her Honour noted that the respondent had complained about the poor appearance of the finish of the paving. Mr Jankovic concluded that the paving was undulated and the attempt to grade the paving into the stormwater grates was not successful and thus non-compliant. He also regarded the surface finish on the paving as poor.
The learned Magistrate referred to and relied on the photos taken by Mr Davey rather than the opinion of Mr Davey. She found that in light of the photographs and the opinions expressed by Mr Jankovic, which she accepted, the concrete work had not been performed to a tradesman-like standard. She referred particularly to the lack of a base preparation for the driveway and the pooling of water adjacent to the building as being defective. She preferred the report of Mr Jankovic over the oral evidence given by the applicant and his witnesses.
The application for Review
·The grounds for review
1.   The Defendant produced misleading information and photographs to benefit himself.
2.   The builder and the defendant are blaming me for no rebate at the top of the driveway for the roller door.
3.   No tape measure was used so as to try to make me look like the culprit.
4.   Finding is incorrect as it should have been all around concrete serviced.
The applicant attempted to clarify the grounds as follows:
·That the learned Magistrate erred in some way, with respect to a finding at paragraph 1 of page 5 of the judgment. In fact, there can be no dispute as to the facts set out at paragraph 5;
·That the learned Magistrate erred in respect of paragraph 8 of her reasons, which again was simply a record of what Mr Davey stated, without any finding by her, that only complete reinstatement would achieve a satisfactory finish;
·That the learned Magistrate erred in paragraph 10 of her judgment that the failure to provide a base preparation rendered the work defective;
·That the learned Magistrate erred at paragraph 10 of her reasons in concluding that water drained towards the garage and veranda and was accordingly non-compliant;
·That the learned Magistrate erred in concluding at paragraph 12 that the paving was undulated and the attempt to grade paving to stormwater crates was not successful and the paving was poor;
·That the learned Magistrate erred at paragraph 17 in concluding that the paving was uneven, of a poor standard and the Mr Jankovic’s report regarding non-compliance and poor workmanship ought to be accepted; and
·That the learned Magistrate erred in concluding that Mr Davey’s report was of utility and that the sum of $200 be ordered in favour of the respondent for the report.
The applicant sought the following orders
1That he be granted an extension of time to bring the application to review the decision. This order was made by the Court as I have explained.
2that the judgment in favour of the respondent be set aside; and
3that judgment be entered in favour of himself together with costs.
The nature of a Review
The nature of such a review was also considered by Blue J in Harradine v District Court of South Australia,[9] in which his Honour said, at [53]:
1 The review is not in the nature of an appeal stricto sensu.
2The 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.
3The 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.
4The 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.
5If 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).
6To 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.
[9] [2012] SASC 96.
The hearing of the application for review
As is plain, the review process requires the Court to reconsider the decision of the Magistrate and determine whether there has been legal or factual errors vitiating the judgment.
The submissions of the parties
·The applicant
It is clear that the applicant genuinely feels aggrieved by the findings that he failed to complete the paving work in a tradesman-like manner, and that there was a need for some of the work to be replaced. He maintained that such defects as were found to exist were the fault of others and not part of the contract.
In effect, he repeated the submissions he had made to the Magistrate.
I repeat that at the time of his submissions, the applicant was unwell, but was able to properly put his submissions. He expressed concern that the respondent was under no obligation to rectify the concrete but could keep the judgment sum. I explained the law to him on that topic. Even where a building owner were able to sell the building at a profit, it would not displace the measure of damages. See Bellgrove v Eldridge (1954) 90 CLR 613; and McIntyre v Quality Roofing Services [2019[ SASCFC 29.
·The respondent
The respondent relied upon the reasons of the Magistrate.
Discussion
In my opinion, there was no procedural unfairness at all to the applicant from the manner in which the Magistrate conducted the hearing. It was not only open to her Honour to accept the evidence of Mr Jankovic having regard to the photos but with respect inevitable.
Her Honour weighed the material before her carefully and came to a considered view as to the state of the paving, and indeed the cost of rectification. It did and does not matter if the respondent does or does not undertake the rectification work. Her Honour did not need to consider, in the circumstances, the question as to whether the applicant had held the appropriate Building Contractor’s Licence at the relevant time.
The Magistrate was correct in concluding that the applicant was responsible for the pooling of the water at the garage. She dealt with each of the issues raised by the parties in detailed reasons which were, with respect, correct.
In my opinion, there was and is no substance to any of the complaints made by the applicant in his grounds for review. I appreciate that the applicant had a different opinion than the decision reached by the Magistrate but that does not mean that the Magistrate was in error.
There was no error of fact or law, and there is no other proper basis to rescind the judgment under review.
Accordingly, pursuant to s 38(7)(d) of the Act I affirm the judgment and the orders of the Magistrate. I dismiss the application for review of the Magistrates decision.
Costs
Pursuant to Rule 6DCR 279A of the Rules of Court this Court has a general discretion to make an order for the costs of the application. I note, however, the philosophy of Parliament as embodied in s 38(5) of the Act, is that, in minor civil actions, costs ought not be awarded unless there are special circumstances justifying an award of costs. In my opinion, the appropriate order is that each party bear its own costs of the application.
Formal orders
The formal orders of the Court are:
1                  I order that the date for filing the application for review be extended,                nunc pro tunc, until 5 April 2019.
2                  That the decision of the learned Magistrate is affirmed.
3                  That the application for review is dismissed.
4                  That each party bear its own costs of the application for review.