Marshall v Stiles

[2010] QDC 65

[2010] QDC 65

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE NOUD

No 1043 of 2009

GARRY MARSHALL	Appellant
and
STEPHEN JAMES STILES and ORS	Respondents

BRISBANE

..DATE 18/01/2010

JUDGMENT

HIS HONOUR:  This is an appeal from a decision of a Magistrate.  It concerns two horses, a stallion and a gelding which the appellant, on terms, allegedly asked the respondents to look after and care for.  The respondents allegedly carried out the work and charged for the services.  The appellant for a number of reasons refused to pay and hence the action in the Magistrates Court. 

The appellant counter-claimed in that action.  The Magistrate, following a trial, dismissed the counter-claim and found for the respondents on the claim.  In doing so the Magistrate accepted the respondents and their witnesses and was critical of the appellant's evidence.  His Honour adopted that approach after referring briefly to the evidence of each of the witnesses. 

The appellant on appeal raises a number of factual matters and also says that he was without legal representation for part of the trial and had difficulty hearing.  These last two points are without merit in my opinion.  I say that because there are many cases where, unfortunate though it is, litigants cannot be legally represented.  That in itself however is not a reason for taking the view that he has not had a fair trial. 

I am satisfied that even though not legally represented for part of the case leading to a failure to tender certain documents and other alleged prejudices the appellant nevertheless did have a fair trial.  As to not being able to hear his Honour thought that the appellant was not genuine in that claim and I see no reason to interfere with that view. 

The appellant has to appreciate, in my opinion, that there are limitations on what an Appeal Court can do on appeal.  This is especially so in relation to questions of fact.  There is no fixed rule but it is generally accepted that the judicial officer at first instance is in a better position to decide questions of fact and questions of credibility. 

Of course this does not relieve a Judge on appeal from examining the evidence, forming his or her own view about what the issues are and asking whether it was open for the judicial officer at first instance to reach the decisions which were in fact arrived at. 

I have endeavoured to do that and the material reveals in my opinion a fairly simple case.  There was an issue about whether the respondents were the correct parties to the action, a company being suggested as the appropriate and necessary plaintiff, but there was evidence before the Magistrate demonstrating the correctness of the action as framed and it was open to the Magistrate to reject the suggestion that the respondents were disentitled to judgment simply because they were the wrong contracting party. 

The main issue concerned the terms of the agreements (oral agreements) between the parties and quantum.  There were two horses as I have said and there were relevant discussions, on the evidence, about them in November 2005.  This resulted in the animals being looked after at the respondents' Chambers Flat property for a certain period at a rate of $16.50 per hour per night.  This was all being done at the behest of the appellant, according to the evidence, who had to have a back operation.  That was the evidence in the case and it was open to the Magistrate to act on it.  

Then in December 2005 the evidence was to the effect that there was another agreement this time only concerning the stallion.  The rate was different so was the place, which was Rockhampton.  There was an issue about the return of the stallion, the appellant contending that he had demanded the return of the animal.  However, as I have made clear the Magistrate was not at all impressed by the evidence of the appellant and unfortunately for the appellant I see no reason for interfering with the Magistrate on this. 

The same applies to the appellant's counter-claim (taking up again as it does the issue of the return of the horse and other matters) which was difficult to follow and without merit in the Magistrate's opinion.  Quantum and interest were in issue in relation to the agreements but the Magistrate had documents before him supporting the respondent's case and yet again the Magistrate found against the appellant. 

All this was open to the Magistrate, in my opinion, and I would go further and say that the Magistrate's approach seems to me to have been the correct one.  I say that in relation not only to quantum but also as to the agreements and as to the terms of those agreements. 

Now the appellant wishes on appeal to raise a number of matters about the facts.  I have had regard to all that but in my opinion these points (concerning waybills and so on) are not the sort of points which give rise to intervention by an Appellate Court. 

This was a case where the appellant had a fair hearing in the Magistrates Court.  The case went for two days and at times when the appellant was not represented the Magistrate, in my view, treated him in a proper way.  I think in all the circumstances the Magistrate was right to find for the respondents in the amount that he did and to dismiss the counter-claim.  For these reasons the appeal is dismissed. 

No order as to costs.

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