Mayes v The City of Adelaide - [2020] SADC 126

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
MAYES v THE CITY OF ADELAIDE
[2020] SADC 126
Judgment of Her Honour Judge Schammer
2 September 2020
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL
Application for Minor Civil Review of a Magistrate’s decision summarily dismissing the applicant’s claim – summary dismissal application made orally, without supporting affidavit, by one of three respondents – claim dismissed as against all respondents.
Orders:
1. The order made by the Magistrate summarily dismissing the applicant’s claim is rescinded.
2. The action is remitted to the Magistrates Court for hearing before another magistrate.
3. No order as to costs.
Magistrates Court Act 1991 s 38; Civil Liability Act 1936 (SA) s 42, referred to.
Nguyen v Hiotis (2000) 76 SASR 522; Davies v Minister for Urban Development and Planning & Anor [2011] SASC 87; Collins v Djunaedi [2016] SASCFC 48; Vansetten v State of South Australia [2020] SASC 158; Johnson v Johnson (2000) 201 CLR 488; R v M,S [2018] SASCFC 37; Antoun v The Queen [2006] HCA 2; Gillott v District Court of South Australia [2019] SASC 132; Trittenham Pty Ltd v H&H Gill Nominees Pty Ltd (1994) 63 SASR 434; Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council (2001) 206 CLR 512; Carey v Lake Macquarie City Council [2007] NSWCA 4, considered.

MAYES v THE CITY OF ADELAIDE
[2020] SADC 126
Introduction

This is an Application for Review.
Milton Kym Mayes (Mr Mayes) brought a minor civil action against The City of Adelaide (Council), the Local Government Association Mutual Liability Service (LGAMLS) and Beam Mobility Holdings (Beam), hereinafter collectively referred to as the Respondents claiming damages in the sum of $2,375 plus filing fee (the Claim).
The Claim was for personal injury allegedly sustained by Mr Mayes on 20 September 2019,[1] when he tripped on one of two ‘Beam’ scooters, left lying on the ground, as he attempted to walk from the footpath on Gouger Street, onto Victoria Square, to catch a tram. Mr Mayes claimed his fall and resulting injury was caused by the scooters ‘being left carelessly on the footpath’ and thus obstructing his ‘right of way to Victoria Square’. He admitted that he saw the scooters before the fall, but claimed that as he walked past the scooters, the edge of his left foot ‘was snagged by the scooter’, causing him to fall and land on his right knee, right elbow and left hand, resulting in loss and damage.
[1] Noting the Claim erroneously refers to the date of the incident as 20 September 2020.
Although not expressly pleaded, the Claim was founded in negligence. Mr Mayes claimed the Respondents, including the Council, owed him (and other pedestrians) a duty of care to ensure that scooters were not left lying unattended on city footpaths such that they constituted a tripping hazard for footpath users. He claimed the Respondents, including the Council, breached that duty of care, causing him loss and damage.
On 28 May 2020, a Magistrate summarily dismissed the Claim pursuant to r 144.2 of the Uniform Civil Rules 2020 (UCR) (decision).
For the reasons set out hereunder, I rescind the decision.
I remit the matter to the Magistrates Court for further hearing, to be listed before another Magistrate.
The Application for Review
On 17 June 2020, Mr Mayes filed a Notice of Review, wherein he sought orders:
1that the decision be overturned; and
2that the Court remit the action to the Magistrates Court to be heard and determined on the evidence and facts.
There are several grounds of appeal pursued by Mr Mayes. Those grounds fall under three broad categories:
1Apprehended bias on the part of the Magistrate.
2Alleged procedural defects made by the Magistrate resulting in unfairness; and
3Substantive issues, namely that the Magistrate erred in finding there was ‘no reasonable basis’ for the claim against the Council.
The Application for Review only names one respondent, the Council. The order made by the Magistrate was to summarily dismiss the Claim against all three Respondents.
By way of background, on 3 March 2020, Mr Mayes applied for an order seeking to amend his claim to remove the LGAMLS as a party on the basis that the LGAMLS was not a legal entity capable of being sued. That application was never formally dealt with by the Magistrate. Mr Mayes makes no complaint as to the dismissal of the claim against LGAMLS, as it was never his intention for that claim to proceed.
During the hearing before the Magistrate on 29 May 2020, Mr Mayes informed the Magistrate that he intended to apply to ‘strike out’ the claim against Beam, based on legal advice he had received as to the likely prospects of success of that claim. The Magistrate declined to make that order at that particular stage of the hearing, noting the Council’s intention to apply to re-join Beam as a third party to the action in the event the claim against the Council continued.
However, at the hearing of the Application for Review, Mr Mayes explained that he felt pressured by the Magistrate to discontinue the claim against Beam, following comments made by him with respect to the potential costs he may incur, if the claim was unsuccessful.
As Mr Mayes complains about the effect of the Magistrate’s order insofar as it included a dismissal of the claim against Beam, Beam should have been named as a respondent to the Application for Review. However, for the reasons as outlined below, I am satisfied that Beam’s inability to be heard on the Application for Review would not have changed the outcome.
The Procedure on Review
Section 38 of the Magistrates Court Act 1991 (MCA) outlines the procedure to be followed in the determination of minor civil actions in the Magistrates Court and provides a mechanism whereby a party dissatisfied with a judgment given in a minor civil action may apply to the District Court for a review of the matter.
Section 38(7) of the MCA states:
38—Minor civil actions
(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.
The Review is a review of the matter, and not simply a review of the judgment.
The Hearing
Mr Mayes appeared by way of phone at the hearing. The Council was represented by Mr Kahland who attended in person.
Prior to the hearing, both parties filed and served Written Submissions and the Council filed and served a List of Authorities.
Mr Mayes relied upon his very detailed Notice of Review and Written Submissions in support of the application. Mr Kahland relied on the Council’s Written Submissions and provided a brief oral summary of those submissions at the hearing.
Background
Preliminary
It is important to have an understanding as to the history of the minor civil action and the context in which the order for summary dismissal was made.
Beam filed a Defence to the action on 14 February 2020 wherein it denied liability, essentially on the basis that the fall occurred solely because of Mr Mayes’ negligence, in that he had seen the scooters, and fell as he was rushing for a tram. It also pleaded that the action should have been brought against its subsidiary, Beam Mobility Australia Pty Ltd (Beam Aust).
In accordance with usual procedure, upon a Defence being filed, the action was referred by the Registry to a Magistrate who determined, in chambers, that it was appropriate for the action to be referred to a Magistrate, rather than a Judicial Registrar, for a Directions Hearing, given the nature of the claim.
The Council filed a Defence on 2 March 2020 (Council’s Defence) wherein it denied it had any liability to Mr Mayes but, relevantly, admitted that it had the care, control and management of the footpath where Mr Mayes fell[2] and that it owed a duty ‘to take reasonable steps to protect persons from injury arising from the presence of e-scooters’,[3] which duty it claimed to have discharged by engaging Beam to monitor and manage the location of the e-scooters and whether any scooters had fallen over.
[2] Council’s Defence at [2].
[3] Council’s Defence at [8].
The Council denied it had breached any duty of care it owed to Mr Mayes and pleaded that the presence of the scooters on the footpath constituted an ‘obvious risk’ within the meaning of the Civil Liability Act 1936 (SA) (CLA), such that it had no duty to warn Mr Mayes of that risk. It alleged the incident was caused solely by Mr Mayes’ negligence.
Council’s Defence did not plead any reliance on s 42 of the CLA.
Section 42 of the CLA states:
42—Liability of road authorities
(1) A road authority is not liable in tort for a failure—
(a)to maintain, repair or renew a road; or
(b)to take other action to avoid or reduce the risk of harm that results from a failure to maintain, repair or renew a road.
(2) In this section—
road means a street, road or thoroughfare to which public access is available to vehicles or pedestrians (or both), and includes—
(a)a bridge, viaduct, busway (including the O-Bahn) or subway;
(b)an alley, laneway or walkway;
(c)a carpark;
(d)a footpath;
(e)a structure associated with a road;
road authority means—
(a)a body or person in which the ownership of a road is vested by statute, or to which the care, control and management of a road is assigned by statute; or
(b)if the road is on land of the Crown—the Crown or the Minister responsible for the care, control and management of the land; or
(c)any other public authority or public body that is in fact responsible for the care, control and management of a road;
vehicle includes—
(a)a motor vehicle;
(b)a bicycle;
(c)an animal that is being ridden;
(d)an animal that is being used to draw a vehicle,
but does not include a tram or other vehicle (except an O-Bahn bus) that is driven on a fixed track.
First Directions Hearing – 28 April 2020
The action was listed for a Directions Hearing before a Magistrate. The hearing was adjourned on several occasions but ultimately proceeded on 28 April 2020, with all parties appearing by phone, given Covid-19 restrictions.
The Council was legally represented at the Directions Hearing. There is no record on the file of any application being made, or granted, for that representation to occur.
The Magistrate made a number of preliminary observations as to the likely prospects of success of the claim. The following exchange occurred at the very outset of the hearing:[4]
His Honour:     Mr Mayes I was hoping that you’d be able to come to court in relation to this matter but that hasn’t happened, so we’ll have to deal with it remotely. You don’t suggest that there was anything wrong with the scooter that was left on the footpath, it’s just that somebody who used the scooter, and we don’t know, left it somewhere and you then fell over it after having seen it. Is that what happened?
Mr Mayes:Yes, your Honour, yes.
His Honour:     I can’t see what Beam Mobility Holdings or the City of Adelaide have done wrong, other than allow the use of the scooter which nobody else is complaining about and obviously when these things happen, even putting a seat on the footpath creates an obstruction and the possibility that someone might run into it but I can’t see that there’s any legal claim. Now, my inclination is to dismiss it today, but if you want to get some advice about the matter, I will let you do that…
[4]    Transcript 28/04/20 at T2.1-19.
Thereafter Mr Mayes made submissions as to why he believed the Claim had merit, namely that the Council had entered into a licence agreement with Beam to enable them to provide the scooters, which agreement required the scooters to be properly and safely stored, which had not occurred.
The Magistrate reiterated his preliminary view that the Claim was without merit, and explained to Mr Mayes that if he pursued the Claim, he ran the risk of incurring ‘a whole lot of costs’,[5] including the cost of airfares from Singapore to enable representatives from Beam to attend the trial. The Magistrate explained that he did not think Mr Mayes had a claim, and that, he was, in effect, trying to help him, by dismissing the Claim at an early stage, before such costs were incurred.
[5] Transcript 28/04/20 at T4.8-9.
Mr Mayes requested more time to consider the matter. As such, the Magistrate adjourned the matter to a directions’ hearing on 29 May 2020. He suggested to Mr Mayes that it may be beneficial for him to seek legal advice. The Magistrate stated:[6]
Once you see the scooter and then don’t safely negotiate it, I think there might be a problem and I think there might be a problem with suing the Council and Mr Bubner (sic) anyway for what was done by a third party because I don’t see how they could exercise any more control over that third party than they attempt to do.
[6] Transcript 28/04/20 at T4.25-31.
Directions Hearing – 29 May 2020
Prior to the Directions Hearing on 29 May 2020, the Council’s solicitors forwarded a disc to the Court containing CCTV footage of the Mr Mayes’ fall (the CCTV footage).
All parties appeared at the hearing by telephone. Again, the Council was legally represented. Again, there is no record on the file of any application being made, or granted, for that representation to occur.
Prior to the hearing, the Council’s solicitors wrote to Mr Mayes to inform him that they intended to seek an order finally determining the claim against the Council at the hearing.
As such, Mr Mayes had prepared a written submission on the understanding that the Council intended to apply to have the claim against them dismissed. In that submission, Mr Mayes made reference to two separate lines of authority that he submitted supported a claim for damages in negligence against the Council, namely those relating to the liability of road authorities to maintain a road and/or footpath, and those which related to the liability of occupiers who invite parties onto their premises, such as supermarkets.
The Magistrate noted that any summary dismissal application could be heard at a later date, with half a day set aside, and exhibits (such as the CCTV footage) formally tendered. However, as Mr Mayes had prepared for the application, he proceeded to hear the application, for the sake of expediency.
The Council’s solicitor made an oral application pursuant to UCR 338.2 for an order summarily dismissing the claim against the Council pursuant to UCR 144.2. The Magistrate heard oral submissions from the Council’s solicitor and Mr Mayes with respect to the application, in the absence of there being affidavits filed either in support of, or in opposition to, the application.
No submissions were made by Beam, and no application for summary dismissal was made by Beam (or LGAMLS).
The Council’s solicitor submitted that the two lines of authority relied upon by Mr Mayes to establish a claim in negligence had no relevance to the action. He submitted that the Council did not owe Mr Mayes a duty of care in the circumstances of this case where Mr Mayes had seen the scooter and then proceeded to trip over it.
The Council’s solicitor relied on what was said by Doyle CJ in Nguyen v Hiotis (Nguyen) namely:^[7]
…The Court cannot escape its responsibility to decide whether or not it is arguable that a duty of care will be held to exist. If the claim is ultimately doomed to fail, the court should say so now.
[7] (2000) 76 SASR 522 at [29].
It was submitted that the claim against the Council fell squarely within what was contemplated by Doyle CJ and therefore should be dismissed.
The Council’s solicitor submitted that the Council did not have a duty to protect pedestrians from an object left on the street by an unrelated third party and that as Mr Mayes had seen the scooter, it was not a hidden or unusual danger, and there was no duty on the Council to protect Mr Mayes in that circumstance.
The Magistrate raised the potential relevance of s 42 CLA. The Council’s solicitor read the terms of that section to the Court, however submitted ‘further to that, it isn’t really a question of maintenance of a road, in my submission, in any event’.[8]
[8] Transcript 29/05/20 at T5.12-14.
Mr Mayes spoke to his written submissions, and referred first to the line of authorities which relate to the liability of statutory authorities with respect to the maintenance of roads and road-related areas (including footpaths). He stated he had not had the opportunity to consider the relevance of s 42 CLA, but that in his view, his claim against the Council did not relate to the maintenance of the footpath, rather it related to an alleged obligation on the Council to ensure that the footpath in question was free of obstructions which may pose a hazard to pedestrians.
As to the second line of authorities, Mr Mayes submitted that the situation in his case was analogous to that in the ‘supermarket cases’, wherein a duty of care was imposed on the proprietor of a supermarket to ensure that the aisles were clear and free of spillages, and to ensure a system was in place and followed to identify and clean up any such hazards. He argued that the Council had allowed Beam to provide scooters for the use of city patrons and that it was foreseeable that such users may leave a scooter on a footpath, posing a hazard for pedestrians. He submitted that as such, the Council owed pedestrians a duty of care to have in place a proper system whereby it carried out inspections to determine to what extent, if any, scooters were left lying on footpaths, rather than being left upright. He submitted that in the absence of the Council demonstrating that it had such a system in place, it was at least arguable it had breached a duty of care it owed to him, and other city pedestrians.
Mr Mayes explained that he was unable to address the Court on the decision in Nguyen. However, he submitted that there may be further evidence to support his claim which may come to light before the matter was listed for trial. He made it clear that he was not suggesting the Council had a duty to remove fallen bikes, rather he submitted it had a duty to at least check to see if fallen scooters may constitute a hazard. He submitted:[9]
I think there is a case to argue. Whether I can sustain that is an issue that I have to be subjected to your tests, your Honour, and the evidence presented by the city council.
[9] Transcript 29/5/20 at T10.20-23.
The Magistrate’s Decision

The Magistrate delivered an extempore decision after hearing the submissions of Mr Mayes and the Council’s solicitor. He did not view the CCTV footage.
The Magistrate made an order dismissing the claim in its entirety. He stated:[10]
…In my view the immunity created by section 42 clearly applies.
In any event, I do not think the Council has been negligent. The bailee of one particular scooter left it lying on the ground. There are numerous hazards on the ground. They are not hidden hazards. They are things such as guttering, posts and other hazards. People do occasionally, through their own inadvertence, injure themselves by tripping on guttering or running into posts. That is not the fault of the Council.
In the present case, the scooter was left on the footpath by a bailee. We do not know how long it had been there. Here has been no attempt to identify a timeframe. Mr Mayes’ argument is that Council should have some system for collecting these scooters. I am sure that is not practical. I do not know what the system would be. Scooters operate throughout a large area. The situation is entirely different from that within the confines of a supermarket.
Leaving aside section 42, the proximate cause of Mr Mayes’ injuries was his failure to safely negotiate a hazard on the footpath which he saw. The hazard was not created by Council and Council was under no liability to remove it.
In my view, Mr Mayes’ action has no prospect of success. Having regard to the fact that significant costs are likely to be incurred by the defendants if the matter is allowed to proceed, and having regard to the clear legal principles involved, the claim should be dismissed at this stage. The claim will be dismissed.
[10] The Magistrate’s Extempore Reasons for Decision dated 29 May 2020 at [9]-[13].
The Law – Summary Dismissal
The Council’s application was made pursuant to UCR 144.2 which states:
144.2—Summary judgment
(1)The Court may, on application by a party, give summary judgment in favour of an applicant—
(a)     on a claim if there is no reasonable basis for defending the claim;
(b)     on a cause of action in a claim if there is no reasonable basis for defending the cause of action; or
(c)     on a separate issue that arises in a claim if there is no reasonable basis for contesting that issue.
(2)The Court may, on application by a party, give summary judgment against an applicant—
(a)     on a claim if there is no reasonable basis for prosecuting the claim;
(b)     on a cause of action in a claim if there is no reasonable basis for prosecuting the cause of action; or
(c)     on a separate issue that arises in a claim if there is no reasonable basis for contesting that issue.
(3)An application for summary judgment must be made by filing an interlocutory application and supporting affidavit in accordance with rule 102.1. (my emphasis)
In Davies v Minister for Urban Development and Planning & Anor, Bleby J stated:[11]
In order to grant relief in this case I must be satisfied that there is no reasonable prospect that, if the matter went to trial, the trial judge would exercise the discretion to grant relief. It is not a question as to whether, on the information before me now, I would decline to grant the relief sought. In order to determine whether there is a reasonable prospect that a trial judge would grant relief, I need to assess not only the information presently before me but whether there is a reasonable prospect that other evidence may be led at trial which would have some bearing on the exercise of the discretion to refuse relief to the plaintiff.
[11] [2011] SASC 87 at [48].
More recently, in Collins v Djunaedi Kourakis CJ explained:[12]
In the case of a summary judgment application, there is a reasonable basis for a claim, or a positively pleaded defence, when there is an evidential foundation for facts upon which arguable propositions of law would result in judgment for the plaintiff or the defendant as the case may be. In cases in which the defendant merely denies the claim, there must be reasonable grounds on which to contend that the plaintiff will not discharge its onus of proof or make good the propositions of law on which it relies. In the case of a SCR 232 application, the evidential basis or grounds must at least be pleaded.
[12] [2016] SASCFC 48, [17] (Kourakis CJ, Stanley and Parker JJ agreeing).
As outlined by Doyle J in Vansetten v State of South Australia,[13] the power to determine an action summarily should not be exercised lightly. He stated:[14]
Exercise of the power requires a practical assessment of whether the applicant has real, as opposed to merely fanciful, prospects of success. While the Court need not be satisfied that the action is hopeless or bound to fail, nevertheless it must be cautious not to do a party injustice by summarily determining an action, particularly where there are disputed issues of fact or law or mixed fact and law, merely because the court considers that it is unlikely to succeed. However, beyond these very general guidelines, courts should focus upon the words used in the rules and avoid applying any judicial gloss.
Grounds for Review
[13] [2020] SASC 158.
[14] Ibid at [68].
Apprehended Bias
Mr Mayes submitted that the manner in which the Magistrate dealt with the claim at both Directions Hearings gave rise to a reasonable apprehension or suspicion that he had pre-judged the case and was biased against him.
By way of example he referred to:
1The Magistrate’s failure to view the CCTV footage of the fall or to consider any evidence.
2The Magistrate raised the possibility of dismissing the claim before any party had made any application, either verbally or in writing, to do so.
3The Magistrate made comments about Mr Mayes’ potential exposure to costs, without consideration of whether, in fact, such costs could be reasonably ordered against him if the claim was unsuccessful, causing him to feel pressured into discontinuing his action.
The test for determining apprehended bias was explained by the High Court in Johnson v Johnson:[15]
It has been established by a series of decisions of this court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision”. The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”. (footnotes omitted)
[15] (2000) 201 CLR 488 at [11]-[12].
The test to be applied involves a two-stage process. The first step requires the identification of something that might lead the Magistrate to decide a case other than on its legal and factual merits. The second is the identification of a logical connection between that and the feared deviation from the course of deciding the case on its merits. Further, the test is to be applied at the time of the making of the relevant decision.[16]
[16] R v M,S [2018] SASCFC 37 at [109].
In determining whether the fictional lay observer might reasonably apprehend that a judge might deviate from deciding the case on the merits, it is not assumed that the observer has a detailed knowledge of the law, or of the character or ability of a particular judge. Further, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice.
An expression of tentative views by a Magistrate does not mean the Magistrate lacks partiality. In Antoun v The Queen, Hayne J said:[17]
A trial judge, sitting without a jury, will inevitably form impressions of the strength of a party's case as the hearing proceeds. Preliminary assessments are made of the evidence. Always the judge will be trying to relate what is happening in the courtroom during the trial not only to the final decision that will have to be made, disposing of the case, but also to questions that the judge may be called on to decide in the course of running. Precepts of efficiency and economy will require the trial judge to be astute to keep the focus of the trial upon relevant issues. If a party makes an application during the trial, the trial judge should deal with it as swiftly and decisively as the application permits. But there is a line to be drawn between deciding cases efficiently and economically and appearing to prejudge what has to be decided.
[17] [2006] HCA 2 at [53].
The Magistrate was not hearing a trial, rather he was presiding over the first and second Directions Hearings in the matter.
The Magistrate was required to act in accordance with the MCA and the Rules of Court.
As a starting point, s 38(1)(f) of the MCA, stipulates that the (Magistrates) Court ‘must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.’
The meaning of this section was considered recently by Peek J in Gillott v District Court of South Australia,[18] wherein he quoted from the decision of Olsson J in Trittenham Pty Ltd v H&H Gill Nominees Pty Ltd.[19] In that case, Olsson J noted that the meaning of that phrase must derive from a consideration of the nature of the issues involved and, where appropriate, the clear purpose of any applicable statute. Olsson J held that in certain cases the phrase required the court to adopt a broad approach of common-sense and common fairness, eschewing all legal and other technicalities.
[18] [2019] SASC 132 at [44]-[46].
[19] (1994) 63 SASR 434 at 442.
The UCR came into effect on 18 May 2020 and therefore applied to any steps taken with respect to the action during the hearing on 29 May 2020.
UCR 331.2(b) stipulates that the objects of the Minor Civil Rules under the UCR are to ‘facilitate the just, efficient, timely and cost-effective resolution or determination of the issues in the proceeding’.
Magistrates sitting in the minor civil jurisdiction hear a large volume of cases and do their best to administer justice as swiftly and appropriately as possible. In most cases, the litigants are unrepresented. It can be the case, that it is readily apparent from the pleadings, that a claim discloses no cause of action or a defence is simply doomed to fail. In those situations, in my view it is entirely appropriate and in the interests of justice for a Magistrate, hearing the action in its preliminary stages, to explain to a litigant the legal hurdles they are required to overcome to be successful in either their claim or defence. Doing so, in an appropriately worded manner, does not amount to pre-judgment. Rather, the Magistrate is simply endeavouring to assist the parties to the litigation to understand the particular risks they face and to thus assist the parties to facilitate the just, efficient, timely and cost-effective resolution or determination of the issues in the proceeding.
The Council submitted that rather than demonstrating bias, the approach taken by the Magistrate was a common-sense approach, in accordance with both the MCA and the UCR, having regard to the monetary value of Mr Mayes’ claim, its likely prospects of success and the costs that may be incurred by the Respondents to defend the action.
The Magistrate made a number of comments as to potential costs Mr Mayes may face in the event his claim proceeded to trial and was unsuccessful. The minor civil jurisdiction is not a ‘no cost’ jurisdiction. An unrepresented applicant in a minor civil action will incur expenses such as the filing fee and trial fee, which costs cannot be recovered unless the applicant is successful. In addition, if unsuccessful, a litigant will, in the ordinary course, be ordered to pay the costs incurred by the successful party (or parties) in accordance with the Minor Civil costs scale in what is now Schedule 6 Part 4 of the UCR.
It was appropriate for the Magistrate to raise with Mr Mayes his potential exposure to costs, given the nature of the claim he is pursuing, and the very real risk that the claim will be unsuccessful.
However, it is unlikely that potential liability does in fact extend to cover the cost of reimbursing Beam for airfares for a representative to attend the trial from Singapore, given the limitations in the costs scale and anticipated arguments as to the reasonableness of any such costs. The Council’s correspondence with Beam was directed to an address in North Bondi, from which it may be inferred that there is a representative (or representatives) from Beam based in Australia who may be the appropriate person or persons to attend at any trial.
Having carefully reviewed the transcript, I am not satisfied that the test for apprehended bias is made out in this instance. The Magistrate’s decision (and how he proceeded to determine it) appears to have been based on matters of efficiency, with a view to endeavouring to comply with the obligations imposed on him by the MCA and the UCR.
The Magistrate took numerous matters into account, including the modest sum claimed by Mr Mayes, the considerable hurdles he faced to establish liability against any respondent, his reluctance to physically attend at court for the purposes of any trial (for health reasons relating to Covid-19), the potential for a cross-claim between the Council and Beam and the costs and resources that would be expended by all parties in preparing for and attending such a trial.
However, I am satisfied that the manner in which the Magistrate proceeded to determine the application has resulted in a denial of procedural fairness to Mr Mayes, such that the decision must be rescinded.
Procedural Defects
The Applicant submitted that the Magistrate failed to conduct the hearing of the summary dismissal application according to law, and the rules of procedural fairness in that he:
·permitted the Council to have legal representation contrary to s 38(4) MCA.
·did not attempt to assist the parties to explore a negotiated settlement, contrary to s 38(2) MCA.
·heard the application prior to the Council making discovery.
·heard the application in the absence of the Council providing ‘further and better particulars’ of its application to dismiss.
Mr Mayes also complained about prejudice suffered by him arising from an initial refusal by the Magistrates Court to provide to him a copy of the transcript of the Directions Hearing on 29 May 2020. That defect was remedied prior to the hearing of the Application for Review.
Representation of D1 by a legal practitioner at the hearing of the application
The Council was legally represented at both Directions Hearings.
Section 38(4) MCA states:
(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.
The starting point is s 38(4). In this instance, none of the parties were legal practitioners and there was no agreement by the parties to the action as to legal representation. While the Council may have benefitted from having legal representation at the hearings, it is difficult to see how it could be successfully argued that they would be unfairly disadvantaged, if not allowed such representation, given the circumstances.
Council contended that in this instance the Magistrate had exercised his discretion pursuant to s 38(4)(ab) to permit the Council to be legally represented at both Directions Hearings.
The first Directions Hearing in this instance did not involve the hearing of an interlocutory application, although the second hearing did.
The usual practice is for a practitioner to make an application for leave to represent a party at a hearing of a minor civil action. No such application was made by the solicitors representing the Council. The Magistrate did not make any order permitting the Council to be legally represented at either hearing. While it may be presumed that as, in fact, the Magistrate allowed such representation he must have, by implication, granted permission, the usual practice is for this to be raised in open court, and if the application is opposed, for submissions to be heard and considered on that issue.
Mr Mayes was not given any opportunity to make submissions objecting to the implicit permission granted by the Magistrate for the Council to be legally represented pursuant to s 38(4)(ab). While the Magistrate may have, in any event, exercised his discretion to allow the Council legal representation given the matters in issue, the combined effect of allowing the Council to proceed on an oral application for summary dismissal, with no supporting affidavits or evidence, and without expressly addressing the issue of representation, caused Mr Mayes significant disadvantage.
No attempt to negotiate a settlement
Section 38(2) MCA states:
(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.
Mr Mayes submitted that at no stage did the Magistrate make any attempt to facilitate a negotiated resolution of the claim, instead commencing the discussion at the first Directions Hearing by stating his preliminary view that the claim had no basis. The transcript of both hearings lends support to that submission.
However, the language used in s 38(2) is ‘should’, rather than ‘must’. While in most cases it is desirable for a Magistrate to raise the possibility of a negotiated resolution of the dispute with the parties, there is no requirement on a Magistrate to do so. It is unfortunate that the Magistrate in this particular instance stated his preliminary intention was to dismiss the Claim prior to exploring such a possibility. Having made that verbal intimation, the Magistrate effectively precluded any prospect of settlement on terms other than the Claim being dismissed. However, having done so, does not, in my view, amount to a successful ground of review.
No Discovery

The application was pursued prior to the parties making discovery. There were no affidavits filed in support of the Council’s application. The Magistrate made the decision without receiving (or hearing) any evidence, save for confirming with Mr Mayes’ that he had seen the scooter before he tripped on it.
The Magistrate did not have evidence of any relevant contract as between the Council and Beam, relied upon by the Council in its Defence. He did not view the CCTV footage. He did not have the benefit of any documents held by Council as to its knowledge of any other accidents involving scooters. He acted solely on what was in the pleadings.
Bearing in mind the test for summary dismissal, in my view, the Magistrate’s decision was made prematurely. While the claims against both the Council and Beam face a number of hurdles to be successful, in the absence of the Magistrate considering any evidence at the time he made the decision, in my view, he could not be satisfied whether or not there was ‘any reasonable basis’ for the claim.
No ‘further or better particulars’
Upon being informed of the Council’s intention to apply for the claim to be dismissed, Mr Mayes requested the Council provide ‘further and better particulars’ in support of the application. The Council declined to do so, stating they relied simply on the fact that Mr Mayes had no legal remedy, as the Council did not owe him a duty of care and/or it had not breached such duty.
The Council’s application was made pursuant to UCR 144.2. UCR 144.2(3) imposes a positive obligation on an applicant seeking summary judgment to file a written application and supporting affidavit material ‘in accordance with rule 102.1’.
The Council contends that as r 102.1 does not apply to minor civil actions, the Magistrate had the power to hear an oral application pursuant to UCR 338.2.
UCR 338.2 gives a Magistrate the power to make an order on an oral application without filing an interlocutory application if it is ‘just and expedient’.
While Mr Mayes was forewarned of the Council’s intention to make the oral application, and came to the hearing having undertaken some preparation for it, he was not aware of the potential for s 42 of the CLA to be raised, noting it was not pleaded. The Magistrate’s decision was made, in part, in reliance upon s 42 CLA. Mr Mayes was not aware of the Council’s intention to rely on the decision in Nguyen v Hiotis. He was not provided with any written material, prior to the hearing, which outlined the substance of the application to be made, the relevant rule relied upon, the legal test or similar.
In my view, it was not just, in the circumstances, for the Magistrate to determine the application in the absence of both a written application and any supporting affidavit. The effect of the application was to finally determine Mr Mayes’ claim arising from the incident. The absence of any affidavits meant that Mr Mayes was denied the opportunity to properly consider the arguments sought to be raised by the Council and be prepared to make informed submissions in response.
Perhaps even more important is that in the absence of any affidavit, the Magistrate determined the application in the absence of evidence, which, given the nature of the claim and the issues to be determined, meant he made the decision prematurely.
Entire Claim Dismissed
The Magistrate summarily dismissed the claim not only against the Council, but against Beam. Beam made no application for such an order and made no submissions in support of any such order being made.
It is likely the Magistrate did so after previously hearing from Mr Mayes of his intention to discontinue the action against Beam.
However, having regard to the wording of UCR 144.2, the Magistrate had no power to dismiss the claim against Beam pursuant to that rule, in the absence of Beam making an application for summary dismissal if the claim against it.
Although Mr Mayes had earlier intimated an intention to discontinue the claim against Beam, the Magistrate made the order without confirming again with Mr Mayes whether he consented to the dismissal, noting that the order made had the effect of disposing of the action, and at the time Mr Mayes raised discontinuing that aspect of the claim, he expected that his action against the Council would continue for determination at a trial.
I note my earlier observation as to costs. I accept Mr Mayes’ submission that he felt compelled to discontinue the claim against Beam in light of the Magistrate’s earlier comments as to his liability to pay for the overseas airfares.
It is also of note that other than the blanket statement in the Magistrate’s reasons that the ‘action has no prospect of success’, there is nothing in the reasons directed specifically to Beam’s potential liability for the claim.
Substantive Issues
I have considered the various authorities relied upon by the Council. I do not intend to outline the various propositions stated therein, or to the specific relevant provisions in the CLA.[20] As Mr Mayes saw the scooter, he faces a significant challenge in establishing a breach of any duty of care owed to him by either the Council or Beam, and that any such breach caused the loss and damage alleged. If he is successful in this respect, the fact he saw the scooter but still tripped on it, raises the very real likelihood of a finding of contributory negligence, thus reducing what is, in any event, a very modest claim.
[20] Namely ss 31, 32, 34 – 38 (inclusive) CLA.
However, when the relevant authorities are carefully considered, it is apparent that in determining whether a duty of care is owed or has been breached, the Court must consider the facts of each case. I note what was said by the High Court in Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council, as to the appropriate principles to apply when determining whether a local authority had breached its duty of care with respect to public roadways, namely:[21]
The discharge of the duty involves the taking by the authority of reasonable steps to prevent there remaining a source of risk which gives rise to a foreseeable risk of harm. Such a risk of harm may arise from a failure to repair a road or its surface, from the creation of conditions during or as a result of repairs or works, from a failure to remove unsafe items in or near a road, or from placing of items upon a road which create a danger, or the removal of items which protect against danger.
In dealing with questions of breach of duty, whilst there is to be taken into account as a ‘variable factor’ the results of ‘inadvertence’ and ‘thoughtlessness’, a proper starting point may be the proposition that the persons using the road will themselves take ordinary care…
...persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence. Certain dangers may not be readily perceived because of inadequate lighting or the nature of the danger…or the surrounding area (as in Buckle, where the hole was concealed by grass). In such circumstances, there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety. Each case, of course, will turn upon its own facts.
[21] (2001) 206 CLR 512 at 580-581.
Mr Mayes acknowledges he saw the scooters. Further, the fall occurred in the day time, such that there are many reasons why the decision in Carey v Lake Macquarie City Council,[22] being a decision referred to by Mr Mayes, can be distinguished from the within matter. Mr Mayes’ action against the Council may well fail.
[22] [2007] NSWCA 4.
However, in the absence of reviewing affidavits or hearing evidence as to the facts, or viewing the CCTV footage, it was not possible for the Magistrate to determine that there was ‘no reasonable basis’ for the claim as against either the Council or Beam.
Further, it is clear from the Magistrate’s reasons that he formed a view that s 42 CLA applied in the matter. Council’s Defence did not plead reliance on s 42 CLA. The solicitor for the Council expressly disavowed reliance on s 42 CLA at the hearing on 29 May 2020. While the Council now seeks to rely on s 42 CLA, on the basis that any obligation to keep the footpath free of obstructions amounts to ‘maintenance’ of the footpath, in my view, the potential application of this section is, at the very least, reasonably arguable.
The Council contended that notwithstanding any purported procedural deficiencies, this Court should affirm the decision of the Magistrate. I have carefully considered those submissions given the nature of the Claim and the strength of the defences raised by the Council. While that can be an appropriate course to take, given the procedural defects which affected the Magistrate’s decision, I do not consider it fair for this Court to, in effect, attempt to conduct a trial of the action in the absence of all interested parties and having regard to only some of the relevant evidence.
In the circumstances, in the interests of justice, the Claim will be remitted for hearing in the Magistrates Court before a different magistrate.
Conclusion
Notwithstanding that the time and cost to pursue the Claim may ultimately prove disproportionate to a sum, if any, ultimately awarded to Mr Mayes by way of damages, I am satisfied that in this instance, the decision must be rescinded and the action remitted to a different Magistrate for further hearing.
Orders
1The order made by the Magistrate summarily dismissing the Claim is rescinded.
2The Claim is remitted to the Magistrates Court for hearing before another magistrate.
3No order as to costs.