McEwen v Manuele Engineers Pty Ltd No. Scciv-02-650

[2002] SASC 189

MCEWEN  v  MANUELE ENGINEERS PTY LTD
[2002] SASC 189

Magistrates Appeals:  Civil (ex tempore)

1. DOYLE CJ:            The view I take is that the Magistrate may have misunderstood the situation as it was before the Magistrate on the day fixed for trial. The defendant’s father was present. The defendant could have been at court within about half an hour.  It seems to me there was no reason why the Magistrate should not have said that the case was to proceed that day.  If the defendant could not get his witnesses to court that was the defendant’s problem, but the case could proceed with the Magistrate hearing the evidence of the driver of the plaintiff’s vehicle and allowing Mr McEwen when he got to court to cross-examine on that evidence if he wished, and to give his own evidence, and if he had any witnesses available that day to call them and if not then that would be the conclusion of the case.

2. As part of that it would be for the Magistrate to decide whether the Magistrate considered it appropriate to visit the scene of the accident.

3. I make it plain that I express no view on that.  It would be for the Magistrate to decide whether that was going to be helpful or not.  Usually these cases are decided on the evidence given in court and not by the court visiting the scene.  As photographs are available the Magistrate might well have taken the view that there was no need to visit the scene.

4. In any event, I think an error has occurred and that has meant that justice has not been done. I think there must have been some confusion between Mr McEwen senior and the Magistrate.

5. I am not prepared to say that there is no arguable defence to this claim. It suffices to say that I can see the possibility of a finding of contributory negligence, I put it no higher than that.

6. Accordingly I order:

   1.That the appeal be allowed.

   2.That the judgment of the Magistrates Court be set aside.

   3.That the matter be remitted to the Magistrates Court for hearing.

   4.That the hearing proceed on 19 August 2002, a date on which the Magistrates Court has informed me it can hear the case.

   5.Liberty to the plaintiff to apply for an adjournment of the trial to another date if the plaintiff’s driver is unable to attend that day, on the understanding that any adjournment application will be made promptly.

   6.Costs of the appeal to be costs in the cause.