Naradale Pastoral Holdings v JJ O'Connor Pty Ltd - [2016] SADC 76

District Court of South Australia
(Civil: Minor Civil Review)
NARADALE PASTORAL HOLDINGS v JJ O'CONNOR PTY LTD
[2016] SADC 76
Judgment of His Honour Judge Soulio (ex tempore)
23 May 2016
MAGISTRATES - APPEAL AND REVIEW
Review of a Minor Civil decision pursuant to s 38 of the Magistrates Court Act 1991 (SA)
Application for review dismissed.
Magistrates Court Act 1991 ss 34, 38; Magistrate Court Rules 2013 r 21A, referred to.
DeVries v Australian National Railways Commission (1993) 177 CLR 472; Fox v Percy (2003) 214 CLR 118; TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267; Freeman and Lochyer (a firm) v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480; Northside Developments Pty Ltd v Registered General (1990) 170 CLR 146; Tsangaris v Gaymark Investments Pty Ltd (1986) 82 FLR 269; Central Newbury Car Auction Ltd v Unity Finance Ltd [1957] 1 QB 371, considered.

NARADALE PASTORAL HOLDINGS v JJ O'CONNOR PTY LTD
[2016] SADC 76
Introduction

This is an application to review a minor civil decision made by Mr Milazzo SM on 24 March 2015 in relation to a claim for payment for mechanical services. For ease of reference I will use the terms assigned to the parties at the hearing. The mechanical services were said to have been provided by the plaintiff in servicing a Toyota Prado motor vehicle registered number S712AGJ, such work having been performed on 18 December 2012 and 27 February 2013, and invoiced on 24 January 2013 and 21 February 2013 respectively.
The Pleadings
The plaintiff's claim, dated 19 August 2014, was pleaded in the following terms:
J J O'Connor & Sons wish to recover moneys owed by Naradale Pastoral Holdings for service and repairs which were carried out on 24 January 2013 and 21 February 2013 to a Toyota Prado rego S712AGJ at our Bordertown dealership. We have been trying to contact Mr Ashley Jared, Naradale Pastoral Holdings, for some time regarding payment of this account. Mr Jared will not respond to written or verbal requests for payment. Our manager made a trip to see Mr Jared in person. Mr Jared fled the property, refusing to speak to him.
I pause to observe that during the hearing of this application Mr Jared denied the allegation in the plaintiff pleadings that he had fled his property when approached by the plaintiff's manager. In my view nothing turns on the allegation in any event.
The pleadings go on to say:
The plaintiff's claim against the defendant is for the supply and repairs to the Toyota Prado vehicle registration details given, details of which have been outlined on invoices and statements previously provided to the plaintiff. The plaintiff claims the full amount of moneys owed by Naradale Pastoral Holdings, $782.30 plus any costs incurred for pursuing payment through the courts.
There was no serious challenge to the assertion that the work was done or as to the value of the work. The particulars of the defence dated 21 November 2014 are in bare terms as follows:
No debt is owed to the plaintiff. The defendant seeks better and further particulars. The defendant seeks costs.
The Minor Civil Trial
The conduct of a minor civil action is governed by s 38 of the Magistrates Court Act. Section 38(1) provides that:
(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.
The magistrate heard evidence from Mr McGough and Ms Jardine, employees of the plaintiff, and from Mr Jared, the principal of the defendant.
The Decision
The magistrate found that the plaintiff had first performed work on the vehicle in August 2012 at the request of the defendant's principal Mr Jared who at that time provided his telephone number as the contact number of the defendant. The invoice rendered in respect of that work was sent to the defendant, and was paid by the defendant. It is apparent that the vehicle was presented for work to be carried out in August 2012 in such a way as to convey the impression that the vehicle belonged to Naradale Pastoral Holdings, PO Box 21, Clarendon SA 5157. That is the same nominated owner and address as appears on all the invoices.
The magistrate found that in respect of the disputed work the vehicle had been brought in for service by Mr Jared's wife. The service could not be completed because of the unavailability of parts. Mrs Jared collected the vehicle. When the parts were available, Ms Jardine, who was employed by the plaintiff, called Mr Jared. She spoke with him and arrangements were made for the car to be brought back in. The magistrate accepted Ms Jardine's evidence in that regard.
Despite the bare pleading in the defence, at trial Mr Jared asserted that the vehicle was owned by his wife, with whom he did not have a close relationship.
The magistrate found as follows:
In my opinion, Mr Jared’s wife had apparent or ostensible authority to represent that her husband would be responsible for the serving costs of the Prado. Further, O'Connor's reasonably assumed that the car belonged to Mr Jared, because Mr Jared initially accepted responsibility for the servicing in August 2012, and when he was contacted in February concerning the car's return he did not indicate that he would not be responsible for the servicing costs on that occasion. In general a spouse has ostensible authority to represent his or her partner's domestic interests, because in those cases such interests are mutual. In general the public will assume a married couple have joint economic interest and from time to time the wife will represent a husband's interest and a husband will represent a wife's interest. Generally when a spouse attends business premises representing the interests of his or her spouse, then the marriage is accepted as an adequate authority for that to take place. In my opinion Mrs Jared had ostensible authority to act on behalf of her husband Ashley. If Mr Jared is not responsible for the bill then he needs to sort this out with his wife. It is an internal matter between the two of them that should be easily resolved. For all those reasons there will be a judgment for the plaintiff for the amount claimed, namely $782.30. That debt has been outstanding for two years. I calculate interest at approximately 5% and fix a lump sum of $80. The plaintiff is entitled to costs in the sum of $135. I allow an attendance fee of $100 and I allow an attendance fees of today of $200 each. Total attendance fees of $500 plus $250 travel makes $750 towards costs.
The learned magistrate rejected an argument made by the defendant that no costs should have been awarded as no notice of action had been given. He declined to apply r 21A of the Magistrates Court Rules.
The learned magistrate found that having regard to the way in which the matter had been defended, and the age of the debt, a notice of claim would not have made any different to the manner in which the matter proceeded.
Application for Review
The principal of Naradale Pastoral Holdings, Mr Jared, applied to review the magistrate's decision.
Grounds
The defendant sought orders that the judgment be set aside and that the order for costs be set aside, and further sought orders for the costs of the attendances on the Magistrates Court hearing. The grounds of appeal were set out in the following terms.
The applicant respectfully seeks to provide the grounds for appeal to the court once the transcript of the trial and judgment have been received from the Magistrates Court. The defendant in that trial requested the transcript on 24 March 2015 but by the time of filing this appeal it was not received. Although detailed notes were taken during the trial process the applicant feels that it would be disadvantaged providing grounds of appeal without the transcript of the Magistrates Court. At this point of time the applicant has grounds for appeal on the following areas. Further areas may be identified once the transcript is received from the court.
1. The magistrate's interpretation of the relevant law.
2. The magistrate's reasons for judgment compared to the evidence given at trial.
3.The magistrate's decision not to allow a specially returnable application by the defendant before trial.
4.The magistrate allowing the plaintiff to use at trial documents discovered out of time as per the court's rules for discovery only two business days before trial.
5.The magistrate using documents in his consideration given to him at trial by the plaintiff which would change from the ones given to the defendant two business days before trial, although the defendant objected to the changed documents being used by the magistrate.
6.The magistrate not allowing the defendant to cross-examine the plaintiff regarding the plaintiff's business.
7.The magistrate not stopping the plaintiff from interjecting while the defendant sought to cross- examine the plaintiff's witnesses.
8.The magistrate not stopping the witness from the witness box from trying to cross-examine the defendant while the defendant was trying to cross- examine the witness.
9.The magistrate failing to give consideration when entering costs judgment for filing fees that the plaintiff had failed to provide the required notice and/or notice period before commencing action as per the court rules.
10.The magistrate in his judgment awarding interest from the start of 2013 when the plaintiff only filed the statement of claim and started the action on 23 October 2014 and the plaintiff had no credit arrangement agreement that allowed the plaintiff to charge interest.
No application was made to expand or vary the grounds.
Nature of the Review
Section 38 of the Magistrates Court Act 1991, sets out the power of this Court on an application for review. In particular the Court may inform itself as it thinks fit and is not bound by the rules of evidence. On the hearing of an application for review the Court must act in accordance with equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms. Although there is a power to re-hear evidence taken before the Magistrates Court, should the Court determine to do so, in the present case there was no such application and I do not consider in any event that there was any necessity to do so.
I am obliged to accept the advantage enjoyed by the magistrate in a situation where the decision is based upon his impression as to the credibility of witnesses. In particular a finding of fact made by the magistrate based on the credibility of a witness, may only be set aside on appeal where the decision is either manifestly wrong by reason of error indicated by incontrovertible facts, or uncontested testimony, or is glaringly improbably or is contrary to compelling inferences in the case. (See, for example, Devries v Australian National Railways Commission (1993) 177 CLR 472 p 479).
However, as was observed in Fox v Percy:[1]
… An appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.
[1] Fox v Percy (2003) 214 CLR 118.
Any inference drawn or relied upon must reasonably arise from proven acts or circumstances. (see TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267 at 349).
The Review Hearing and Consideration
Upon the hearing of the review, Mr Jared appeared and the respondent's representatives Mr Templeton and Mr McGough appeared by telephone.
As observed earlier and as can be seen from the terms of s 38 of the Magistrates Court Act, the trial of a minor civil action is essentially inquisitorial in nature and the Court is entitled to elicit information from the parties, the witnesses and by examining the evidentiary material. The parties are not bound by written pleadings and the Court is not bound by the rules of evidence. The Court, as I have said, is required to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. Having regard to that wide remit, much of the criticism of the magistrate's approach outlined by the applicant in the grounds for review falls away.
Consideration
I turn to a consideration of the application. The exhibits before the magistrate included an invoice dated 23 August 2012 rendered by the plaintiff to Naradale Pastoral Holdings in respect of the vehicle in question. The contact details recorded at that time related to Mr Jared and included his telephone number. It is not contested that that was the telephone number of the defendant's principal. That invoice was paid by cheque dated 23 August 2012 from an account in the name of Mr Jared and apparently signed by him.
At trial the defendant tendered had a registration certificate which recorded that the vehicle was registered in the name of Sarah Jane Jared of PO Box 21 Clarendon, SA 5157, such registration having commenced on 25 June 2012 and expiring on 24 September 2012. As can be seen, at the time the uncontested August invoice was rendered and paid for by Mr Jared, the vehicle in question was registered to Mrs Jared. Mrs Jared’s address is the same postal address as that of Naradale Pastoral Holdings.
The disputed invoices dated 24 January 2013 and 21 February 2013 similarly had contact details for Naradale Holdings naming Mr Jared, and including his telephone number. Mr Jared suggested that that was because the plaintiff was relying on pre-existing information regarding either that vehicle or his other vehicles. No evidence was tendered to identify to whom the vehicle was registered at the time the work, the subject of the disputed invoices, was completed, namely on 18 December 2012 and 7 February 2013.
Mr Jared had filed an affidavit sworn 20 March 2015 in which he asserted that the defendant did not own or operate the vehicle in question at the time the plaintiff's claim arose. He complained that he had been requesting information as to who it was that delivered the vehicle for service and that the plaintiff had failed to answer that question. At trial Mr Jared gave evidence that he did not authorise the repairs. He accused the plaintiff's witness Ms Jardine of fabricating evidence to the effect that she had called him to bring the vehicle in for the second part of the work. He gave evidence that he had not been contacted in December 2012 or January 2013, and was only called in March 2013, after the second invoice had been rendered.
Having considered the proceedings before the magistrate I reject the criticism of the magistrate's conduct of the hearing and similarly reject the reliance upon what was said to be procedural defects in the way in which the matter proceeded. As I have said, s 38(1) provides a wide discretion to the magistrate as to the conduct of the proceedings and the method of inquiry.
As I have said, in August 2012, when the vehicle was registered in the name of Mrs Jared at the address shared with the defendant's business name, the invoice was presented to Naradale with Mr Jared as the contact person and the invoice was paid by Mr Jared.
In relation to the disputed work, at trial Ms Jardine gave evidence that Mr Jared rang and requested a booking to bring his car in for a service. His wife actually brought the car in for service and the first service was completed. The timing belt had to be changed. The parts were not in stock. An intake fuel filter, which was required, was also not in stock. Mr Jared was advised of that and the parts were ordered. Later Ms Jardine contacted Mr Jared to say that the parts had arrived and organised a time and date for the vehicle to be delivered. The vehicle did not arrive at the appointed time. She rang Mr Jared again and inquired as to when the vehicle was to be delivered as it had not arrived. Mr Jared said that he would get back to her. He then rang back the same day to say that he had contacted his wife and she was running late.
The learned magistrate accepted the evidence of Ms Jardine, the plaintiff's witness, that the service could not be completed on the first date because of the unavailability of parts, and that when the parts become available she called Mr Jared, spoke with him and made arrangements for the vehicle to be brought back in.
The magistrate had the advantage of hearing the witnesses. He accepted Ms Jardine's evidence. He was entitled to do so. In accepting that evidence the learned magistrate must be taken to have specifically rejected the evidence of Mr Jared that he was not so contacted. He rejected the evidence of Mr Jared as to his lack of involvement in authorising the repairs and the delivery of the vehicle.
On the basis of Ms Jardine’s accepted evidence, and the course of dealings between the plaintiff and the defendant prior to the disputed invoices, I consider that it was clear that Mr Jared had arranged the work and had authorised the work and that he, as principal of Naradale, was obliged to pay for the work. On the basis of that evidence, Mrs Jared was doing no more than taking the vehicle in to enable the work to be carried out.
As I have also said, the work was performed on 18 December 2012 and invoiced on 24 January 2013 and again on 7 February 2013 and invoiced on 21 February 2013. After attempts to recover payment the plaintiff issued proceedings in late 2014. The defendant filed a defence on 21 November 2014. Various interlocutory proceedings ensued. It was not until trial on 24 March 2015, more than two years after the work was done, that the defendant first suggested that the vehicle belonged to his wife and that he had not authorised the work. The magistrate rejected that contention. He was entitled to do so.
Ostensible Authority
Whilst I do not necessarily agree with the conclusion reached by the learned magistrate that a husband is, as a matter of law, responsible for his wife's debts, if it was necessary to do so I would find that she had ostensible authority to bind the defendant (see Freeman & Lockyer (a firm) v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 at 503 and Northside Developments Pty Ltd v Registrar-General (1990) 170 CLR 146).
Further, the defendant was estopped from denying his obligation to pay for the work performed by the plaintiff (see Tsangaris v Gaymark Investments Pty Ltd (1986) 82 FLR269 and Central Newbury Car Auctions Ltd v Unity Finance Ltd [1957] 1 QC 371).
As I have said, having regard to the evidence and the basis upon which I have decided the matter it is not necessary decide the case on that basis.
Conclusion
I dismiss the application insofar as it relates to the principal finding as to the liability of the defendant to pay the plaintiff for the work performed.

The defendant complained about the award of interest. He submitted that interest could only run from the date of issue of the proceedings. However s 34 of the Magistrates Court Act provides that unless good reason is shown to the contrary, the court will make an award of interest calculated at a rate fixed by the court and in the case of a liquidated sum, as is the case here, interest will run for the period from when liability to pay fell due, to the date of judgment. The court may fix a lump sum. The magistrate proceeded correctly. I dismiss the application insofar as it relates to interest.
As to the defendant's complaint about the award of costs despite notice of claim not having been given pursuant to r 21A(1) of the Magistrates Court Rules, I consider that it was within the magistrate's exercise of discretion to decline to deprive the successful plaintiff of costs given his finding that such a notice would have had no impact on the way in which the matter proceeded. Accordingly, I dismiss the application insofar as it relates to the order for costs.