Nash v Field - [2014] SADC 161

District Court of South Australia
(Civil: Minor Civil Review)
NASH v FIELD
[2014] SADC 161
Judgment of His Honour Judge Beazley
17 September 2014
MAGISTRATES
Minor Civil Review
Purpose and objectives of s 38 of the Magistrates Courts 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 - IN GENERAL
A Magistrate entered judgment for the respondent for a liquidated sum in a minor civil action - whether final judgment - respondent asserted at trial that he was retained, as a psychologist, by the applicant to prepare psychological reports in respect of his late mother's testamentary capacity - the respondent informed the applicant that his fees for that work would be at the rate of $206 per hour plus GST - the respondent prepared two reports dated 9 March 2010 and 22 March 2010 - the applicant refused to pay the respondent's invoice dated 6 September 2010 or any part thereof - in his defence the applicant asserted, inter alia, that there was no binding agreement in place and that in any event the respondent's work was of no value to him - the applicant did not attend at the trial - the learned magistrate proceeded, in the absence of the applicant, to hear the evidence of the respondent, whose evidence he accepted- the court concluded that the applicant had retained the respondent to undertake the work and that the terms of the retainer permitted the respondent to charge at the rate of $206 per hour plus GST - the learned magistrate entered judgment for the respondent in the sum of $4,875.71 together with the total costs of $734.53 - whether court ought to have entered a default judgment rather than proceeding by way of an application for summary judgment - whether there was no reasonable basis for the applicant to defend the respondent's liquidated claim.
Held: Learned Magistrate correctly determined that the applicant had no arguable defence to the respondent's claim, and that summary judgment ought be entered for the respondent - judgment affirmed - application for review dismissed.
Magistrates Court Act 1991 s 38; Magistrates Court (Civil) Rules 1992 Rules 2(1), 60, 61, 85, 87 and 101, referred to.
Proude v Visic (No 4) [2013] SASC 154; Forsyth v Gibbs (2008) QCA 103; Mittiga v Community Corporation 20582 Inc [2012] SASC 202; Spencer v Commonwealth (2010) 241 CLR 118; Philp v DM Aston & Co [2010] SASC 114; Battiste v Mulvaney [1997] SASC 6419; Rahmani v Heng (2010) 270 LSJS 234; Cubelic v T & D Lock Pty Ltd [2009] SASC 397; Adamson v Ede [2008] NSWSC 767; Michael Davies Associates Pty Ltd v Auburn Council [2007] NSWSC 877; Harradine v District Court of South Australia [2012] SASC 96; Eschenberg v Ellerton [2004] SASC 327; McNamara v Morrow Investments Pty Ltd [2006] SASC 16; SA Repairs and Painting Pty Ltd v Trenka Pty Ltd (1993) 171 LSJS 300; Vorassi v Maxwell Property Consultants Pty Ltd (2003) 227 LSJS 1; Rahmani v Heng [2010] SADC 81; Mark Gerard Ireland as Executor of Estate of Charles Stuart Gordon v Sandra Retallack (No 2) (2011) NSWSC 1096; Everingham v Mullins [2000] SASC 448; Piggott v Williams (1821) 56 ER 1027; Ceneavenue Pty Ltd v Martin (2008) 106 SASR 1, considered.

NASH v FIELD
[2014] SADC 161
Introduction

This is an application brought by Peter Nash (‘the applicant’), pursuant to s 38 of the Magistrates Court Act 1991, seeking that this court review a judgment entered by a Magistrate, against him in Minor Civil Action No. 3282 of 2011.
The applicant was the defendant in those proceedings, which involved a liquidated claim for professional fees, brought against him by Colin Field (‘the respondent’).
On 16 November 2011, a Magistrate entered that judgment, in favour of the respondent in the sum of $4,875.71, together with costs totalling the sum of $734.53. The learned Magistrate determined that a final judgment ought be entered following the failure of the applicant to attend upon the trial, which had been listed for hearing on that day.[1]
[1] Magistrates Court (Civil) Rules 1992, Rules 2 and 8; Battiste v Mulvaney (1997) SASC 6419
In explaining why he had entered a final judgment, instead of a default or interlocutory judgment, the learned Magistrate said:
I make it clear for the record that this is a judgment on the objective facts of this case and is a summary judgment entered after having conducted the inquiry required under s 38 of the Magistrates Court Act. The correspondence unquestionably identifies that there is no substance to the matters raised in the defence.
This is not a default judgment or a judgment entered under the 15 Minute Rule for non-attendance.[2] Accordingly the Registrar should not accept any application by Mr Nash to apply to have judgment set aside for non-attendance. Mr Nash should be advised that any review of this decision would be conducted in accordance with the Magistrates Court Act by an application made in the District Court.
[2] Magistates Court (Civil) Rules, 1992, Rule 101 provided that where 'a party fails to attend within 15 mintues of the time fixed for a conciliation or listings conference, directions hearing or trial, the court may give judgment or make an order against, and in the absence of, that party, without hearing any evidence'.
Consistent with the reasons of the learned Magistrate, the applicant did not make application to set aside the subject judgment in the Magistrates Court.[3]
[3] See Magistrates Court (Civil) Rules, 1992, Rule 87.
Pursuant to Rule 6 DCR 279A(2), an application for the review of a judgment, in a minor civil action, must be commenced within 21 days after the delivery of the said judgment.
The applicant did not file the within application to this court for a Minor Civil Review until 12 January 2012. He seeks an order extending the time to make the subject application.
·The principal issue
The application raises the somewhat vexed question as to whether a court in a minor civil action, ought enter a default judgment, pursuant to Rule 101 of the Rules of Court, rather than proceed to hear evidence in the absence of the defaulting party and to enter a final judgment.
Indeed, in the subject case, the applicant asserts that the learned Magistrate ought not even have entered a default judgment, but simply adjourned the proceedings, to contact him, and ascertain another ‘sitting date’.[4]
[4] T. pgs 3 & 6.
The applicant, inter alia, complains that the learned Magistrate erred in entering judgment against him. He submits that, in his filed Defence, he had pleaded a number of issues which gave rise to an arguable defence, and that it was inappropriate to proceed to summary judgment,[5] simply because he had failed to attend at trial.
[5] See Ceneavenue Pty Ltd v Martin (2008) 106 SASR 1, Spencer v Commonwealth (2000) 241 CLR 18, Mittiga v Community Corporation (2012) SASC 202.
In Edwards v Petterson,[6] when considering a different Rule of Court, the Full Court of the Supreme Court said:
‘while of course the court cannot in general terms, look with much sympathy upon parties who do not obey the Rules of Court, in one respect or another, or who absent themselves when they ought to be present, it is nevertheless a rare case in which such conduct is allowed to deprive a party entirely of his or her rights, more particularly if the other party can be compensated with costs’.
[6] (1987) 47 SASR 63. See also Peck v Peck [2011] SASCFC 63; Mittiga v Community Corporation 20582 Inc [2012] SASC 2002; Proude v Visic (No 4) [2013] SASC 154.
The respondent asserts that the learned Magistrate, in the context of a minor civil claim for a liquidated sum, appropriately proceeded to summary judgment. In the alternative, he asserts that the applicant has no arguable defence, and accordingly judgment ought not be set aside in any event.[7] Upon completion of the submissions, I reserved my decision. I regret the delay which has occurred, caused principally by my workload.
[7] See Battiste v Mulvaney [1997] SASC 6419, Mr Bankrupt Secondhand Goods Pty Ltd v Richards [2000] SASC 189.
In order to understand the parties’ submissions, it is necessary to set out, in some detail, the background to the claim; the evidence before the learned Magistrate; assess whether the applicant had an arguable defence; and weigh up whether it was appropriate to proceed to summary judgment.
The Background
In early 2010, the applicant was a defendant in an action, brought in the Probate Jurisdiction of the Supreme Court of South Australia, by persons named as the executors of the Will of the applicant’s late mother, seeking the grant of Probate in solemn form.[8] (‘the Supreme Court proceedings’).
[8] Thomas & Anor v Nash [2010] SASC 153 and Thomas & Anor v Nash (No 2) [2010] SASC 171.
The applicant had appeared as an unrepresented litigant in the Supreme Court proceedings. He asserted that his mother did not have the mental capacity to make that Will; nor knew or approved of its content. In the alternative, he asserted that the Will had been executed by his mother in consequence of the undue influence of the executors.[9]
[9] Thomas v Nash, supra, at [4] - [7].
The respondent was, at all relevant times, a Registered Psychologist with experience in that area of forensic neuropsychology which involves the assessment of the testamentary capacity of persons.
The respondent asserted that the applicant had retained him to assess, retrospectively, from various documents, the testamentary capacity of his mother, at the time of the execution of the Will, so as to assist him in his defence in the Supreme Court proceedings.
·Chronology
Although the applicant disputes such a retainer, I set out a chronology of the events sourced from the contemporaneous emails between the parties, which were tendered before the learned Magistrate; and from the reasons for the judgment in the Supreme Court proceedings. In my opinion the following facts cannot, reasonably, be disputed by the parties:-
·       On 11 January 2010, the applicant first approached the respondent to enquire as to whether he could assist him with respect to the Supreme Court proceedings.
·       On 14 January 2010, the applicant emailed the respondent confirming the 11 January discussions. He confirmed that the respondent’s fees ‘were calculated at $206 per hour plus GST’, depending upon how extensive ‘were the documents required to be read by the respondent in order to provide an opinion as to his mother’s cognitive state.
·       On 19 January 2010, the respondent replied to the 14 January email, confirming the points raised by the applicant and his availability to assist the applicant.
·       On 1 February 2010, the trial of the Supreme Court proceedings commenced. The trial judge was Doyle CJ.
·       On 10 February 2010, His Honour adjourned the trial upon the application of the applicant to enable him to obtain ‘an opinion from Dr Field, a psychologist specialising in neuropsychology’.[10] In permitting the adjournment, the court made various directions which would ensure that the trial would resume on 22 March 2010.
[10] Thomas v Nash [2010] SASC 153 at 58.
·       On 19 February 2010, the respondent received, direct from the chambers of the Chief Justice, a bundle of expert medical reports which had been tendered at the trial.
·        On 24 February 2010, the applicant emailed a number of documents to the respondent, to be read by him. He also requested that the respondent should comment on each of the expert reports received from the chambers of the Chief Justice. The respondent was aware that these documents were provided to him to assist him to prepare an opinion during the adjournment of the Supreme Court proceedings. The respondent also knew by this time, that the applicant was an unrepresented litigant and that there would be no formal instructions from a solicitor.
·       From 24 February 2010, the applicant forwarded additional documents to the respondent for his consideration in order to assess his mother’s state of health at various times.
·       On 2 March 2010, the applicant enclosed a bundle of documents including the medical notes of Doctor Rachootin and the transcript of that Doctor’s evidence to the court. The email noted that ‘the word document will enable you to more quickly ascertain my mother’s mental state over the period from 1993.
·       On 4 March 2010, the applicant forwarded each of the transcripts of the medical witnesses and requested that the respondent read them, together with the respective doctor’s notes.
·       From time to time, including 5 March 2010, the applicant forwarded ‘reference papers of interest’ to the respondent. The material which was read by the respondent, at the specific request of the applicant is detailed as items 1 to 102, and 1 – 11 respectively in the report of the respondent dated 9 March 2010. He informed the applicant that, on the documentation forwarded to him, the applicant’s mother ‘probably did not suffer from dementia, and that he saw no basis to doubt the reports of Dr Rachootin’.
·       On 9 March 2010, the respondent provided the expert report to the applicant. In it the respondent opined that ‘he had no strong opposing evidence to suggest that the applicant’s mother did not have testamentary capacity at the relevant time’.
·       On 16 March 2010 the applicant provided further instructions to the respondent. He forwarded to the respondent a copy of his Defence, additional papers and a further portion of the transcript.
·       On 17 March 2010 the respondent replied as follows:
‘As per yesterday’s two telephone conversations, I understand that your hearing is due next Monday 22 March. You will recall that I previously sent you a 9 page opinion dated 9 March 2010. I have yesterday, 16 March, received from you a further 19 pages of instructions dealing with 27 matters. Clearly I will not be able to respond to your queries and still allow opposing counsel 7 clear days to read my response. I also note that you wish me to read transcripts from yourself and your siblings although I have not yet received them, and I understand that these may amount to several hundred pages, although as I have already ‘indicated I question the need for these to be considered in giving an opinion regarding your mother’s mental state at the time she wrote her last Will. I presume that you will wish to approach the court, and ask for a further adjournment so that I can consider the additional material placed before me’.
·       The applicant replied to the above email enclosing some 18 pages of what he described as a ‘2^nd draft letter of instructions’.
·       On 22 March 2010 the respondent prepared a further document in which he purported to answer a series of questions directed by the applicant (the second report).
·       On 22 March 2010, upon the resumption of the Supreme Court proceedings, the Chief Justice recorded:
In the week before 22 March, Mr Nash did not forward to my Chambers a copy of Dr Field’s report … Mr Nash said that Dr Field had not completed his enquiries and referred to delays in getting documents to Dr Field.
The court declined to grant a further adjournment and the trial continued.
·On 31 March 2010, 3 May 2010, 3 June 2010 and 15 July 2010 the respondent forwarded an account, and accounts rendered, to the applicant for his professional services.
·The applicant now asserts that he did not receive ‘the so-called final report until 14 May 2010.[11]
·On 25 May 2010 the Chief Justice delivered judgment in the Supreme Court proceedings. His Honour was satisfied that the applicant’s mother had the necessary capacity to make her Will,[12] and that the executors had not exercised undue influence upon her.[13]
[11] T. p 18.
[12] Thomas v Nash at [172].
[13] Thomas v Nash at [179].
I have referred to the Reasons of the Chief Justice simply for the chronology of events and not for any issues of credibility or ‘propensity’.[14]
[14] Lauro v The Marble House [2010] SASC 211 [31] - [33].
The respondent rendered a composite invoice to the applicant on 6 September 2010, for the two reports and his reading time, totalling the sum of $4,875.71. The applicant has refused to pay the invoice or any part of it.
·The subject minor civil action
The respondent commenced the subject minor civil action against the applicant on 30 June 2011.
In his filed particulars, the respondent claimed the liquidated sum of $4,875.71, inclusive of GST, being ‘for professional fees rendered by him for the purpose of assisting (the applicant) with the Supreme Court proceedings upon the instructions of the applicant’.
On 11 August 2011, the applicant filed a defence to the respondent’s claim, which is in the following terms:
“1. The defendant denies the alleged debt or claims.
2.   No contract, either formal, verbal or implied existed between the plaintiff and the defendant.
3.   The plaintiff was subject to Supreme Court expert’s Rules and professional and ethical code of Conduct, being that he could not act, without a proper formal agreement and legal instructions.
4.   The plaintiff breached the above (3) and acted by his own volition. The motivation being ‘money’.
5.   Its common and profession practise and the plaintiff repeatedly advised the defendant and others, that ‘normally any such request (for expert legal opinion) would originate with his (defendant’s) lawyers’ and that ‘despite my (plaintiff’s) repeated suggestions to Mr Nash that he avail himself of legal counsel he has not done so’.
6.   Proffered ‘written expert opinions’ were of no benefit, unsuitable ‘draught comments’, voluntary made, not ‘upon the instructions of the defendant’.
7.   The defendant and court are apprised the plaintiff of ‘time’ issues; the ‘time frame and demanded”.
In February 2010, the court advised:
(1)‘the issues to be covered by you (‘the plaintiff’) are a matter for Mr Nash to determine’ (not the plaintiff) and a report,
(2)‘that complies with the requirements for an expert report about a week or ten days before the hearing (22 March 2010) … to give sufficient time to consider your report’.
·Procedural matters
·       On 29 August 2011 a Directions Hearing was convened in the Magistrates Court. The respondent filed a list of documents, which included emails passing between the applicant and the respondent between 14 January 2010 and 22 March 2010. The trial was listed to commence on 16 November 2011 at 11.30am.
·       On 23 September 2011 a Notice was sent by the Registrar of the Magistrates Court to the applicant confirming that the trial was listed for hearing at that time, and warning that ‘if you fail to attend within 15 minutes of the appointed time the action may be determined in your absence’.
·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)(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)     the right of a party to be represented by a legal practitioner at the review will be determined in accordance with subsection (4);
(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,[15] 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. The clear policy of the Act is to provide an efficient and economical means by which 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 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.
[15] [2012] SASC 96 at [40]-[49].
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 conduct of the subject trial
On 16 November 2011 the applicant did not attend at the trial. He did not make contact with the Registry of the court to seek an adjournment nor to advise of his non-attendance.
The learned Magistrate proceeded to hear the oral evidence of the respondent, and admitted as part of that evidence, a copy of the emails between the parties, which had been identified in his filed list of documents, and to which I have referred by way of background matters.
The respondent deposed to his conversations with the applicant and those emails passing between them.
He explained that he had told the applicant, in clear terms, that his fee for the work was $206 per hour plus GST, and that the applicant had confirmed it in his email of 14 January 2010. It was, in any event, the recommended rate of the Australian Psychological Society.[16] He deposed to the ongoing work, which had to be performed urgently at the applicant’s request. He explained that while his opinion, as expressed in his report of 9 March 2010, ultimately did not assist the applicant, he did the work requested of him. He was obliged by the Rules of Court and the Practice Direction provided to him, to produce an independent opinion as to the applicant’s mother’s testamentary capacity. He deposed to the additional work undertaken by him, at the applicant’s request, leading to the second report prepared on 22 March 2010, even after the receipt of the unfavourable report on 9 March 2010.
[16] See Transcript 16/11/11 at p. 2.
The Magistrate’s Reasons for Decision
The learned Magistrate delivered Ex Tempore Reasons for the orders which he ultimately made.
He concluded that, upon the objective evidence contained in the email exchange, ‘there could be no question a contract existed for the provision of professional advice and that the terms of the retainer were that the respondent was entitled to be paid at the rate of $206 per hour plus GST for his time’.
Having tested the evidence against the particulars set out in the Defence, the learned Magistrate was satisfied that the first report was prepared by the respondent in response to the specific request made by the applicant, and that the second report specifically addressed detailed questions raised by the applicant.
The learned Magistrate concluded that “the fact that those reports may not have provided the assistance that the applicant had hoped for with respect to his legal challenge to the question of his mother’s testamentary capacity to make a Will does not render the reports ‘of no value’”.
In consequence of those findings the learned Magistrate said:
In my view the evidence was overwhelming that there was a retainer. The terms of the retainer permitted the plaintiff to charge the rate of $206 per hour plus GST, and I accept the plaintiff’s evidence that in all the circumstances the work was performed and that he was entitled to charge in accordance with the tax invoice the amount of $4,875.71 inclusive of GST. That is the amount of this claim.
There should be judgment for the plaintiff in the amount of $4,875.71, together with the costs on the Summons of $334.53. In addition I allow (the respondent) the cost of his attendance for the hearing before the Deputy Registrar on 29 August 2011, fixed at a $100 and his attendance today fixed at $300.
The application to Review
On 12 January 2012, the applicant filed an application to review the decision of the Magistrate. Pursuant to Rule 6DCR 279A(2) any application for review of the minor civil action must be commenced within 21 days after the delivery of the judgment.
That application for review is in the following terms:
‘Particulars of the judgment/order/s complained of are as follows:
1.   The Magistrate erred, concerning a denial of nature justice, failing to hear and determine according to law the appellant’s defence/submissions;
2.   The Magistrate erred and failed to provide a special reason and or extraordinary circumstance, [after waiting 20 mins], as to why it was justified to disregard common law, equity, natural justice, procedural fairness and rights of the appellant and proceed to allegedly determine the matter EX PARTE;
3.   The Magistrate erred in failing to properly ascertain, adjudicate and decide the matter, so as to avoid a multiplicity of actions.
4.   The Magistrate erred, in so much as no reasonable person, faced with the same set of circumstances, in all justice, conscience, honesty and circumstance could have done such an unbalanced and unfair thing, actions amounting to an abuse of process and judicial power.
The grounds which the review sought are as follows;
1. Whether the Magistrate disregarded and or did not comply with and or correctly apply common law, the Magistrates Court Act 1991 objects principals, and rules;
2.   Whether the Magistrate acted without jurisdiction, having not conducted a proper balance inquiry as required at LAW;
3.   Whether the Magistrate made an erroneous decision and failed to properly consider the prejudice caused to the appellant in allegedly deciding the matter on a set of one sided material without the appellant’s submissions and input;
4.   Whether the Magistrate erred in not finding the appellant was significantly prejudiced by the cruel and oppressive decision;
5.   Whether the Magistrate’s ex-temp reasons were wreck less, incomplete, biased and or contradictory; based on:-
(a)a faulty decision not to adjourn and notify the appellant of non-attendance;
(b)an alleged incomplete 13 minute investigation, conducted between “11.45am to 12.02pm”, after, according to his clerk, applying the “15 minute rule”,
(c)the respondent’s misleading and contradictory documents; and in doing so, not applied the judicial oath of duty and legal obligations;
6.   Whether the Magistrate erred and failed to enquire as to whether the appellant had a reasonable excuse for non-attendance at the Magistrates Court, on 16 November 2011;
7.   Whether the Magistrate erred, contrary to legal principals, failed and or misused this discretion;
8.   Whether the Magistrate erred in not hearing the appellant’s evidence;
9.   Whether the Magistrate erred in fact and Law by not having proper regard to relevant facts thereby causing errors and misdirection;
10. Whether the Magistrate erred in failing to consider the respondent had engaged in sharp practise and unconscionable conduct towards the appellant advising one thing and doing another.
11. Whether the Magistrate erred in not regarding the respondent and acted in bad faith and dubious manner;
12. Whether the Magistrate erred on the basis of the evidence provided by the respondent, made errors of findings and fact, and coloured the reasons so as to fundamentally prejudice the appellant at a subsequent hearing;
13. Whether the Magistrate erred in failing to follow and apply the LAW of contract.
14. Whether the Magistrate was biased in the all circumstances, discriminated against the appellant in favour of the respondent and misdirected himself in doing so;
The appellant seeks an extension of time within which to review, the decision of the Magistrate’s Court, on the following grounds;
1.   The appellant became aware of the proceedings and outcome on 28 November 2011;
2.   After 16 November 2011, the respondent, did not subsequently advise the appellant of the proceeding’s outcome on 28 November 2011;
3.   There was a procedural irregularity, mistake or otherwise, as to the notification, hearing date and time;
4.   Compounded by the Magistrate’s or court’s failure to reasonable act and notify the appellant on or after 16 November 2011;
The following orders are sought by the application:
1.   That the review be allowed.
2.   That the judgment/order/s of the Magistrate, 16 November 2011 be set aside.
3.   That the appellants’ defence, 30 June 2011 and particulars of defence in terms of 1. 2. 3. 4. 5. 6. 7. (1) (2) be upheld and granted.
4.   Costs’.
The nature of such a review was also considered by Blue J in Harradine v District Court of South Australia,[17] Blue J in which his Honour said, at [53]:
‘1. The review is not in the nature of an appeal stricto sensu.
2.The 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.
3.The 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.
4.The 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.
5.If 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).
6.To 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’.
[17] [2012] SASC 96.
Before turning to the hearing on the Review, it is convenient to set out the then relevant Rules of Court, and to deal with the applicant’s request for an extension of time.
·Magistrates Court (Civil) Rules (1992)[18]
[18] These Rules which were in force at the trial were subsequently replaced by the Magistrates Court (Civil) Rules, 2013.
·Rule 2, relevantly provides:
‘Final judgment means any judgment –
(a)    Made with the consent of the parties;
(b)   Given at the conclusion of a contested hearing
(c)    ….
(d)   A summary judgment’
·Rule 8(1), relevantly provides:
‘Where a person wishes to obtain –
(a)    Summary judgment in … an action …,
(b)   he or she may do so on application accompanied by an affidavit specifying –
(c)    why the other party does not have a good defence on the merits on any possible view of the facts or law; or
(d)   why such relief should be granted
·Rule 10(d) provides that the court may ‘dispense with compliance with any of these Rules, before or after the occasion for compliance arises’.
·Rule 87 provides:
‘(1)    The court may set aside or vary a judgment (not being a final judgment).
(2)The court must not set aside such a judgment unless the party seeking to set it aside establishes that he or she –
(a)has an arguable case on the merits, and
(b)has a reasonable excuse for not having complied with these Rules … in respect of the action or proceeding’.
·Rule 101 provides:
‘where a party fails to attend within 15 minutes of the time fixed for … trial, the court may give judgment or make an order against, and in the absence of, that party, without hearing any evidence’.
·Extension of time
The applicant seeks an extension of time for the filing of the Application for Review. He filed the application on 12 January 2012. Indeed he purported to file another application, in similar form, on 23 February 2012. He became aware of the judgment on 28 November 2010, but did not gain access to the Reasons for some time. In Frankos v Hocking,[19] Gray J. said:
‘when considering the reasons for delay, regard will be had to whether the delay is attributable to the party or the solicitor. The former will operate more severely against the applicant … It must, however, be constantly borne in mind that the discretion is a wide one and that at the end of the day the court will do what the interests of justice require’.
[19] [200] SASC 128.
In expanding upon the grounds set out in his application, the applicant explained:[20]
‘I suffer from a lot of illness, and as far as delay of time and stuff, I can be good one day and bad the next. I suffer from Menier’s Disease … I have a back condition … so you factor all those things – Christmas time comes up, people aren’t there in the courts, they are away on holidays … I have asked for copies of the evidence which was only got here a couple of weeks ago in this court.’
[20] T. pp 22 - 23.
The respondent did not make any formal submissions in respect of an extension of time. By inference he in effect, submitted that it was pointless to extend the time, as the applicant had no arguable defence.
In my opinion the applicant’s explanation ought be accepted. It is in the interest of justice that an extension of time be granted for filing the subject application, nunc pro tunc, until 12 January 2012.[21]
[21] See Philp v D M Aston [2010] SASC 114.
The hearing of the application for Review
It is appropriate to set out some brief observations as to the manner in which submissions were made by both parties.
·The applicant
I am satisfied that the applicant is an intelligent man who genuinely feels aggrieved by the learned Magistrate’s decision to enter any form of judgment without first hearing from him. I also have no doubt that he genuinely believes that the arrangement between the respondent and himself was not a ‘proper’ agreement.[22] The question of course, is whether objectively, from the proven facts, a reasonable person would have reached the conclusion that these parties intended to contract in respect of these commercial arrangements. In Byrnes v Kendle,[23] the High Court explained ‘that these conclusions flow from the objective theory of contractual obligation. Contractual obligation does not depend on actual mental agreement’.
[22] T. p 9.
[23] [2011] HCA 26 at [100].
The applicant had researched, what he perceived to be the relevant case law. As is plain from the 14 grounds of the application to review, he initially adopted a scattergun approach. Unfortunately he had chosen to employ emotive terms such as ‘cruel and oppressive’; ‘wreck less’, ‘biased’, and ‘denial of natural justice’.
During his oral submissions, he became argumentative, and was quick to allege that the court was biased against him simply by asking questions as to why he had not attended at the trial.[24]
[24] T. p 4.
Ultimately he did address the relevant issues namely whether he had an arguable defence to the respondent’s claim, and whether there was a genuine explanation as to why he did not attend at the trial.
·The respondent
The respondent had prepared a written submission. In effect he relied upon the Reasons of the learned Magistrate.
As I have explained, the principal issues on the application to review were whether the learned Magistrate had the power to proceed to summary judgment, and, if so, whether it was appropriate, in the circumstances to do so.
Before dealing with the respective submissions it is convenient to set out some of the principles relating to the grant of summary judgment. The case law deals with matters in the general jurisdiction of the courts rather than in the context of a minor civil claim.
·Principles of Law as to Summary Judgment
The power to grant Summary Judgment has been the subject of significant recent authority. That case law was considered by Bleby J in Davies v Minister for Urban Development and Planning;[25] and by Stanley J in Mittiga v Community Corporation.[26] In Davies case, Bleby J. noted a significant distinction between the test employed by the Full Court of the Supreme Court in Ceneavenue Pty Ltd v Martin,[27] and that subsequently employed by the plurality of the High Court in Spencer v Commonwealth.[28]
[25] [2011] SASC 87
[26] [2012] SASC 202.
[27] [2008] 106 SASR 1
[28] (2010) 241 CLR 118
In the Ceneavenue case, Debelle J had described the test as:
The expression “no real question to be tried” connotes such factors as whether the defendant really has a bona fide defence, and that the defendant does not have an arguable defence which ought to be fairly tried. The defendant must show that he is not wasting the court’s time or abusing the court’s procedures to delay or defeat a just claim by the plaintiff. In this context, the word “real” is intended to distinguish a bona fide defence from one that is fanciful or spurious or an abuse of process seeking to delay and defeat the plaintiff’s just claim. The onus of satisfying the court that the application should be granted lies on the applicant. When considering whether that onus has been discharged, the court will look to the cogency of the defence as raised by the defendant.
In Mittiga v Community Corporation Stanley J described that test as one of ‘demonstrated certainty of outcome’.
In the Estate of Late Sir Donald Bradman v Allens Arthur Robinson,[29] the Full Court considered an order for Summary Judgment which had centred upon the application of the Limitations of Action Act, 1936. The court, by a majority, concluded that, despite the narrow confines of the issue to be determined, an order for Summary Judgment, at an early stage in the proceedings, ought not to have been granted because ‘subtle factual and evidential considerations were likely to emerge at trial and be the subject of oral testimony, properly to be tested by cross-examination’.
[29] (2010) 107 SASR 1
In Spencer v Commonwealth,[30] the plurality noted the difference between the equivalent of 6 DCR 232 and the former Rule 25 of the former Rules of Court. In their reasons, indicating a somewhat lesser test, the plurality said as follows:
First, the central idea about which the provisions pivot is “no reasonable prospect” (emphasis added). The choice of the word “reasonable” is important. If s 31A is to be seen as deriving from r 24.2 of the Civil Procedure Rules 1998 of England and Wales, its provisions underwent an important change in the course of their translation from that jurisdiction to this. The English rule speaks of “no real prospect”; s 31A speak of “no reasonable prospect”. The two phrases convey very different meanings.
Secondly, effect must be given to the negative admonition in subs (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is “hopeless” or “bound to fail”. It will be necessary to examine further the notion of “no reasonable prospect”. But before undertaking that task, it is important to begin by recognising that the combined effect of subs (2) and (3) is that the inquiry required in this case is whether there is a “reasonable” prospect of prosecuting the proceeding, not an inquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.
…
Because s 31A(3) provides that certainty of failure (“hopeless” or “bound to fail”) need not be demonstrated in order to show that a plaintiff has no reasonable prospect of prosecuting an action, it is evident that s 31A is to be understood as requiring a different inquiry from that which had to be made under earlier procedural regimes. It follows, of course, that it is dangerous to seek to elucidate the meaning of the statutory expression “no reasonable prospect of successfully prosecuting the proceeding” by reference to what is said in those earlier cases.
Likewise, it is dangerous to apply directly what has been said in the United Kingdom about the application of a test of “no real prospect” or what has been said in United States decisions about summary judgment …
How then should the expression “no reasonable prospect” be understood? No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is “no reasonable prospect”. The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like “no reasonable prospect” is to be avoided. Consideration of the difficulties that bedevilled the proviso to common form criminal appeal statutes, as a result of judicial glossing of the relevant statutory expression, provides the clearest example of the dangers that attend any such attempt.
[30] (2010) 241 CLR 118 at 139-141

An application to seek summary judgment, in the Magistrate’s Court, is governed by Rule 8 of the Magistrates Court Rules, 1992, supra.
In Battiste v Mulvaney,[31] Doyle CJ considered the effect of Rule 8, on an appeal from an order for summary judgment, in the general jurisdiction of the Magistrates Court.
[31] (1997) SASC 6419.
His Honour noted that there was no definition of ‘summary judgment’, in those Rules.
The facts of that case were somewhat unusual.
The plaintiff’s application was filed somewhat early in the proceedings. In compliance with the Rules of Court the plaintiff had ‘served’ the application upon the defendant by post. It was common ground that it had not been received by the defendant. Nonetheless the court held that the summary judgment, entered in the absence of the defendant had not been irregularly obtained.
It is trite that the onus was upon the respondent in the subject case to show an entitlement to the relief by way of summary judgment.
I accept that great care must be exercised before granting summary judgment. It is clear that ‘the interests of justice are not to be sacrificed to efficiency and expedition’.
The learned Magistrate retained a discretion to refuse that relief, and simply enter judgment for the respondent by default of the attendance at trial by the applicant pursuant to Rule 101, supra.
I will now deal with each of the criticisms made by the applicant.
·That summary judgment was irregularly obtained
It is trite that where a ‘default’ judgment has been obtained irregularly, a court will more readily infer an arguable case on the merits, than might otherwise be the case.[32]
[32] Philp v DM Aston & Co [2010] SASC 114 at [50].
The applicant initially asserted that he had not received the notice from the Magistrates Court advising him that the trial was listed to commence on 16 November 2010.[33] Even if that, in fact, was the case, in my opinion it would not follow that the judgment was irregularly obtained. I respectfully adopt the Reasons of Doyle CJ in Battiste v Mulvaney, supra, to the effect that the notice is taken by the Rules, to have been served.
[33] T. p 3 and 19.
In any event, I have no doubt that Notice of the trial date was, in fact, provided to the applicant by the court. When asked how it was that he managed to ring the court on 28 November 2010, he finally suggested that he may have put the wrong date in his computer.[34]
[34] T. p 21 - 22.
In the subject case the respondent did not file an application to seek summary judgment, nor file an affidavit as prescribed in Rule 8. It must be said at once that this was not an application made in the early stage of the proceedings. The clear purpose of Rule 8, in such a case, is to place the defendant on notice that an application for summary judgment is being made, at that early time.
In the subject case the application was made at trial. Such applications are rare, because they are made at trial when an action should be finalised in any event. The applicant was aware that the respondent was seeking judgment at the trial fixed for 16 November 2010, and that the respondent would inevitably have to give oral evidence and tender his relevant documents.
In my opinion the Magistrates Court has an inherent power to proceed to ‘final’ or ‘summary judgment’ at the trial of a minor civil review, especially where a party defaults in attending the trial. Rule 10 empowers the court to waive compliance with the formal requirements of Rule 8.
It should only do so, however, where, as the learned Magistrate has found in the subject case, that there was no arguable defence on the merits on any possible view of the facts or law as prescribed in Rule 8(1)(c), supra.
In my opinion the judgment was regularly obtained pursuant to the Rules of Court.
·Arguable Defence?
I turn to whether the applicant has an arguable defence, in any event, to the respondent’s claim. When dealing with this question, it is trite that the court must not treat it as if it were a trial on affidavits.[35] In the subject case I proceeded on the oral submissions of the applicant without the need for any evidence from him.
[35] See Skorpos v Georgiadis [2013] SASC 165; Battiste v Mulvaney, supra and Philp v DM Aston (2010) SASC 114.
In his submissions on the Review the applicant referred to the particulars detailed in his Defence.[36]
·Whether a contract was entered into between the applicant and the respondent
[36] See Transcript pp 7 et seq.
The applicant submitted that there was a bona fide dispute as to whether an enforceable contract had been entered into.
The applicant’s submissions, when properly distilled involved five main points which are respectively as follows:
·that he, the applicant, did not intend to enter into a contract.
·that the respondent was obliged to provide to the applicant a written agreement, but failed to do so.
·that any agreement was subject to a condition precedent that the respondent would be retained by a solicitor and not by the applicant personally.
·that the applicant had not given final instructions to the respondent to carry out the work.
·that if there were such an agreement between them, it was an entire agreement requiring the applicant to complete the work by 22 March 2010.
In my opinion there is no basis in law or fact to assert that no enforceable agreement had been entered into between the applicant and the respondent. It is not a question of whether the applicant assumed that there was no enforceable agreement, but whether the proven documents and facts establish to a reasonable person that an enforceable agreement was entered into.[37]
[37] Pacific Carriers Ltd v BNP Paribas [2014] 218 CLR 415 at 461 - 462.
The objective evidence contained in the emails passing between the parties establishes, beyond any doubt, that the applicant had retained the respondent to assist him in the preparation of an expert report as to his mother’s testamentary capacity and that his fee for that work was to be calculated by reference to the hourly rate of $206 plus GST.
There was undoubtedly certainty as to the fundamental matters, namely the identification of the parties, the subject matter of the contract and the price.[38]
[38] Masters v Cameron (1954) 91 CLR 353; ABC v XIVth Commonwealth Games (1988) 18 NSLWR 540; ACC Pty Ltd v Coles Group [2011] VSC 490; Geemaz Management Pty Ltd v Geelong Motors [2013] VSC 571.
There is no doubt that all of the relevant evidence on this topic, is contained in the emails. It cannot seriously be suggested that it was an agreement to agree,[39] or that it was subject to some formal agreement prepared by a solicitor. There is no basis, in fact, to suggest that the respondent was obliged to encapsulate the arrangement in some other document. Although not strictly of relevance, the later emails make it clear that each party proceeded on the basis that the agreement had commenced in February 2010.
[39] See Masters v Cameron, supra; Sagacious Procurement Pty Ltd v Symbion Health Ltd [2008] NSWCA 149.
I conclude that there was no condition precedent to the agreement. There was no requirement that the agreement be in writing nor that it by subject to the appointment of a solicitor.
This was not an ‘entire’ contract in the sense that all work had to be completed by 22 March 2010. It is plain that the respondent completed the initial report by 9 March 2010. Any delays to 22 March 2010 were caused by the applicant continuing to supply the respondent with more documents. It was the applicant who failed to obtain a further adjournment of the trial on 22 March 2010.
It is equally plain from the evidence that there was no condition to that contract nor any basis to suggest that final instructions were not given by the applicant. The objective evidence is clear that both parties treated the contract as subsisting from at least 10 February 2010.
In my opinion the findings of the learned Magistrate on this issue are, with respect, clearly correct.
·Whether the Respondent breached the Supreme Court expert’s Rules
The preparation of expert reports and the role of an expert witness is provided for in Rule 6 SCR 160 and Practice Direction 5.4.
It is clear that an expert must provide independent assistance to the court by way of an objective, unbiased opinion, irrespective of whether the opinion favours the party who sought the opinion.[40]
[40] James v Keogh [2008] SASC 156.
“Practice Direction 5.4 relevantly provides:
5.4.3 General Duty to the court:
5.4.3.1an expert witness has an overriding duty to assist the court on matters relevant to the expert’s area of expertise;
5.4.3.2      an expert witness is not an advocate for a party.
5.4.3.3.an expert witness’s paramount duty is to the court and not to the           person retaining the expert.
5.4.8 The provisions and requirements of Rule 160 and this Practice Direction apply to      any person called as an expert in the action, even if the expert is employed by a party to the action”. (my emphasis)
In my opinion there is no basis to any complaint by the applicant as to the respondent’s compliance with his obligations as an expert pursuant to the Rules of Court.
·That the Respondent proffered ‘written expert opinions’ which were of no benefit to the applicant
The applicant submitted that:
·The opinions provided by the respondent were of no benefit to him in that they were contrary to the case which he was presenting to the court;
·That the reports of the respondent were unnecessary and that it must have been clear to the respondent that it was not reasonable to carry out the work to which the judgment sum relates;
·That the respondent did not have the expertise to undertake the work.
In my opinion the applicant’s criticisms are misconceived. While it may be accepted that the opinion expressed by the respondent did not ultimately assist the applicant’s case, it does not follow that the work was not ‘beneficial’ nor that the respondent breached the terms of his contract.
In Adamson v Ede [2008] NSWSC 767 at [54], the Court said:
Where Mr Ede performed work at Mr Adamson’s request, pursuant to a contract between the parties, Mr Adamson cannot deny that such work constituted a benefit to him. In other words, where a contract is executed, and the defendant’s request is fully satisfied, there may be a constructive acceptance of the benefit of the work on the basis that the defendant cannot deny the work was performed’.
In the subject case the respondent was retained to provide an independent expert report and did so.[41]
[41] See also Sandtara Pty Ltd v Longreach Group Ltd [2008] NSWSC 373.
The applicant referred to the case of Mark Gerard Ireland, as Executor of the Estate of the late Charles Stuart Gordon v Sandra Jane Retallack No 2 [2011] NSWSC 1096. This was one of a series of cases in NSW in which the court expressed concern about the number of expert reports obtained by the parties in matters involving estates. The court concluded in that case that where an expert report had become ‘irrelevant’ or ‘unnecessary’, then the court would not permit its cost to be recovered from the estate.
In the subject case it cannot be said that the respondent’s work was unnecessary nor of no benefit as previously explained. The respondent prepared his independent opinion in circumstances of urgency in light of the Supreme Court proceedings. It was left to the applicant as to whether he chose to use it. There is no basis for this complaint by the applicant.
·Whether the respondent had undertaken the work negligently
In this case the applicant did not plead any cross claim against the respondent for alleged negligence. I readily accept however that if there were an arguable defence of negligence that it could be pleaded as an equitable set off.[42]
[42] See Piggott v Williams (1821) 56 ER 1027; Forsyth v Gibbs [2009] 1 Qd R 403 and Mittiga v Community Corporation 20582 Inc [2012] SASC 202.
Thus in Piggott v Williams, supra, the claim of a solicitor who sued his former client to recover fees for services rendered was successfully met by a plea of equitable set-off on the basis that the fees were only incurred by reason of the solicitors lack of due skill and diligence. The solicitors breach of the obligation, of skill and diligence was the source of the claim for his fees.
The applicant referred to an unrelated decision of the Full Court of the Supreme Court in Hawker & Others v Miller.[43]
[43] [2011] SASCFC 76 at [55].
In that case the Full Court had preferred the evidence of other experts in a personal injuries action. The court noted that ‘Dr Field did not take all relevant material into account … and his testing had been selective’.
In my opinion the applicant’s criticism is misconceived. The fact that another court had preferred the evidence of another expert to that of the respondent on a different matter does not even suggest let alone raise an arguable case that the respondent was not qualified as an expert, nor that he had acted negligently in the subject case.[44]
[44] Lauro v The Marble House [2010] SASC 211 [31].
As I have explained, the obligation of the respondent was to provide an independent expert opinion as to the applicant’s mother’s testamentary capacity. He did so. It cannot be seriously suggested that it was done negligently. It was up to the applicant to decide whether to make use of that opinion. On any view the respondent was entitled to be paid for his work on the agreed hourly rate.
·Post contractual conduct
The applicant made some allegations critical of the alleged conduct of the respondent in speaking to the solicitors for the executors in the Supreme Court proceedings after the delivery of Reasons by Doyle CJ. Whatever the truth was of those allegations, they have no relevance to the question as to whether a retainer was entered into, nor the term of that retainer.
Conclusion
In my opinion the learned Magistrate was entirely justified in making the order for summary judgment. There was no arguable defence to the respondent’s claim.
Further it was, with respect, a proper exercise of the discretion in a minor civil claim for a liquidated sum that a final judgment be entered upon the applicant’s failure to attend at trial. There must be some finality in litigation especially in respect of a minor civil claim. Even if the matter had proceeded by way of a judgment by default rather than summary judgment, the applicant did not discharge the onus placed upon him by Rule 87(2) of the Rules of Court,[45] as he has no arguable defence to the respondent’s claim.[46]
[45] Cubelic v T & D Lock Pty Ltd [2009] SASC 397.
[46] Monkton v Stephenson [2011] NSWSC 67; Forsyth v Gibbs [2008] QCA 103; Zinc & Copper Corp v Clayton Utz [2004] NSWSC 1235.
There is no proper basis for the complaints which have been made by the applicant.
Accordingly, pursuant to s 38(7)(d) of the Act, I affirm the judgment and orders of the learned Magistrate. While I have granted the extension of time to file the application for review, I dismiss the application for a review.
Costs
Pursuant to Rule 6 DCR 279A of the Rules of Court, this Court has a general discretion to make an order for the costs of the application. I note also that the philosophy of Parliament, as embodied in s 38(5) of the Act, and referred to herein, 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 his own costs of the application.
·Formal orders
The formal orders of the court are:
1.   That the date for filing the Application for Review be extended nunc pro tunc, until 12 January 2010.
2.   That the decision of the learned Magistrate is affirmed.
3.   That the application for review is dismissed.
4.   That each party bear his own costs of the application for review.