Nella Goslino v Sunbeam Tile (Australia) Pty Ltd No. Scgrg-97-505 Judgment No. 6294 Number of Pages 9 Magistrates

[1997] SASC 6294

IN THE SUPREME COURT OF SOUTH AUSTRALIA

KING J

Magistrates - jurisdiction and procedure generally - procedure - the hearing - matters of procedural fairness and propriety - appeal against decision of Magistrate on grounds of procedural fairness - Appellant engaged Respondent to supply and lay tiles through agent - Dispute arose as to quality of work - Appellant instituted proceedings in Magistrates Court 6 years later - Appellant had legal assistance but was without legal representation on day of trial - Appellant had difficulty with English language - Magistrate refused to receive report from Appellant without witness, refused application for adjournment - Appellant collapsed in court, evidence given of Appellant feigning the collapse - Magistrate adjourned hearing - Appellant's lawyer appeared for her on next hearing date - Request for Magistrate to disqualify himself refused, Magistrate expressed concern at "delaying tactics in a claim that has no basis at all" and scepticism about Appellant's collapse - Magistrate adjourned hearing - Building consultant who mediated agreement allegedly settling dispute 4 years before was called at next hearing - Appellant's lawyer submitted restrictions on instructions and applied for adjournment - Magistrate said that there was no attempt to present Appellant's case in the proper fashion, granted adjournment - Application for adjournment and various orders at next hearing were refused - Appellant's lawyer left courtroom to take instructions while Magistrate heard evidence from defence witnesses - Appellant's lawyer then informed court he was not instructed to represent Appellant that day and left courtroom - Magistrate held for the Respondents and dismissed Appellant's claim for stress and inconvenience - Magistrate's incorrect advice to Appellant on claim for stress and inconvenience did not lead to any injustice - Admission of documents technically inadmissible cured by fact that documents could have been properly proved if need to do so had been adverted to - Inadmissible report tendered by Respondent played no part in resolution of the matter - Confused psychological condition of Appellant on first day of trial could have justified adjournment but later events afforded Appellant opportunity to remedy effects of refusal to adjourn - Appellant showed unwillingness to proceed with trial, Appellant capable of instruction lawyer but declined to do so - Magistrate correct indecision to proceed with hearing case for the defence - Appellant's case without merit - Stress and inconvenience not fault of Respondent - No conduct by Magistrate giving rise to reasonable apprehension of bias - No grounds for apprehending miscarriage of justice - Appeal dismissed. Clarke & Anor v The President Councillors and Ratepayers of the Shire Gisborne [1984] VR 971, discussed.

ADELAIDE, 29 July 1997 (hearing), 12 August 1997 (decision)

#DATE 12:8:1997

#ADD 4:9:1997

Appearances :

Counsel for appellant: Mr G Mancini

Solicitors for appellant: George Mancini & Co

Counsel for respondent: Mr M Esau

Solicitors for respondent: Mark Esau

Order: appeal dismissed.

KING AJ

This is an appeal against a judgment of the Magistrates Court constituted by Mr A R Newman SM sitting at Holden Hill whereby the plaintiff's claim was dismissed. The grounds of appeal have been particularised in the notice of appeal in considerable detail, but the substantial complaint is that the learned Magistrate's conduct of the trial demonstrated bias or at least gave rise to apprehension of bias and that the appellant was denied a fair trial of her claim. The litigation arose out of the engagement by the appellant of the respondent in September 1990 to lay tiles in the kitchen and laundry of her house. The work was performed and in October 1990 an invoice was rendered to the appellant for the sum of $3,035.

The appellant complained about the quality of the work and did not pay the amount of the invoice. The tiles had been supplied and the work performed by another firm, Beaumont Tiles, which had been engaged by the respondent for that purpose. There were negotiations between the parties and a representative of Beaumont Tiles was involved in the negotiations. The negotiations came to nothing and the appellant sought relief through the Commercial Tribunal by application dated 26 April 1991. The Commercial Tribunal on 12 August 1991 made an order directing the respondent to perform certain rectification work and to pay the costs of the proceedings. Beaumont Tiles attempted to perform the remedial work directed by the Tribunal. Beaumont Tiles' workmen were prevented from performing the rectification work by the appellant who claimed that they were making too much noise and dust. The respondent thereupon offered that if the appellant would pay their account she could engage a tiler of her own choice at the respondent's expense to perform the rectification work ordered by the Tribunal.

Discussions apparently came to nothing and the appellant engaged a building consultant, Mr N F McPeak. Mr McPeak considered that the problem with the tiles was very minor. He was faced with the problem that the appellant had prevented the respondent from performing the rectification work ordered by the Tribunal. He mediated an agreement between the appellant and the respondent which was reduced to writing and signed by the appellant and by a Mr Russo on behalf of the respondent.

The agreement dated 23 March 1992 provided that the respondent would arrange for the delivery to the appellant of a full set of new tiles leaving the appellant free to make her own arrangements for the laying of the tiles. The respondent agreed to give the appellant credit for the full amount of the contract price. The appellant agreed to withdraw all claims against the respondent. There was a provision that:

"All previous offers from the tile suppliers are withdrawn."

This provision was apparently a reference to an offer which had been made by Beaumont Tiles to pay the appellant the sum of $2,000 in full settlement.

The new tiles were duly delivered to the appellant. They have apparently not been laid and the appellant has made no payment to the respondent.

On 25 June 1996, almost six years after the performance of the work, the appellant instituted these proceedings in the Magistrates Court alleging that the tiles were defective and not of the description which she had chosen and claiming the cost of removing the tiles, reinstating the floor and relaying the tiles in a workmanlike manner. She claimed the sum of $6,000 as the cost of this work and in addition claimed general damages for stress $10,000 and for inconvenience $5,000, making a total claim of $21,000.

The respondent filed a defence which was subsequently amended. The defence denied the allegations of defective materials and workmanship. It pleaded the agreement of 23 March 1992 as discharging the respondent from any further liability to the appellant. The delivery of the tiles pursuant to that agreement was not expressly pleaded but the plea doubtless amounted to a plea of accord and satisfaction. No reply was filed.

The solicitor who issued the proceedings was Robert Floreani. In her evidence the appellant frequently referred to information and advice that she had been given by her solicitor leading up to the trial. Mr Mancini, who appeared as counsel on the appeal represented her at at least one pre-trial conference. It appears that she had legal advice in preparation for the trial. Nevertheless on the day fixed for trial, 18 February 1997, she appeared unrepresented. The conduct of the proceedings on that day, by the Magistrate, has come under severe criticism from Mr Mancini, who appeared for the appellant before me. It was plainly a difficult morning.

The appellant gave evidence with the assistance of an interpreter. The learned Magistrate endeavoured to elicit from her the evidence which was relevant to establish her claim. The answers, however, tended to be incoherent, discursive and emotionally charged. As to the basis of the claim, she said:

"The tile is all defect. All defect is not the tile I buy."

She further said:

"I am very upset, very stressed. We suffering for people for six and a half years."

The appellant sought to put before the Magistrate some documents including a report of an architect. Mr Esau, for the respondent, did not consent to this course. The Magistrate explained to the appellant that the evidence had to be given by way of witnesses. The appellant then said that she had arranged for the architect to attend the following day. The Magistrate informed her that the case had been listed for that day and that he was not available to hear the case on the following day. The appellant claimed that she had been informed by Court that the case would go for two days. The appellant then asked for an adjournment to enable her to get her lawyer. Mr Esau strongly opposed an adjournment. The learned Magistrate decided that he would hear the rest of the appellant's evidence and allow her to be cross examined before deciding whether to grant an adjournment.

Under cross examination the appellant gave evidence of her ill health. She claimed that she did not understand the substance of the agreement of 23 March 1992and that she was coerced by McPeak into signing it. Her answers in cross examination continued to be emotionally charged and often non responsive to the questions.

At the conclusion of the cross examination the learned Magistrate asked the appellant whether she proposed to call witnesses. She said that she had witnesses but she had been promised that she could bring the witnesses on the second day. She said that she had been promised this by "the Judge" presumably at a directions hearing. Mr Esau strongly opposed an adjournment and said:

"We are here to finish the matter today."

He indicated that the appellant had been represented at a directions hearing or conciliation conference by Mr Mancini who had stated that he would file a notice that he was acting. The learned Magistrate dealt with the application for the adjournment as follows:

"In the circumstances of this matter, it has been set for trial for some time, the witnesses should pursue the matter today. What is quite clear to me, from what has been said, is that there has been no attempt at all to organise those witnesses whether for today or for tomorrow. There is no suggestion that a specific time has been organised for any witness for tomorrow. This seems very much like a last minute thought having seen what happened in Court today, and I am not prepared to grant an adjournment for that purpose."

The appellant therefore collapsed and was removed from the Courtroom.

The Court adjourned at 12.50 pm. When it resumed at 2.15 pm the appellant was not in attendance. Mr Esau called the interpreter who had been assisting the appellant. The interpreter gave evidence that just before the collapse the appellant had told her that "she was going to feign a fainting fit". Over Mr Esau's opposition, the learned Magistrate, adjourned the hearing to 7 March.

On 7 March Mr Mancini appeared for the appellant and asked the Magistrate to disqualify himself from further hearing the matter. The Magistrate declined. At this point, the learned Magistrate appears to have treated the plaintiff's case as closed on the basis that she had not proceeded to call other witnesses, because he referred to the possibility of leave being granted to re-open the case. He indicated, however, that it would be necessary to proceed to hear the evidence of Mr McPeak who was to be called by the defence because McPeak was going overseas and would not be back for twelve months. Mr Mancini stated that he was not in a position to cross examine McPeak on that day. The Magistrate expressed concern that "This is more delaying tactics in a claim that has no basis at all." and stated "As soon as your client found that she did not get an adjournment and was sitting somewhere where she could fall over safely, she did."

Nevertheless he adjourned the matter until 24 March. On that day Mr McPeak gave evidence. He reiterated that the tiling problem was minor. He gave evidence that he fully explained the agreement of 23 March 1992 to the appellant and denied any coercion. At the conclusion of Mr McPeak's evidence Mr Mancini indicated that his instructions did not extend further than the cross examination of McPeak but that he anticipated that he would wish to recall the appellant when she was in a fit state to attend in Court and to call other witnesses including a psychiatrist. He applied for an adjournment to call other witnesses. The Magistrate raised the suggestion that the issue of whether the appellant's claim was defeated by the agreement of 23 March 1992 might be dealt with as a preliminary issue but Mr Mancini replied that he had no instructions and that he could not speak for his client as she was not present. The learned Magistrate proposed to adjourn the matter to the following day to enable Mr Mancini to call any witnesses. Mr Mancini indicated that he was not available on the following day and that there were no witnesses available on the following day. He stated that he had not proofed witnesses because he was not instructed "at this stage". The Magistrate commented:

"There has been no attempt to present the plaintiff's case in the proper fashion."

The Magistrate indicated that he was not prepared at that stage to grant leave to recall the appellant. After further discussion, the learned Magistrate granted leave for the appellant to re-open the case to call other evidence if so advised and stated:

"Out of an abundance of caution and in view of the psychiatric condition of the plaintiff, I adjourn the matter at this stage."

The following order was made: "Leave granted for plaintiff to re-open to call other evidence if so advised."

The trial was adjourned to 30 May.

On 23 May 1992, Justice Perry gave judgment on an application for leave to appeal instituted in the Supreme Court on 18 April against the refusal of the learned Magistrate to disqualify himself. His Honour refused leave.

When the trial resumed on 30 May, Mr Mancini sought orders that the trial be adjourned, that there be a stay of proceedings until further order, that the Court refer the parties to alternative dispute resolution, that the plaintiff have leave to amend the particulars of claim and to file a reply to the amended defence, that the plaintiff have leave to serve subpoenas upon Beaumont Tiles on the commercial tribunal, that the defendant provide discovery on oath, that the parties determine the admissibility and authenticity of documents proposed to be tendered at trial, that the defendant's notice to amend the defence be set aside, that the defendant provide further and better discovery, and that the Court attend upon a view of the plaintiff's premises. The learned Magistrate took the view that the trial should proceed without delay and he refused an adjournment. He did not make any of the orders sought. He took the view that as counsel for the appellant had called no further witnesses the plaintiff's case should be treated as closed. At some stage of the proceedings on that day two medical certificates were produced by Mr Mancini to the Court. They were not marked as exhibits but were handed to me by Mr Mancini on the appeal without objection. One was a certificate from a general practitioner that the appellant was suffering from "symptoms of dizziness and headaches and chest pains" and that "she has also suffered from insomnia, anxiety and depression recently." The doctor expressed the opinion that "she is unable to attend or give evidence for a further two weeks." There was also a certificate from Doctor D Pasquale, Director of Psychiatry of the North Western Adelaide Mental Health Service that the appellant "was agitated, confused and depressed" and "at present is still highly anxious". He suggested that her evidence be deferred for two or three weeks. Having refused the adjournment the Magistrate proceeded to hear the remaining defence witnesses.

When the learned Magistrate refused the adjournment, Mr Mancini asked for time to telephone his client for instructions. The Magistrate pointed out that the matter had been marked by "delay after delay after delay" and that, although it had been listed for 10.00 am it was then 10.45 am and "we have got absolutely nowhere". He added:

"I am proceeding and I am proceeding now."

Mr Mancini then left the Courtroom.

Three witnesses for the defence, namely Russo, D'Andrea and Wilkey were then called. Russo gave evidence of the circumstances surrounding the agreement of 23 March 1992. He also stated that no payment had been received from the appellant and none was sought. D'Andrea gave evidence of the laying of the tiles and of the appellant preventing the remedial work. Wilkey also gave evidence of the appellant preventing the remedial work.

During the evidence of D'Andrea, Mr Mancini re-entered the Courtroom and the following exchange took place:

MR MANCINI:

"Could I report just as to what has happened in the meantime for the record I have taken advice and spoken to Ms Goslino. I am not instructed to participate in any examination of witnesses or to represent her for today's purposes. My instructions are therefore terminated for that purpose. She is not in a position to attend and I wish that recorded for the record."

HIS HONOUR:

"As far as the Court is concerned, you are her solicitor and leave is not granted for you to be removed from the file. If, however, you do not wish to be present in Court, that is a decision that you have to make."

MR MANCINI:

"Thank you."

Mr Mancini then left the Courtroom. At the conclusion of the evidence of the witness Wilkey the defence case was closed.

In his judgment the learned Magistrate held that the agreement of 23 March 1992:

"was an agreement that Mrs Goslino agreed to with no pressure on her at all and well knowing the consequences of it."

He held that:

"Any dispute between the parties was quite clearly resolved for valuable consideration by the agreement dated 23 March 1992".

That amounted to upholding a defence of accord and satisfaction.

As to the claims for stress and inconvenience, the learned Magistrate, after citing Clarke and Anor v The President Councillors and Ratepayers of the Shire Gisborne [1984] VR 971, went on:

"In a case such as this where we are talking about faulty workmanship that could and should have been rectified, I would suggest in something under a day's work and left the house in a condition that there was no ongoing problem at all, I fail to see how it can be at all foreseeable that there would be any mental stress or physical inconvenience resulting such as to found an action upon that. The plaintiff in this matter has taken absolutely no steps to remedy the defect, notwithstanding that she agreed in 1992 to attend to that herself and to not require the defendant to undertake it. In my view, even if her claim were not found or the agreement which resolved it, there would be in this case, no grounds for any claim that she had suffered stress or inconvenience, as a result of the defendant's actions. Any stress or inconvenience that she has suffered has been as a result of her own actions, and it seems to me it is quite likely that it has just been a manifestation of a pre-existing psychological or psychiatric condition. Her behaviour in the witness box before me was quite bizarre, once challenged, and it only goes to confirm my view."

I have recounted the course of the proceedings in some detail because the argument that the appellant was denied a fair trial of the claim and the allegation of bias, can only be evaluated in the light of what actually occurred.

There were flaws, in my opinion, in the learned Magistrate's conduct of the proceedings on the first day. He was undoubtedly sorely tried by the appellant's demeanour and her arrival at Court on the day of the trial in an unprepared or semi prepared state to present her case. The case had come to him because another Magistrate had disqualified himself. The learned Magistrate therefore would have had no knowledge of any previous directions which might have been given. Whatever might have been said previously about a two day hearing, the learned Magistrate evidently was not available to sit on the following day. All this put a great deal of pressure on the learned Magistrate and perhaps was responsible for mistakes. He incorrectly advised the appellant that she could not claim for stress or inconvenience in her present claim. She was subsequently represented by counsel, however, that mistake was corrected and the initial mistake did not lead to any injustice. In cross examination of the appellant, the learned Magistrate admitted into evidence documents, which were not technically admissible. These included letters from the respondent and from Beaumont Tiles to the appellant, the receipt of which the appellant did not admit. Subsequently the authors of those letters were called as part of the defence case, but, no doubt because the letters had already been admitted into evidence, they were not asked about the dispatch of those letters to the appellant. The exhibits were actually copies of the letters and notice to produce the original was not proved. I have no doubt that the dispatch of these letters could have been properly proved if the need to do so had been adverted to. If there were difficulties of proof s45A of the Evidence Act could have been resorted to. The copies were business records genuine on the face of them and the Court could draw an inference as to the dispatch of the original to the addressee.

Exhibit D12, however, was a report from the Tile Layers Association of South Australia to the respondent concerning the tiling which was plainly not admissible and could not have been made admissible. Existence of that report was admitted by the appellant in cross examination and she claimed that it contained lies, but that did not render the contents of the report admissible. In the end, however, this exhibit played no part in the resolution of the matter.

The learned Magistrate's refusal to adjourn on the first day to enable the appellant to call witnesses was open to question. It is true that the appellant had had proper notice of the date of the trial. Counsel for the respondent strongly opposed the adjournment. There had been big delays in the matter. The respondent was obviously anxious to bring the matter to finality. The respondent had its counsel and its witnesses there on the day for trial and was anxious to proceed without further costs and delay. These are important considerations. Nevertheless the appellant was unrepresented, obviously in a confused psychological condition and claimed to have been informed that she would be able to produce her witnesses on the following day. Perhaps she should have been granted an adjournment.

Nevertheless this decision was overtaken by events. Subsequently she was represented by counsel and had every opportunity to instruct counsel to conduct the matter and to call whatever evidence she wished to call.

The appellant showed a marked unwillingness to proceed with the trial. It is not surprising that the learned Magistrate suspected, I think strongly suspected, that the appellant was engaging in deliberate delaying tactics to force the respondent into mediation or into making some concessions. The Magistrate obviously felt that justice required that the trial proceed to a conclusion and that there be a minimum of delay.

The adjournment on 24 March to 30 May was to enable the appellant to re-open her case and to call other evidence if so advised. It was perfectly plain that she was to present her case on 30 May. Instead of presenting the appellant's case on that day, her counsel sought a number of interlocutory orders, all of which should have been sought, if at all, prior to the commencement of the trial. When required to present the appellant's case he indicated that he did not have instructions to do so.

The medical certificate presented on 30 May indicated that the appellant was not fit to give evidence on that day. There is nothing in them to suggest that she was incapable of instructing her counsel to call and examine such witnesses and she wished to call. She had been capable of instructing her counsel to apply to have the Magistrate disqualify himself and to appeal against his refusal to do so. She had been capable of instructing her counsel to cross examine Mr McPeak, to seek adjournments and to apply for the orders sought on 30 May. She was obviously quite capable of instructing her counsel to present her case on the merits as directed by the Court. If that had been done it might well have been necessary to grant an adjournment for two or three weeks to enable the appellant to attend to give further evidence. That decision did not have to be made, however, because the appellant declined to instruct her counsel to present her case. In those circumstances the Magistrate, quite rightly, proceeded to hear the balance of the case for the defence.

There can be no doubt that the appellant's case was without merit. There were defects in the tiles which were originally laid, but the respondent attempted to remedy the defects pursuant to the direction of the tribunal. The respondent was prevented by the appellant from doing so. The dispute was then settled by the agreement which Mr McPeak prepared. The respondent performed its obligations under the agreement. The appellant's course of action, if any still existed, was discharged by accord and satisfaction. The claim for general damages was unfounded. The inconvenience would have been minor if the appellant had behaved reasonably. Any stress was the result of her own unreasonable response to the situation and was not caused by any fault of the respondent.

In my opinion the appellant had as fair a trial of her case as her actions enable the Magistrate to give her. There is no foundation for the allegation of bias. There was no conduct on the part of the Magistrate which could give rise to any reasonable apprehension of bias. There are no grounds for apprehending any miscarriage of justice.

The appeal is dismissed.