Neoh v Savarirayan - [2004] SADC 141

District Court of South Australia
(Civil: Minor Civil Review)
NEOH v SAVARIRAYAN
Reasons of His Honour Judge Muecke (ex tempore)
5 October 2004
PROCEDURE
Minor Civil Review - application by applicant for review to adduce fresh evidence (some of which was available at the time of the Magistrates Court hearing and some was obtained as a result of an adverse finding by the Magistrate) or to adjourn the review to adduce such evidence - purpose and objects of s38 Magistrates Court Act 1991 considered - application to adduce fresh evidence refused - application to review Magistrates Court decision dismissed.
Magistrates Court Act 1991 s38, referred to.
Lawrence v Sambevski (1997) 189 LSJS 451 at 452-454, applied.

NEOH v SAVARIRAYAN
[2004] SADC 141

This is an application by Dr Neoh for this Court to review the proceedings before a magistrate sitting in Whyalla who gave judgment in a minor civil action. The magistrate’s judgment in the matter was given in July 2004.
One of the principal issues decided by the magistrate concerned an alleged payment by Dr Neoh to Dr Savarirayan in October 2001. In her pleadings in the Magistrates Court Dr Neoh alleged that Dr Savarirayan took $7000 from her account on 22 October 2001. At the hearing of the action, however, Dr Neoh told the magistrate that her mother had withdrawn that amount and had given that sum to Dr Savarirayan at some time and in some form. Dr Neoh could not say to the magistrate when and how that was done. She was not present and took no part in the transaction. Dr Neoh said that she understood that the money was paid to Dr Savarirayan in anticipation of locum services to be provided by Dr Savarirayan. Those services were not provided until November 2002.
At the hearing before the magistrate Dr Neoh produced a bank statement which she said evidenced the withdrawal of $7000 from her account in October 2001. She alleged that the bank statement had been signed by Dr Savarirayan. That was denied by Dr Savarirayan.
In his judgment the magistrate referred to the fact that Dr Neoh’s mother had not attended at, and given evidence at, the hearing in Whyalla. The two parties had done so and another witness had been called by Dr Savarirayan. The magistrate noted from the file that the usual letter was sent to both parties by the Registrar of the court which includes the following: ‘If you wish to win the case you must attend with all available witnesses and all relevant paperwork.’ The magistrate held that there was no evidence before him that the sum of $7000 was paid to Dr Savarirayan. The magistrate dismissed Dr Neoh’s claim against Dr Savarirayan and allowed Dr Savarirayan’s claim against Dr Neoh. He entered judgment for $4020.74 plus costs in Dr Savarirayan’s favour against Dr Neoh.
After the hearing, but before judgment, Dr Neoh forwarded to the Registrar of the Whyalla Magistrates Court a copy of a letter allegedly prepared by an accountant. It is asserted that that supported Dr Neoh’s case at the hearing, that $7000 was given to Dr Savarirayan. In his judgment the magistrate referred to the fact that the letter was received by the court but he indicated that it had not been taken into account by him because it was a matter upon which neither party had had the opportunity to comment at the hearing.
Dr Neoh sought on her application before this Court to adduce and rely on that letter. It was evidence that was available at the time of the hearing before the magistrate and was not adduced by Dr Neoh. It is dated 30 January 2003.
At the hearing before me it was received and marked for identification. I was told by Dr Neoh that the author of the letter “CHRIS” was Mr Bond, and that Mr Bond was not present at the hearing and could not be cross-examined. I note in particular that he could not be cross-examined about his assertion in the letter that the impugned payment of $7000 was made in March 2002, and not in October 2001 as asserted by Dr Neoh. Dr Neoh submitted to me that the author of the letter might be mistaken about the date.
Dr Neoh also sought to call her mother to give evidence before me. Her mother was not at the hearing in Whyalla before the magistrate and was not called at that hearing. There was no explanation as to why she was not. There was no application to adjourn that hearing in order that she could be called.
Also, before me, Dr Neoh sought to adduce evidence of a report of Mr Don Gangell who I was told was a forensic handwriting expert. Papers apparently prepared by Dr Gangell in September 2004 were received by me and marked for identification. I infer that these papers were obtained by Dr Neoh as a direct result of the finding of the magistrate which was adverse to her. Mr Gangell was not present at the hearing before me to be cross-examined. I note in particular that he could not be cross-examined on that aspect of his report in which he apparently wrote he was unable to supply a conclusive opinion as to authorship of the impuned signature on the bank statement of 7 October 2001, nor on his apparent opinion that Dr Savarirayan ‘possibly wrote the questioned signature’.
Both the letter alleged to have been written by Mr Bond, and the handwriting opinion apparently given by Mr Gangell were supplied to Dr Savarirayan by his solicitor on Friday of last week. That occurred only after that solicitor had requested a copy of them. That was the last business day before this application was listed for hearing before me. Dr Savarirayan told me that he would have liked the opportunity to have his own expert consider the signature evidence. He also told me about matters on which I inferred he would have wanted to cross-examine Mr Bond.
I do not consider it appropriate, on this application to review the magistrate’s judgment in a minor civil action, to allow Dr Neoh to adduce fresh evidence, or to adjourn the hearing of this application so that she may call or be in a position to call three witnesses that could have been called at the hearing before the magistrate. Dr Neoh said to me that she was unaware until that hearing that Dr Savarirayan denied receiving $7000 from her account on 22 October 2001 or at any time. She told me that she had not read Dr Savarirayan particulars of defence in which such a denial is made, and in which Dr Savarirayan further said: ‘that the claim of misappropriation of $7000 was first raised in 2003 and is a recent invention made by (Dr Neoh) in order to avoid a claim for monies owing to (him) by (her) in respect of locum services for which she has not paid (him) and which are the subject of separate proceedings’.
I do not accept that Dr Neoh was not aware until the hearing in Whyalla that the question as to whether $7000 was paid or given to Dr Savarirayan at any time was in dispute in this matter. I am satisfied that Dr Neoh was fully aware of that, and that she was aware that was going to be an important part of the hearing before the magistrate in Whyalla.
In Lawrence v Sambevski (1997) 189 LSJS 451 Judge Lunn said at pp 452 –454:
(T)he underlying purpose of s38 (of the Magistrates Court Act) is to set up a special, and somewhat unique, procedure whereby claims involving less than (a certain sum) are to be resolved by expeditious and cheap procedures which substantially truncate many of the procedures usually employed for determining ordinary civil actions. … It would defeat the objects of expedition and minimisation of costs if on a review a party could adduce fresh evidence which could go into all sorts of relevant issues which were not opened up in the trial before the Magistrate. Almost every party who loses an action would like the opportunity to re-run the trial on expanded evidence and arguments, but this would mean that there could be reviews in almost every minor civil action and potentially increase the costs and delays enormously. The basic rule must be that parties are bound by the conduct of the trial before the magistrate and that good reason is required for any additional evidence to be admitted.
I am not satisfied that sufficiently good reason exists in this case for additional evidence to be admitted. The evidence from Mr Bond and Dr Neoh’s mother was not evidence that was sought to be admitted at the trial, although it could have been. It is not put to me or the magistrate that Dr Neoh’s mother was unavailable to give evidence at that hearing and could not have travelled to Whyalla to do so. I have also referred to the fact that the letter sought to be adduced from Bond Stuppos and Associates was dated nearly a year and a half before the hearing before the magistrate.
It is clear from what I have already said that if I were to admit the additional evidence sought by Dr Neoh the matter would become a full-blown trial in the District Court rather than a hearing in a minor civil action which the legislature intended to be resolved expeditiously and with a minimum of costs. As I have indicated I am satisfied that Dr Neoh was fully aware of the issues that were to be the subject of the hearing in Whyalla. I am not satisfied that sufficiently good reason exists for a trial now to be conducted at some future time before this Court. For those reasons I refuse to admit the evidence sought to be adduced by Dr Neoh.
On a review of the magistrate’s order on the material before him I am in no doubt that the magistrate made a proper determination having properly considered the evidence that was put before him. In my view there have been no grounds made out for a decision other than that to which the magistrate came. The application for review is dismissed.