Norman v Rock - [2012] SADC 168

District Court of South Australia
(Civil: Minor Civil Review)
NORMAN v ROCK
[2012] SADC 168
Judgment of Her Honour Judge Davey (ex tempore)
6 November 2012
MAGISTRATES - APPEAL AND REVIEW
MINOR CIVIL REVIEW
Application to review a Magistrate's decision in a minor civil claim pursuant to s38 of the Magistrates Court Act 1991.
Held: Application dismissed.
Magistrates Court Act 1991 s38, referred to.

NORMAN v ROCK
[2012] SADC 168

By application dated 20 August 2012 Scott Norman seeks a review by this Court of a Magistrate’s decision in a minor civil claim pursuant to s38 of the Magistrates Court Act 1991.
The learned Magistrate delivered an ex tempore decision on 17 July 2012 following the hearing of evidence on that date. The claim in the Magistrates Court concerned the sale of a domestic property with a swimming pool including equipment; the claim is in respect of the salt water pool chlorinator.
The plaintiff (now the respondent) purchased the property and settled in July 2011. The applicant (then the defendant) had advertised that the house had a pool and the plaintiff claimed that the defendant had asserted that the pool equipment was in working condition. According to the sworn evidence given by the plaintiff before the learned Magistrate, after settlement on the property, Ms Rock realised that the pool filter did not work. After taking advice from an appropriate pool tradesman she replaced the salt water chlorinator. The claim before the Magistrate was for the cost of the chlorinator.
By this application, the defendant challenges the findings of the learned Magistrate. The applicant seeks a review of the whole of the decision. According to his Notice of Appeal he complains that he was unable to attend the trial and that the Magistrate “ruled against him for his non-attendance”. The applicant also complains that the respondent provided no proof of her claim. The applicant also seeks an extension of time saying that he was unaware of the availability of the review process and that he was unable to obtain legal advice.
With respect to the matter of extension of time, I note that Ms Rock has provided this Court with her notification of the judgment made by Mr Morris SM on 17 July 2012 and the documentation which was enclosed with that notification. She handed up that documentation during the course of this review hearing. That notification included a notice pursuant to s38(3) of the Magistrates Court Act 1991. I note that that notice gave information to the unsuccessful party of their right to seek a review, the requirement that that be lodged within 28 days of the judgment and the notice also gave advice about (or gave information about) where any unsuccessful party could obtain legal advice. I am dubious about the applicant’s claim to me today that he had not received this notice. Whether or not he took any notice of the correspondence and any enclosures is another question.
In any event, I will proceed to deal with the merits of the review. The transcript of proceedings on 17 July 2012 reveals that contrary to the assertions by the applicant, the learned Magistrate did not sign judgment as a result of his non-appearance. The defendant had sent material to the court explaining that he would not attend and why. He put some written material to the court. At the trial the learned Magistrate correctly explained to the plaintiff that she could apply to sign judgment in default of the defendant’s appearance or proceed to a hearing of the trial, whereby the court would receive evidence. I also note that it appears that the learned Magistrate considered the material provided to him by the defendant.
The plaintiff chose to give and call evidence. Contrary to the assertions by the applicant, there was evidence before the learned Magistrate in support of the claim. There was evidence of the value of the claim and the necessity for replacement of the chlorinator without delay at the time it was replaced and the learned Magistrate gave consideration to the claim by the defendant that the equipment was in working condition at the time of sale. These matters are set out in the transcript.
Section 38(6) of the Magistrates Court Act provides that this Court may, on the application of a party dissatisfied with a judgment given in a minor civil action, review the matter. The nature of review proceedings are set out in s38(7) of the Magistrates Court Act. On review, the District Court may inform itself as it sees fit and is not bound by the rules of evidence and, in hearing and determining the review, the court must act with equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
I enabled a telephone link-up to assist the applicant in this matter; he claimed that he was unable to travel to Adelaide, fundamentally, because of cost concerns. I ordered a telephone link-up to Sydney, New South Wales where he is presently on the telephone line. I also allowed the applicant to put submissions to me about the reasons for his failure to make an application for the review within time and I also permitted him to put any other material or explanation before me; he did so. I also gave him an opportunity to ask any questions of the respondent. I note that he did not ask any questions of the respondent.
As I pointed out during the hearing, one of the problems about a telephone link-up is I do not have the benefit of seeing the applicant as he gave his account of events and moreover he did not give evidence on oath. I note those matters.
I have considered very carefully the matters put to me by the parties, particularly the applicant. I have considered the transcript of the hearing and the reasons for the decision. I have also given consideration to the matters put to me by the applicant in the hearing today, even though they were not on oath. In my view the learned Magistrate did not fall into error in making his decision.
I note the applicant’s difficulties in attending this hearing and the hearing before the learned Magistrate; that is an unfortunate state of affairs for the applicant but there is no basis for challenging the decision. The hearing of the matter proceeded at the time and place nominated.
As I have said, notwithstanding that the applicant did not appear before me personally I have had regard to all that has been put to me during this hearing and all that was said to the Magistrate at the first instance.
I find no error in approach, no error of fact and no error of law with respect to the decision by the learned Magistrate. I agree with his decision and accordingly, I dismiss the application for review.
Thank you Mr Norman, I am now about to turn the telephone link off. Ms Rock, the judgment that was entered, stands.