R v Willee Ex Parte Pikor

[1992] TASSC 102

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            R v Willee ex parte Pikor [1992] TASSC 102; B27/1992

PARTIES:  THE QUEEN
  v

WILLEE, ex parte PIKOR, A Z

FILE NO/S:  M378/1990
DELIVERED ON:  19 June 1992
JUDGMENT OF:  Underwood J

Judgment Number:  B27/1992
Number of paragraphs:  12

Serial No B27/1992

List "B"

File No M378/1990

THE QUEEN v WILLEE ex parte A Z PIKOR

REASONS FOR JUDGMENT  UNDERWOOD J

(Delivered Orally)  19 June 1992

Prerogative Writs – Certiorari – Effect of statutory provisions – Magistrates' Court (Small Claims Division) Act 1989, s32(2) – No denial of natural justice.

1. This is the return of an order nisi for a writ of certiorari. The order was made by the Full Court of this Court on 13 November 1991. The material part of the order states:

"Roger Frederick Willee exercising jurisdiction as a magistrate sitting in the small claims divisions of the magistrates' court and Michelle Audra Gourlay show cause on a date to be fixed by the Registrar why a writ of certiorari should not be issued for the purpose of having brought before a judge in court to be examined as to its legality and if found to be illegal quashed, the determination by the said Roger Frederick Willee of the 6th day of December 1990 [sic] on all documentation relating to that determination whereby it was ordered that the applicant pay to the said Michelle Audra Gourlay the sum of $1,516.92 on the ground that the said magistrate had no evidence, information or material before him capable of supporting any findings as to the amount payable to the said Michelle Audra Gourlay."

1. Notwithstanding the various submissions that the prosecutor has put to me today, the only ground upon which the learned Small Claims Commissioner's determination may be quashed in these proceedings, is that, in effect, there was no evidentiary material before him upon which his determination of quantum of damage could have been based. The prosecutor appeared in person, the respondent, Mrs M A  Gourlay, appeared by counsel and was heard, and the respondent, Mr Willee, appeared by counsel when the order nisi was first returned. Counsel for Mr Willee then told the court that Mr Willee would abide the order of the court and did not wish to be heard further. He was given leave to withdraw.

1. The prosecutor relied without objection on the following material:

1The contents of his appeal book in the Full Court appeal which resulted in the making of the order nisi for the writ of certiorari.

2        His affidavit, sworn 8 November 1991.

3        Mrs. Gourlay's affidavit, sworn 21 May 1992.

4        His affidavit sworn 16 June 1992.

5        The order nisi itself.

1. Pursuant to notice given in accordance with the Rules of Court, O.41, r.34, Mr Pikor was cross–examined on the contents of his affidavit. Although no similar notice was given to Mrs Gourlay, she too was cross–examined on her affidavit.

1. I have carefully considered the written material relied upon and of course, the viva voce evidence is fresh in my memory as it was all heard this morning. After hearing that viva voce evidence given by the prosecutor and the respondent, Mrs Gourlay. I am satisfied to the requisite degree that there was material before the learned Small Claims Commissioner of the cost of repairs to Mrs Gourlay's vehicle. I accept the evidence of Mrs Gourlay that she handed the quotations for repair to the learned Commissioner and I reject the evidence of Mr Pikor where it is in conflict with that given by Mrs Gourlay in this respect. It is true that there is no reference in the learned Commissioner's notes of the hearing to any quotation being tendered in evidence, but it is clear that such notes do not purport to be a complete record of all the evidence given. According to Mrs Gourlay, the quotations were not tendered in evidence in the sense that they were left with the tribunal, but they were given to the learned Small Claims Commissioner, examined by him, examined by Mr Pikor and returned to her. She said she still has them.

1. In view of the discussions between the parties prior to the hearing, it would not be surprising if there was no issue at the hearing about the cost of repairs by a commercial repairer and hence not a sufficiently significant matter to warrant a note being made when full notes of all that was said and done were not being taken.

1. Mr Pikor was apparently well aware from either the day of the accident itself, or shortly thereafter, that Mrs Gourlay was claiming the commercial cost of repairs in a sum in the order of $1,516.00. Indeed, he disputed that such a cost was a reasonable cost and he offered to repair the car himself, such offer being rejected by Mrs Gourlay. Having had the opportunity of seeing both witnesses give evidence, I can say that the answers given by Mrs Gourlay carried with them an air of conviction which was reinforced by the manner in which she gave her evidence. By contrast, the answers given by Mr Pikor carried with them, in my view, an air of uncertainty and on occasions, evasion. I formed this view after carefully making due allowance for the obvious fact that the English language appears not to be his native tongue.

1. In addition, Mr Pikor wrote a letter which was tendered in evidence before me on the cross–examination, to the general manager of the Motor Accidents Insurance Board in Launceston on 12 December 1990. That letter was written just six days after the hearing before the learned Small Claims Commissioner. It begins with the following paragraph:

"Judgment was entered against me on 6 December 1990 for $1,516.92 being the alleged lowest quotation to repair the damage to the claimant's vehicle. Allegations of personal injury were raised before the court in support of the aforesaid claims."

1. The inference therefrom is inescapable that there was such a quotation in existence and that Mr Pikor knew that when he wrote that letter. His evidence before me was that he had never seen a quotation and, although not directly in conflict with the paragraph in that letter, tends to support the view that I have otherwise formed of the credit of the two accounts given to me of what transpired in the Small Claims Division of the Court of Requests on 6 December 1990.

1. Those findings of fact are sufficient to determine these proceedings. They permit only the conclusion that the ground upon which the order nisi is made and indeed, all grounds specified in the Magistrates' Court (Small Claims Division Act) 1989, s32(2), are not made out.

1. The order nisi is discharged.

1. I order that the prosecutor pay the respondent, Mrs Gourlay's taxed costs of the application to make the order nisi absolute, except those costs of the hearing before the Chief Justice on 16 April 1992.