Rossi v SCHIPANI

[2015] SADC 61

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil: Minor Civil Review)

ROSSI v SCHIPANI

[2015] SADC 61

Judgment of His Honour Judge Tilmouth

22 April 2015

MAGISTRATES - APPEAL AND REVIEW

MINOR CIVIL REVIEW

Application to review a Magistrate's decision in a minor civil claim, dismissed on the merits.

ROSSI v SCHIPANI
[2015] SADC 61

1. This is an appeal from a decision of a Magistrate sitting in the minor civil jurisdiction at Adelaide.  The appellant (and plaintiff) Mr Rossi sued the respondent (defendant) for damages of an assault during events occurring on Christmas Day 2011, on the defendant’s property.  The Magistrate heard evidence from a number of witnesses over some three hearing days in late 2013, and in early and mid-2014.  In a lengthy and well reasoned judgment of 5 August 2014, her Honour dismissed the action.

2. After a close and meticulous analysis of the evidence, at the heart of her Honour’s reasoning was the conclusion that she preferred the evidence of the respondent, his wife and his wife’s sister, to that of the appellant (plaintiff) and his wife.  She reached the following conclusion:

   [68]As a consequence of these factual findings, I find that the actions of the defendant in pinning the plaintiff to the wall constituted an assault and battery.  However, I also find that this action was taken by the defendant to defend both his wife and his mother-in-law whom he considered to be at risk of suffering imminent harm.  I find that the defendant has satisfied the burden of proving the defence of necessity referred to earlier in these reasons.

3. Her Honour proceeded to make further observations (whilst conceding it was not strictly necessary for her to do so) that ‘the pain and discomfort allegedly suffered by the plaintiff had a distinct “psycho-social” component’, which her Honour attributed to the impact of family relations associated with these proceedings.

4. When the application for review came on for appeal in the District Court, Mr Rossi represented himself.  There was no appearance by or on behalf of the respondent.  His name was called several times outside the court room and the court waited more than 15 minutes after the time assigned for commencing the hearing, before proceeding to hear the appeal.  The court does however have a written submission from him.

5. A number of matters were agitated by Mr Rossi during the course of his submissions.  The first was by reference to photographs taken some two to three days later to the shoulder area, which certainly do show some bruising probably in a healing phase, and therefore consistent with about that timeframe.  It is clear that her Honour considered the photographs, as they were expressly noted by her.  The Magistrate found he was subject to physical injury but that it was excusable on the grounds of the defence of necessity, or self defence.  The photographs support the former conclusion but have no bearing on the latter.

6. Mr Rossi next argued the ‘finding’ noted earlier relating to the psycho-social consequences was illogical.  As mentioned it was not necessary to resolve that issue.  Nevertheless it was an observation open to her Honour based on the medical evidence she had.  An orthopaedic surgeon called by Mr Rossi at the trial, told the court that he was first consulted in November 2012.  He noted a complaint of intermittent right sided neck pain, which he considered would settle within a few weeks and then might possibly re-appear.  The surgeon also considered the symptoms were invariably linked to psycho-social rather than physical issues.  Given the close personal relationships involved and the intense feelings that have followed, the observation is hardly a surprising one.  Nor given this evidence was her Honour’s observation illogical.

7. Mr Rossi further argued that the evidence of his wife should have been separately considered from his own.  The reasons demonstrate her Honour did precisely that, as she carefully analysed the evidence individually, witness by witness, so there is no substance in the complaint.  The same may similarly be said of a suggestion that the defendant’s wife felt herself under no threat, a situation contrary to the express findings of the Magistrate.

8. Mr Rossi added that he did not go to the doctor soon afterwards, first because he reported the matter the same day to the police, and secondly because it was not evident until later what the consequences of his injuries were.  However the reasons do not suggest her Honour took this situation into consideration adversely to Mr Rossi.  It is not surprising the police did not pursue the matter as they were seeking independent corroboration, corroboration that could not be found, so that as a matter of prosecution policy they could not have been satisfied securing a conviction was a reasonable one.  That decision however says nothing about the underlying merits, one way or the other of the civil proceedings. 

9. In the result, the conclusions which her Honour reached as detailed above were driven by her unassailable conclusion that the plaintiff and his wife were ‘unimpressive witnesses’, that they ‘both significantly exaggerated their evidence, particularly with respect to the alleged assault and the injuries the plaintiff had allegedly sustained’.  In contrast the Magistrate found the evidence of the defendant to be ‘frank and honest’ and she was particularly impressed by his wife, so that her conclusions as to the measure of justification involved in the circumstances, was a soundly based one.

10. Mr Rossi essentially is seeking to re-argue matters litigated in the summary court, upon which he was unsuccessful.  He has singularly failed to demonstrate any error on the part of the Magistrate, let alone any error justifying intervention.

11. The appeal therefore can only be dismissed.