Snel v Beenham - [2017] SADC 51

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
SNEL v BEENHAM
[2017] SADC 51
Judgment of His Honour Judge Tilmouth
11 May 2017
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - NATURE OF RIGHT - SCOPE AND EFFECT OF APPEAL
Judgment given in the Minor Civil Claims jurisdiction rescinded for the failure to furnish adequate reasons for judgment. Action re-heard and dismissed on the merits.
Magistrates Court Act 1991 (SA) s 38(1)(a), s 38(5), s 38(6), s 38(7)(d)(i), (ii) & (iii); Harradine v District Court of South Australia (2012) 280 LSJS 572; Public Service Board (NSW) v Osmond (1986) 159 CLR 656; Pettit v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, referred to.
Plos v Mroz [2015] SADC 87; Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203; Stegbar Pty Ltd v Piscioneri [2016] SADC 47, applied.

SNEL v BEENHAM
[2017] SADC 51
The proceedings

This is an application to review a minor civil decision made in the Christies Beach Magistrates Court on 11 November 2016. These reasons explain why the application must succeed, the judgment rescinded, and the original claim instituted by the applicant dismissed.
The underlying proceedings in the Magistrates Court
By Statement of Claim issued on 25 January 2016, the applicant and plaintiff Mr Snel, claimed the sum of $2,846.54 from the respondent and defendant Mr Beenham (trading as MTM Contractors Pty Ltd), for ‘unauthorised work carried out in the backyard of my rental property in Roxby Downs at 4 Blanche Court’. He alleged Mr Beenham’s company failed to provide a quote before proceeding with plumbing work carried out on the property and that it exceeded a $300 work limit placed on the work. Mr Snel further claimed authorisation was ‘only given for work to be conducted in the front yard of the property’. The claimed sum was an assessment by Mr Snel of the amount of authorised work attributable to the front yard, excluding work that was completed in the rear yard.[1]
[1] Applicant’s written case, 20 March 2017, para 6.
In a defence eventually filed on 12 May 2016 – a default judgment against the defendant was set aside in the meantime – the defendant pleaded that blockages were detected in drains both in the front and rear yards of the property and that he was authorised to proceed by the management firm engaged by Mr Snel to manage the property.
An invoice was rendered in September 2015 for $4,771.86, which was paid by Mr Snel. It can be accepted that he did so under the imperative of an external threat from the manager of the property, who would not forward rent payments to him unless this account was paid.[2] In the circumstances, no implied admission of liability is properly drawn from making that payment.
[2] T3.28-4.15, 10 April 2017.
Magistrates Court hearing
The proceedings were heard by a Magistrate sitting in the minor claims civil jurisdiction of the court at Christies Beach on 11 November 2016. Her Honour heard submissions from both Mr Snel and Mr Beenham over the course of approximately seven pages of transcript, commencing at 12.14 pm that day. Mr Snel was sworn to give evidence. Mr Beenham made submissions at times and both parties responded to a number of questions from the Bench, at others.
At the conclusion of this hearing, her Honour delivered an extemporary judgment as follows:[3]
HER HONOUR: Well, Mr Snel, I’m afraid I’m not persuaded and I need to be persuaded in order to grant judgment in your favour on the balance of probabilities, so I enter judgment for the defendant on this occasion. You can take the matter on appeal if it is worth your while, but that is my decision today. Thank you.
[3] Snel v Beenham, CHBCI-16-21 T 13.27 to 32.
The application for review
A right of review against decisions given in the small claims jurisdiction, is conferred by s 38(6) of the Magistrates Court Act 1991 (SA). Section 38(7)(d)(i) and (ii) thereof, furnishes the District Court with powers of affirmation and recission, as well as the obligation to ‘substitute a judgment … [it] … considers appropriate’ in the event of recission. There is no power of remission, except in respect of reviews against default or summary judgments: s 38(7)(d)(iii) of the Magistrates Court Act. The above judgment was final.
Should this court conclude that a Magistrate made an error vitiating the order dismissing the action, it becomes necessary to re-hear the evidence pertaining to the flawed findings, given that it does not enjoy the power to remit for re-hearing: Harradine v District Court of South Australia.[4] As will appear, this is what was done in this instance.
[4] (2012) 280 LSJS 572.
Putting to one side whether the hearing amounted to a sufficient ‘enquiry … into the matters in dispute’ required by s 38(1)(a) of the Magistrates Court Act 1991 (SA), the application for review must succeed despite the summary nature of the proceedings, fundamentally because of the failure to furnish adequate reasons for dismissing the action. As I explained in Plos v Mroz,[5] applying Uelese v Minister for Immigration and Border Protection,[6] courts exercising the minor civil jurisdiction remain ‘subject to the requirements of procedural fairness’. This obligation extends to the duty to give sufficient reasons to enable the review court to adequately reconsider the matter: Public Service Board (NSW) v Osmond.[7] Moreover, as I held in Stegbar Pty Ltd v Piscioneri,[8] after referring to Koutalis v Pollett,[9] furnishing reasons for judgment is an essential requirement of the small claims procedure. This requirement is regarded as an essential aspect of the judicial powers itself: Pettit v Dunkley,[10] and Soulemezis v Dudley (Holdings) Pty Ltd.[11]
[5] [2015] SADC 87, [32].
[6] (2015) 256 CLR 203 [102], and the authorities referred to therein footnote 64.
[7] (1986) 159 CLR 656, 666.
[8] [2016] SADC 47 [13].
[9] [2015] FCA 1165, [40].
[10] [1971] 1 NSWLR 376, 388, 390.
[11] (1987) 10 NSWLR 247.
The course of events
The call to undertake the plumbing work involved was initiated by an email of 18 August 2015. The tenants of the Roxby Downs property notified the manager that the drains of the property were running slowly and in need of repair. This was forwarded to Mr Snel, who was at the time overseas, and who did not live in Roxby Downs. On the same day, the manager addressed a work order to Mr Beenham’s firm entitled ‘Drains Running Slow Again’ and attached an email from Mr Snel instructing to ‘check why the drains are running slow’ and noting ‘quote if over $300’.
Mr Tugwood, a plumber employed by Mr Beenham attended the property on 20 August 2015 for about half an hour. He described what he did at this time during the review process:[12]
[12] T24.13-.30, 28 April 2017.
Q.    I'm told you went to this property on 20 August and stayed there for half an hour.
A.That would be correct. When I first went there the toilet was badly blocked, so the first thing I do is to go outside looking for an inspection point. Tried to plunge the toilet without any luck. That was all that was going to happen then. And then report back to Mr Beenham and said 'We need further investigation here'. That's why it was only half an hour.
Q.    So you reported to Mr Beenham it needed further work, is that what you said.
A.    That's correct.
Q.    You spoke to Mr Beenham.
A.    I would've done, yes.
Q.    What did you say to him.
A.That what I've done there is looked it over and we need to excavate outside to find an inspection point for access into the drain.
As a consequence, the property manager emailed Mr Snel the same day with this message:
The drains at the above address are blocked with tree roots and will require the drain to be dug up to find the damaged area
Please confirm that this work can be started via return email.
This may be claimable on your insurance as most will cover the finding of the problem and the reinstating of thee[sic] grounds.
Please call if you have any queries.
He responded just shy of midnight on 20 August:
Do you have any estimate of how much this will cost? This has happened once before and the offending tree is the one when looking at the house from the street on the right hand side near the fence. Please pass this info to the person carrying out the work it may save time and money. It has done so what choice is there, yes go ahead
…
This response was forwarded to Mr Beenham via his wife, at 9.30am on 21 August 2015 by the property manager, with the simple message ‘Regards’. Mr Beenham understandably took this as providing all the authority he required to go ahead to ‘find the damaged area’.[13]
[13] T41.32-42.5, 28 April 2017.
What next occurred was explained by Mr Tugwood:[14]
[14] T24.13-25.33, 28 April 2017.
Q.    What was the next thing that happened that you were involved in.
A.I would've dug up outside the toilet to find an inspection point. That would be on the 21st of the 8th. We would then put a plunger down or try and clear the drain. Then we found roots in the drain just outside the toilet, so that would have been excavated. We've then taken that inspection point out, replace that section of drain to get access for a camera to move into the second stage.
Q.    Where's that inspection point, is that backyard, front yard or somewhere else.
A.    In the backyard. That's the first stage.
Q.    How long did that take.
A.    Two and a half hours.
Q.    What happened next.
A.Once we took the inspection point out because there was roots in the drain, we then had access for the camera to enter the second stage and the branch that we entered in there was badly blocked up with roots as well. So that's the reason why the excavation in the backyard was done.
Q.    What day was that done.
A.    That would have been on the 21st and 25 August.
Q.    You did that yourself or you did it in conjunction with Mr Tyler.
A.No, that would have been done by myself with the two technical assistants who would dig up, it was a rather hard dig.
Q.    When and why did you move to the front yard.
A.Well, once in that second stage, once we found the broken branch that gives us access for the camera to go further than we did and that is then the third stage. In the third stage we found another broken end drain, so that's why the excavator was brought in to repair.
Q.    What led you to go to the front yard in the first place.
A.The main drain, the main drain goes out to the government inspection point and that's clogged. We clear it and once we got the camera down that's when we found tree roots at the third stage, before the government inspection point.
Further work was undertaken in the front yard later on when Mr Tyler, then an employee of Mr Beenham’s, assisted with an excavator brought in especially for the purpose from Port Pirie. At the time of trial Mr Tyler had his own plumbing business. A job card commenced on 19 August 2015, completed by Mr Tugwood at various times in the course of the works, recorded this:[15]
Clear blocked main drain from W/C. Drain maximum Excavate & replace section of drain. Main drain found to be blocked. Excavate and replace drain. Roots in drain inspect with camera. Roots in main drain Approx. 3 mts from WC. … Raise I P to ground level at WC …excavated in front yard found blockage repaired and backfilled, removed large bottle brush tree from front yard taken to dump.
[15] T27.34-28.27, 28 April 2017.
A site diagram drawn up by Mr Tugwell ‘throughout the duration of the job’, records two areas in which work was undertaken.[16] The first was in the rear yard beginning with the access point adjacent to the WC and moving down the main drain along the boundary, and the second was in the front yard.[17] It further records two areas of plumbing work commencing with an access point to the main drain in the front yard. This is entirely consistent with Mr Tugwell’s version of the events. Although the job card (reproduced in part above) did not explicitly refer to the work in the rear yard, the WC was located there and since it was blocked, this was the logical point at which to commence looking for the damaged area(s).
[16] T29.10-30.9, 28 April 2017.
[17] T27.34-28.27, 28 April 2017.
Mr Tugwood explained a bag of concrete was used in each yard, and that the ‘(T)wo breaks were made from the WC, excavated and replacement of drain … in the backyard’.[18] Furthermore the materials referred to in the job card relate to the nature of the work undertaken in both yards. This was explained by Mr Tugwood in answers to questions from Mr Snel:[19]
[18] T28.25-.27, 28 April 2017.
[19] T31.15-.27, 28 April 2017.
Q.I have the picture of the front yard and all these materials are consistent with the repairs done on the front yard so you are saying that some of these are for the backyard as well.
A.Yes, when I look at that, we have a PVC bend and also four Ausi joints in the backyard.
Q.    Were there no Ausi joints used in the backyard.
A.    Two in the back, two in the front.
Q.Two in the back, two in the front. Who changed the numbers on this job sheet from No.2 to No.4 for the Ausi joints, was it yourself.
A.    Quite possible, I had to go through the drain but I think it was materials that was –
Mr Beenham provided a marginally more precise explanation of the materials allocated to each job:[20]
Q.So could you tell me where the breakup is of the backyard and front yard of these materials.
A.Yeah, I probably can pretty close. You know, the first item on the job charge you've got four 100 mil Ausi joints, two in the front, two in the back. And the reason you use two is you cut sections of pipe out and you have to use one each end, which you'll see in the photographs. The 1 by 45 PVC bend would have been used in the backyard. The screwed socket 100 mil is the backyard, the three and a half metres of pipe would be shared between the front and the back. The 15 -
…
A.That’s a breakdown of the materials there.
[20] T46.29-47.4, 28 April 2017.
Likewise, the Tax Invoice rendered on 22 September 2015 made no mention of either the back or the front yards. Mr Beenham acknowledged the deficiencies in the invoice, which he attributed to an error by the ‘administration people’ of the firm in the preparation of the account.[21]
[21] T43.29-.36, 28 April 2017.
The case for Mr Snel
Mr Snel’s position that work in the back yard was unnecessary, was largely based upon a discussion he had with a tenant whom he did not produce as a witness. Instead he produced two recorded telephone discussions he had with her, made with her consent. She told Mr Snel there were ‘no problems’ with the back yard and in effect the contractors had ‘broken’ the plumbing. In actual fact, the defendant’s workers had deliberately breached the plumbing to ascertain the source of a blockage, rather than an accidental one. The observations of the tenant were made intermittently, by an untrained eye. It is not possible to place much weight at all on this secondary material in the absence of the opportunity to question the tenant in order to ascertain the precise nature and opportunity for observing the progress of work.
Mr Tugwell spoke of the work necessitated with respect to both areas in terms that make sense.[22] This version of the events was confirmed by Mr Tyler the firm’s site manager at the time, who inspected the site on 21 August 2015. At this time he was shown the drain, the tree roots, the broken joints and the inspection point in the backyard.[23]
[22] T40.23-.37, 28 April 2017.
[23] T34.1-.7, T34.37-35.11, 28 April 2017.
Finally, Mr Snel complained that no quote was given for proposed future work in accordance with the original work order.[24] The complete answer to this is that work was stopped after half an hour on 20 August 2015 for the very purpose of obtaining the ‘go ahead’, and it proceeded later because of the authorisation noted above. Still further, as Mr Beenham expressed matters, ‘you cannot price something you cannot see’.[25]
[24] T6.15-.24, T21.18-.20, T22.25-.28, 28 April 2017.
[25] T26.13-.29, T41.3-.19 respectively.
This being the case, Mr Snel simply fails to discharge the onus of proof on the balance of probabilities to demonstrate that the work was unnecessarily performed, or that it exceeded relevant authorisations.
Conclusion
The fact of the matter is that there was an express authorisation by Mr Snel’s agent to ‘dig up to find the damaged area’, beyond the initial limit of $300. It was not confined to the front yard. The investigation of the problem demonstrated the existence of blockages in both yards. Mr Snel therefore fails to prove the work in the backyard was unnecessary.
On the contrary, the combined material before the court rather demonstrates that it was necessary. This conclusion is supported by the job card, the site plan and to a lesser extent the invoice, once those documents are properly understood. It would not be right for Mr Beenham’s firm to go unpaid for this work, as Mr Snel has the benefit of it.
Formal orders
In the result, the application for review is dismissed. There will be no order as to costs, as both parties were unrepresented in both courts: s 38(5) Magistrates Court Act. The order for ‘costs thrown away in relation to the signing of judgment’ in favour of Mr Snel made by Magistrate Kossiavelas on 18 April 2016, will however remain intact.