Stone Built Homes P/L v R M Hansen P/L (T/A Hansen Design & Print) - [2014] SADC 191

District Court of South Australia
(Civil: Minor Civil Review)
STONE BUILT HOMES P/L v R M HANSEN P/L (T/A HANSEN DESIGN & PRINT)
[2014] SADC 191
Judgment of His Honour Judge Beazley (ex tempore)
11 November 2014
MAGISTRATES
Minor Civil Review
Purpose and objectives of s38 of the Magistrates Courts Act 1991 considered - the Act evinces a general intention that a Magistrate, sitting as the trial court, should proceed broadly in accordance with an inquisitorial model as opposed to an adversarial model - discussion of the nature of an application for review in the District Court - it is not in the nature of an appeal stricto sensu - it is an enquiry to determine whether a full and fair enquiry was conducted by the court below.

PROCEDURE - JUDGMENTS AND ORDERS - IN GENERAL
Judgment entered, in a minor civil action for the respondent for a liquidated claim for professional services - the respondent asserted at trial that it was engaged by the applicant to design a website for it - the respondent directed to forward documents to applicant's 'agent' H - whether H was 'agent' in strict legal sense - written quotation in the sum of $1,195.00 given to agent on 31 August 2011 - respondent commences work - from time to time the applicant's director seeks alterations to the design - the applicant refused to pay the respondent's invoice or any part thereof - in its defence the applicant asserts that there was no binding agreement and that the respondent's work was of no value.
The learned Magistrate concluded that there was a binding agreement between the applicant and the respondent - and that the respondent had performed the agreement at the agreed price - he entered judgment in the sum of $1,625.00 together with the costs of trial of $100.00. Application for Review issued many months out of time. The applicant asserts that H was not its 'agent', and complains of procedural unfairness - meaning of the word 'agent' in the context of the proceedings.
Held: The learned Magistrate correctly determined that there was a valid and binding agreement between the parties - there was no procedural unfairness in the manner in which the learned Magistrate conducted the hearing - judgment of the learned Magistrate clearly correct - judgment accordingly affirmed - application for review dismissed.
Magistrates Court Act 1991 s38; District Court (Civil) Rules 2006 R6 DCR 279A referred to, referred to.
Harradine v District Court of South Australia [2012] SASC 96; Adamson v EDE [2008] NSWSC 767; Bowstead & Reynolds on Agency, 16th ed.; International Harvester Co v Carrigan's Hazeldene Pastoral (1958) 100 CLR 644; Francos v Hocking [2000] SASC 128; Byrne v Kendle [2011] HCA 26; Pacific Carriers Ltd v BNP Paribas (2014) 218 CLR 415 at 461-462; Crabtree - Vickers Pty Ltd v Australian Direct Mail Advertising (1975) 133 CLR 72; ABC v XIVth Commonwealth Games (1998) 18 NSWLR 540; Freeman - Lockyer - v Buckhurst Park Properties [1964] 2 QB 480; Geemaz Management Pty Ltd v Geelong Motors [2013] VSC 571; Ireland v Retattack (No 2) [2011] NSWSC 1096, considered.

STONE BUILT HOMES P/L v R M HANSEN P/L (T/A HANSEN DESIGN & PRINT)
[2014] SADC 191
Introduction

This is an application brought by Stone Built Homes Pty Ltd (‘the applicant’) pursuant to s 38 of the Magistrates Court Act 1991 seeking that this court review a judgment entered by a Magistrate against it, in Minor Civil Action no. 171 of 2013, in the Mt Gambier Magistrates Court.
The applicant was the defendant in those proceedings, which involved a liquidated claim for professional fees, brought against it by R M Hansen Pty Ltd, t/a Hansen Design and Print, (‘the respondent’).
On 2 December 2013, a Magistrate entered that judgment in favour of the respondent in the sum of $1,625.00 inclusive of costs on the summons, together with trial costs in the sum of $100.00.
Pursuant to Rule of Court 6 DCR 279A(2) an application for the review of a judgment, in a Minor Civil Action, must be commenced within 21 days after delivery of the said judgment. In this case the court had delivered an ex-tempore judgment delivered on 2 December 2013, in the presence of the respective directors of the applicant and respondent companies.
The applicant did not file the within application to this court for a Minor Civil Review until 8 August 2014, about seven months out of time. He accordingly seeks an order extending the time to make the subject application.
The background
The background to the respondent’s claim in the Magistrates Court was set out in documents tendered by each of the parties in Exhibits P1 and D1. Much of it could not be in dispute.
The applicant, through its director, Mirko Kojcic had approached the respondent in December 2009, to request a quotation for it to redesign a website for the applicant. A quotation in the sum of $995 was provided to the applicant on 18 December 2009. At that time the respondent’s quotation contained a note that ‘production work would only commence upon the receipt of an executed approval form’.
As it transpired, the applicant did not respond to the quotation, and no work was undertaken at that time. In fact the applicant had elected to contract with an interstate firm – IF Telecom. The applicant paid a deposit to it of $500 on 10 January 2010.
By July 2011 the arrangement with IF Telecom had stalled. In effect, despite the payments made to it, IF Telecom had not developed a website for the applicant. It was suggested by IF Telecom that the relevant employee had died. The applicant suggested that there was some arrangement between the respondent and IF Telecom.
The applicant’s director Mr Kojcic deposed that he had no contact at all with the respondent or its staff until 7 June 2012. He said that he assumed that the work would be undertaken by the respondent under some arrangement with IF Telecom.
The evidence of Mr Kojcic on this matter was at odds with that of the employees of the respondent, Mr Malcolm McEachern and Mrs Jaime Hems. Their respective versions cannot stand together.
The respondent’s case before the Magistrate was that in August 2011, the applicant’s director Mr Kojcic had contacted it seeking advice as to the predicament then facing him, namely that he had paid a significant sum of money to IF Telecom but had received nothing from it. A meeting had been convened which was attended by Mr Kojcic and representatives of the respondent, Malcolm McEachern, Jason Watson and Mrs Hems.
They asserted that Mr Kojcic had discussed his needs for the website; mentioned that the respondent could obtain material from IF Telecom; requested the respondent to prepare a quotation for the website; and directed them to send any documents to a person to whom I will refer to as ‘H’, a friend of his, who was a real estate agent in Mt Gambier.
On 31 August 2011 the respondent sent to ‘H’ a quotation for the website design in the sum of $1,195.00 inclusive of GST.
The respondent asserts that between September 2011 and June 2012 both Mr Kojcic and ‘H’ attended at their offices to discuss the development with Mrs Hems.
They assert that by June 2012 Mr Kojcic had given his verbal approval to the website design. On 1 June 2012 ‘H’ had executed the approval form and returned it on behalf of Mr Kojcic.
Just three weeks later the approved website became live on the internet. Later ‘H’ telephoned Mrs Hems indicating that Mr Kojcic needed some more changes to allow for the use of limestone on the website’s building. That work was done. It required an extra 2.5 hours of work for which the applicant was not charged.
On 19 June 2012 an invoice for the work in the sum of $1,331.00 was sent by the respondent to the applicant.
In September 2012 Mr Kojcic requested a meeting with the respondent. He told them that he was happy with the website.
On 31 October 2012 Mr Kojcic agreed to pay the outstanding account on that day, but failed to do so.
In December 2012 recovery action was instituted by the respondent.
The respondent commenced the minor civil action against the applicant on 15 May 2013. In the filed particulars the respondent claimed the liquidated sum of $1,331 for services rendered by it at the request of the applicant.
On 8 July 2013 the applicant filed a defence to the respondent’s claim in the following terms:
The defendant did not have a contract with the plaintiff.
The defendant did not authorise the plaintiff to provide services.
The plaintiff has not provided services to the defendant.
At trial the applicant by its director Mr Kojcic denied that he had contracted with the respondent to do the work. He denied telling the respondent to send anything to ‘H’. He denied appointing ‘H’ to act as agent for the applicant.
The nature of a minor civil action
·The nature of a minor civil action
Section 38 of the Magistrates Court Act, details the provisions which are applicable to the trial, and any Review of a minor civil action, as follows:
(1)(a)     The trial will take the form of an inquiry by the Court into the matters in        dispute between the parties rather than an adversarial contest between the parties;
(b)     the Court will itself elicit by inquiry from the parties and the witnesses, and by examination of evidentiary material produced to the Court, the issues in dispute and the facts necessary to decide those issues;
(c)     the Court may itself call and examine witnesses;
(d)     the parties are not bound by written pleadings;
(e)     the Court is not bound by the rules of evidence;
(f)     the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(2) At or before the trial of a minor civil action, the Court should explore any possible avenues of achieving a negotiated settlement of the matters in dispute.
(3)     After giving judgment in a minor civil action, the Court—
(a)     should advise the unsuccessful party of his or her right to apply for review of the proceedings by the District Court; and
(b)     should give the successful party any advice or assistance as to the enforcement of the judgment that the Court considers appropriate in the circumstances; and
(c)     if there is a judgment debtor who is present, should proceed immediately to investigate his or her means of satisfying the judgment and to take any further action that appears appropriate in view of the results of that investigation.
(4)     The following provisions govern representation in minor civil actions:
(a)     representation of a party by a legal practitioner will not be permitted unless—
(i)      another party to the action is a legal practitioner; or
(ii)     all parties to the action agree; or
(iii) the Court is of the opinion that the party would be unfairly disadvantaged if not represented by a legal practitioner;
(ab) however, the Court may, in its discretion, permit representation of a party by a legal practitioner at the hearing of an interlocutory application;
(b)     if a party to the action is a body corporate, the Court must, if the party seeks to be represented by an officer or employee who is not a legal practitioner, permit such representation;
(c)     if a person is subrogated to the rights of a party, the Court will permit that person to appear in the proceedings on behalf of that party and to be represented in the same way as if that person were a party;
(d)     the Court will permit a party, or a person subrogated to the rights of a party, to be assisted by a person who is not a legal practitioner but only if that person is not acting for fee or reward.
(5)In a minor civil action costs for getting up the case for trial, or by way of counsel fees, will not be awarded unless all parties were represented by counsel, or the Court is of opinion that there are special circumstances justifying the award of such costs.
(6) The District Court (constituted of a single Judge) may, on the application of a party dissatisfied with a judgment given in a minor civil action, review the matter.
(7)     The following provisions apply to such a review by the District Court:
(a)     the right of a party to be represented by a legal practitioner at the review will be determined in accordance with subsection (4);
(b)     the Court may inform itself as it thinks fit and, in doing so, is not bound by the rules of evidence;
(c)     the Court may, if it thinks fit, re-hear evidence taken before the Magistrates Court;
(d)     in determining the matter, the Court may—
(i)      affirm the judgment; or
(ii) rescind the judgment and substitute a judgment that the Court considers appropriate; or
(iii) if the review arises from a default judgment or summary judgment, rescind the judgment and—
(A)     substitute a judgment that the Court considers appropriate;
or
(B) remit the matter to the Magistrates Court for hearing or further hearing;
(e)     in hearing and determining the review, the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(8)     A decision of the District Court on a review is final and not subject to appeal.
(9) However, the District Court may reserve a question of law arising in a review for determination by the Full Court of the Supreme Court which may determine the question and make any consequential orders or directions appropriate to the circumstances of the case.
In Harradine v District Court of South Australia,[1] Blue J, detailed the legislative history of the minor civil action, and explained that the role of the court is that of an inquiry by the Magistrate rather than that of managing an adversarial contest between the parties. The clear policy of the Act is to provide an efficient and economical means by which small claims can be determined in the Magistrates Court. His Honour noted that Parliament had devised this system in consequence of the increasing costs of litigation. Accordingly some of the protections provided by legal practice in the general jurisdiction ‘may be sacrificed to the necessity of relating the cost to the amount of the claim’ in a minor civil action.
[1] [2012] SASC 96 at [40]-[49].
The inquiry, in respect of a minor civil action, is therefore to be conducted on a more informal basis with the court acting according to equity, good conscience, and the substantial merits of the case without regard to technicalities. It must be a fair hearing by an unbiased tribunal; one which identifies and determines the ‘real’ issues between the parties; and one which ensures that all available evidence is presented to the court.
The conduct of the subject trial
On 2 December 2013 the applicant attended represented by its Director Mr Kojcic. The respondent attended by its Director Mr Rob Hansen. The learned Magistrate proceeded to hear the oral evidence of the parties. The respondent as plaintiff called its Sales Manager Malcolm Alexander McEachern and its Graphic Designer Jaime Ellen Hems as witnesses. Mr Kojcic cross-examined each of those witnesses and gave evidence on behalf of the applicant.
Each party tendered documents relevant to the claim. In Exhibit P1 the respondent tendered the 31 August 2011 quotation, and numerous other documents including the 19 June 2012 invoice. The applicant in Exhibit D1 tendered copies of various documents between IF Telecom and itself, together with some correspondence of minor relevance between the parties.
Mr McEachern gave evidence that in mid-2011 the respondent was approached directly by Mr Kojcic seeking a quotation to develop a website and a branding redesign for the applicant. He said that a quotation for $1,195.00 including GST for the web redesign was prepared at Mr Kojcic’s request. He said that Mr Kojcic directed those at the meeting to make contact with ‘H’ to liaise with them.
Following discussions with ‘H’ the respondent undertook the work. Their graphic designer Mrs Hems developed three to four concepts which were provided to Mr Kojcic directly. He explained that on 19 June 2012 the respondent invoiced the applicant for the sum of $1,195.00 for the website design and $136.00 for the corporate branding. Mr McEachern said that on 19 June 2012 the web page went live. Mr Kojcic cross-examined Mr McEachern suggesting that no-one in authority had given permission for the work to be undertaken. He denied ever saying that ‘H’ could be his representative.
Mrs Hems gave evidence that she had meetings with ‘H’and Mr Kojcic. She said that ‘H’ was ‘the liaison for Mr Kojcic. Everything was to go through her to him and was to be approved by him’. She had meetings with both separately.[2] She said that on one occasion Mr Kojcic came in to see her, sat down and went through the images that he would like to have in his gallery. She said on that occasion she had changed the background image while Mr Kojcic remained on the premises.[3] She said that she was present at the building when Mr Kojcic shook Mr McEachern’s hand in agreement about the website.
[2] T. p 23
[3] T. p 24
Mr Kojcic was asked why it was that he went into the respondent’s building. He said that ‘H’ rang me and said you had some changes to the website”[4]. Mr Kojcic gave evidence that he had decided to build a website in 2009. He had seen literature from IF Telecom. He suggested there was some relationship between IF Telecom and the respondent. He said that someone from IF Telecom had died. He had paid them $882.95. He said that he believed that there was some relationship between IF Telecom and the respondent, and that the respondent was doing the work on behalf of IF Telecom. He said that he had been told by IF Telecom that ‘if he had to pay the respondent direct, then IF Telecom would reimburse him’.[5]
[4] T. p 28
[5] T. p 31
The court asked Mr Kojcic whether he wished to call any other witnesses. He said that he would not call any other witnesses as he was not involved.
The Magistrate’s reasons for decision
The learned Magistrate delivered ex tempore reasons for the orders which he ultimately made. He accepted Mr Hansen, Mr McEachern and Mrs Hems as credible witnesses. He found that their respective oral evidence was supported by the documentation which had been tendered. He found that the applicant had approached the respondent in December 2009 and provided with a quotation for $995.00. Instead the applicant had contracted with a Melbourne company IF Telecom. He had paid them the sum of $800.00 with little to show for it. In August 2011, Mr Kojcic had returned to the respondent and had introduced ‘H’ as someone who would liaise on his behalf. The learned Magistrate preferred the evidence of the respondent’s witnesses to that of Mr Kojcic’s account of what had occurred. He found that the work was done as claimed by the respondent; that the price was a reasonable amount for the work which was undertaken, namely that which was quoted for; and that the respondent was entitled to judgment in the amount of the claim together with costs on the summons together with the additional amount of $100.00 for the costs of the hearing.
The application for a Review
In its application the applicant asserts that:
1That the learned Magistrate erred in finding that the applicant contracted with the respondent for the design of its website.
2The learned Magistrate erred in finding that ‘H’ was acting as agent for the applicant and that she could bind it to a contract with the respondent.
3The learned Magistrate denied Mr Kojcic of the applicant an adequate opportunity to: -
(a) consider and respond to evidence tendered by the respondent at the hearing and
(b) summons ‘H’ to give evidence at trial.

The applicant sought the following orders:
·That the applicant be granted extension of time to bring the applicant to review a minor civil decision.
·That execution of the judgment in favour of the respondent be stayed until this application to review a minor civil decision has been determined.
·That judgment in favour of the respondent be set aside.
·That the claim by the respondent be dismissed.
·In the alternative to paragraph 4 that the claim by the respondent be remitted to the Magistrates Court of South Australia for further consideration.
The nature of a Review
The nature of such a review was also considered by Blue J in Harradine v District Court of South Australia,[6] Blue J in which his Honour said, at [53]:
1. The review is not in the nature of an appeal stricto sensu.
2.The review is not necessarily a hearing de novo in that the Court is entitled to have regard to the evidence adduced before a magistrate and “may” rehear that evidence.
3.The review is not necessarily an appeal by way of rehearing in that it is a “review” (not an “appeal”), the Court may inform itself as it thinks fit, the Court must act according to the substantial merits of the case and the Court may rehear evidence without being confined by the “fresh evidence” rules which apply to appeals by way of rehearing.
4.The Court can tailor the nature of the hearing to the circumstances. In a case where the review will not turn on findings of fact or credibility of witnesses, the Court might simply have regard to the evidence adduced before a magistrate and a magistrate’s findings of fact. In a case which does turn on disputed issues of fact or credibility, the Court might simply proceed to hear the evidence afresh.
5.If the District Court concludes that a magistrate made an error vitiating the judgment and had not made findings of fact necessary to determine the matter, it will be necessary for the Court itself to hear the evidence relevant to those findings of fact (as it does not have power to remit the matter for rehearing).
6.To the extent that the Court does itself hear evidence, it should proceed in a similar manner to that provided by section 38(1), namely adopting the form of an inquiry by the Court rather than an adversarial contest between the parties. This is because section 38(7) provides that the Court may inform itself as it thinks fit and also because it would be incongruous if the District Court were to adopt a radically different approach to the hearing to that required to be adopted by a magistrate at first instance given that there is no power of remitter.
[6] [2012] SASC 96.
Extension of time
The applicant seeks an extension of time for filing the application for review. It clearly had become aware of the judgment on 2 December 2013. It first sought a copy of the judgment by letter dated 18 March 2014. Even at that time the application was already two months out of time. At that time execution proceedings were already under way. Eventually, after making payment for the transcript, and receiving it on 4 August 2014, the applicant filed the within application on 8 August 2014, about seven months out of time.
In Frankos v Hocking[7] Gray said:
When considering the reasons for delay regard will be had to whether the delay is attributable to the party or a solicitor. The former will operate more severely against the applicant … It must, however, be constantly borne in mind that the discretion is a wide one but at the end of the day the court will do what the interests of justice require.
[7] [2000] SASC 128
I am concerned about the long delay in requesting the transcript and the payment for the transcript. I have decided to hear the merits of the appeal before deciding whether it is in the interests of justice that an extension of time be granted for filing the subject application, nunc pro tunc, until 8 August 2014.
The hearing of the application for review
It is appropriate to detail some brief observations about the parties.
Each party declined my invitation to give any evidence on oath on the Review, or to call any ‘fresh evidence’. As it transpired the applicant’s director, in making his submissions from the bar table, did present a different case to that presented before the learned Magistrate.
·The applicant
Mr Kojcic did have some difficulties initially in presenting his submissions. I treated his submissions as if he were giving evidence on oath.
I am satisfied that Mr Kojcic is an intelligent man who genuinely feels aggrieved by the learned Magistrate’s decision. I have no doubt that he genuinely believes that the arrangement as found between the respondent and the applicant was not a ‘proper’ agreement. At the trial he had concentrated upon his submission that ‘H’ had no authority to act as ‘agent’ for the applicant. The question of course is whether objectively, from the proven facts a reasonable person would have reached the conclusion that those parties intended to contract in respect of the engagement of the respondent. In Byrnes v Kendle[8] the High Court explained that these conclusions flow from the objective theory of contractual obligation. Contractual obligation does not depend upon an individual’s belief as to an agreement.
[8] [2011] HCA 26 at [100]
It was something of a surprise, when on the Review, Mr Kojcic asserted that he had not had any contact with the respondent until 7 Jun 2012, and had not been given the quotation dated 31 August 2011. He said that he hardly knew ‘H’, and that she had not had any involvement with him nor with the respondent.
·The respondent
The respondent had prepared a written submission. In effect it relied upon the reasons of the learned Magistrate.
·The submissions
The applicant’s director, Mr Kojcic submitted that there was no contract between the applicant and the respondent. He suggested that in some way the respondent was obliged to provide to the applicant a written agreement but had failed to do so. He further maintained that the applicant had not given final instructions to the respondent to carry out the work and repeated that there was no authority vested in ‘H’ in that respect.
He complained that the learned Magistrate had not given him sufficient time to read the respondent’s documents. He also complained that the learned Magistrate should have issued a summons directed to ‘H’. He gave the impression that he hardly knew her. He could not explain why he had told the learned Magistrate that ‘H’ had telephoned him about the need for him to attend at the respondent’s office to effect some alterations to the website; or why ‘H’ would have received the quotation and done other work for him.
Discussion
In my opinion there is no basis in law or fact to assert that no enforceable agreement had been entered into between the applicant and the respondent. It is not a question of whether the applicant had assumed that there was no enforceable agreement, but whether the proven documents and the evidence establish to a reasonable person that an enforceable agreement was entered into. Pacific Carries Pty Ltd v BNP Paribas[9].
[9] (2014) 218 CLR 415 at 461-462
The objective evidence contained in the documents passing between the parties and indeed the oral evidence given by the parties, at the trial, is that the applicant had retained the respondent to undertake work in respect of the website, and that it had appointed ‘H’ to liaise with respect to that work. It is clearly apparent on the evidence that ‘H’ had made contact with Mr Kojcic from time to time and that Mr Kojcic had attended at the respondent’s premises to discuss the on-going work with Mr McEachern and Mrs Hems.
There was undoubted certainty as to the fundamental matters, namely the identification of the parties, the subject matter of the contract and indeed the price.
Geemaz Management Pty Ltd v Geelong Motors[10] and ABC v XIVth Commonwealth Games[11].
[10] [2013] VSC 571
[11] (1988) 18 NSWLR 540
There was no requirement that the agreement be in writing. The objective evidence is clear that both parties treated the contract as subsisting. In my opinion the findings of the learned Magistrate are, with respect, clearly correct.
It frankly defied belief that the applicant’s case changed dramatically on the Review. The suggestion that he hardly knew ‘H’, who must have embarked on some frolic of her own; and that he had no contact personally with the respondent until 7 June 2012, verged upon the ridiculous.
Insofar as the applicant asserts that the work on the website was of no benefit to it, in my opinion the applicant’s criticisms are misconceived. While it may be accepted that ultimately the applicant did not make use of the work on the website, it does not follow that the work was not beneficial.
In Adamson v Ede[12] the court said
Where Mr Ede performed work at Mr Adamson’s request pursuant to a contract between the parties Mr Adamson cannot deny that such work constituted a benefit to him. In other words where a contract is execute and the defendant’s request is fully satisfied there may be a constructive acceptance of the benefit of the work on the basis that the defendant cannot deny the work was performed.
[12] [2008] NSWSC 767 at 54
In the subject case the respondent was retained to provide work in respect to the website and did so. That was the finding made by the Magistrate, and upon a review of the evidence at the trial and as presented on the Review, I have reached the same conclusion.
Insofar as the applicant complains that the Magistrate ‘failed to summons ‘H’ to give evidence’ in my opinion there is no basis to that complaint. While the court must do all it can to ensure that all relevant evidence is presented at the trial, the learned Magistrate directly asked Mr Kojcic whether he wished to call any further evidence. Although Mr Kojcic had made reference from time to time as to what ‘H’ may or may not say, he plainly answered that he did not wish to call any further evidence because the company was not involved. In my opinion there is no basis for any complaint that the learned Magistrate had failed to call ‘H’ in those circumstances. There must be some finality in litigation, especially in respect of a minor civil claim for a liquidated sum.
Upon the review Mr Kojcic did not seek to have ‘H’ called as a witness. In light of the change in his case, one might conclude that she could not have assisted his case.
Agent
There is one further matter and that relates to the description by the learned Magistrate that ‘H’ was the applicant’s agent. It is true that the learned Magistrate, in his shorthand ex tempore reasons had referred to ‘H’ as acting as ‘agent’ for the applicant company. The word ‘agent’ is a term used widely and in different senses in commercial arrangements.
Broadly speaking an agency, at law, exists whenever the agent has the power to affect the legal rights and obligations of a principal.[13]
[13] Bowstead & Reynolds on Agency - 16th ed.
In International Harvester Company v Carrigan’s Hazeldene Pastoral[14], the High Court described an ‘agent’ in the legal sense as connoting the authority in one person to create legal relations between the principal and third parties. While it may be argued that the learned Magistrate used that word in its legal sense because, on the evidence of Mr McEachern, the applicant would be estopped from denying that ‘H’ was its agent,[15] in my opinion the very experienced learned Magistrate had used the work ‘agent’ in the wider, non-legal sense of a person who would ‘liaise’ with the respondent, in the sense of being a conduit, but not in the legal sense of binding the applicant. The learned Magistrate made no mention of ‘estoppel’, and would, undoubtedly, have been conscious of the evidence of Mrs Hems that ‘H’ was the liaison person, while Mr Kojcic was the person who ultimately had to approve the arrangement, and indeed he did so.
[14] (1958) 100 CLR 644.
[15] Freeman & Lockyer v Buckhurst Park Properties [1964] QB 480, Crabtree-Vickers P/L v Aust Direct Mail Advertising (1975) 133 CLR 72; Derham v Amev Life Assurance Co Ltd (1981) 56 FLR 34.
The agreement between the two companies did not need to be in writing.
Upon the Magistrate’s findings, which with respect, were inevitable, Mr Kojcic had taken part in the discussions from August 2011, and had personally given instructions to Mrs Hems to alter the web page.
Whether he believed that ultimately IF Telecom would pay the costs is not to the point. Objectively an agreement was entered into by both companies for the work to be undertaken. The work was performed, indeed to his satisfaction. Mr Kojcic must look to IF Telecom for any relief.
In my opinion there is no basis in the complaints as to procedural unfairness. There were very few relevant documents tendered at the trial. They were the quotation and the final account. Mr Kojcic was not prejudiced by their tender.
In my opinion the applicant had, at the trial, and has upon the review, no arguable defence to the respondent’s claim.
Accordingly, pursuant to s 38(7)(d) of the Act I affirm the judgment and orders of the learned Magistrate. There is no purpose served in granting the extension of time to file the application for a Review, although I would have granted it, if the application otherwise had any merit. I dismiss the application for a Review of the Magistrate’s decision.
Costs
Pursuant to Rule 6DCR 279A of the Rules of Court this court has a general discretion to make an order for the costs of the application. I note, however, the philosophy of Parliament as embodied in s 38(5) of the Act, is that, in minor civil actions, costs ought not be awarded unless there are special circumstances justifying an award of costs. In my opinion the appropriate order is that each party bear its own costs of the application.
Formal orders
The formal orders of the court are:
1I make no order that the date for filing the application for review be extended nunc pro tunc until 8 August 2014.
2That the decision of the learned Magistrate is affirmed.
3That the application for review is dismissed.
4That each party bear its own costs of the application for Review.