Wasley v Danielsen - [2022] SADC 19

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
WASLEY v DANIELSEN
[2022] SADC 19
Reasons for Decision of her Honour Judge Deuter
24 February 2022
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA
The appellant sought a review of a judgment entered against her in a minor civil action in the Magistrates Court for the sum of $1,435.00.
The respondent had claimed the cost of supplying removalist services to the appellant. The appellant claimed that the respondent had not completed the agreed job. She also alleged that he and/or his contractors had retained goods belonging to her to a value of $10,000.00. She counterclaimed that sum. The allegation of the theft of goods and the counter-claim were vehemently denied by the respondent.
The Magistrate preferred the evidence of the respondent on all issues, and where it differed from the evidence of the appellant. The counterclaim was dismissed and judgement entered in favour of the respondent.
The appellant filed her Notice to Review out of time pursuant to UCR 214.1(1). She seeks an extension of time to file the Notice.
HELD:
An extension of time is granted to the appellant to bring her application for Review, until 19 August 2021.
There was no appealable error in the manner in which the learned Magistrate conducted the hearing. The findings were clearly open to her on the evidence.
The decision of the learned Magistrate is affirmed. The Application for Review is dismissed.
Magistrates Court Act 1991 (SA) s 38, referred to.
Harradine v District Court of South Australia [2012] SASC 96, applied.

WASLEY v DANIELSEN
[2022] SADC 19
Civil Review - Minor Civil Action
Introduction

The appellant, Lan Wasley, (Ms Wasley), has brought an application pursuant to s 38 of the Magistrates Court Act 1991 (The Act) for this Court to review a judgment by a Magistrate against her in a Minor Civil Review.
Background
Ms Wasley was the respondent in the Magistrates Court proceedings in which Timothy Danielsen (Mr Danielsen) claimed the payment of outstanding fees said to be owed by Ms Wasley, in relation to services provided by him, in his business as a removalist. The outstanding fees amount to $825.00 (incl GST).[1] Ms Wasley denied that the fees were owed, and counterclaimed damages of $10,000.00, which she claimed was the approximate value of items that were removed and retained by Mr Danielsen, or his staff, whilst moving goods for her from one property to another. These included two plastic bags containing jewellery.
[1] Invoice dated 1 June 1028 (Exhibit A2).
The Magistrates Court Proceedings
After multiple pre-trial hearings, a trial proceeded for a full day on 6 July 2021, before Magistrate Schulz. Mr Danielsen gave evidence in his case, and called as a witness his step-son, Mr Alma, who was working with Mr Danielsen in performing the removal work for Ms Wasley. Ms Carlyon, a retired case worker with the Salvation Army, and who had introduced Ms Danielsen to Ms Wasley when she required removalist assistance also gave evidence. The learned Magistrate also had before her Mr Danielsen’s delivery notes and text messages. Mr Danielsen had compiled these into a documented record which was tendered.[2] Ms Wasley gave evidence in her own case and called no witnesses.
[2] Exhibit A1.
After considering all of the evidence the learned Magistrate delivered a detailed ex-tempore judgment whereby, she assessed the evidence of all witnesses, and concluded that she preferred Mr Danielsen’s evidence, as corroborated by other evidence, to the evidence of Ms Wasley. That conclusion was reached after a very thorough assessment of the issues. The learned Magistrate found Ms Wasley’s evidence to be vague and lacking in detail. Her Honour therefore found on the balance that neither Mr Danielsen or any of his staff had retained any items owned by Ms Wasley.
The learned Magistrate in her reasons considered the evidence in relation to each contentious issue and on each, preferred the evidence of Mr Danielsen and Ms Alma, to the evidence of Ms Wasley. Her Honour found, on the balance of probabilities, that:
1)the parties had an agreement that Mr Danielsen would assist Ms Wasley with the removal of personal items and furniture from a unit at Kurralta Park and a home at Broadview, and the delivery of those items to a unit in Wakefield Street, Adelaide;
2)the agreement was that a fee of $100.00 per hour plus GST would be paid by Ms Wasley for those services;
3)removalist work was performed by Mr Danielsen and his contractors in May 2021 on two separate occasions;
4)the sum claimed by Mr Danielsen for the removal services of $825.00 was a reasonable charge in all of the circumstances;
5)the removalist fees remain unpaid, and that Mr Danielsen was entitled to payment pursuant to the agreement between the parties;
6)there was no evidence before the court upon which to allow an additional fee of $140.00 to be claimed by Mr Danielsen for administration fees in chasing the unpaid account;
7)neither Mr Danielsen, nor any of his contractors, retained any items belonging to Ms Wasley.
The learned Magistrate found that Ms Wasley was mistaken as to the whereabouts of the items she claims were retained by Mr Danielsen, and/or his contractors, including Mr Alma. Again, in this regard her Honour found that Ms Wasley’s evidence was vague and lacking in detail regarding the items that were allegedly taken by Mr Danielsen.
The learned Magistrate awarded damages in the sum of $1,435.00 to Mr Danielsen for his services and court and witness costs. She dismissed Ms Wasley’s counter-claim.
Appeal and Nature of a Minor Civil Claim
Section 38 of the Magistrates Court Act details the provisions which are applicable to the trial, and any review of a minor civil action. Of relevance here are s 38(6)-(9) in relation to the role of the District Court in any review of a minor civil action:
1.The following provisions are applicable to the trial of a minor civil action:
(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) …(5)
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)     ….
(ab)   ….
(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 Court of Appeal 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,[3] Blue J detailed the legislative history of the minor civil action and set out 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.
[3] [2012] SASC 96.
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, and one in which the ‘real issues’ between the parties are identified and determined on all available evidence presented to the court.
The trial in the Magistrates Court
I do not need to detail the evidence of each witness. I have reviewed the transcript of the trial that was conducted over a full day. The learned Magistrate swore in the witnesses. For Ms Wansley who speaks several Asian languages in addition to English, a multi-lingual interpreter was provided. The transcript records that Ms Wasley however, gave her evidence in English, without using the interpreter.
The conduct of the learned Magistrate in the calling of witnesses, and the manner in which they were examined, was entirely appropriate and in accordance with the policy under the Act. This is for the Magistrate to examine them together, informally, and inquisitorially. Each witness was given a full opportunity to put their respective case.
As I found in the hearing before me, a review of the transcript shows that Mr Danielsen gave clear and concise evidence. This was supported by Mr Alma. Ms Wasley however, frequently spoke over the Magistrate and did not respond to what she was being asked. She was vague regarding her allegations that items were taken and kept by Mr Danielsen and changed her version of events on multiple occasions. Despite many attempts by the learned Magistrate to have Ms Wasley clarify her evidence, including giving her breaks for that purpose, she did not do so. A review of the transcript indicates that Ms Wasley’s evidence was at times contradictory, as she sought to put before the court a version of events that best suited her purposes.
An example was when discussing a missing bag allegedly containing brand new mens, ladies and childrens clothes:[4]
[4] T89.16-T90.23.
HER HONOUR:
QHow do you say there was one big bag? Who packed that bag? How did it come about?
MS WASLEY:
AYeah, I put in there your Honour so I know.
QDid you put the clothes in the bag?
AYes your Honour.
QWhen did you buy them?
AI think one or two years –
QYour’re going to have speak up Ms Wasley.
AOne years; yeah, one years.
QYour bought them a year before did you?
AOn …, that mean one year.
QSorry Ms Wasley, please listen to me.
AI bought one years before.
QSo you bought them a year earlier?
AYes.
QWho did you buy them for?
AI get them my family. I have big family. Usually I get the birthday present or any reason. Birthday present. Christmas time.
QSorry, you have a big family. Something about any reason?
AThen myself. I bought for myself as well, yeah.
QSo rather than – you bought them a year earlier right for your family but you didn’t give them to your family.
ANo.
QYou just put them in a bag instead?
AYeah, I kept it your Honour. I kept it. When –
QWhy didn’t you give them to your family?
AI wait for invitation or Christmas time.
ASorry, I don’t understand you.
QI just wait for invitation.
AYou were waiting for an invitation?
CLERKI think she said birthday party.
QOh, for a birthday party?
AYeah.
QYou waited over a year for an invitation to a birthday party to give someone some brand new clothes?
AI wait for invitation your Honour, so therefore in my house two room full of present.
Having explained that many of the items retained by Mr Danielsen had been newly purchased, Ms Wasley was asked if she had receipts for those items her evidence was:[5]
[5] T100.1-10.
MS WASLEY:
ANo. I have receipt but someone come took – they just took receipts.
HER HONOUR:
QWho took receipts?
ASomeone come my house and took – even now – even the matter is still continue your Honour. Last year – year before, come to my – continue, come to my house, took little bit, little bit at a time.
QSorry, you’re saying someone has taken little bits from your house?
AYes, still come in.
When asked if these break-ins had been reported to the police, Ms Wasley’s evidence was vague. She explained that she did not report the disappearance of items because she did not have the name and number of Mr Danielsen’s business.[6] She then made claims that her Broadview house had been broken into the week before the trial, and items were taken, but she didn’t know by whom.[7]
[6] T100.11-T101.19.
[7] T101.21-T102.3.
The learned Magistrate conducted the trial as an inquisitional process. She took each witness through their evidence regarding the movement of Ms Wasley’s goods. Her Honour in particular spent time questioning Ms Wasley regarding her missing items and how and when she said Mr Danielsen, or his staff removed and retained them. She gave Ms Wansley opportunity to provide evidence to support her allegations. She was not able to do so. At all times the learned Magistrate carefully took Ms Wasley through her evidence attempting to clarify exactly what her case was. A review of the evidence indicates that Ms Wasley failed to do so.
The Application for Review
Ms Wasley filed a Notice of Review on 19 August 2021[8] and a Revision of that Notice (Revision) on 23 August 2021.[9] The Notice of Review was filed outside of the 21-day time frame provided by the Uniform Civil Rules 2020 (UCR) for filing such a Notice. [10] The application for Review should have been filed by 27 July 2021 and in both FDN 1 and FDN 2 Ms Wasley seeks an extension of the time to file the Review. This is opposed by Mr Danielsen in his Written Case on Minor Civil Review.[11] He maintained that opposition at the review hearing.
[8] FDN 1.
[9] FDN 2.
[10] UCR 214.1(1).
[11] FDN 5.
In his written case and at the review hearing Mr Danielsen advised the court that he was not served with the Notices for Review until he received the documentation on 12 December 2021 by standard post.[12] UCR 214.2(4) provides that an appellant must serve a Notice of Review on the other party to the appellate proceeding ‘as soon as possible’. Mr Danielsen complains that the late service was simply a delaying tactic by Ms Wasley.
[12] FDN 5 at p 2.
In the Notice of Review,[13] Ms Wasley set out her grounds of Review as:
1)that she did not agree with Magistrate Schulz’s decision;
2)that she did not owe Mr Danielsen $825.00 as he had not finished the removalist job;
3)that Mr Danielsen and/or his staff had retained items belonging to her from the properties at Kurralta Park and Broadview and she sought an order that they be returned.
[13] FDN 1.
Those grounds were expanded in the Revision[14] to include:
1)that Magistrate Schulz’s decision was incorrect and she did not listen to Ms Wasley;
2)that Mr Danielsen and his witnesses gave false evidence;
3)that Magistrate Schulz did not take account of Ms Wasley’s poor English language skills;
4)that Mr Danielsen owes Ms Wasley money for the goods retained.
[14] FDN 2.
Consideration of Application for An Extension of Time
When asked the reason the Notice of Review was filed late, Ms Wasley told the court that it was because she was seeking legal advice. She had difficulty accessing that advice due to COVID-19 restrictions. She then had to complete the Notice of Review herself. She could not offer an explanation why there was such a long delay in the Notice being served upon Mr Danielsen, beyond saying that it had been scanned and he could have read it himself. I take this to mean scanned into the CourtSA Portal.
Mr Danielsen informed the court that he had lodged an application for enforcement of the Magistrate’s judgment on 13 August 2021. He believes that this is what caused Ms Wasley to file her Notice of Review. He was aware however that the Notice had been filed from the CourtSA Portal but had not been served with the documents. On 12 December 2021 he received the documents. This was a few days after Mr Danielsen had lodged a further application for Enforcement, believing that Ms Wasley had abandoned her application for Review.
Section 38(7)(e) of the Act provides that in determining a Review, the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. I take those matters into account in considering Ms Wasley’s application for an extension of time to file and serve her Review.
The time delay in filing the Notice of Review was not significant at 23 days, and while service was far more delayed, Mr Danielsen was aware that Ms Wasley disputed the learned Magistrate’s decision and had filed a Notice to Review.
Ms Wasley is an elderly woman, and English is not her first language. She attended court with a bundle of documents that she wanted to rely on but became confused when trying to find the relevant material. I accept that she may not have understood the legal requirement to file the Notice of Review within 21 days. In those circumstances, it is my view that, equity and good conscience demands that the time within which Ms Wasley was to file a Notice of Review against the learned Magistrate’s decision delivered on 6 July 2021, be extended to 19 August 2021. I so order.
Review of the Magistrate’s Decision
At the start of the review hearing, I asked Ms Wasley what she said were the areas where the learned Magistrate had been wrong in the way the trial had been conducted, and how she had considered the evidence. She responded by first telling me that the transcript of the evidence had disappeared and that she simply did not owe any money to Mr Danielsen. When I tried to clarify with Ms Wasley the reasons why she submitted that the learned Magistrate had wrongly considered the evidence, her responses were that Mr Danielsen had not finished the removalist job because he had kept some of her property. She based this upon the fact that:
1)Mr Danielsen and his wife followed her all the time;[15]
2)Mr Danielsen had entered her house at Broadview, had made a mess and had stolen items at some time after the removal work had been carried out;[16]
3)Mr Danielsen had sat in his van watching Ms Wasley’s house; and did so before and after the learned Magistrate’s judgment. She said that after she had taken the photo of Mr Danielsen, which was not produced to the court, he did not return again;[17]
4)that someone had broken into her house at Broadview and stolen items and she believed it was Mr Danielsen as he knew all the possessions she had;[18]
5)she had called the police over the break-in at Broadview and the theft of her jewellery, but did not tell them that she believed Mr Danielsen had been involved;[19]
6)that Mr Danielsen had stolen her personal documents;[20]
[15] T13.6-8; T15.19-21.
[16] T13.21-27; T44.17-33.
[17] T17.4-25; T18.1-T19.13.
[18] T20.2-T21.34; T23.26-T24.20; T25.30-T26.18.
[19] T24.18-T25.15; T27.19-32.
[20] T53.5-6.

Late in evidence, Ms Wasley told the court that she knew that it was Mr Danielsen who stole items from her Broadview house.[21]
[21] T26.1-22.
In his submissions, Mr Danielsen categorically denied ever stalking Ms Wasley, breaking into the Broadview home or stealing any property. He told the court that he had never attended the Broadview property when Ms Wasley was not present. When she made earlier allegations that he had stolen property from her, he requested on 23 separate occasions that she report the matter to police. She did not do so. No police report was tendered as evidence. Mr Danielsen, who runs a removalist company to help disadvantaged people, and to move protected witnesses including for Child Protection Services told me that he has full State and Federal Police clearances and has also been cleared by ASIO in relation to the work he does in relation to people being deported. It was clear that he was very upset by the allegations made in court that he had stolen items from Ms Wasley.
Mr Danielsen told the court that Ms Wasley, after the learned Magistrate had handed down her decision, said to him that if he paid her $20,000.00 then she would pay him $1,200.00 for the removalist services. If not, she would make more allegations against him. When this evidence was given Ms Wasley at first corrected Mr Danielsen saying she had said $40,000.00, but then later said that this was not true and that Mr Danielsen was a liar.[22]
[22] T34.20-T35.38.
Finally, Ms Wasley gave evidence on the Review that she had been stalked by Mr Danielsen’s wife before the trial in the Magistrates Court. She did not know who the woman was until she saw her after court. Ms Wasley gave evidence that this stalking occurred in the city, on a bus, on a tram, on a train and inside a second- hand shop at Kilburn. Ms Wasley said that she saw this woman, now said to be Mr Danielsen’s wife, ‘everywhere’.[23] After the trial it was Mr Danielsen who then followed her in his van.[24] She did not report any of these matters to the police. Again, Mr Danielsen became visibly upset by these allegations made against his wife, particularly as he told the court that she is, and has for some time been suffering from stage 4 cancer.
[23] T37.18-T38.24; T38.33-T39.12; T39.36-T40.5.
[24] T38.24-32.
Discussion
In reviewing the evidence at trial, I am of the opinion that there was no procedural error in the manner in which the hearing was conducted by the learned Magistrate. The trial proceeded for a full day and the learned Magistrate took both parties through their evidence in a thorough way. This was especially so with Ms Wasley, given her difficulties with speaking English. I have reviewed the transcript of evidence and find that the trial was conducted in a way consistent with, if not exceeding, the policy of the Act for the determination of Minor Civil Claims.
The learned Magistrate was confronted with two different versions of what had occurred in relation to the removalist services provided by Mr Danielsen. She found Ms Wasley’s evidence to be vague as to detail, and she generally preferred the evidence of Mr Danielsen, as supported by two witnesses and documents. Ms Wasley claimed that items belonging to her had been stolen or retained by Mr Danielsen or his contractors but confirmed she had not reported the theft of those items to police. The learned Magistrate preferred the evidence of Mr Danielsen on important matters where it differed to Ms Wasley’s evidence.
There is nothing to suggest that the version of events given in evidence at trial by Ms Wasley, and repeated and exaggerated upon in this Court, was more probable than the version given by Mr Danielsen. The District Court on review will not interfere with such findings of credit unless they are said to be inconsistent with the incontrovertibly established facts. I cannot find that the learned Magistrate failed to understand, or failed to give weight to, Ms Wasley’s evidence.
I find that the learned Magistrate appropriately weighed all the evidence presented at trial and came to a very considered view regarding the events surrounding the removalist work performed by Mr Danielsen. Although the matters submitted during the hearing before me were not legally different to those presented to the Magistrate at trial, I must make some comment regarding what occurred at the review hearing.
During the hearing in this court Ms Wasley made outrageous and I find unjustified allegations regarding Mr Danielsen and his wife. Allegations that were not made previously. The allegation that Mr Danielsen had broken into Ms Wasley’s home at Broadview and stolen items from her after the trial has no foundation whatsoever. Ms Wasley was not prepared to make a report to the police regarding such actions. Similarly, the allegations that Mr Danielsen’s wife had stalked her prior to the trial was just unbelievable and without basis. In her evidence before this Court, Ms Wasley showed a propensity to make serious allegations, some of which were of a criminal nature, yet when challenged she had no evidence to support them. In my view she made those allegations simply with a view to influencing the outcome of the Review proceedings.
In all of the circumstances there is no proper basis upon which to interfere with the learned Magistrate’s decision. There is no substance to the complaints made in Ms Wasley’s grounds for Review. I appreciate that Ms Wasley has a different view of the facts than the decision reached by the learned Magistrate, but that does not mean that there was any error. I find that there was no error of fact or law that forms a proper basis to rescind the judgment under Review.
I affirm the judgment and the orders of the learned Magistrate. I dismiss the application for Review.
Order
1.An extension of time is granted to the Appellant for the filing of the Notice of Review to 19 August 2020
2.That the Application for Review of the Decision of the learned Magistrate dated 6 July 2021 is dismissed.