Wilczynski & Anor v District Court of SA & Ors
[2017] SASCFC 102
•15 August 2017
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
WILCZYNSKI & ANOR v DISTRICT COURT OF SA & ORS
[2017] SASCFC 102
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Bampton and The Honourable Justice Lovell)
15 August 2017
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PROCEDURE
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRELIMINARY PROCEDURE - SERVICE OF NOTICE
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - JUDICIAL REVIEW
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - GENERAL MATTERS - MATTERS OF PROCEDURAL FAIRNESS AND PROPRIETY
Appeal against the dismissal of an application for a judicial review – appellants complain that a District Court Judge in reviewing and affirming a minor civil decision erred in failing to afford them procedural fairness – appellants also appeal against an order that they pay the fourth and fifth respondents’ costs of the judicial review.
Held (per Bampton J, Kourakis CJ and Lovell J agreeing): As the District Court Judge permitted an expansion of the controversy on the minor civil review to include the fifth respondent but did not adjudicate that controversy, appeal allowed:
1. Orders of the District Court set aside.
2. Matter remitted to the District Court for rehearing of the minor civil review by another Judge in accordance with s 38 of the Magistrates Court Act 1991 (SA).
3. The costs order made on 24 February 2017 rescinded.
4. Each party to bear their own costs of the judicial review and the Full Court appeal.
Comments regarding procedural matters of concern (per Bampton at [102]).
Magistrates Court Act 1991 (SA) s 38; Magistrates Court Civil Rules 2013 (SA) r 33, r 34, r 42, r 46, r 49; Building Work Contractors Act 1995 (SA) s 6; District Court Civil Rules 2006 (SA) r 279A; Supreme Court Civil Rules 2006 (SA) r 284, referred to.
Wilczynski & Anor v Banasiak, Matejko & Ors [2015] SADC 70; MacFoy v United Africa Co. Ltd. [1961] 3 All ER 1169; Harradine v District Court of SA (2012) 280 LSJS 572, considered.
WILCZYNSKI & ANOR v DISTRICT COURT OF SA & ORS
[2017] SASCFC 102Full Court: Kourakis CJ, Bampton and Lovell JJ
KOURAKIS CJ.
I would allow the appeal for the reasons given by Bampton J. The orders made in the District Court must be set aside. I would order that the District Court proceed to hear and determine the minor civil review in accordance with s 38 of the Magistrates Court Act 1991 (SA).
Even though the Judge permitted an expansion of the controversy on the minor civil action review to include Oknalux Pty Ltd (“Oknalux”), his Honour never heard or determined that claim. The power of the Court to join the claim against Oknalux to the minor civil action review was not challenged in this Court. Nor was the question of the jurisdiction which was exercised, and consequently the availability of an appeal against a judgment given on that claim, closely considered. Be that as it may, the adjudication of that controversy was inextricably linked to the subject matter of the minor civil action review. Evidence received in the claim against Oknalux would almost certainly have been admissible, and would have been received, in the minor civil action review.
In that respect, I observe that no issue estoppel is created by a determination in a minor civil action.[1] The refusal to hear the evidence of which Mr and Mrs Wilczynski were entitled as of right to call in the hearing of their claim against Oknalux and to then consider whether or not to also receive that evidence on the minor civil action review was a jurisdictional error of law.
[1] Magistrates Court Act 1991 (SA) s 39.
I make two further observations. First, on a minor civil action review, the rules provide for the transmission of the pleadings, the evidence and the judgment to the District Court:[2]
(7)On receipt of a notice under this, the proper officer of the court or tribunal, or in the case of a review of the decision of a Minister, the Minister or his authorised delegate, must, subject to any direction by the District Court, transmit to the Registrar—
(a) all documents lodged with the court or tribunal in the relevant proceedings or all documents considered by the Minister for the purposes of his decision, as the case may be, and;
(b) a copy of any transcript of evidence or proceedings; and
(c) any other evidentiary material relating to the proceedings in the custody of the court or tribunal; and
(d) a copy of the judgment, order or decision subject to the review and of any reasons given for it.
[2] District Court Civil Rules 2006 (SA) r 279A(7).
For reasons which are not clear in this matter the entire file was transmitted to the District Court without being reviewed to ensure that it only contained the material referred to in the sub-paragraphs above. Accordingly, that file in its entirety, including the notes attached to it, was part of the record on which the minor civil action review was determined. For that reason, it was before this Court on the judicial review of the Judge’s decision on the minor civil action review. In the future, it may be appropriate for closer attention to be given to the materials on which reviews of minor civil actions proceed.
Secondly, I would observe that the cost of this litigation is already disproportionate to the amount in dispute. The litigation is unlikely to end well for any of them. A negotiated settlement might at least cap their losses.
BAMPTON J.
Mr and Mrs Wilczynski (“the Wilczynskis”) appeal against the dismissal of their application for judicial review.
This matter has its genesis as a claim for an unpaid invoice in the Minor Civil Jurisdiction of the Magistrates Court. A Magistrate dismissed the claim but allowed a counterclaim in part. A District Court Judge reviewed and affirmed the Magistrate’s minor civil decision. The Wilczynskis then made application to a single judge of this court for judicial review of the District Court Judge’s decision. That application was dismissed with a costs order against the Wilczynskis.
For the reasons that follow I would allow the appeal and remit the matter to the District Court for rehearing of the minor civil review. I have also set out in some detail the procedural history of the matter as it wound its way to the Full Court to highlight certain matters of concern. Whilst these matters have not been raised by any party they are issues that I respectfully suggest require the attention of the Magistrates and District Courts.
Background
In September 2013, Alicja Matejko, Miroslaw Banasiak and Andrezj Dubec were in partnership trading as Varmhus (ABN 71 009 902 156). Mrs Matejko attended the Wilczynskis’ home to measure and quote for the supply and delivery of European-style double glazed windows and doors.
Mr and Mrs Wilczynski accepted a quote of $7,590 provided by Varmhus for the supply and delivery of the windows and doors to be sourced from Poland.
Mr Banasiak gave evidence in the Magistrates Court that he and a builder took the final measurements before the order for the windows and doors was sent to Poland.
An invoice dated 9 September 2013 records that Varmhus received a cash payment of $3,795 from the Wilczynskis on that day and the balance of $3,795 was received by Varmhus on delivery on 2 January 2014. The invoice also records that “Price includes delivery but not installation” and is endorsed with the following:
I have received all goods as it was ordered in good condition; I have checked the amount, sizes, colours and glass. No scratches, no damages.
The endorsement appears to bear Mrs Wilczynski’s signature and is dated 2 January 2014.
In January 2014, Mr Banasiak commenced installation of the windows and doors. However, a dispute arose between him and Mrs Wilczynski and on 5 January 2014 he left leaving the installation incomplete. Mr Banasiak rendered a second invoice dated 9 January 2014 for $1,760 in the name of Varmhus. The Wilczynskis did not pay that invoice.
After Mr Banasiak’s departure, Mrs Wilczynski made contact with Mrs Matejko, who had left the Varmhus partnership in November 2013 and was operating her company, Oknalux Pty Ltd (“Oknalux”), selling European windows and doors. Mrs Matejko inspected Mr Banasiak’s work and told Mrs Wilczynski that it was unacceptable. Mrs Matejko, through Oknalux, completed the installation of the windows and doors.
The Wilczynskis were most unhappy with the work performed by Oknalux. Mrs Wilczynski said in her evidence that Mrs Matejko’s company performed a “terrible job” which was “contributing to the destruction of the building”.[3]
[3] MCt T8.
Oknalux invoiced the Wilczynskis on 12 March 2014 the sum of $2,902.35 for finishing the installation.
The litigation
The minor civil claim commenced by Miroslaw Banasiak
In February 2014, Mr Banasiak commenced an action for debt against Mr and Mrs Wilczynski in the Minor Civil Jurisdiction of the Magistrates Court in file number ELCCI-14-3109 (“the Magistrates Court file”).
Mr Banasiak’s claim was for the non-payment of the invoice dated 9 January 2014 in the sum of $1,760 rendered by Varmhus for “installation of windows and doors as per order 51/2013”.
The defence and counterclaim
On 21 March 2014, Mrs Wilczynski filed a defence and counterclaim against Mr Banasiak seeking reimbursement of $7,590 paid for the supply of the windows and doors and $3,398.26 being the “cost incurred to secure the windows on account of bad secured windows installed by Varmhus and cost of removal incorrectly ordered windows and doors”. Mrs Wilczynski also sought an order removing the “incorrectly ordered windows and doors from our property by Varmhus”. Mrs Matejko is nominated as a witness in the defence and counterclaim.
At a directions hearing before the Deputy Registrar of the Magistrates Court on 14 May 2014 it was ordered by consent that the plaintiff’s name be amended to Miroslaw Banasiak trading as Varmhus. Mutual discovery was ordered to be made by 6 June 2014. The matter was listed for hearing on 23 July 2014 and Polish interpreters were booked for both Mr Banasiak and Mrs Wilczynski.
By reference to the Magistrates Court file, a yellow sticky note records:
Pltff sick, seeking adjournment. Will facs in certificate etc. 21-7 @ 3.10PM.
It appears that Mr Banasiak telephoned the Registry seeking an adjournment of the hearing. The same sticky note also records the following:
22-7-14
Peter,
Please ring plaintiff to see if he still wants an adj. If so ring deft to see if she consents, if so we will adj it. Then cancel the interpreter.
By reference to another sticky note affixed to the file, many attempts were made to contact Mr Banasiak. By reference to that same sticky note, in conjunction with a typed note on the file, it appears that telephone contact was made on 22 July 2014 at 2.25 pm. Mr Banasiak advised that he had obtained a medical certificate which he had been trying to send to the Registry by email and fax. The medical certificate was faxed to the Registry on 22 July 2014 at 3.43 pm.
On 23 July 2014, the Magistrate proceeded to hear the minor civil claim in the absence of Mr Banasiak noting that he “has not been able to come today because of illness”. The Magistrate heard evidence from the building consultant, Mr Effingham, called by Mrs Wilczynski. Mr Effingham’s report dated 21 July 2014 on SA Building Consultants’ letterhead apparently co‑authored with Peter Jankovic was received as Exhibit P1. The Magistrate told Mr Effingham at the conclusion of his evidence that “I have received your report so you don’t have to come back”. The Magistrate recorded on a document titled Court Order dated 23 July 2014 that “Mr Effingham specially came to give evidence today so his evidence was heard and his report received in evidence. Mr Banasiak can comment on the report if he wishes to”.
After Mr Effingham was released, Mrs Wilczynski said to the Magistrate that she wanted to know what to do about the “other business partners”. Mrs Wilczynski was then given permission to join Mr Dubec and Mrs Matejko as defendants to the counterclaim. The Magistrate adjourned the matter to Thursday 21 August 2014 for directions and ordered that the Registrar advise Mr Banasiak of the adjourned date.
The amended defence and counterclaim
An amended defence and counterclaim was filed by Mrs Wilczynski on 23 July 2014. This document names the following as defendants by counterclaim:
·Defendant 1 – Mr Miroslaw Banasiak, 77-81 Commercial Road, Port Adelaide, SA;
·Defendant 2 – Alicja Matejko, 3 Mark Court, O’Halloran Hill, SA; and
·Defendant 3 – Andrezj Dubec, 14 Ulica Lipowa, Grabina, Poland.
[Emphasis added]
The amended defence and counterclaim comprises the headings “Particulars of Defence” and “Particulars of Counterclaim”. Under each heading the words “as per attached” appear. Whilst there is no attachment to the amended document on the file, the defence and counterclaim filed 21 March 2014 would appear to be the purported attachment. It is to be noted that, other than the case pleaded inferentially against the Varmhus partnership in the defence and counterclaim, there is no case pleaded against Mrs Matejko or Mr Dubec. Other than general allegations as to poor installation, there is no case pleaded against Mrs Matejko or her company regarding the work described in the tax invoice rendered by Oknalux dated 12 March 2014.
The amended defence and counterclaim is endorsed as follows:
Court Use
Date Filed:
23 JUL 2014
Date of Posting:
No method of service has been selected under the heading “Method of Service” appearing on the document.
Immediately following the amended defence and counterclaim on the Magistrates Court file is an office copy of a Magistrates Court Notice of Directions Hearing dated 24 July 2014 and addressed only to Mr Banasiak and Mrs Wilczynski. Attached to that notice is a yellow sticky note which bears a handwritten record that reads as follows:
Court has served all parties with
1 Claim
2 Original defence and counterclaim
3 Amended defence and counterclaim
4 Orders from 23 July 2014
5 Notice of hearing for 21 August 2014
Pursuant to r 46(1) of the Magistrates Court Civil Rules 2013 (SA) (“the Magistrates Court Rules”), service of an originating process and other documents specified in r 42(2) is commonly effected by the Magistrates Court Registry by ordinary post to the address appearing on the originating process or document being served.
As Mr Banasiak’s address appears on the Notice of Directions Hearing to which the yellow sticky note referring to the Court’s service on the parties is stapled, I infer that he was served with the amended defence and counterclaim. Pursuant to r 34(1) of the Magistrates Court Rules, Mr Banasiak was not required to file a defence to counterclaim because a plaintiff is “taken to have filed a defence forthwith to a counterclaim or set-off and pleaded to the general issue”.
As the amended defence and counterclaim nominates Mr Dubec’s address as an address in Poland, service of the document must be in a compliance with r 49(2)(a) of the Magistrates Court Rules which provides:
Service of a claim outside the Commonwealth of Australia and its Territories is only valid if prior leave for service is granted and service is in accordance with any conditions imposed by the Court, or the person served consents to the jurisdiction by filing a defence.
There is no evidence that the Court was asked to grant leave to serve the amended defence and counterclaim on Mr Dubec in Poland.
It can be inferred that Mrs Matejko was served with the amended defence and counterclaim as she filed a defence to counterclaim on 15 August 2014.
Mrs Matejko’s defence to counterclaim
Mrs Matejko pleads in her defence to counterclaim that she is entitled to a complete indemnity from Mr Banasiak and Mr Dubec. A box at the top right‑hand corner of the defence to counterclaim is endorsed as follows:
Court Use
Date Filed:
Date of Posting:
15 AUG 2014
Under the heading “Method of Service” the box next to the word “Registrar” appears to be electronically checked but scribbled out in pen. As the box next to the word “Party” has been checked with a handwritten tick it would appear that Mrs Matejko was responsible for serving her defence to counterclaim. There is no evidence that Mrs Matejko’s defence to counterclaim was served on Mrs Wilczynski, Mr Banasiak or purportedly served on Mr Dubec in Poland.
The hearing of the minor civil claim
At the directions hearing on 21 August 2014, the Magistrate ordered that the hearing of the minor civil claim resume on 18 September 2014.
Mr Dubec did not appear at the resumed hearing on 18 September. Mr Banasiak’s evidence was given through a Polish interpreter, as was Mrs Wilczynski’s. Mrs Matejko gave her evidence without the assistance of an interpreter. By reference to page 37 of the transcript, the recording of Mr Effingham’s evidence taken on 27 July 2014 was played. Given that Mr Banasiak had not been present when Mr Effingham gave his evidence and the fact that Mr Banasiak required an interpreter, it is not clear whether the recording was translated for Mr Banasiak during this hearing. As Mr Effingham was not available for cross-examination, Mr Banasiak did not have the opportunity to ask questions of him.
By reference to a yellow sticky note stapled to a Court order dated 18 September 2014 it is recorded that on 30 September Mrs Wilczynski asked the Magistrate to “to admit further documents”. The request was refused as “The trial was adj for J’ment on 18 Sept 2014 to 22nd October 2014”.
The minor civil decision
The Magistrate delivered his decision on 22 October 2014. His Honour in noting that Mr Banasiak accepted that he did not have a builder’s licence stated that, by reason of s 6 of the Building Work Contractors Act 1995 (SA), he was prohibited from recovering the contract price. The Magistrate determined that Mrs Wilczynski was entitled to require Mr Banasiak to stop work on the window installation even if he was not in breach of the contract. The Magistrate said that Mr Banasiak was entitled to recover a quantum meruit in relation to the work done and the windows supplied. However because the installation was completed by Oknalux for more than the amount of the outstanding invoice, he found that the value of the work done by Mr Banasiak did not exceed the amount of money he had already been paid. For that reason, he dismissed Mr Banasiak’s claim.
In respect of the counterclaim, the Magistrate rejected Mrs Wilczynski’s claim for the value of the windows. He determined that the windows were adequate for their designed purpose and the final installation was satisfactory to his eye. He stated that “Other than observing that ‘the windows do not comply with the owner’s expectations’ [he did] not take Mr Effingham to be dissenting from this position”. He noted that Mrs Wilczynski had been invoiced the sum of $2,902.35 by Oknalux for the cost of finishing the installation and that her contractual entitlement was:
… to have the windows supplied and installed for the agreed price by Mr Banasiak. That price is the amount that Mrs Wilczynski had paid to date plus the sum of $1,760 (the amount of Mr Banasiak’s claim) which must therefore be deducted from the monies due to Oknalux.
He determined that there was a balance of $1,142.35 which he allowed on the counterclaim. He noted that the Oknalux invoice should be paid in full.
The Magistrate said that even though it was not specifically pleaded as a loss he would “also allow the further amount of $2,035 being the quoted price of repairing the brick reveals, Exhibit D7”. He noted that the quote for this work was obtained as a consequence of Mr Effingham’s report and he did not believe Mr Banasiak would be procedurally disadvantaged by allowing what would, in general, be a late amendment to a counterclaim. That made a total of $3,177.35.
The Magistrate treated the invoices dated 9 September 2013 and 9 January 2014 as relating to two separate contracts: a supply contract evidenced by the 9 September 2013 invoice, and an installation contract evidenced by the 9 January 2014 invoice. He considered Mrs Matejko’s departure from the Varmhus partnership in November 2013 was such that she was a party to the supply contract but not the installation contract.
The Magistrate considered that Mr Banasiak and Mr Dubec remained partners of Varmhus at all relevant times and were parties to both contracts.
The Magistrate therefore allowed the counterclaim in the sum of $3,177.35 plus costs against Mr Banasiak and Mr Dubec only.
The application to review the minor civil decision
On 11 November 2014, Mrs Wilczynski commenced a minor civil review in the District Court in file number DCCIV-14-1811 (“the District Court file”). The application to review the minor civil decision (“the application”) was filed by solicitors acting for Mrs Wilczynski. The application names:
·Mr Banasiak, 77-81 Commercial Street, Port Adelaide, as the first respondent;
·Mrs Matejko, 3 Mark Street, O’Halloran Hill, as the second respondent; and
·Mr Dubec, 14 Ulica Lipowa, Grabina, Poland, as the third respondent.
[Emphasis added]
In the application, Mrs Wilczynski sought review of “part only of the Orders made on 22 October 2014” namely:
…
(a) Order 3 that ‘Judgment on the counterclaim as against the 1st and 3rd defendants by counterclaim in the sum of $3,177.35’; and
(b) that part of Order 4 that the costs ‘will be payable by the 1st and 3rd defendants by counterclaim’.
1.2The procedural ruling by the Court not to accept and consider a supplementary report from SA Building Consultants dated 13 October 2014.
Mrs Wilczynski also sought an order that her husband, Joseph Wilczynski, be joined as a second applicant and that Oknalux be joined as a fourth respondent.
Mrs Wilczynski sought judgment on the counterclaim in her favour and that of her husband as against:
The first respondent (Mr Banasiak), the second respondent (Mrs Matejko), the third respondent in absentia (Mr Dubec) and Oknalux.
(Emphasis added)
In the grounds of appeal,[4] Mrs Wilczynski specifically pleaded poor workmanship against Mrs Matejko and Oknalux, a case that was not pleaded in the Minor Civil Jurisdiction.
[4] [3.7] and [3.8].
In accordance with r 279A of the District Court Civil Rules 2006 (SA) (“the District Court Rules”) the Magistrates Court file was provided to the District Court Registry.
The District Court Record records that on 11 November 2014 an interlocutory summons was listed by a Master to determine overseas service. It appears that on 12 November 2014 a solicitor representing Mrs Wilczynski appeared before the Master. The only record of what occurred is the record that the Master made no orders in relation to the matter.
By an interlocutory application (“FDN 16”) Mrs Wilczynski sought:
1.That by consent Mr Joseph Wilczynski be joined as the second applicant in the within action, to be represented jointly with the Applicant by Janus Lawyers.
2.That the company Oknalux Pty Ltd be joined as the fourth respondent in the within action.
3. That the partnership Varmhus be joined as the fifth respondent in the within action.
FDN 16 is supported by an affidavit of Mrs Wilczynski’s solicitor sworn on 14 November 2014 (“FDN 14”).
FDN 15 is an affidavit of service sworn by a licenced investigation agent on 27 November 2014,[5] who deposes to having served the application, FDN 16 and FDN 14 on Mrs Matejko and Mr Banasiak. The licenced investigation agent deposes to having attended at 77-81 Commercial Road, Port Adelaide (this is the address recorded on the application for review for Mr Banasiak) to find the premises vacant. The agent says he was subsequently provided with an alternative address for service at 70 Wing Street, Wingfield, where he effected service on Mr Banasiak who also accepted service on behalf of Varmhus.
[5] FDN 15.
A notice of address for service was filed on behalf of Mrs Matejko by Westside Lawyers on 4 December 2014.
I note that the application does not require the filing of an address for service, rather it informs the parties that “The Registry will notify the parties involved of the hearing date and time. The hearing will take place in a courtroom before a judge and attendance is necessary”.
Correspondence sent by the District Court Civil Registry to Mr Banasiak notifying him of the date for the hearing of the review was sent to the address at 77-81 Commercial Road, Port Adelaide. All of this correspondence postdates FDN 15 deposing to service on Mr Banasiak at 70 Wing Street, Wingfield. For example, correspondence addressed to the Port Adelaide address posted on 2 December 2014 was returned to the Court Registry endorsed “Return to sender – left address”. Correspondence was again sent to the Commercial Road, Port Adelaide address by registered post on 15 December 2014 enclosing a notice of hearing of application. The registered post correspondence was returned to the Registry on 19 December 2014 endorsed “Left address”.
On 16 December 2014, an email was sent to [email protected] addressed to Mr Banasiak enclosing the notice of hearing. A note on the inside cover of the District Court file indicates that this email address was obtained from the originating process in the Magistrates Court. There is nothing on the District Court file to indicate this email was received. It would appear therefore that Mr Banasiak was not notified of the date for the hearing of the application for review.
On 19 January 2015, Mrs Wilczynski filed FDN 19 titled “Applicants written case for review a minor civil decision to be heard on 20 January 2015”. FDN 19 details the alleged errors made by the Magistrate, the alleged defective work undertaken by Mrs Matejko and Oknalux, and foreshadows that the Wilczynskis seek to lead the following additional evidence:
1A report dated 13 October 2014 prepared by the building inspector, Peter Jankovic of SA Building Consultants. This is the report Mrs Wilczynski asked the Magistrate to receive after he had reserved his decision but which he refused to receive on 30 September 2014.
2A report dated 15 January 2015 from SA Building Consultants. This supplementary report concerns alleged deficiencies in the installation work, including allegations in relation to the doors.
3A quotation dated 20 December 2014 from Sebastian Ungier. This is a quote for $627 to “repair floors damaged by faulty installation of doors”.
4A letter dated 8 January 2015 from Fountain Valley Medical Centre, relating to an injury the Wilczynskis’ daughter apparently suffered when a door came off its tracks.
5A quotation dated 13 January 2015 from Australian Window Solutions for $3,600 plus GST to “remove, clean and refit” the double glazed windows.
The hearing of the application to review a minor civil decision
On 20 January 2015, a District Court Judge commenced the minor civil review.
The transcript of the hearing on 20 January 2015 shows that the names of Mr Banasiak and Mr Dubec were called outside of court. Neither appeared. The transcript records the Judge saying:
HIS HONOUR: I understand Mr Banasiak was served with the application to review, I think the court has tried to contact him on a number of occasions and there has been no response.
I understand that Mr Dubec is in Poland, is that correct.
Mrs Wilczynski, assisted by a Polish interpreter, replied, “Yes”. His Honour said, “I’m satisfied that they’ve both been served with the papers”.[6]
[6] T2/14.
His Honour then proceeded to consider Mrs Wilczynski’s application that Mr Wilczynski be joined as a party. As Mrs Matejko indicated that she did not object to the joinder Mr Wilczynski was joined as a second applicant to the proceedings for review. Mrs Matejko also did not object to her company Oknalux being joined as fourth respondent in the proceedings.
A discussion between the Judge and Mr Wilczynski took place concerning the report dated 13 October 2014 provided by Peter Jankovic of SA Building Consultants, which the Magistrate had declined to receive on 30 September 2014. Mrs Matejko agreed that she had seen the report.
His Honour proceeded to enquire what documents were before the Magistrate. Mrs Matejko said that she had not seen a report from Australian Window Solutions dated 4 June 2014. His Honour referred to it having been tendered at page 39 of the Magistrates Court transcript. Mrs Matejko said that she did not have any information at all during the Magistrates Court hearing and that the SA Building Consultants report dated 21 July 2014 was handed to her by a clerk after the hearing.[7] The Judge adjourned the hearing briefly for Mrs Matejko to consider the reports she said she had not seen.
[7] T6/1-4
As Mrs Matejko then attempted to hand up documents which the Wilczynskis had not seen,[8] the Judge adjourned the review to Friday 23 January 2015, allowing the Wilczynskis an opportunity to consider Mrs Matejko’s documents which were filed as FDN 18.
[8] T32/36.
The Judge concluded the review on 23 January 2015 having conducted it by reading the transcript of the hearing before the Magistrate, the reports received by the Magistrate and the submissions of the Wilczynskis and Mrs Matekjo. He did not hear any evidence afresh.
In his reasons for judgment dated 1 May 2015,[9] the Judge said that by consent he ordered that Mr Wilczynski be joined as an applicant for review, and that Varmhus and Oknalux be joined as respondents to the application. The Judge made the following comments about Mrs Wilczynski and Mrs Matejko:[10]
The Magistrate made no findings about the reliability or credibility of the witnesses and was clearly in a better position to do so than I am. But I have read the transcript and had the opportunity to make some assessment of Mr and Mrs Wilczynski and Ms Matejko when they made submissions before me on review. Mr Wilczynski was not able to be of much assistance; he generally supported his wife. From my reading of the transcript, Mrs Wilczynski was at times evasive before the Magistrate and shifted her ground. She back-tracked in her evidence about whether or not she had paid a particular invoice and insisted that her “experts” had said that the windows and doors must be removed and replaced when their reports contain no such assertion. In my view, she has exaggerated her claims.
Ms Matejko, before me, made submissions in a calm and measured fashion. It seems to me that she tried to give clear and straightforward evidence before the Magistrate. She was at a significant disadvantage as, during the trial, she did not see either of the experts’ reports before the Magistrate. I am making no criticism of the Magistrate; he probably did not realise that Ms Matejko had not seen them.
[9] Wilczynski & Anor v Banasiak, Matejko & Ors [2015] SADC 70.
[10] Wilczynski & Anor v Banasiak, Matejko & Ors [2015] SADC 70 at [20]-[21].
The Judge noted in his reasons that Mr Dubec had been in Poland at all relevant times and had not taken part in the proceedings.[11] The Judge said that he declined to receive further material including further reports from SA Building Consultants the Wilczynskis asked him to receive.[12] His Honour said that the Wilczynskis had had adequate opportunity to put material before the Court. He said that whilst English was not their first language, and whilst Mrs Wilczynski required the services of an interpreter, he did not accept that she had been disadvantaged or that she did not adequately understand the proceedings. His Honour said:[13]
Mr and Mrs Wilczynski’s chief submission on review was that the Magistrate was in error in failing to accept what they described as the “uncontested” expert reports. Those reports were not uncontested. Ms Matejko, in particular, has not accepted the opinions of Mr Effingham and Mr Waring. She had not even seen Mr Waring’s report before the matter was in this Court and, as I have mentioned, she does not appear to have been given an opportunity to cross-examine Mr Effingham. It was quite apparent from her submissions before me that she hotly disputes some of the opinions in those reports. I found her criticism of Mr Effingham’s views about the drainage holes convincing: holes designed to drain water from interior window ledges are not necessary when the windows are designed not to open at all. I also thought that her criticisms of Mr Effingham’s opinion about the glazing seemed valid.
All of the applicants’ submissions turn on the correctness of the Magistrate’s finding that the windows and doors were adequate. His Honour was not obliged to accept the expert opinions, opinions which were not “uncontested”. The only work which the Magistrate found was substandard was that which resulted in damage to the brick reveals. His Honour has awarded damages for that.
[11] Wilczynski & Anor v Banasiak, Matejko & Ors [2015] SADC 70 at [6].
[12] Wilczynski & Anor v Banasiak, Matejko & Ors [2015] SADC 70 at [29].
[13] Wilczynski & Anor v Banasiak, Matejko & Ors [2015] SADC 70 at [30]-[31].
The Judge proceeded to affirm the decision of the Magistrate saying that in his view the findings made by the Magistrate were open to him.
Section 38 of the Magistrates Court Act 1991 (SA) (“the Magistrates Court Act”) permits a Judge in determining a minor civil review to affirm the judgment subject to review. The issue that arises in this matter is that the Judge had ordered the joinder of parties who were not before the Magistrates Court, namely Mr Wilczynski and Oknalux. Whilst the Judge had the power to permit the expansion of the controversy on the minor civil review to include Oknalux pursuant to r 279A(10) of the District Court Rules he did not adjudicate that controversy. By not doing so he has, by implication, dismissed the Wilczynskis’ claim against Oknalux in circumstances where no evidence was heard regarding that claim.
The application for judicial review
On 14 December 2015, the Wilczynskis sought an extension of time to make an application for judicial review in file number SCCIV-15-1564 (“the Supreme Court file”). A Judge of this Court granted the extension on 15 January 2016. The defendants named on the Summons seeking judicial review are:
·Mr Banasiak of 77-81 Commercial Road Port Adelaide SA 5015;
·Varmhus of 77-81 Commercial Road Port Adelaide SA 5015;
·Alicja Matejko of 3 Mark St O’Halloran Hill SA 5158;
·Oknalux Pty Ltd of 3 Mark St O’Halloran Hill SA 5158; and
·Mr Dubec of 14 Ulica Lipowa, Grabina Poland 92-701.
[Emphasis added]
A notice of address for service was filed on behalf of Mrs Matejko and Oknalux on 8 January 2016.
At a directions hearing on 15 January 2016, the Judge asked the Wilczynskis whether Mr Banasiak, Mr Dubec and Varmhus had been served with the application for judicial review. Mr Wilczynski told the Judge that a copy had been delivered to Mr Banasiak “but he’s not in Australia anymore”, that Mr Dubec was not in Australia and that Varmhus didn’t exist anymore. The Judge asked the Wilczynskis whether they sought relief against Mr Banasiak or only against Mrs Matejko and Oknalux. Mr Wilczynski said:
I think as a business, as ex partner in business, VARMHUS which ... Mr Banasiak, Mr Dubec they are all responsible. But because Mr Banasiak is who knows where, it is only Ms Matejko here. But because they are - they were part of a business, they ... for the contract, of the site, according to the law.
The Wilczynskis were ordered to file an affidavit regarding their attempts to serve the other defendants in the action. FDN 9 is an affidavit of a process server sworn on 29 January 2016 deposing to attempts to serve the application for judicial review on Mr Banasiak and Varmhus. The process server deposes to having attended at the Commercial Road, Port Adelaide address and being informed that Mr Banasiak had left the address 12 months prior. The process server says she undertook an Electoral Roll search, attended at Mr Banasiak’s residential address and was informed by a male occupant that Mr Banasiak had not resided there for 12 months. She also deposes to having been informed that Mr Banasiak may be in Poland. It would appear the process server was not made aware of the Wingfield address Mr Banasiak was served at, as deposed to in FDN 15 filed by the Wilczynskis in the District Court proceedings.
There is no affidavit filed by the Wilczynskis in the Supreme Court proceeding deposing to any purported service of Mr Dubec nor was any application made for permission to serve outside the Commonwealth.
The Wilczynskis sought judicial review on grounds that the District Court Judge erred in failing to afford them procedural fairness. Those grounds of review are:
1The Judge improperly exercised his discretion, in that he failed to admit new expert evidence adduced by them after the Magistrates Court hearing but prior to the District Court review.
2The Judge failed to inquire into potential inconsistencies in Mrs Matejko’s evidence, namely that the installation work complained of was installed by a licensed builder.
3Their interests were immediately affected in that their counterclaim was partially denied and the defective works remained in place posing a threat to health and safety.
4In failing to afford procedural fairness to them they did not have a reasonable opportunity to present their case and have the matter heard and determined by the Court according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
The Judge who heard the application for judicial review noted in his judgment:[14]
… Mr Dubec and Mr Banasiak remained partners of Varmhus at all relevant times and so were parties to both contracts. However, Mr Dubec has been in Poland at all relevant times, and hence took no part in the supply and installation work, or the subsequent court proceedings.
and later:[15]
The only respondents to the plaintiffs’ application for judicial review who appeared in this Court (or before the Judge) were Ms Matejko and Oknalux. They were jointly represented by counsel before me. While Mr Banasiak appeared before the Magistrate, he did not appear before the District Court Judge or before me. Mr Dubec did not appear at any stage of the proceedings. When I raised concerns at a directions hearing about Mr Banasiak and Mr Dubec not having entered any appearance in these proceedings, I was informed that unsuccessful efforts had been made to locate and serve both men. Further, and in any event, I was informed by Mr and Mrs Wilczynski that they only sought relief in these proceedings against Ms Matejko and Oknalux. On the basis of this information I determined to proceed despite the absence of Mr Banasiak and Mr Dubec.
(Emphasis added)
[14] Wilczynski & Anor v District Court of South Australia & Ors [2016] SASC 51 at [8].
[15] Wilczynski & Anor v District Court of South Australia & Ors [2016] SASC 51 at [56].
The only evidence regarding efforts to locate Mr Banasiak is the affidavit of service which does not refer to the address at which Mr Banasiak was served with the application in the District Court proceedings as deposed to in FDN 15. As with the lower courts, there is a dearth of evidence regarding any attempts or applications regarding service on Mr Dubec in the Supreme Court proceedings.
The Judge, in determining that the District Court Judge did not fail to afford procedural fairness and that none of the grounds of review were established, said:[16]
In the circumstances, it is not necessary for me to reach a conclusion as to whether there would have been discretionary reasons for refusing relief even if one or more of the grounds had been made out. The nature of minor civil claims and the clear intention of the legislative regime governing their determination, mean that there will on occasions be discretionary reasons to decline relief in judicial review proceedings arising out of minor civil claims. Too great a willingness on the part of this Court to interfere in such proceedings would tend to undermine the legislative intention to create a time and cost efficient regime for determining minor civil disputes.
[16] Wilczynski & Anor v Banasiak, Matejko & Ors [2015] SADC 70 at [77].
Significantly the Judge was not alerted to the fact that the controversy between the Wilczynskis and Oknalux had not been determined by the District Court Judge.
Upon dismissal of their application the Wilczynskis were ordered to pay Mrs Matejko’s and Oknalux’s costs of the judicial review proceedings in the sum of $11,000 plus GST.
The appeal to the Full Court
On appeal to the Full Court the Wilczynskis seek to appeal against the dismissal of their application for judicial review and the order for costs. The respondents named in the notice of appeal are:
·Miroslaw Banasiak of 77-81 Commercial Road Port Adelaide SA 5015;
·Varmhus of 77-81 Commercial Road Port Adelaide SA 5015;
·Alicja Matejko of 3 Mark St O’Halloran Hill SA 5158;
·Oknalux Pty Ltd of 3 Mark St O’Halloran Hill SA 5158; and
·Andrzej Dubec of 14 Ulica Lipowa, Grabina Poland 92-701.
[Emphasis added]
In their grounds of appeal, the Wilczynskis complain that the Judge ought to have found that the District Court Judge erred in refusing to admit fresh evidence on the review. They assert that the Judge erred in failing to find that they were denied procedural fairness in circumstances where Mrs Matejko was permitted to lead further evidence and they were not given an opportunity to respond. They complain that Mrs Matejko’s evidence was effectively treated as expert in nature and they should have had an opportunity to rebut it.
They also complain that the Judge ought to have found that there was no proper evidentiary basis for either the District Court Judge or Magistrate to reject their expert evidence. They contend that the Judge should have found that the only proper finding on the evidence was that the windows and doors as supplied and the installation work performed by Mrs Matejko and Oknalux were defective.
Finally, they assert that the Judge ought to have found that the District Court Judge and Magistrate failed to find that, even though Mrs Matejko was not a partner of Mr Banasiak and Mr Dubec at the time of delivery of the windows and doors, she was a partner when the supply contract was entered into. That contract, they contend, contained a warranty that the goods would be of merchantable quality and fit for purpose and accordingly that Mrs Matejko should have been jointly liable for the defects relating to the windows and doors.
The Wilczynskis seek an order that the matter be remitted to the District Court for rehearing.
Mrs Matejko and Oknalux were the only respondents who appeared at the Full Court hearing. They argue that the District Court Judge was correct to refuse to permit the Wilczynskis to adduce fresh evidence and that the grounds of appeal are not made out as there was a fair hearing before the District Court.
Conclusion
As there has not been a hearing and proper determination of the controversy between the Wilczynskis and Oknalux and for that matter issues of contribution/indemnity as between the defendants to the counterclaim, the Judge hearing the judicial review should have set aside the orders made in the District Court and remitted the matter to that Court for a rehearing of the review.
I would therefore allow the appeal, set aside the orders made in the District Court and order that the matter be remitted for a rehearing of the review by another Judge of the District Court. By allowing the appeal and ordering a rehearing the parties will be restored to the position they were in when the application to review the minor civil decision was filed. It will therefore be a matter for the Judge rehearing the review to determine:
·questions of joinder to ensure that the correct parties are before the Court;
·effective service of the proceedings on the parties;
·the issues to be determined;
·the admission and ambit of expert reports;
·the witnesses to be called by the parties; and
·the claims for contribution and indemnity.
As the District Court has no power to remit the matter to the Minor Civil Jurisdiction for rehearing it will be for the Judge to determine whether it is necessary to rehear the evidence given in the Magistrates Court.[17] In other words, it is for the District Court Judge to conduct the review in accordance with s 38 of the Magistrates Court Act.
[17] The District Court does not have the power to remit the matter to Magistrates Court for rehearing unless the review arises from a default judgment or summary judgment pursuant to s 38(7)(d)(iii)(B) of the Magistrates Court Act 1991 (SA).
I decline from expressing my view as to whether the evidence the Wilczynskis sought to adduce on review should have been received. The receipt of evidence is a matter for the Judge rehearing the matter to be determined in the exercise of his or her discretion in accordance with s 38 of the Magistrates Court Act.
I would rescind the order made on 24 February 2017 that the Wilczynskis pay Mrs Matejko’s and Oknalux’s costs of the judicial review proceeding and order that each party bear their own costs of the judicial review proceeding and the Full Court appeal.
Matters of concern
In considering this appeal I have reviewed the Magistrates Court file, the District Court file and the Supreme Court file. I have had access to the lower court files because upon receipt of the summons seeking judicial review the District Court Registry in compliance with r 284(2) of the Supreme Court Civil Rules 2006 (SA) (“the Supreme Court Rules”) forwarded the District Court file to the Supreme Court. Further, upon filing of the appeal against the dismissal of the application for Judicial Review the Supreme Court Registry requested pursuant to r 284(2) of the Supreme Court Rules that the Magistrates Court forward the Magistrates Court file to the Supreme Court.
I have referred to the issue of service on Mr Dubec that permeates this matter from the time of the filing of the amended defence and counterclaim. There is no record of any order made giving permission to serve the minor civil claim, the application to review the minor civil decision or the application for judicial review outside the Commonwealth on Mr Dubec in compliance with the Magistrates Court, District Court or Supreme Court Rules. There is also no evidence that Mr Dubec was served with the Magistrate’s decision.
As the Wilczynskis did not seek permission to serve Mr Dubec with the amended defence and counterclaim, no judgment could be awarded against him. Further, as Mr Banasiak, by virtue of r 33 of the Magistrates Court Rules,[18] is taken to claim contribution from Mrs Matejko and Mr Dubec and Mrs Matejko has pleaded that she is entitled to indemnity from Mr Banasiak and Mr Dubec, the judgment is, in my view, irregular and arguably void as there has been no service on Mr Dubec, and no determination of the claims for contribution and indemnity.
[18] Magistrates Court Civil Rules 2013 (SA) r 33 provides that “where there is more than one defendant to a claim, each defendant will be taken to claim contribution from any other defendant”.
It follows, in my opinion, that the District Court Judge’s order affirming the Magistrate’s judgment is also irregular as it is founded on an irregular judgment.[19] In addition to the issues regarding service on Mr Dubec, the District Court Judge could not have been satisfied that Mr Banasiak had been notified of the date of the hearing for the minor civil review as the Court’s notifications had been sent to an address other than the Wingfield address at which he had been served.
[19] MacFoy v United Africa Co. Ltd. [1961] 3 All ER 1169 (Lord Denning).
Further, the Judge hearing the application for judicial review was not alerted to the failure to serve Mr Dubec at any stage in the proceedings and that Mr Banasiak had not been notified of the hearing date for the minor civil review. Nor was he alerted to the failure of the Wilczynskis to direct the process server to attempt to serve Mr Banasiak with the application for judicial review at the Wingfield address.
In addition to the concerns regarding service and notice of hearings, my review of each Court’s file has identified other matters of concern that afflict this matter. These matters include the fact that the Magistrate commenced the hearing of the claim in the absence of Mr Banasiak, the fact that the claim against Mrs Matejko and Oknalux was not particularised until FDN 19 was filed and the fact that the claims for contribution by the defendants by counterclaim were not considered by the Magistrate.
In highlighting these matters of concern I have kept in mind s 38 of the Magistrates Court Act. In particular, I bear in mind that an inquiry conducted by the Minor Civil Jurisdiction of the Magistrates Court is to proceed on a broadly inquisitorial and not adversarial model with a Magistrate undertaking an active role in determining the issues, the witnesses and the scope of evidence. The Magistrate must test the witness’ evidence insofar as it has not been done by cross‑examination.[20] Further, the fact that the matter proceeds by way of inquiry does not remove the requirement of a fair hearing or procedural fairness and the requirement that the parties in their evidence must be presented with the material on which it is sought to challenge them.
[20] Magistrates Court Act 1991 (SA) s 38(7)(c); Harradine v District Court of SA (2012) 280 LSJS 572.
I have also kept in mind that the parties, whilst not bound by written pleadings, as a matter of fairness, must set out in clear and understandable terms the nature of their claim and allegations, the relief sought, and against whom the relief is sought. Bearing in mind that s 38 of the Magistrates Court Act prescribes that the Court is not bound by the rules of evidence and that the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal form, it remains my view that the matters of concerns are such that there has not been a fair determination of the issues in the matter. However, none of the parties have made any application to the Magistrates, District or Supreme Court in respect of these matters. As such, it is not for this Court on hearing an appeal against a dismissal of an application for judicial review to make any order regarding the matters other than the failure to determine the controversy between the Wilczynskis and Oknalux. Having said that, it is appropriate to suggest that:
·the practice of using yellow sticky notes stapled and adhered to pages on the Court file to record details of conversations, service of proceedings and other information that should be part of the permanent Court record be abandoned.
·as the Magistrates Court Registry commonly effects service of originating processes and other documents, Registry staff should be trained to be aware of the circumstances when permission to serve proceedings is required.
·the Higher Court Registry staff be alerted to the need to check affidavits of service before posting notifications of the date for hearing.
LOVELL J.
Three Judges of this Court heard an appeal from a Judge of this Court who heard an application for judicial review from a decision of a District Court Judge who reviewed a decision of a Magistrate who heard the trial in the Minor Civil Division of the Magistrates Court. This trail of proceedings occurred over a dispute between the parties of about $13,000. The Minor Civil Review division of the Magistrates Court is designed to determine minor civil claims in a practical and efficient manner.
I agree with the orders proposed by Bampton J and generally with her reasons. I add the following remarks.
The problems identified by Bampton J were not errors identified by the appellants in their grounds of appeal. Due to the fundamental nature of the errors identified this Court has not had to decide the numerous grounds of appeal.
It is not clear why Ms Matejko consented to having her company Oknalux added as a party to the proceedings before the District Court Judge. Despite the company being added as a party to the action, no submissions were made, nor was evidence called by any party, about the company’s role in the matter during the hearing before the Judge. The same can be said for the application to have Mr Wilczynski added as a party.
However, as the matter has to be determined afresh by a District Court Judge it is not appropriate to express a view about the merits of the original dispute.
When the application for judicial review came on before Doyle J his Honour correctly noted that an application for judicial review is not a review of the merits of the matter. He found that the errors asserted to have been made by the Judge, even if made out, would not constitute valid grounds of review. It is important that parties understand that the fact that a party does not agree with the decision made is not a ground for judicial review. Many of the grounds were, in one form or another, repeated before this Court.
Doyle J in his judgment on the judicial review hearing stated:[21]
Ultimately, the issue of how far the Judge is required to go in inquiring into the issues arising upon a review hearing can only be determined by reference to the facts and issues arising in a given case. Further, it is important to be mindful of, and adopt an approach which gives effect to, the clear legislative intention to determine minor civil claims in a practical and efficient way.
His Honour later stated:[22]
In the circumstances, it is not necessary for me to reach a conclusion as to whether there would have been discretionary reasons for refusing relief even if one of more of the grounds had been made out. The nature of minor civil claims and the clear intention of the legislative regime governing their determination, mean that there will on occasions be discretionary reasons to decline relief in judicial review proceedings arising out of minor civil claims. Too great a willingness on the part of this Court to interfere in such proceedings would tend to undermine the legislative intention to create a time and cost-efficient regime for determining minor civil disputes.
[21] Wilczynski & Anor v District Court of South Australia & Ors [2016] SASC 51 at [69].
[22] Ibid [77].
I agree with these remarks.
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