Wilczynski v District Court of South Australia

Supreme Court of South Australia
(Civil: Judicial Review)
WILCZYNSKI v DISTRICT COURT OF SOUTH AUSTRALIA
[2022] SASC 115
Judgment of the Honourable Justice Blue
ADMINISTRATIVE LAW - JUDICIAL REVIEW
ADMINISTRATIVE LAW - PREROGATIVE WRITS AND ORDERS - CERTIORARI - GROUNDS FOR CERTIORARI TO QUASH - EXCESS OR WANT OF JURISDICTION - PARTICULAR INSTANCES OF JURISDICTIONAL ERROR
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - JURISDICTIONAL MATTERS
Application by Mr and Mrs Wilczynski for judicial review of a decision by a Judge of the District Court of South Australia on a minor civil review of a decision of a Magistrate in a minor civil action.
Mr and/or Mrs Wilczynski entered into a contract with Varmhus in September 2013 for the supply of windows and a set of doors. At that time the partners of Varmhus were Mr Banasiak, Mrs Matejko and Mr Dubec. At some stage Mr and/or Mrs Wilczynski entered into a contract with Varmhus for the installation of the windows and set of doors. Mrs Matejko ceased to be a partner of Varmhus on 11 November 2013 and it was in dispute whether the installation contract was made before or after that date.
The minor civil action was a claim by Mr Banasiak against Mrs Wilczynski with a counterclaim by Mrs Wilczynski against Mr Banasiak, Mrs Matejko and Mr Dubec complaining about the supply and installation of the windows and set of doors.
A Magistrate dismissed Mr Banasiak’s claim, dismissed Mrs Wilczynski’s counterclaim in respect of supply and granted judgment on her counterclaim in respect of installation against Mr Banasiak and Mr Dubec for damages assessed at $3,177.35.
Mrs Wilczynski sought a minor civil review of the Magistrate’s decision. A Judge joined Mr Wilczynski as a co-applicant and Oknalux Pty Ltd as an additional respondent on the review. The Judge dismissed the minor civil review but the Judge’s orders were set aside by the Full Court on judicial review and the matter remitted for rehearing.
A second Judge heard the minor civil review and made the following orders:
1The application for review of the decision of the learned Magistrate about the liability of the partners of Varmhus for the supply of windows and doors is dismissed.
2The counterclaim against Oknalux Pty Ltd is dismissed.
3The Court is not in a position to pronounce upon the rights of the applicants against Mr Dubec or Mr Banasiak as those persons have not been served with the application for review and are not responding parties before the court.

The Wilczynskis bring an action for judicial review of the second Judge’s decision on multiple grounds. They also seek orders for the payment of compensation by Mrs Matejko and/or the State and various declarations.
Held:
1Unilateral communications between the Judge’s chambers and Mrs Matejko without the knowledge of the Wilczynskis, the provision by Mrs Matejko of important evidentiary documents to the Judge’s chambers not provided to the Wilczynskis and the absence of identification to the parties of the documents that were before the Judge for the purpose of deciding the minor civil review comprised jurisdictional errors. The jurisdictional errors were material. (At [400], [423]).
2The Wilczynskis were not given the opportunity to adduce oral evidence from their witnesses and this comprised jurisdictional error. The jurisdictional error was material. (At [445], [495]).
3The Judge made a jurisdictional error by not addressing several issues that were raised and required to be determined. The jurisdictional errors was material. ([At 609])
4On the proper construction of the Judge’s reasons, the Judge decided to dismiss the claim against Oknalux and Mrs Matejko in respect of their conduct in January-February 2014 and to defer the review of the Magistrate’s decisions in respect of the liability of the partners of Varmhus (at [636]).
5Whichever construction is adopted of the Judge’s reasons, the Judge made a jurisdictional error in dismissing the application for review of the decision of the Magistrate about the liability of the partners of Varmhus for the supply of windows and doors (at [637], [644]-[646]).
6It is not necessary to determine other grounds for judicial. Several such grounds are not established. (At [665], [669], [673], [678], [704]).
7The Court has no jurisdiction to judicially review the decision of the Magistrate, the first Judge or the Supreme Court on the First Judicial Review ([710]-[712], [716], [718])
8The Court has no jurisdiction to order the payment of compensation by Mrs Matejko or the State in the judicial review action (at [737], [745]).
9Insofar as the Wilczynskis seek declarations independently of the judicial review, they have not established a basis for making them (at [762]).
10The parties to be heard on whether the party titles of the parties in the minor civil review in ECMS should be adjusted to match the party titles as recorded before the introduction of ECMS (at [764]).
11If the Wilczynskis pursue setting aside of the Judge’s orders and remittal for rehearing, the discretion should be exercised to make such orders (at [788]).
12The parties to be heard as to the final orders to be made in light of the reasons for judgment (at [790]).

Building Work Contractors Act 1995 (SA) s 3; Development Act 1993 (SA) s 45; Local and District Criminal Courts Act (SA); Magistrates Court Act 1991 (SA) s 3(2), s 3(1), s 38; Partnership Act 1891 (SA) s 32, referred to.
Craig v The State of South Australia (1995) 184 CLR 163; Condon v Pompano Pty Ltd [2013] HCA 7, (2013) 252 CLR 38; Kendall v Hamilton (1879) 4 App Cases 504 ; King v Hoare (1844) 3 M & W 494; Kirk v Industrial Court (NSW) [2010] HCA 1, (2010) 239 CLR 531; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3, (2019) 264 CLR 421 ; Morel Brothers & Co Limited v Earl of Westmoreland [1903] KB 64; Nathanson v Minister for Home Affairs [2022] HCA 26; Re Hodgson; Beckett v Ramsdale (1885) 31 Ch D 177; TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd [2014] FCAFC 83, (2014) 232 FCR 361; Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43, (2013) 252 CLR 480, considered.

WILCZYNSKI v DISTRICT COURT OF SOUTH AUSTRALIA
[2022] SASC 115

BLUE J: The applicants, Ewa and Joseph Wilczynski, seek judicial review of a decision by a Judge of the District Court of South Australia (the first respondent) on a minor civil review under section 38 of the Magistrates Court Act 1991 (SA) (the Act) of a decision of a Magistrate in a minor civil action.
Mr and/or Mrs Wilczynski (the Wilczynskis)[1] entered into a contract with Varmhus in September 2013 for the supply of windows and a set of doors. At that time the partners of Varmhus were Alicja Matejko (the third respondent), Miroslaw Banasiak (the fourth respondent) and Andrzej Dubec (the fifth respondent).
[1] For reasons that appear below, by “the Wilczynskis”, I mean Mr Wilczynski and/or Mrs Wilczynski without differentiating whether it was one or the other or both in the particular context.
At some stage the Wilczynskis entered into a contract with Varmhus for the installation of the windows and set of doors. Mrs Matejko ceased to be a partner of Varmhus on 11 November 2013. It was in issue whether the installation contract was made before or after that date.
The minor civil action was a claim by Mr Banasiak against Mrs Wilczynski with a counterclaim by Mrs Wilczynski against Mr Banasiak, Mrs Matejko and Mr Dubec complaining about both the supply and installation of the windows and set of doors.
The Magistrate who heard the action:
(a) dismissed Mr Banasiak’s claim;
(b)dismissed Mrs Wilczynski’s counterclaim in respect of supply of the windows and set of doors; and
(c)granted judgment on Mrs Wilczynski’s counterclaim in respect of installation against Mr Banasiak and Mr Dubec for damages assessed at $3,177.35.
Mrs Wilczynski sought a minor civil review in the District Court of the Magistrate’s decision. The Judge (the first Judge or the Original Judge) who heard what transpired to be the first review (the First Review) joined Mr Wilczynski as a co-applicant and Oknalux Pty Ltd (Oknalux) (the second respondent) as an additional respondent on the review. The effect of the joinder was that the counterclaim was now by both Mrs and Mr Wilczynski and comprised:
(a)the claims made in the Magistrates Court but now made by Mrs and Mr Wilczynski against Mr Banasiak, Mrs Matejko and Mr Dubec as partners of or acting on behalf of Varmhus (the Varmhus claims); and
(b)the newly introduced claims by Mrs and Mr Wilczynski against Oknalux and Mrs Matejko acting on behalf of Oknalux (the Oknalux claims or the newly introduced claims).
The first Judge heard and ultimately dismissed the minor civil review.
The Wilczynskis sought judicial review of the first Judge’s decision. Although unsuccessful at first instance, they were successful on appeal before the Full Court, which set aside the first Judge’s orders and remitted the minor civil review for rehearing before a different Judge because the first Judge did not hear or determine the Oknalux claims.
A second Judge (the second Judge or the Judge) heard the minor civil review (the Second Review) and made the following orders:
1.The application for review of the decision of the learned Magistrate about the liability of the partners of Varmhus for the supply of windows and doors is dismissed.
2.The counterclaim against Oknalux Pty Ltd is dismissed.
3.The Court is not in a position to pronounce upon the rights of the applicants against Mr Dubec or Mr Banasiak as those persons have not been served with the application for review and are not responding parties before the court.
The Wilczynskis bring an action for judicial review of the second Judge’s decision on multiple grounds. They also seek orders for the payment of compensation by Mrs Matejko and/or the State for various alleged violations and various affirmations and confirmations.
Background
The Wilczynskis own a house in the Adelaide metropolitan area. In 2013 they decided to replace nine windows and a set of external doors with double glazed windows and a set of tilt and slide doors (sliding doors) respectively.
Between February and November 2013 Mr Banasiak, Mr Dubec and Mrs Matejko were carrying on a business in partnership (Varmhus I) under the business name “Varmhus”. The business involved amongst other things the supply and installation of double-glazed windows and doors manufactured by Drutex SA (Drutex) in Poland.
The business name “Varmhus” was registered in the names of Mr Banasiak and Mr Dubec in March 2012 and in the names of Mr Banasiak, Mr Dubec and Mrs Matejko in February 2013.
In 2013 and 2014 Mr Banasiak and Mrs Matejko both lived and worked in Adelaide. Mr Dubec at all times lived in Poland.
In August 2013 Mrs Matejko (as a partner of Varmhus I) attended at the Wilczynskis’ house and provided an indicative price for the replacement of two windows for the Wilczynskis to determine whether they wish to proceed. They decided to proceed.
On 1 September 2013 Mr Banasiak attended, in company with a builder Milenko Babic, at the Wilczynskis’ house. They made measurements for the supply and installation of nine double-glazed windows and a set of sliding doors.
On 1 September 2013 Varmhus provided to Mr Wilczynski an Offer to supply nine windows and a set of sliding doors for separate prices for each window and the doors totalling $7,590 (inclusive of GST)[2] (the Varmhus Offer). The Offer became exhibit P1 at the Magistrates Court trial. It became exhibit A4 at the Second Review.
[2] All prices referred to in this judgment are inclusive of GST unless otherwise shown.
The Varmhus Offer showed millimetres in respect of each window and the sliding doors. For example, it showed millimetres in respect of the sliding doors of 1800 millimetres in the horizontal dimension (900 millimetres each door) and 2090 millimetres in the vertical dimension.
On 9 September 2013 Mr Wilczynski accepted the Varmhus Offer and paid the deposit of $3,795. The Wilczynskis thereby entered into a contract with Varmhus I for the supply of windows and sliding doors for $6,900 plus GST (the Varmhus Supply Contract).
On 9 September 2013 Varmhus issued a tax invoice to Mr Wilczynski for $7,590, showing the balance due on delivery of $3,795 (the Varmhus supply invoice). The Varmhus supply invoice became part of exhibit P2 at the Magistrates Court trial. It was provided to the second Judge’s chambers by Mrs Matejko by email on 10 June 2020.
On 16 September 2013 Drutex prepared an order on its letterhead with details of the windows and sliding doors ordered from it (the Drutex Order). It was stamped “Varmhus” and signed and dated 17 September 2013 by Mrs Matejko on behalf of Varmhus. It became exhibit P4 at the Magistrates Court trial. It became exhibit A5 at the Second Review.
The millimetres shown in respect of the windows and sliding doors on the Drutex Order were more or less two centimetres less than those shown on the Varmhus Offer. For example, the Drutex Order showed a horizontal dimension in respect of the sliding doors of 1778 millimetres (889 millimetres each door) and a vertical dimension of 2070 millimetres.
At some point it was agreed between the Wilczynskis and Mr Banasiak on behalf of Varmhus that Varmhus would install the windows and doors for $1,600 plus GST (the Varmhus Installation Contract). The Wilczynskis’ case was that this was in September 2013. Mrs Matejko’s case was that this was not until after the Varmhus I partnership was dissolved on 11 November 2013.
On 11 November 2013 Mrs Matejko ceased to be a member of Varmhus I, in consequence of which it was dissolved pursuant to section 32 of the Partnership Act 1891 (SA).
Upon the dissolution of Varmhus I, Mr Banasiak and Mr Dubec carried on business in partnership (Varmhus II) under the business name Varmhus. On 11 November 2013 Mr Banasiak and Mr Dubec became registered as the proprietors of the Varmhus business name. A historical record of the registered proprietors of the business name became exhibit D6 at the Magistrates Court trial. A later version became exhibit A3 at the Second Review.
I refer to the partnerships that carried on business successively under the business name “Varmhus” collectively as Varmhus.
On 6 December 2013 Mrs Matejko incorporated Oknalux. Oknalux commenced to carry on a business of the supply and installation of double-glazed windows and doors manufactured by Drutex. Oknalux was thus in competition with Varmhus II.
In December 2013 the windows and sliding doors arrived in Australia from Poland.
On 2 January 2014 the windows and sliding doors were delivered to the Wilczynskis’ house. Mr Banasiak attended and received payment of the balance of $3,795. Mrs Wilczynski signed on a copy of the Varmhus supply invoice an acceptance of the goods in good condition.
On 2 and 3 January 2014 Mr Banasiak undertook installation of the nine windows and the sliding doors (the original doors). He screwed the doors and windows into the openings; and inserted expandable foam into the gaps between the doors and windows and the openings. On 6 January 2014, due to conflicts with Mrs Wilczynski, he left the site without having completed installation.
On 6 January 2014 the Wilczynskis contacted Mrs Matejko and informed her what had happened. She phoned Mr Banasiak to ask him to return to complete the installation but he did not answer her calls or respond. It was agreed between Mrs Matejko and the Wilczynskis that Mrs Matejko would complete the installation but it was in issue about what this entailed and in what capacity she was acting.
On 9 January 2014 Varmhus issued tax invoice 5110 to Mr and Mrs Wilczynski for $1,760 for installation of the windows and doors (the Varmhus installation invoice). The invoice became part of exhibit P2 at the Magistrates Court trial. It was apparently not in the possession of the second Judge at the time of the review hearing on 17 July 2020. It was provided to the second Judge’s chambers by Mr Wilczynski by email on 20 October 2020.
On 9 January 2014 Oknalux issued a quote (the Oknalux doors quote) to Mrs Wilczynski for $3,113 for the supply and installation of a replacement set of sliding doors showing amongst other things “Handle with locks on both sides”. The quote became exhibit A1 at the Second Review hearing.
The Oknalux doors quote showed dimensions of the sliding doors of 1800 millimetres wide (two doors 900 millimetres each) and 2110 millimetres high. These doors were to have the same width as and a greater height than that shown in the Varmhus Offer and both dimensions were greater than the original doors delivered on 2 January 2014.
The Oknalux doors quote comprised $2,430 for the doors, $400 for removal of the original doors and installation of the second doors and $283 GST.
In January 2014 the Wilczynskis and Oknalux entered into a contract for Oknalux to supply and install a replacement set of sliding doors (the Oknalux doors contract). On the evidence adduced at the hearing of the review, there was a degree of uncertainty (and perhaps a dispute) about the contract price. The Wilczynskis’ case was that they only agreed to pay $280 plus GST being the difference between the price of the replacement doors and the original doors (being the amount of the Oknalux door differential invoice referred to below). The Matejko Parties’ case was that the amount payable would depend on the Wilczynskis’ final position as against Varmhus and in one scenario they would pay, or at least Oknalux reserved the right to charge, the full price of the replacement doors together with the price for removal of the original doors and installation of the replacement doors.
In January 2014 the Wilczynskis and Oknalux entered into a contract for Oknalux to do work (to adopt a neutral term) in relation to the windows that had been supplied by Varmhus (the Oknalux windows contract). The Wilczynskis’ case was that Mrs Matejko[3] agreed to complete the installation of the windows. The Matejko Parties’ case was that Oknalux only agreed to do work that had not been undertaken by Mr Banasiak.
[3] The Wilczynskis’ evidence was that they regarded Mrs Matejko as being responsible as a partner of Varmhus because they contracted with Varmhus for installation while she was still a partner. They also tended to regard Oknalux as Mrs Matejko. However, the Judge proceeded on the basis that Oknalux was the contracting party and this is evident from the documents.
Between January and February 2014 Oknalux and Mrs Matejko undertook work on the nine windows that had been supplied by Varmhus. Oknalux also supplied and installed replacement sliding doors (the second doors).
On 14 January 2014 Oknalux issued tax invoice 16-2014 to Mrs Wilczynski for $3,113 for supply of the second doors ($2,430 plus GST) and removal of the original doors and installation of the second doors ($400 plus GST) (the full price doors invoice). The invoice became part of exhibit D2 at the Magistrates Court trial. It was not apparently obtained by or provided to the second Judge.
On 27 February 2014 Oknalux issued three tax invoices to Mrs Wilczynski, being:
·no 16-2014 for $308 for the second doors with locks and handles on both sides (being the difference in price between the price of the second doors and the original Varmhus doors) (the doors differential invoice);
·no 13-24/14 for $165 for blinds to one window (showing a deposit of 50 per cent) (the blinds invoice); and
·no 14-18/14 for $450 for flyscreens for seven windows (showing a deposit of 50 per cent) (the flyscreens invoice).

The doors differential invoice apparently became part of exhibit D2 at the Magistrates Court trial but Mrs Wilczynski gave evidence of it. It is not clear whether the other two invoices became part of exhibit D2. The three invoices were provided to the second Judge’s chambers by Mr Wilczynski by email on 9 August 2020.
On an unknown date Oknalux issued tax invoice 15-24/14 dated 27 February 2014 for work on the windows for $2,902.35 (the windows work invoice (27 February)). An invoice dated 12 March 2014 to the same effect (apart from payments shown) became part of exhibit D2 at the Magistrates Court trial. The 27 February invoice was not provided to the second Judge. The body of the invoice provided:
To secure windows from falling out the frame. Cut back and Scrub PU expandable foam from brick and internal window mouldings. Correctly position glass panels in windows. Lower the laundry window. Insulate and cover gaps using uPVC seals. Adjust the windows for smoothness of operation. Complete insulation of windows commenced by another installer.
Cost of materials   $686.00
Cost of labour for 3 people a total of 35.5 hours           $1,952.50
Total  $2,638.50
GST   $263.85
Total due  $2,902.35
Deposit  $1,341.18
Balance due  $1,561.17
The minor civil action
On 28 February 2014 Mr Banasiak issued the minor civil action in the Magistrates Court against Mrs Wilczynski by filing a Claim, claiming payment of invoice 5110 for $1,760.
On 3 March 2014 the Wilczynskis paid $1,115.18 to Oknalux. A BankSA Payment Receipt for the payment was provided to the second Judge’s chambers by Mr Wilczynski by email on 9 August 2020. It is not clear whether it formed part of exhibit D2 at the Magistrates Court trial but Mr Wilczynski gave evidence of it.
The payment of $1,115.18 was allocated by Oknalux as follows:
·$807.68 to the windows work invoice;
·$225 to the flyscreens invoice; and
·$82.50 to the blinds invoice.
On 18 March 2014 the Wilczynskis paid $1,341.18 to Oknalux. This was allocated by Oknalux to the windows work invoice (total $2,148.86 allocated). A BankSA Payment Receipt for the payment became part of exhibit D2 at the Magistrates Court trial. It was provided to the second Judge’s chambers by Mr Wilczynski by email on 9 August 2020.
On or after 18 March 2014 Oknalux issued tax invoice 15-24/14 dated 12 March 2014 for work on the windows for $2,902.35 (showing a deposit of $1,341.18 received on 18 March 2014) (the windows work invoice (12 March)). The invoice became part of exhibit D2 at the Magistrates Court trial. It was provided to the second Judge’s chambers by Mrs Matejko by email on 10 June 2020.
On 21 March 2014 Mrs Wilczynski filed a defence and counterclaim. Mrs Wilczynski in the pleading complained that the windows and doors were the incorrect size and the installation was deficient. The amount of the counterclaim was $10,988.26, comprising:
·$7,590 paid to Varmus for the windows and doors;
·$2,902.35 being the amount of the windows work invoice;
·$450 being the amount of the flyscreens invoice; and
·$55.91 being the amount of four receipts.
At some point the trial was listed for 23 July 2014.
On 4 June 2014 Stuart Waring of Australian Window Solutions sent an email entitled “Installation Report” comprising a report by Dean Mapleston and Mr Waring on an inspection by Mr Mapleston at the Wilczynskis’ house on 30 May 2014 (the AWS report). They expressed adverse opinions concerning the size of the windows and the installation of the windows and doors. The report became exhibit D4 at the Magistrates Court trial. It was provided to the second Judge’s chambers by Mr Jankovic by email on 5 June 2020.
On 17 July 2014 Paul Effingham of SA Building Consultants inspected the windows and sliding doors at the Wilczynskis’ house.
On 21 July 2014 Peter Jankovic and Mr Effingham provided a report to the Wilczynskis (the first SABC report). The report contained seven attachments and nine annexures. They expressed adverse opinions concerning the size of the windows and the installation of the windows and doors.
The first SABC report became exhibit D1 at the Magistrates Court trial. It together with its seven attachments and four of its nine annexures were provided to the second Judge’s chambers by Mrs Matejko by email on 10 June 2020. One of the remaining annexures (the AWS report) was provided to the second Judge’s chambers by Mr Jankovic on 5 June 2020.
On 21 July 2014 SA Building Consultants issued a tax invoice for the report to the Wilczynskis for $1,608.75. The invoice became exhibit D5 at the Magistrates Court trial. It was provided to the second Judge by Mr Jankovic on 5 June 2020.
On 23 July 2014 the matter came on for trial. Mrs Wilczynski appeared. Mr Banasiak was unwell and unable to attend. Mr Effingham attended to give evidence and the Magistrate heard his evidence in the absence of Mr Banasiak. The matter was adjourned for directions. At the end of the hearing Mrs Wilczynski was given leave to join Mrs Matejko and Mr Dubec as additional defendants to her counterclaim.
On 23 July 2014 Mrs Wilczynski filed an amended defence and counterclaim (the Amended Counterclaim). The counterclaim was now against Mr Banasiak, Mrs Matejko and Mr Dubec.
On 15 August 2014 Mrs Matejko filed a defence to the counterclaim pleading that she ceased to be a partner of Varmhus I on 11 November 2013 and told this by telephone to Mrs Wilczynski on 18 November 2013; and she did not order or install the windows on behalf of Varmhus.
Mr Dubec did not file a defence or any other documents in the Magistrates Court proceeding. No affidavit of proof of service on him of the Amended Counterclaim was filed by Mrs Wilczynski. There is no evidence that Mr Dubec was served with the Amended Counterclaim. Mr Dubec did not participate in the trial or the proceeding.
On 18 August 2014 G & SR Mitchell issued an invoice to Mr Wilczynski for $2,035 for repairs to and work on brickwork said to have resulted from installation of windows. This became exhibit D7 at the Magistrates Court trial. It was not apparently in the possession of the second Judge.
On 18 September 2014 the trial resumed. Mr Banasiak, Mrs Wilczynski and Mrs Matejko appeared. As is common in minor civil action trials, the parties were sworn to give evidence concurrently and gave a combination of evidence and submissions with the Magistrate adopting an inquisitorial role. Mr Wilczynski was also sworn and gave a combination of evidence and submissions. The tape of Mr Effingham’s evidence from 23 July 2014 was played during the hearing but he did not attend again to give evidence. Several exhibits were tendered by Mr Banasiak and Mrs Wilczynski.
On 29 September 2014 Mrs Wilczynski sent a letter to the Court. She said amongst other things that the amount that she claimed was:
·$7,590 paid to Varmus;
·$2,456.36 paid to Oknalux;
·$2,035 payable to G & SR Mitchell; and
·$55.91 being the amount of four receipts.
She also claimed costs totalling $1,756.75.[4]
[4] Comprising $1608.75 paid to SABC, $131 Court filing fee and $17 ASIC search fee.
On 13 October 2014 Mr Jankovic and Mr Effingham provided a further report (the second SABC report). Mrs Wilczynski provided the report to the Court and it was either rejected for filing or refused by the Magistrate. The report was provided to the first Judge by the Wilczynskis on 16 January 2015 and was before the second Judge at the Second Review.
On 22 October 2014 the Magistrate delivered reasons for judgment.
In relation to Mr Banasiak’s claim, the Magistrate found that the claim in contract failed because he did not hold a builders licence and a claim in quantum meruit failed because the cost of completion of the installation by Oknalux exceeded the claim of $1,760.
In relation to Mrs Wilczynski’s counterclaim concerning the supply of the windows and doors, the Magistrate referred to Mr Effingham having stated in the first SABC report that generally the installed windows had a consistent gap of 10 millimetres on all four sides and this was considered poor workmanship. The Magistrate referred to Mr Banasiak’s evidence that windows needed to be manufactured small enough so that they did not jam against the openings into which they are designed to fit. The Magistrate concluded by saying “Notwithstanding Mr Effingham’s remarks on this issue, I do not accept that a gap of 10 mm is excessive” and “The windows are adequate for their designed purpose”.
The Magistrate did not make a finding as to the term of the Varmhus supply contract concerning the size of the windows or doors, nor did the Magistrate refer to the statements in the first SABC report that some windows had a much greater gap than 10 millimetres, nor did the Magistrate refer to the AWS report.
In relation to Mrs Wilczynski’s counterclaim concerning installation of the windows and doors, the Magistrate found that this claim was properly against Varmhus II and not Varmhus I. The Magistrate rejected Mr Effingham’s opinion about the weep holes. The Magistrate accepted Mr Effingham’s opinion that the cracking in the external brick reveals was caused when the existing windows were removed and awarded $2,035 being the amount of the G & SR Mitchell repair invoice.
The Magistrate concluded that Mrs Wilczynski’s contractual entitlement was to have the windows installed for the agreed price of $1,760 and she was therefore entitled to recover the difference between the amount invoiced by Oknalux in respect of the windows of $2,902.35 and $1,760.
The Magistrate granted judgment in favour of Mrs Wilczynski against Mr Banasiak and Mr Dubec for $3,177.35 ($2,902.35 less $1,760 plus $2,035).
The minor civil review
On 11 November 2014 lawyers for Mrs Wilczynski instituted a minor civil review (the minor civil review) by filing in the District Court an application for review of the Magistrate’s decision (the Civil Review Application).
The Application sought orders for the joinder of Mr Wilczynski as a co-applicant and Oknalux as fourth respondent to the minor civil review; and judgment in favour of the Wilczynskis against all four respondents for $12,441.36 ($7,590 paid to Varmhus, $2,456.36 paid to Oknalux and $2,035 invoiced by G & SR Mitchell) plus interest and costs.
The Civil Review Application showed an address for Mr Banasiak in Port Adelaide (the Port Adelaide address) and an address for Mr Dubec in 92-701 Grabina Poland (the Grabina address).
On 1 December 2014 lawyers for Mrs Wilczynski filed in the District Court an affidavit of service. The process server deposed to personal service of the Civil Review Application on Mr Banasiak at Wingfield on 20 November and on Mrs Matejko on 21 November 2014. He said that he had attempted to serve Mr Banasiak at the Port Adelaide address but those premises were vacant.
Mr Dubec was never served with the Civil Review Application.
On about 2 December 2014 and 15 December 2014 the District Court sent by post notices of hearing of the minor civil review to Mr Banasiak at the Port Adelaide address but they were returned “left address”. On 16 December 2014 the District Court sent an email to Mr Banasiak at an email address obtained from the Magistrates Court file but received no reply.
On 4 December 2014 lawyers for Mrs Matejko filed in the District Court a notice of address for service.
On 10 December 2014 Mrs Wilczynski sent an email to Mrs Matejko in Polish. Mrs Matejko provided the email to the second Judge’s chambers on 20 July 2020 in which she said that Mrs Wilczynski had advised in her email of a cracked door.
On 10 December 2014 Mrs Matejko sent an email to Drutex in Polish. Mrs Matejko provided the email to the second Judge’s chambers on 20 July 2020 in which she said that by her email she had advised Drutex of the cracked frame.
On 11 December 2014 Mrs Matejko sent an email to Mrs Wilczynski. She denied that the door was faulty and said that Mrs Wilczynski had maliciously destroyed the door and her action was a direct attack to discredit Oknalux and Drutex. Mrs Matejko provided the email to the second Judge’s chambers on 20 July 2020.
On 20 December 2014 Sebastian Ungier issued a quotation for $627 to repair floors said to be damaged by faulty installation of doors. This quotation was provided to the first Judge by the Wilczynskis on 16 January 2015 attached to the Applicants’ Written Case. It was before the second Judge at the Second Review.
On 3 January 2015 the second doors allegedly fell onto the foot of the Wilczynskis’ daughter, and she was taken to general practitioner Dr Wahab. On 8 January 2015 Dr Wahab wrote a letter referring to the fall. This letter was provided to the first Judge by the Wilczynskis on 16 January 2015 attached to the Applicants’ Written Case. It was before the second Judge at the Second Review.
On 8 January 2015 Australian Window Solutions issued a receipt to Mr Wilczynski for $766.83. On 13 February 2015 Australian Window Solutions issued a tax invoice to Mr Wilczynski for $1,403.07 for the balance on completion of supply. I infer that this was for replacement of the second doors by a third set of sliding doors (the third doors) and that the total cost was $2,169.90. These documents were provided to the second Judge’s chambers by Mr Wilczynski on 9 August 2020.
On 13 January 2015 Australian Window Solutions sent an email to the Wilczynskis quoting $3,960 to remove, clean and refit the nine windows. This quotation was provided to the first Judge by the Wilczynskis on 16 January 2015 attached to the Applicants’ Written Case. It was before the second Judge at the Second Review.
On 14 January 2015 Mr Jankovic inspected the windows and second doors at the Wilczynskis’ house.
On 15 January 2015 Mr Jankovic provided a further report (the third SABC report). The report contained the following annexures:
1.Mrs Matejko’s email to Mrs Wilczynski dated 11 December 2014;
2.Mr Ungier’s quotation dated 20 December 2014;
3.Dr Wahab’s letter dated 8 January 2015;
4.Australian Window Solutions’ quotation dated 13 January 2015.
On 16 January 2015 lawyers for Mrs Wilczynski sent to the District Court an Applicants Written Case for Review (the Applicants’ Written Case). It advanced submissions in support of the 14 November 2014 joinder application. It conceded that Mr Dubec was in Poland and had not been served with the proceeding. It contended that service on Mr Dubec’s partner Mr Banasiak sufficed. It advanced submissions on the merits. It attached the second and third SABC reports (with annexures except Mrs Matejko’s email).
The Applicants’ Written Case was provided to the first Judge by the Wilczynskis on 16 January 2015. It was before the second Judge at the Second Review. All annexures to the third SABC report were provided to the second Judge’s chambers by Mr Jankovic on 5 June 2020.
The First Review
On 20 January 2015 the minor civil review came on for hearing before the first Judge (the First Review). Mr and Mrs Wilczynski and Mrs Matejko appeared. Upon Mrs Matejko not opposing, the Judge made orders joining Mr Wilczynski as a co-applicant and Oknalux as fourth respondent in the minor civil review. Mrs Matejko thereafter appeared for herself and as director of Oknalux.
No party on the judicial review contends that the Judge did not have power to join Oknalux as an additional defendant to the counterclaim at that stage. I am not therefore called on to consider the question of the power to join Oknalux. However, the consequence of the joinder was that the District Court was required to hear and determine the Oknalux claims at first instance because they did not exist in the Magistrates Court.
No pleading was filed to articulate the newly introduced claims. The following can be gleaned from grounds of review 3.7 and 3.8 in the Civil Review Application about the newly introduced claims:
·the new claims were against both Oknalux and Mrs Matejko personally in her capacity as the representative or actor for Oknalux (as opposed to the existing Varmhus claims against Mrs Matejko in her capacity as a partner of Varmhus and personally as a representative or actor for Varmhus) (I refer for convenience to a personal claim against Mr Matejko as the representative or actor for Oknalux as a claim against her as actor for Oknalux);
·the new claims invoked at least causes of action in contract, quasi-contract and misrepresentation against Oknalux and Mrs Matejko as actor for Oknalux;
·the new claims included complaints that:
·Mrs Matejko and Oknalux were unlicensed;
·Mrs Matejko and Oknalux failed properly or adequately to complete the installation by failing to ensure that the windows and doors were adequately supported and completed, were fit for purpose, complied with Australian Standards and were installed appropriately and in a workmanlike manner;
·Mrs Matejko misrepresented to the Wilczynskis that Oknalux would fix and complete the installation commenced by Varmhus and Mr Banasiak, which induced them to pay $2,456.36 to Oknalux;
·Mrs Matejko and Oknalux were not experienced or competent to fix and complete the installation.
The parties did not make discovery in respect of the newly introduced claims.
At the First Review, the parties were not sworn. They made submissions including assertions of fact. The first Judge referred to the Applicants’ Written Case. Mrs Matejko referred to a “report” that she had prepared responding to the Applicants’ Written Case. The Judge adjourned the hearing to 23 January 2015 to enable the Wilczynskis to consider Mrs Matejko’s response.
On 22 January 2015 Mrs Matejko filed her response which she also called “Applicants Written Case” (the Respondents’ Written Case). It attached documents additional to the exhibits tendered at the Magistrates Court trial, namely:
1.Australian Glass and Glazing Association (AGGA) competency certificate issued to Mrs Matejko;
2.StandardsMark Licence issued by SAI Global to Drutex on 15 January 2015;
3.extract from Australian Standard AS 2047;
4.page “how to measure the window properly” downloaded from the Drutex website;
5.photos; and
6.the Oknalux doors quote (9 January 2014).
On 23 January 2015 the hearing of the minor civil review resumed. The first Judge referred to the Respondents’ Written Case. The Judge further heard the parties. The Judge treated the Applicants’ Written Case and the Respondents’ Written Case and their attachments as being before him. The Judge reserved judgment.
On 3 March 2015 Mrs Matejko sent an email to Mrs Wilczynski saying:
The sliding door has arrived. Will you please advise us of a time convenient to you so that we can arrange for a licence builder to install your door.
This email was provided to the second Judge’s chambers by Mrs Matejko by email on 20 July 2020.
No evidence was adduced of any communications between Mrs Matejko and the Wilczynskis between 11 December 2014 (when Mrs Matejko denied that the second doors were faulty) and 3 March 2015.
On 6 April 2015 Stan The Handyman Service issued to the Wilczynskis an invoice for $627 for repair of floor panels said to have been damaged by faulty installation of “back door sliding panel”. This invoice was provided to the second Judge by Mrs Wilczynski’s affidavit filed on 23 October 2020.
On 1 May 2015 the first Judge delivered reasons for judgment on the minor civil review.[5] The Judge said that he declined to accept the second and third SABC reports. He said that the Magistrate was not obliged to accept the expert opinions and his findings that the windows and doors were adequate were open to him. He affirmed the decision of the Magistrate. He did not address the Oknalux claims.
[5] Wilczynski v Banasiak [2015] SADC 70.
On 8 May 2015 Mrs Matejko sent an email to Mrs Wilczynski. She said that she had made a number of attempts to contact Mrs Wilczynski but had not received any response. She reiterated that the sliding door frame had arrived and said that she would like to have it replaced under warranty as soon as convenient. She said:
The sliding door, as mentioned in my previous emails, to you, I state again, we have received the sliding door frame and would like to have that replaced for you under warranty as soon as is convenient to you.
You have also mentioned in court that the door hardware has been damaged, “the door fell off the hinges”. We would like to investigate that as that is unlikely that this could have happened on a sliding door that is able to withstand the weight for a wing more than twice the weight of your wing.
If the hardware has been damaged by improper use or operation of the door we will need to have that replaced. The cost of repair and replacement will be charged to you on top of the cost of the existing invoice.

Mrs Matejko requested payment of the balance of the blinds invoice, the flyscreens invoice and the windows work invoice and payment of the doors invoice.
In relation to the second doors, Mrs Matejko said:
We would like to make a number of suggestions as we do not know the state the door is in.
a) Remove our door and you will pay only for repairs to the door and cost of installation and materials as well as the cost to remove the door.
b) We will replace the door under warranty, should any damage be made to the hardware or the door the cost to repair or replace will be charged to you on top of the original invoice. We will waterproof the door but any internal finish is not part of our installation process.
b) We will return the door you originally purchased from Varmhus, should you wish to install that door you will need to organise someone else to do that for you.
This email was provided to the second Judge’s chambers by Mrs Matejko by email on 20 July 2020. The email also attached a summary of invoices and payments.
On 18 May 2015 Mrs Matejko sent an email to Mrs Wilczynski. She said that she called Mr Wilczynski on that day only to be told to speak to his lawyer. She reiterated that she had the door ready and Oknalux could replace it for them. She said:
Each time I attend court I find out that something else is wrong with the door. First the door had a crack in it after you have been using it for over 6 months then I find out in court that the door has somehow fell off its hinges and damaged your floor. This is not anything that happens with normal operation or usage. It is obvious you don’t want the door therefore I ask again that you allow us to remove the door.
This email was provided to the second Judge’s chambers by Mrs Matejko by email on 20 July 2020.
On 19 May 2015 Janus Lawyers sent an email to Mrs Matejko requesting that she not contact the Wilczynskis. This email was provided to the second Judge’s chambers by Mrs Matejko by email on 20 July 2020.
On 25 May 2015 the Executive Director of the Australian Window Association sent an email to Mrs Matejko stating that the National Construction Code of Australia (the Construction Code) required windows and glazed doors used in buildings to be tested to meet Australian Standard AS 2047 (including AS 1288 Glass). She requested evidence that all window and glazed door types being supplied into the market were proved to be in conformity to AS 2047. This letter was exhibited to Mrs Wilczynski’s 23 October 2020 affidavit.
On 25 June 2015 Julie Goodger of Harcourts sent a letter to the Wilczynskis. She said “My considered estimate is that if offered for sale with the current poorly installed windows, prospective buyers would decrease their offer in the vicinity of $40,000”. This letter was provided to the second Judge’s chambers by Mr Wilczynski by email on 9 August 2020.
On 10 August 2015 the Executive Secretary/Treasurer of the AGGA of South Australia sent a letter to Mr Wilczynski stating that Mrs Matejko had never been a member of the AGGA but did undertake the online competency test in April 2014. This letter was exhibited to Mr Wilczynski’s 20 October 2020 affidavit.
On 21 October 2015 AAMI’s Dispute Resolution Officer sent a letter to Mr Wilczynski concerning review of a home assessment declining the Wilczynskis’ claim for damage on the ground that it was not caused by an insured event. The letter stated that the incorrect fitting of windows and doors was not an insured event and confirmed the decision. This letter was exhibited to Mrs Wilczynski’s 23 October 2020 affidavit.
The first judicial review and appeal
On 14 December 2015 the Wilczynskis instituted a proceeding in this Court seeking judicial review of the decision of the first Judge (the first judicial review).
On 30 March 2016 the proceeding was heard by a Judge of this Court. The Wilczynskis appeared for themselves; Mrs Matejko and Oknalux (the Matejko Parties) were represented by counsel; and the other defendants did not appear.
On 20 April 2016 the Judge delivered reasons for judgment.[6] The Judge dismissed the application for judicial review.
[6] Wilczynski v District Court of South Australia [2016] SASC 51.
On 27 June 2016 the exhibits tendered at the Magistrates Court trial were returned to the parties.
On 27 June 2016 the Wilczynskis appealed to the Full Court against the decision of the Judge dismissing the judicial review proceeding.
On 20 December 2016 Dave Kirner of the Construction Forestry Mining and Energy Union sent an email to Mr Wilczynski referring to a site visit in which he expressed the opinion that the installation was unsafe, the glass and windows were not standard, gaps were covered by masking, drainage holes were filled up illegally, the window frame securing method was wrong and the large in-swinging window was too large, heavy and dangerous and not certified for import. This email was exhibited to Mrs Wilczynski’s 23 October 2020 affidavit.
On 5 April 2017 the appeal was heard. The Wilczynskis were represented by counsel; the Matejko Parties were represented by counsel; and the other respondents did not appear.
On 15 August 2017 the Full Court delivered reasons for judgment.[7] The Full Court granted judicial review, quashed the orders made by the first Judge and remitted the matter to the District Court for rehearing before a different Judge. This was because the Judge had permitted an expansion of the controversy on the minor civil review to encompass the Oknalux claims but had then failed to hear and determine those claims. The Full Court ordered that each party bear their own costs of the judicial review proceeding and the appeal.
[7] Wilczynski v District Court of South Australia [2017] SASCFC 102.
The Wilczynskis sought special leave to appeal to the High Court against the orders made by the Full Court.
On 2 October 2019 an Australian Business Register ABN Look Up record was obtained for the ABN for Varmhus. This became exhibit A3 at the Second Review hearing.
On 16 November 2017 the High Court refused special leave to appeal.[8]
[8] Wilczynski v District Court of South Australia [2017] HCASL 292.
On 18 December 2019 Ben Collinson of the Department of Planning, Transport and Infrastructure sent an email to Mr Wilczynski referring to section 45 of the Development Act 1993 (SA) requiring a person performing building work to comply with the Building Rules and with drawings and particulars approved in accordance with the Division. This email was exhibited to Mr Wilczynski’s 20 October 2020 affidavit.
The Second Review
On 29 November 2019 the Second Review was listed for hearing on 24 January 2020.
On 29 November 2019 the District Court issued notices of hearing to the parties. The notice was posted to Mr Banasiak at an Ingle farm address but returned “not at this address”. The notice was sent by email to Mr Banasiak at an email address but no delivery notification was sent by the destination server. The notice was posted to Mr Dubec at the Grabina address shown in the Civil Review Application but was ultimately returned as undelivered (on 23 June 2020).
On 24 January 2020 the hearing of the Second Review commenced before the second Judge. Mr and Mrs Wilczynski and Mrs Matejko (on her own behalf and as director of Oknalux) appeared. Mr Banasiak and Mr Dubec did not appear.
The Judge drew the attention of the parties to the fact identified by the Full Court that the Wilczynskis had not sought permission to serve on Mr Dubec overseas the Amended Counterclaim or the Civil Review Application. The Judge said that Mr Dubec had to be served in part because Mrs Matejko claimed contribution and Mr Banasiak was deemed by the Rules to claim contribution against him. The Judge asked Mrs Matejko if she had an address for Mr Dubec in Poland.
Mrs Matejko provided two physical addresses and an email address but she said that she could not be certain that they were still current. One physical address was a 62-660 Grabini Poland address (the Grabini address) with the same street name and number as shown in the Civil Review Application but in 62-660 Grabini and not 92-701 Grabina. The other physical address was an address of a company (record in the transcript as Ramhus but in fact called Framhus) in Lodz Poland (the Lodz Company address). The email address was recorded as [email protected] (the Ramhus email address).
The Judge said that Mr Banasiak also had to be served. Mrs Matejko said that he was in Brisbane and she did not have an address for him but she did have an email address, which was [email protected] (the ekookna.com email address). The Judge said that, if all of the partners could not be served, it would be necessary then to visit the question whether or not the matter could proceed in light of the rights of Mrs Matejko to seek contribution.
Mrs and Mr Wilczynski said that they had been told that the Magistrates Court registry had sent the evidence back to the parties. Mrs Wilczynski said that the evidence was lost. Mr Wilczynski said that the Full Court Appeal Book and Supplementary Appeal Book disappeared from the court records.
The Judge told the parties that he had the Applicants’ Written Case and the Respondents’ Written Case but did not have any other exhibits from the Magistrates Court trial or the First Review hearing. He had caused searches to be made by every court registry for the exhibits but no other exhibits had been located. The Magistrates Court registry had apparently returned the exhibits to the parties in 2016. The Judge invited any party who had a copy of the exhibits to provide them.
Mrs and Mr Wilczynski said that they did not understand who had initiated the proceeding before the Judge or who were the parties. The Judge explained that the Wilczynskis’ counterclaim had been remitted by the Full Court back to the District Court for rehearing.
Mrs Wilczynski said that the matter was never a minor civil case because it was more than $12,000 and that was proved in the Magistrates Court.
The Judge granted leave to the Wilczynskis to serve Mr Dubec in Poland by registered post to the Grabini address and Lodz Company address and by email to the Ramhus email address with the following documents in English and translated into Polish:
·the pleadings in the original action and the Civil Review Application;
·the exhibits in the original action;
·the reasons for judgment in the original action, the First Review and the judicial review proceedings at first instance and on appeal; and
·a notice settled by a solicitor describing the basis of the counterclaim and defence to counterclaim; giving Mr Dubec notice that, as a partner of Varmhus, he may be held liable jointly with the other partners for the counterclaim; and informing him that, if he wished to defend the counterclaim, he may file an appearance within 42 days and a defence within 63 days and, if no appearance was filed, depending on the decision of the Court, judgment might made against him personally.
The Judge ordered the Wilczynskis to serve the documents referred to in the previous paragraph on:
·Mr Dubec by post at the Grabini address and Lodz Company address and by email to the Ramhus email address;
·Mr Banasiak by email at the ekookna.com email address; and
·Mrs Matejko at her address,
and within four weeks of 24 January 2020 to file an affidavit proving compliance with the orders for service.
The Judge adjourned the matter to 29 May 2020 for a directions hearing at which there would be set a further hearing date for the minor civil review.
The Judge warned the Wilczynskis that the costs that they might incur in service may well exceed the amount of their claim and they would not recover those costs. He invited them to think very seriously about whether they wished to proceed. Mr Wilczynski asked for seven days to think about whether they wished to proceed.
Directions hearings and communications
On 29 January 2020 Mr and Mrs Wilczynski sent emails to the Judge’s chambers saying that they had decided to continue with the hearing.
On 31 January 2020 the Judge’s Chambers sent an email to the parties saying that the Judge was calling the matter on for a directions hearing on 5 February 2020.
On 1 February 2020 Paul Stone of South Building Inspections provided a report to the Wilczynskis (the SBI report). He expressed adverse opinions concerning the size of the windows and the installation of the windows and second doors. His report was referred to by the Judge in questioning Mrs Matejko at the hearing on 17 July 2020.
On 5 February 2020 Mrs Matejko sent an email to the Judge’s Chambers with the subject “Mr Dubec email” identifying the company in Lodz as Framhus SP. Z O. O Spolka Komandytowa (Framhus SP) as having an address in 93-101 Lodz Poland (the Framhus Lodz address). She provided its email address as [email protected] (the Framhus email address). She also provided two phone numbers in Poland.
On 5 February 2020 the Judge’s Chambers sent an email to the Framhus email address addressed to Mr Dubec (copied to the Wilczynskis, Mrs Matejko and the ekookna.com email address) attaching correspondence and the record of outcome from 24 January 2020 and saying that the matter was next before the Court on 10 February 2020.
On 6 February 2020 Framhus sent an email from the Framhus email address to the Judge’s Chambers (and other addressees) saying that there must have been a mistake, they knew nothing about the case or the persons mentioned, they were a construction company in Poland and they had never undertaken work in Australia.
On 10 February 2020 at the directions hearing, the Judge informed the parties that an email had been received from the Wilczynskis that they wished to proceed with the matter. The Judge also referred to the email received from Framhus saying that they knew nothing of the matter. The Judge reiterated that it was necessary that Mr Dubec and Mr Banasiak be served because Mrs Matejko was claiming contribution against them. The Wilczynskis complained about the orders for service.
On 30 April 2020 at 12.55 pm Mrs Matejko send an email to Mrs Wilczynski. The email was copied to the Judge’s chambers, Mr Wilczynski, the ekookna.com email address and “[email protected]” (the mirek gmail address). She said that Mr Dubec’s current address was an address that she gave in 93-101 Lodz Poland (different to the Framhus address provided on 5 February 2020).
On 30 April 2020 at 12.55 pm ekookna.pl’s server sent a computer-generated email from [email protected] (the ekookna.pl email address) to Mrs Matejko in reply saying in five languages “The email address provided is not valid or does not exist”.
On 29 May 2020 the next directions hearing came before the Judge. The Judge asked Mrs Matejko if anything had been served on Oknalux by way of a claim or otherwise to set out what the claim was by the Wilczynskis against it. She responded to only what was presented to the District Court. The Judge said that documentation identifying what claim was made against Oknalux would have to be served on it.
The Judge asked Mr Wilczynski why no affidavit of service had been filed in compliance with the orders made on 24 January 2020. Mr Wilczynski said that this was because they did not have the documents, which they had provided to their lawyers and had not been returned. The Judge said that he would arrange for copies of the documents required to be served, other than the solicitor’s letter, to be provided to the Wilczynskis for service.
Mr Wilczynski complained that he could not pursue his claim because he did not have the documents as evidence. He said that the claim in the Magistrates Court was not a small claim because it was over $13,000. The Judge asked the Wilczynskis whether they wished to proceed and they did not answer yes or no. The Judge said that they had to make a decision and, if they did wish to proceed, they would be required to ensure that the other parties were notified of the proceeding.
The Judge said that he had been informed by the Supreme Court that the exhibits had been returned by the Magistrates Court to the parties on 27 June 2016. The Judge asked Mrs Matejko if she had received anything back from the Magistrates Court. She said that she had not. The Judge asked Mrs Matejko if she had all of the material required to be served under the orders made on 24 January 2020 and she said that her lawyers did. The Judge asked her to ask her lawyers to forward those documents to his chambers to be copied and returned, and she agreed to do so.
The Judge said that he would adjourn the matter for a fortnight, see all of the documents that came from Mrs Matejko and bring the parties back a week after that when the Court would have copies of all of the documents and the Wilczynskis would be required to comply with the orders made in January for service.
The Judge told the Wilczynskis that they should make a decision whether they wished to proceed with the counterclaim. He would not accept that decision unless they obtained legal advice. If they wished to proceed, they would also need to obtain the solicitor’s letter in accordance with the orders made in January. The Judge adjourned the matter for directions on 26 June 2020.
On 29 May 2020 Mrs Matejko sent an email to David Bulloch, her solicitor in the first judicial review, which she copied to the Judge’s chambers. The email was not copied to the Wilczynskis. She attached a list of documents that she said both she and the Judge requested of him. She also made adverse comments about the Wilczynskis.
On 4 June 2020 Mr Jankovic sent an email to the Judge’s chambers attaching the first SABC report dated 21 July 2014 (without attachments or annexures). He said that he also had the second SABC report and third SABC report (but did not attach them).
On 5 June 2020 the Judge’s chambers sent an email to Mr Jankovic asking him to forward any supporting documents in his possession in writing his report.
On 5 June 2020 Mr Jankovic sent an email in return attaching the following documents:
1.Two of the attachments to the first SABC report (the AWS report and Construction Code extracts pages 496-499).
2.The SABC invoice dated 21 July 2014.
3.The second SABC report.
4.The attachments to the third SABC report listed at [83] above (but not the report itself).
On 10 June 2020 the Judge’s chambers sent two emails to Mrs Matejko forwarding Mr Jankovic’s 4 June 2020 email and the documents attached to his 4 June 2020 and 5 June 2020 emails. The emails were not copied to the Wilczynskis. The documents provided by Mr Jankovic were not sent to the Wilczynskis at that stage.
On 10 June 2020 Mrs Matejko sent two emails to the Judge’s chambers with the subject heading “Documentation supporting Magistrate decision”. She did not copy the emails to the Wilczynskis. She attached the following documents:
1.Pleadings in the Magistrates Court (claim, defence and counterclaim, amended defence and counterclaim, defence to amended defence and counterclaim).
2.The first SABC report and its attachments and four of its nine annexures (listed as items 3 to 13 below).
3.Two pages of instructions in Polish issued by Drutex concerning the measurement of sizes of windows and doors to be installed (document 2.1).
4.The Varmhus supply invoice (document 2.4 and part exhibit P2).
5.The AWS report (document 2.8 and exhibit D4).
6.12 photos taken by Wilczynskis (document 2.9).
7.CV Peter Jankovic (attachment 1).
8.CV Paul Effingham (attachment 2).
9.14 photos taken by SABC (attachment 3).
10.Extracts Construction Code (attachment 4).
11.Extracts AS 1288-2006 (AS 1288) (attachment 5).
12.Extracts AS 2047 (attachment 6).
13.ABN Lookup for Varmhus extracted 21/7/14 (attachment 7).
14.Extracts Building Work Contractors Act 1995 (bibliography 2).
15.The first page of the Varmhus Offer (exhibit P1).
16.A page from the Drutex website “How to measure a window”.
17.The Drutex Order (exhibit P4).
18.The Oknalux invoice dated 12 March 2014 for $2,902.35.

The 26 photos (document 2.9 and attachment 3) are of very poor quality and black and white in the electronic attachment to the email and are virtually illegible. By contrast, it appears from the Magistrates Court transcript that exhibit D1 in that Court contained high quality colour photos.
The defence to amended defence and counterclaim in the Magistrates Court was Mrs Matejko’s pleading filed on 15 August 2014. However, Mrs Matejko included with the document attached to the email to the Judge’s chambers two documents that were not part of the filed defence. The first was an ABN Lookup for Varmhus dated 11 August 2014. The second was a two and a quarter page document entitled “Statement of Events” that set out Mrs Matejko’s version of events (Mrs Matejko’s Statement of Events).
On 25 June 2020 an Australian Business Register ABN look up record was obtained for the ABN for Oknalux. It showed no current or historical GST registrations. This became exhibit A2 at the Second Review hearing.
On 26 June 2020 the next directions hearing came before the Judge. The Judge said that he had a folder full of material together with material that had been provided by Mrs Matejko and there was some duplication. He did not identify what was in the folder. Mrs and Mr Wilczynski reiterated statements that the counterclaim was never a minor civil claim. Mrs Matejko said that she had an active email address for Mr Banasiak because he had responded to an email saying that the address for Mr Dubec was not a valid address. This was evidently a reference to the computer-generated email from the ekookna.pl email address (which did not indicate it was an active address for Mr Banasiak).
The Judge said that he was satisfied that he now had the documents that he could use to rehear the matter. The Judge asked Mrs Matejko to send to his chambers the email address for Mr Banasiak and do everything humanly possible in the next week to get a contact for Mr Dubec, which she agreed to do. He said that he would then arrange for his chambers to send material to those people. He listed the Second Review for hearing on 17 July 2020.
On 5 July 2020 Mr Wilczynski sent an email to the Judge’s chambers saying that he had not received any documents from the Court or Mrs Matejko as ordered during the hearing on 29 May 2020. He said that he only had copies of a few documents that were submitted to the Supreme Court by their lawyers and was therefore unable to assert his rights in the District Court. On 6 July 2020 Mrs Wilczynski sent a similar email to the Judge’s chambers.
On 6 July 2020 Mrs Matejko sent an email to the Judge’s chambers. She did not copy the email to the Wilczynskis. In relation to Mr Banasiak, she said that:
·she sent out an email [referring to her 30 April email] to all, including Mr Banasiak at the mirek gmail address and Mr Banasiak responded from his work email address “[email protected]” (which she did not have until then) saying that the address was invalid. She forwarded the email from the ekookna.pl email address dated 30 April 2020 containing the message in five languages “The email address provided is not valid or does not exist”;
·Mr Banasiak’s home address was an address that she set out at North Lakes in Queensland; and
·Mr Banasiak’s mobile number was a number that she set out and she said that it was now restricted from incoming calls.
In relation to Mr Dubec, Mrs Matejko said that:
·Mr Dubec’s home address was the address in Lodz Poland that she set out;
·Mr Dubec’s mobile number was a number that she set out and she said that on 29 June 2020 he answered when she called that number but hung up when he realised that it was her and did not respond to text messages sent to him on that day and on 1 July explaining the need for him to receive documentation to be sent to him; and
·Mr Dubec’s email address was [email protected] (sic) to which she had sent the same text message but she had received no response.
Mrs Matejko also made adverse comments in the email about the Wilczynskis.
On 7 July 2020 the Judge’s chambers sent an email to Mrs Wilczynski (copied to Mr Wilczynski, Mrs Matejko, the mirek gmail address and the ekookna.com email address) attaching the following documents:
1.The pleadings filed in the Magistrates Court (claim, defence and counterclaim, amended defence and counterclaim, defence to amended defence and counterclaim); the Civil Review Application filed in the District Court; and the reasons for judgment of the Magistrate, the First Review Judge, the judicial review Judge and the Full Court.
2.Mr Jankovic’s 4 June 2020 email and the attachments to his 5 June 2020 email (items 3 to 5 below).
3.The first SABC report with two of its attachments (the AWS report and Construction Code pages 496-499).
4.The second SABC report.
5.The attachments to the third SABC report (but not the report itself).
None of the documents provided to Mrs Matejko on 10 June 2020 were sent to the Wilczynskis.
On 12 July 2020 Mrs Wilczynski sent an email to the Judge’s chambers asking if the documents attached to the 7 July 2020 email were all of the documents that remained at the Magistrates Court and District Court.
On 16 July 2020 Mr and Mrs Wilczynski sent emails to the Judge’s chambers in response to the email of 7 July 2020. Amongst other things they said that:
·all of their documents were given to their lawyers and had disappeared;
·the third SABC report was not attached to the 7 July 2020 email; and
·the documents attached to the 7 July 2020 email were only a small part of their documents that they brought to the courts.
On 17 July 2020 the Judge heard the minor civil review. Mr and Mrs Wilczynski and Mrs Matejko (for herself and as director of Oknalux) appeared. The Judge reserved judgment, to be delivered on 29 October 2020.
On 20 July 2020 Mrs Matejko sent an email to the Judge’s chambers. She did not copy the email to the Wilczynskis. She provided certain information and attached the following documents.
1.The email of 10 December 2014 from Mrs Wilczynski to Mrs Matejko (in Polish) (see [78] above).
2.The email of 10 December 2014 from Mrs Matejko to Drutex (in Polish) (see [79] above).
3.The email of 11 December 2014 from Mrs Matejko to Mrs Wilczynski (see [80] above).
4.The email of 3 March 2015 from Mrs Matejko to Mrs Wilczynski (see [96] above).
5.An email of 8 April 2015 from Mrs Matejko to Mrs Wilczynski.
6.The email of 8 May 2015 from Mrs Matejko to Mrs Wilczynski (see [101] above).
7.The email of 18 May 2015 from Mrs Matejko to Mrs Wilczynski (see [105] above).
8.The email dated 19 May 2015 from Janus Lawyers to Mrs Matejko (see [107] above).
9.A second email dated 19 May 2015 from Janus Lawyers to Mrs Matejko.
On 4 August 2020 SAI Global’s Product Services Sales Manager sent an email to Mr Wilczynski stating that the normal certification timeframe in respect of AS 2047 was eight to 20 weeks and any products manufactured before certification cannot be certified after the fact. This email was exhibited to Mr Wilczynski’s 20 October 2020 affidavit.
On 9 August 2020 Mr Wilczynski sent an email to the Judge’s chambers (not copied to Mrs Matejko) attaching an application and various documents. The application sought amongst other things delivery to the Wilczynskis of all of the documents provided to the District Court by Mrs Matejko. The documents attached included the following documents:
·the door differential invoice;
·the blinds invoice;
·the flyscreens invoice;
·BankSA Payment Receipt dated 18 March 2014 for $1,341.18;
·BankSA Payment Receipt dated 3 March 2014 for $1,115.18
·Australian Window Solutions receipt dated 12 January 2015 for $766.83;
·Australian Window Solutions invoice dated 13 February 2015 for balance of $1,403.07.
On 24 August 2020 Mr Wilczynski sent a further email to the Judge’s chambers (not copied to Mrs Matejko) saying that Ms Matejko’s documents submitted to the Judge had not to that day been presented to him.
On 7 and 8 October 2020 the Wilczynskis sent emails to the Judge’s chambers saying amongst other things that they had requested to be provided with all of the documents submitted to the Court (including by Mrs Matejko) but to date had only been provided with one document.
On 20 October 2020 and 23 October 2020 Mr and Mrs Wilczynski respectively filed interlocutory applications seeking overlapping orders. The orders sought included:
·that the Judge excuse himself from the case (order 2);
·that the Wilczynskis receive documents provided by Mrs Matejko, Oknalux and Varmhus (order 5);
·that the 17 July 2020 hearing be annulled (order 6); and
·that a new additional hearing with revised parties be scheduled before judgment (order 7 sought by Mrs Wilczynski).
On 20 October 2020 and 23 October 2020 Mr and Mrs Wilczynski respectively filed affidavits. Various documents were exhibited to the affidavits.
On 20 October 2020 the Judge’s chambers sent an email to Mrs Matejko (copied to the Wilczynskis) referring to pages 72 to 75 of the transcript of the hearing on 17 July 2020 and requesting copies of the photographs that she showed to the Judge on that occasion.
On 21 October 2020 Mrs Matejko sent an email to the Judge’s chambers (copied to the Wilczynskis) in response. She provided a commentary on the three photographs referred to at pages 72 to 75 of the transcript. She also provided a commentary on other photographs contained in the SBI report. She also attached 10 jpeg files being photographs that she said that she took when their work was completed for the Wilczynskis.
On 29 October 2020 the Judge delivered reasons for judgment.
The hearings
Magistrates Court trial
July
On 23 July 2014 Mr Effingham was called by Mrs Wilczynski to give evidence. He was questioned by the Magistrate. He said that he and Mr Jankovic jointly prepared the first SABC report. He said that, due to the method of installation, external brickwork had been damaged, which required removal and replacement for repair. He said that the damage to the brickwork was caused by the installation of the windows or removal of the old windows.
Mr Effingham was asked by the Magistrate whether there were any other problems with the windows and he said that the windows were too small and should have been better measured and a better fit. He referred to some photos, which appear to be those attached and annexed to the report.
Mr Effingham was asked by the Magistrate whether the expanding foam around the outside shown in a photo or photos (apparently photo 3) had been left in the state shown. Mr Effingham said that trim had been put around, as shown in photo 14, and this was representative of most of them. The Magistrate asked if it was his understanding that the finish was done later by another tradesman who came along afterwards and did extra work and Mr Effingham asked if he could ask Mrs Wilczynski.
Mrs Wilczynski said that Mr Banasiak stopped working on the expanding foam when she pointed out to him that she was seeing mistakes in the installation process. She asked Mrs Matejko to finish and secure the windows because it was possible they could come out and air and insects were getting through the holes in the foam. Mrs Matejko secured the windows and was paid for this. The warranty by the manufacturer did not apply because they were not installed in accordance with their instructions.
The first SABC report was received and marked as exhibit D1. Mr Effingham was released as a witness.
The Magistrate did not invite Mrs Wilczynski to ask any questions of Mr Effingham. Mr Banasiak was not present at this hearing and Mrs Matejko had not yet been joined. They therefore did not ask any questions of Mr Effingham. The Full Court in the first judicial review appeal commented on the unsatisfactory circumstances in which Mr Effingham’s evidence was received in the absence of Mr Banasiak.[9]
September
[9] Wilczynski v District Court of South Australia [2017] SASCFC 102 at [100] per Bampton J (with whom Kourakis CJ and Lovell J agreed).
On 18 September 2014 Mr Banasiak, Mrs Wilczynski and Mrs Matejko, together with two interpreters, were each sworn to give evidence. In broad terms, the Magistrate identified a topic and asked questions of the witnesses/parties on that topic before moving on to another topic, although there was a degree of linkage between topics and a degree of to and fro between the witnesses/parties.
The exhibits tendered by Mr Banasiak (ascertained from the transcript because the original exhibits were returned to the parties and not tendered as such in the District Court) were:
·P1     Varmhus Offer
·P2     Varmhus invoices 9 September 2013 and 9 January 2014
·P3     Assembling Instructions for Windows
·P4     Drutex Order
The exhibits tendered by Mrs Wilczynski (ascertained from the transcript) were:
·D1    First SABC report
·D2    Bundle of documents showing invoices from and payments to Oknalux marked A to E
·D3    Assessors Report dated 2 June 2014
·D4    AWS report
·D5    SABC invoice dated 21 July 2014
·D6    Historical search of Varmhus business name
·D7    Invoice from G & SR Mitchell dated 18 August 2014.
The parties’ evidence is summarised below broadly by reference to topic rather than necessarily in the order in which it was given.
Mr Banasiak said that he measured “the windows” and allowed a smaller size for the new windows and doors because the factory stipulated size and otherwise would not give a factory warranty. Mr Banasiak produced the document that became exhibit P3 (in Polish) to show the sizes stipulated by Drutex and indicated in green highlighter where those sizes were stipulated. This was because old buildings are not square and blocks are used in the gaps together with foam. Mr Banasiak denied that the screws were too short.
The Magistrate said to Mrs Wilczynski that her expert report [exhibit D1] showed that the gaps in the windows were more than shown on exhibit P3 and she said that the gaps were a lot bigger. She said that the windows had not been measured correctly and she had no warranty because they were too small and not installed properly.
Mrs Wilczynski said that, when Mr Banasiak left and did not continue the installation, Mrs Matejko agreed to continue with the works. The Magistrate asked her if the windows were now installed much better and she said that they were not; it was a terrible job; they were contributing to the destruction of the building; and the insurance assessor told them that there was no way they would receive any reimbursement because of cracks.
Mrs Matejko said that, when Mrs Wilczynski told her about the situation on 6 January 2014, she looked at the work that had been done and could not believe it; the situation in which they were left was unacceptable. She tried to contact Mr Banasiak but he refused to answer her calls. She contacted Drutex, who mailed all the seals, extra things and door handles needed to finish off the job.
Mrs Wilczynski said that it was not necessary that she ask Mrs Matejko to finish the work because Mrs Matejko was obliged because of her involvement with Varmhus.
The Magistrate showed to Mrs Wilczynski the full price doors invoice for $3,113. Mrs Wilczynski said that the Wilczynskis were only to pay the difference between the price of the second doors and the price of the original doors and Mrs Matejko took the original doors away. She produced the doors differential invoice for $308.
The Magistrate asked Mrs Wilczynski how much money they had paid to Mrs Matejko. She referred to her husband. Mr Wilczynski was then sworn to give evidence. Ultimately exhibit D2 was tendered which evidently identified the amounts of invoices rendered by, and payments made to, Oknalux.
Mrs Matejko said that she had agreed with the Wilczynskis that any further payments in respect of invoices rendered to them by Oknalux would await the result of the case.
Mrs Matejko said that the doors that were ordered had no handle on the outside, no lock and were the completely wrong doors. Mrs Matejko offered to order the correct doors. Mrs Wilczynski asked how much it would cost her and Mrs Matejko replied that the difference between the two doors was something like $280 plus GST. They agreed that what Mrs Matejko would be paid would depend on the way the case was decided in court.
Mrs Matejko said that in January 2014 Oknalux measured the doors in accordance with the Drutex specifications [exhibit P3]. The second doors were larger than the original doors and did not leave the big gaps that had been left by the original doors. Mr Banasiak had misunderstood the specification and had doubled up on the space to be left between the doors and the opening.
Mr Banasiak produced the Drutex order [exhibit P4] and said that Mrs Matejko put the stamp on it and signed it, so she knew exactly the sizes ordered. Mrs Matejko said that she had gone out there first and measured two windows and the door but told the Wilczynskis that she was not a specialist and would send out a specialist to do the measurements. Mrs Matejko said that subsequently Mr Banasiak attended to do those measurements. This was accepted by Mr Banasiak, who said that he had attended with a licensed builder to do the measurements.
Mr Banasiak reiterated that Mrs Matejko had signed the Drutex order. Mrs Matejko said that the order was made, translated and sent to Drutex. She said that Drutex sent the Drutex order to Varmhus to verify the order and accept responsibility to make payment and she initialled the document only for that purpose.
Mrs Wilczynski complained about bricks being damaged. Mr Banasiak said that they were already damaged before he started the installation and had been damaged when the shutters were installed incorrectly. The Wilczynskis both denied this. Mr Wilczynski produced the invoice from G & S R Mitchell, which became exhibit D7.
The Magistrate directed that the recording of Mr Effingham’s evidence given on 27 July 2014 be played in court.
Mrs Matejko said that the windows were measured and installed to the internal reveal but the reveal should have been removed and the measurement and fitment of the window made to the structural frame. These windows had screws that went only about 1.5 centimetres into the internal reveal and it could not be guaranteed that they fit into the structure. This was why those screws were replaced. When she installed the second sliding doors, they were installed in the way that they should be by removing all the internal reveals and what is hidden to the structure of the doorframe.
The Magistrate asked Mrs Wilczynski if she was going to pay Oknalux any more money. She said that she had probably paid more than they had agreed, the building was being damaged and the windows looked horrible. She said that they could not have these windows anymore and had to replace them because there would be more cracks in summer and additional damage to their house.
Mr Wilczynski said that the doors and one of the windows had been installed at an angle.
The First Review
At the hearing of the First Review, the first Judge did not cause the parties to be sworn.
The Second Review
At the hearing of the Second Review on 17 July 2020, the Judge commenced by swearing the three individual parties present, summarising section 38 of the Act and summarising the reasons for judgment of the Magistrate, the first Judge and the Full Court.
The Judge said that, at directions hearings, he had been informed that the documents formerly stored in the Supreme Court had been lost and the Wilczynskis had no documents. The Judge said that, with the help of Mrs Matejko, he had been able to piece together a large portion of the material before the Magistrate and the Judge on the First Review. He was satisfied that every search had been made to identify any other material and, if there was any other material, it could not be found. He did not identify the material contained in the volume of documents to which he referred.

There is no merit in this complaint, which stems from a lack of understanding by the Wilczynskis of the nature of judicial review, of the steps taken by their lawyers on their behalf and of the courts’ processes.
Jurisdictional limit
The Wilczynskis contend that the District Court did not have jurisdiction to hear the minor civil review, the first Judge did not have jurisdiction to hear the First Review and the second Judge did not have jurisdiction to hear the Second Review. This is, they contend, because by November 2014 when the minor civil review was instituted, their claim was over $20,000 and in addition the damage to their home was $40,000. They also refer to the fact that they incurred legal costs (principally in the first judicial review proceedings) of approximately $85,000.
This contention involves several misconceptions. First, in 2014 when the Magistrates Court heard the proceeding and when the minor civil review was instituted, the monetary limit for a minor civil action comprising a small claim was $25,000: see [296] above. The fact that the monetary limit was reduced with effect in August 2016 to $12,000 is irrelevant: under the transitional provisions reproduced at [297] above, the reduction in the limit had no effect on pending cases. The first Judge and the second Judge hearing the minor civil review had jurisdiction to award damages up to $25,000.
Secondly, the Wilczynskis did not amend their counterclaim to claim as damages loss of the value of their house or include such a claim in their Civil Review Application. Even if they had done so, and even if they had proved that their damages exceeded $25,000, the amount of damages that could have been awarded would have been capped at $25,000 because the proceeding had already been heard and determined in the Magistrates Court as a minor civil action.
Thirdly, legal costs incurred in the Supreme Court are irrelevant; in any event the Full Court ordered that each party bear their own legal costs of the first judicial review proceedings. Legal costs incurred in the Magistrates Court or District Court are irrelevant to the monetary limit of the jurisdiction to hear a minor civil action: the monetary limit relates only to the monetary claim and not to costs. Further such costs are not ordinarily recoverable in the minor civil jurisdictions.
There is no merit in this contention.
Parties and party titles
The Wilczynskis contend that errors have been made by the Courts and in court records as to the identity of the parties, the party titles of the parties and representation. Some of these errors are alleged to have occurred in courts other than the District Court, which I address below.
Parties: Mr Wilczynski
The Wilczynskis contend that Mr Wilczynski, and not Mrs Wilczynski, was the party to the contracts the subject of the proceedings. They contend that the Magistrate refused to admit Mr Wilczynski as a party to the case. Insofar as complaint is made about the conduct of the Magistrate, I address this below.
Mr Wilczynski was joined as a party to the action in the District Court in January 2015 on his own application. Thereafter the matter proceeded in the District Court on the merits regardless of the identity of the contracting party on the Wilczynskis’ side.
Leaving aside the question whether the Wilczynskis’ complaint is a merits or jurisdictional complaint, there is no merit in the Wilczynskis’ complaint insofar as it involves the District Court.
The Wilczynskis contend that a District Court copy of record for proceeding number 1811 of 2014 shows Mr Wilczynski became a defendant on 28 February 2014 which is not true because he was added as an applicant on 20 January 2015. In relation to the date, this involves a misreading of the copy of record: the date 28 February 2014 is the date of institution of the action and does not purport to be the date when Mr Wilczynski was added as a party. In relation to the party title, this issue is essentially the same as the party title showing in ECMS addressed below.
Parties: Oknalux
The Wilczynskis contend that at all material times (essentially in January and February 2014) they dealt with Mrs Matejko and she undertook work in her capacity as a partner of Varmhus and not in her capacity as the owner and controller of Oknalux.
Leaving aside the question whether the Wilczynskis’ complaint is a merits or jurisdictional complaint, there is no merit in the Wilczynskis’ complaint.
Whatever may have been the subjective beliefs or intentions of the Wilczynskis in January and February 2014, Oknalux was joined on their application (by their lawyers) in January 2015 by the District Court as a respondent to their counterclaim on the basis that it was liable for the conduct of Mrs Matejko as its actor.
In addition, by the issue of a quotation and invoices by Oknalux and the payment by the Wilczynskis to Oknalux of monies towards amounts billed in those invoices, objectively assessed it was the parties’ intention that Mrs Matejko was acting on behalf of Oknalux in undertaking the work in January and February 2014.
Party titles
When the minor civil review was instituted in November 2014 and at all times up to 17 May 2020, the proceeding was governed procedurally by the District Court Civil Rules 2006 (SA). The proceeding was allocated number 1811 of 2014 and documents filed in the Magistrates Court were treated as having been filed in number 1811 of 2014.
From January 2015 to 17 May 2020, the party titles were as follows:
·Mrs and Mr Wilczynski were designated first and second applicants;
·Mr Banasiak, Mrs Matejko, Mr Dubec and Oknalux were designated first, second, third and fourth respondents.
On 18 May 2020, upon the introduction of the Uniform Civil Rules 2020 (SA) and the electronic court management system (ECMS), party titles of parties to a counterclaim remained the same party titles as in the claim. Party titles of existing cases were converted automatically by the ECMS system according to algorithms. These algorithms resulted in party titles being recorded in the records of outcome generated by ECMS for number 1811 of 2014 from 29 May 2020 onwards as follows:
·Mr Banasiak as the applicant (because he was the plaintiff in the Magistrates Court action and plaintiffs were now called applicants);
·Mrs Wilczynski as the first respondent (because she was the defendant in the Magistrates Court action and defendants were now called respondents);
·Mr Wilczynski as the second respondent (because he had the same party title as Mrs Wilczynski);
·Mrs Matejko, Mr Dubec and Oknalux were designated second, third and fourth applicants (because they had the same party title as Mr Banasiak).
By contrast, if the minor civil review had been instituted after 18 May 2020, when ECMS was introduced, the parties would have been shown with the same party titles as they had before the introduction of ECMS. The way in which party titles are shown in ECMS in number 1811 of 2014 is an artefact of the data migration process from the old system to the new system.
The Wilczynskis contend that the ECMS records are inconsistent with the true position and this deprives them of their rights.
On the one hand, it would have preferable if the ECMS algorithms had resulted in the parties being recorded in the same manner as before the introduction of ECMS with the Wilczynskis as applicants and the other parties as respondents.
On the other hand, the manner in which ECMS records the parties had no effect on the hearing or determination by the second Judge of the Second Review or any other substantive effect. In his reasons for judgment, the Judge described the Wilczynskis as applicants and the other parties as respondents.
The Matejko Parties agree that the ECMS record of the party titles is incorrect (although they contend, correctly, that it has had no substantive effect). Given that the parties agree, I propose to make an order by consent correcting the party titles recorded in ECMS in the minor civil review proceeding to accord with the titles before the introduction of ECMS.
Representation: Janus Lawyers
On 29 May 2020 CourtSA automatically sent an email to Janus Lawyers saying that the record of outcome [of the hearing on 29 May 2020] was now available on CourtSA by logging in and selecting case DCCIV-14-1811. This was because Janus Lawyers had filed the Civil Review Application in November 2014 and been recorded as the solicitors for the Wilczynskis. This was in fact erroneous because Janus Lawyers had been succeeded by Town & Country Lawyers and then by the Wilczynskis who became self-represented.
On 29 May 2020 Janus Lawyers was granted access to the case to ascertain why they had received the email. The granting of access automatically generated a notice of acting in the name of Janus Lawyers.
On 1 June 2020 Janus Lawyers sent an email to the Judge’s chambers explaining the above. On 2 June 2020 the Judge’s chambers responding saying that the record of outcome was sent to them in error and to disregard it.
The Wilczynskis complain about the generation of the notice of acting. It was an error that had no substantive consequences.
Erroneous references to parties in reasons or transcript
The Wilczynskis refer to errors by the Judge in describing who were the parties at certain stages of the proceedings. They refer in particular to references by the Judge to the counterclaim in the Magistrates Court being by Mr and Mrs Wilczynski when in fact it was only by Mrs Wilczynski in the Magistrates Court.
These errors were not substantive and had no substantive consequences.
The Wilczynskis refer to occasional errors by other judicial officers in the various proceedings over the years in descriptions of who were the parties, or what were their party titles, at certain stages or times of the proceedings. These are irrelevant to judicial review of the Judge’s decision. In any event they were not substantive and had no substantive consequences.
Bias
On 20 and 23 October 2020 the Wilczynskis filed interlocutory applications seeking, amongst other things, that the Judge excuse himself from the case on the ground of apprehended bias. In the Judge’s reasons for judgment delivered on 29 October 2020, the Judge declined to disqualify himself.
The Wilczynskis contend that there was a reasonable apprehension of bias and the Judge ought to have disqualified himself. I reject that contention. Although I have concluded that there were a number of jurisdictional errors made, neither individually nor collectively do they give rise to any reasonable apprehension of bias.
Judicial review: other Courts and Judges
The Magistrate
In their Judicial Review Application, the Wilczynskis identified, in accordance with subrule 256.4(1) of the Uniform Civil Rules 2020 and prescribed form 4A, the decision the subject of the application for judicial review. They identified the decision as being the decision of the second Judge made on 29 October 2020. In accordance with subrule 256.4(4), they joined the District Court as the decision maker as a respondent.
The Wilczynskis did not identify the decision of the Magistrate made on 22 October 2014 as a decision the subject of the application for judicial review, nor did they join the Magistrates Court as a respondent.
Orders 5 and 6 of the Judicial Review Application sought:
5An affirmation that the Magistrate Court incorrectly accepted the parties to the trial and ignored the fact that Ms Ewa Wilczynski was not a party to the contract with Varmhus (Ms Matejko, Mr Banasiak and Mr Dubec) and that the party to the contract with Varmhus was Mr Joseph Wilczynski.
6An affirmation that the Magistrate Court incorrectly accepted that Mr Dubec was personally responsible for the contract and damages to our house.
In their Statement of Facts, Issues and Contentions, the Wilczynskis advanced contentions in relation to order 5 (under the heading Facts) but not order 6. Similarly, they make submissions at the hearing of the judicial review action in respect of order 5 but not order 6.
It is not necessary to consider the merits of the Wilczynskis’ contentions in respect of orders 5 and 6 for the following reasons.
First, this action does not encompass an application for judicial review of the decision of the Magistrate because the Magistrate’s decision is not identified as the decision the subject of the judicial review application and the Magistrates Court is not a respondent.
Secondly, under rule 256.3 an action for judicial review must be commenced as soon as practicable, and in any event within six months, after the decision. This action was not commenced until more than six years after the Magistrate’s decision. No grounds for an extension of time have been identified.
Thirdly, the Wilczynskis adopted an alternative avenue of challenge to the Magistrate’s decision by instituting the minor civil review in the District Court.
In any event, the Wilczynskis have not adduced evidence that they applied to join Mr Wilczynski as a co-plaintiff with Mrs Wilczynski on the counterclaim against Mr Banasiak, Mr Dubec and Mrs Matejko or that the Magistrate refused such an application. Moreover, the Magistrate did not differentiate between Mr and Mrs Wilczynski in relation to the counterclaim and granted the same relief in favour of Mrs Wilczynski that he would have granted if both Mr and Mrs Wilczynski (or just Mr Wilczynski) had been the plaintiff(s) on the counterclaim.
In their submissions, the Wilczynskis make several complaints about the conduct or decision of the Magistrate outside the scope of order 5 or order 6 sought in their Judicial Review Application. It is not necessary to consider the merits of those complaints for the above reasons.
The first Judge
In their submissions, the Wilczynskis make several complaints about the conduct or decision of the first Judge.
It is not necessary to consider the merits of the Wilczynskis’ contentions for similar reasons to the first two reasons in respect of the conduct and decision of the Magistrate. In addition, the Wilczynskis already instituted a judicial review action in respect of the conduct and decision of the first Judge in 2015, which has been heard and finally determined and the decision of the first Judge has been set aside.
The first judicial review
In their submissions, the Wilczynskis make several complaints about the decision of the Judge at first instance on the first judicial review and about the decision of the Full Court.
It is not necessary to consider the merits of the Wilczynskis’ contentions for similar reasons to the first two reasons in respect of the conduct and decision of the Magistrate. In addition, a Judge of this Court has no jurisdiction to judicially review a decision of another Judge of this Court on a judicial review or of the Full Court on appeal from a decision of such a Judge.
For the sake only of clarity, I address briefly two of the complaints made by the Wilczynskis.
Parties: Varmhus
The Wilczynskis contend that, in the first judicial review, the Supreme Court at first instance and on appeal incorrectly accepted Varmhus as a party to the underlying proceeding, being an entity without legal personality.
It was the Wilczynskis who joined Varmhus as a defendant to the first judicial review action. Rules 85 and 86 of the Supreme Court Civil Rules 2006 (SA), which applied during the currency of the first judicial reviews, permitted a party to bring an action against a business name and the name of a partnership respectively. The mere fact, therefore, that a partnership does not have legal personality under the general law was not a bar to Varmhus being joined as a defendant.
In any event, Varmhus was not a party in the underlying proceedings in the Magistrates Court and District Court the subject of the first judicial review. Its joinder in the first judicial review was otiose and had no practical effect.
Costs
The Full Court made an order that each party bear their own costs of the judicial review action at first instance and of the Full Court appeal.
The Wilczynskis complain about that costs order. However, their only avenue of challenging that costs order (or other orders made by the Full Court) was to seek special leave to appeal to the High Court. They did this, and special leave to appeal was refused by the High Court.
Available remedies on judicial review
The Wilczynskis seek annulment of the second Judge’s decision, which in laypersons’ terms describes the relief available by way of certiorari of quashing a decision. For the reasons given above, the Wilczynskis have demonstrated a prima facie entitlement to such relief but it remains to consider the exercise of the discretion (which I address below).
The Wilczynskis also seek compensation from Mrs Matejko. This might be seen as their seeking a remedy by way of the payment of compensation in judicial review. Alternatively, it might be seen as their seeking relief for a standalone substantive cause of action independently of judicial review. To the extent that it might be seen as the latter, I address it at [732] and following below. To the extent that it might be seen as the former, I address it at this point.
The Wilczynskis effectively seek by way of remedy in judicial review the determination of their counterclaim and an award of damages in their favour in a manner that would avoid the necessity for a rehearing in the District Court.
I have no jurisdiction on a judicial review to determine the Wilczynskis’ counterclaim or award damages in their favour on their counterclaim. The only available relief is to set aside the second Judge’s decision and remit the matter for rehearing before a different Judge of the District Court.
It is axiomatic that on judicial review the reviewing court cannot hear or determine the merits of the subject of the impugned decision. In Craig v The State of South Australia[80] Brennan, Deane, Toohey, Gaudron and McHugh JJ said:
… certiorari … is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision …”.[81]
[80] (1995) 184 CLR 163.
[81] At 175.
In Igoe v Ryan (No 2)[82] Logan J said:
It is no part of that remedy that the superior court may substitute its own opinion for that of the inferior court or tribunal.[83]
[82] [2020] FCA 1091.
[83] At [50].
In any event, even if I had jurisdiction on a judicial review to determine the Wilczynskis’ counterclaim, I do not have before me the material that would be needed to do so for the very reasons why the Wilczynskis have succeeded on the judicial review.
Non-judicial review claims
Compensation
In their Judicial Review Application, the Wilczynskis seek the following orders for compensation:
10Reimbursement of costs and losses to which we were exposed by the Courts, the Court Administration, Ms Matejko as Varmhus and as Oknalux, in total $166,895.01 plus interest by the State and Ms Matejko as Varmhus and as Oknalux.
11Compensation for my wife’s business losses and my professional losses of approximately $300,000.00 as a result of unfair trials and excessive length of court proceedings from by the State and Ms Matejko as Varmhus and as Oknalux.
12Compensation to be assessed for protracted lawsuits; exposure to un-due stress, humiliation and intimidation; and disruption to our private lives for seven years from by the State and Ms Matejko as Varmhus and as Oknalux.
In their interlocutory application dated 12 July 2021 (FDN24), which was referred for determination by the trial Judge, the Wilczynskis seek the following orders for compensation:
1Compensation for the violation of our rights to fair trials in the courts (SCCIV-15-1564 and DCCIV-14-1811) with [the second Judge] by Ms Matejko (as Ms Matejko).
2Compensation for the violation of our personal rights, violation of our personal, private and family life by Ms Matejko (as Ms Matejko).
3Compensation for the violation of our personal interest in court proceedings, our good name and dignity, which exposed us to unfair, long-term court trials by Ms Matejko (as Ms Matejko).
4Compensation for exposing us to many years of extreme stress by Ms Matejko (as Ms Matejko)
5Compensation of violation of the legal order and unlawful takeover of Varmhus as a party to the proceedings by the Supreme Court SCCIV-15-1564.

An application for the payment of compensation cannot be made by an interlocutory application but only by originating process (a claim or originating application). I will treat the interlocutory application (in favour of the Wilczynskis) as an application for leave to amend the Judicial Review Originating Documents to include seeking orders for compensation in terms of orders 1 to 5.
I address these claims for compensation at this point as seeking relief for a standalone substantive cause of action independently of judicial review.
Claims against Mrs Matejko
I deal first with the orders sought insofar as they are sought against Mrs Matejko (orders 10 to 12 in the Judicial Review Application and orders 1 to 4 in the interlocutory application).
I have no jurisdiction to order the payment of compensation by Mrs Matejko in this judicial review action for the following reasons.
First, actions for judicial review are governed by Chapter 20 Part 6 of the Uniform Civil Rules 2020. Such applications are required by rule 256.4 to be instituted by originating application (rather than claim), the originating application is required to be in prescribed form 4A, be accompanied by a statement of facts issues and contentions in prescribed form 4S and be supported by an affidavit addressing the matters listed in subrule (3).
Subrule 256.4(7) contemplates joinder with a judicial review application of a substantive claim but only if the substantive claim is in respect of the same decision the subject of the judicial review application.
The claims for compensation made against Mrs Matejko are in respect of her own conduct and not in respect of the decision of the second Judge the subject of the judicial review application.
Secondly, when subrule 256.4(7) applies, the applicant must institute the proceeding by a Claim (not an Originating Application) supported by a statement of claim. Under subrule 63.1(6), a statement of claim must be in prescribed form 1S and comply with the pleading rules in Chapter 7 Part 3. These require that the statement of claim identify the cause or causes of action relied upon, set out the affirmative facts relied on by the applicant to establish their claim and give fair notice of the applicant’s case to the respondent so as to avoid the respondent being taken by surprise at or in preparation for trial.
The Wilczynskis did not file a Claim or statement of claim. As a matter of substance, they did not identify any causes of action or set out in the Judicial Review Originating Documents acts capable of comprising a cause of action against Mrs Matejko.
For the above reasons, it is not necessary to consider the merits of the claims and proposed claims for compensation against Mrs Matejko in the orders sought. However, I observe that in any event the Wilczynskis have not proved facts giving rise to a cause of action for compensation against Mrs Matejko.
Claims against the State
I deal next with the orders sought insofar as they are sought against the State (orders 10 to 12 in the judicial review application and order 5 in the interlocutory application).
I have no jurisdiction to order the payment of compensation by the State in this judicial review action for the following reasons.
First, the State is not a party to this action. In order to seek orders for the payment of compensation by the State, it would have been necessary for the Wilczynskis to join the State as a respondent to the action.
I note for completeness that the District Court is a respondent in its capacity as the decision maker for the purpose of the judicial review application. However, the Wilczynskis do not seek orders for payment of compensation by the District Court: rather they seek such orders against the State and in respect also of conduct of Courts other than the District Court. Moreover, the District Court is not a separate legal entity from the State for the purpose of seeking compensation: any claim for compensation must necessarily be made against the State.
Secondly, as observed above, although subrule 256.4(7) of the Uniform Civil Rules 2020 contemplates joinder with a judicial review application of a substantive claim, this is only if the substantive claim is in respect of the same decision the subject of the judicial review application.
The claims for compensation against the State might arguably in one sense be said to encompass claims in respect of the decision of the second Judge made on 29 October 2020. However, they relate to conduct by three Courts over seven years from 2014 to 2020 and do not therefore relate specifically to the decision of the second Judge. They therefore do not comply with subrule 256.4(7).
Thirdly, the Wilczynskis did not file a Claim or statement of claim. As a matter of substance, they did not identify any causes of action or set out in the Judicial Review Originating Documents acts capable of comprising a cause of action against the State.
For the above reasons, it is not necessary to consider the merits of the claims and proposed claims for compensation against the State in the orders sought. However, I observe that in any event the Wilczynskis have not proved facts giving rise to a cause of action for compensation against the State.
Affirmations and confirmations
In their Judicial Review Application, the Wilczynskis seek the following orders for affirmations or confirmations (excluding orders 5 and 6 addressed above):
1An affirmation of who initiated the Court Hearing in the DCCIV-14-1811 case (in 2020) and on what legal bases.
2An affirmation that [the second Judge] in reviewing and affirming His Decision erred in failing to afford us procedural fairness. Annulment of the entire decision.
3An affirmation that the Judgment [of the second Judge] was issued without legal basis, in gross violation of the Law and contrary to the Judgement of the Full Court.
4An affirmation that the Court cannot adjudicate on the basis of the court documentation which, as a result of the negligence of the judicial administration, is inconsistent with the factual and legal status.
7An affirmation that the Court and the Court Administration has deprived us of the ability to defend our rights.
8Confirmation of excessive length of court proceedings.
9Confirmation of incorrect recognition by the Courts of the parties to the proceedings and the scope of the case.
In their interlocutory application dated 12 July 2021 (FDN24), which was referred for determination by the trial Judge, the Wilczynskis seek the following orders for affirmations or confirmations:
5Confirmation of violation of the legal order and unlawful takeover of Varmhus as a party to the proceedings by the Supreme Court SCCIV-15-1564
6An affirmation that the courts committed an error in the determination of the facts of the case and incorrectly accepted the parties to the trial, and erroneously qualified the case as a minor civil case.
7An affirmation that the Court SCCIV-15-1564 committed an error and violated our rights by refusing us an interpreter during the hearing and mediation on 5.04.2017.
I will treat the interlocutory application (in favour of the Wilczynskis) as an application for leave to amend the Judicial Review Originating Documents to include seeking orders for affirmations or confirmations in terms of the orders sought 5 to 7.
Some of the orders sought might be characterised as seeking declarations (such as order 6 sought in the interlocutory application). Some of the orders sought are linked to the application for judicial review of the second Judge’s decision (such as orders 2 and 3 sought in the originating application). Some of the orders sought might be characterised as seeking findings as opposed to final orders (such as orders 1 and 8 sought in the originating application).
In relation to order 1 sought in the originating application, I have addressed above the question who initiated the Second Review and on what basis. There is no reason to make a declaration or any other order in relation to that question.
In relation to orders 2 and 3 sought in the originating application, these essentially relate to the application for judicial review. I defer consideration whether any declaration should be made on that application until considering the exercise of the discretion.
In relation to order 4 sought in the originating application, is not clear to which Court reference is intended to be made. I take it to refer to this Court on the judicial review. It is not correct that the Court cannot adjudicate on the basis of the court documentation.
In relation to orders 7 to 9 sought in the originating application and orders 6 and 7 sought in the interlocutory application, these might relate to the application for judicial review. To that extent, I defer consideration whether any declaration should be made on that application until considering the exercise of the discretion. To the extent that the Wilczynskis seek a declaration independently of judicial review, it is inappropriate to make such a declaration for similar reasons to those in relation to the claims for compensation.
In relation to order 5 sought in the interlocutory application, I have addressed the joinder of Varmhus as a respondent to the first judicial review action by the Wilczynskis above. There is no basis for a finding or declaration as sought.
Insofar as any of the orders sought seek findings, where relevant I have made findings above.
Insofar as any of the orders seek declarations independently of the judicial review, the Wilczynskis have not established a basis for making them.
Other orders
In their Judicial Review Application, the Wilczynskis seek the following orders:
13Restoration of the factual and legal status of court documentation from 2014-2021 before the Supreme Court hearing for CIV-21-000033.
15Correctly define the parties to the process in accordance with the Judgment of the Full Court.
16Correctly define the parties to the appeal from the Decision of the Magistrates Court ELCI-14-3109 in accordance with the Judgment of the Full Court.
17Establishing the factual status of the scope of the cases.
In relation to order 13 sought, I will hear submissions from the parties on whether the party titles of the parties in the minor civil review in ECMS should be adjusted to match the party titles as recorded before the introduction of ECMS. Otherwise, there is no basis for making any orders sought.
In relation to orders 15, 16 and 17 sought, to the extent relevant and necessary, I have addressed these matters in making my findings above. There is no basis for making orders in respect of these matters.
Conclusion on judicial review
I have concluded above that several material jurisdictional errors were made in the hearing and determination of the Second Review. Ordinarily, the consequence of finding that a decision was vitiated by material jurisdictional errors is that the decision is set aside and the matter remitted for fresh determination (in this case to a different Judge of the District Court).
The Matejko Parties submit that if, contrary to their principal submissions, jurisdictional errors were made, nevertheless the Court should exercise its discretion not to set aside the decision of the second Judge. Before considering this submission, I identify briefly what will be involved if the matter is remitted for rehearing before a different Judge.
Remission for rehearing
If the matter is remitted, the Judge to whom the matter is assigned will need to review the decision of the Magistrate on the Varmhus claims and determine the Matejko claims.
I have referred above to some if not all of the liability issues that will need to be determined. Although I have concluded that the Wilczynskis’ contentions in various respects are reasonably arguable, this in no sense entails that they will succeed on those issues. It will be the exclusive province of the Judge who hears the matter on remission to determine those issues.
Likewise, it will be the province of Judge who hears the matter to determine to what remedies, if any, the Wilczynskis are entitled if they were to succeed on liability. I make some brief remarks about the potential scope of the remedies.
First, as explained above, the jurisdiction of the District Court to award damages in favour of the Wilczynskis if they succeed on liability on their claims will be capped by the Act at $25,000 plus interest plus costs.
Secondly, if the Wilczynskis were to succeed on every one of their claims (as to which I express no opinion), subject to three potential qualifications, they are unlikely to recover more than the total they have expended. This does not mean that they would recover any or all that they have expended (in excess of the judgment granted by the Magistrate) but it is the likely maximum. On the material before the second Judge, it appears that the total amount expended by the Wilczynskis was total as follows:
·$2,200 paid to Varmus for supply of the original doors;
·$5,390 paid to Varmus for supply of the windows;
·$2,456.36 paid to Oknalux;
·$2,035 paid or payable to G & SR Mitchell;
·$627 paid or payable to Stan The Handyman Service;
·$55.91 being the amount of four receipts.
The first potential qualification is that, if the Wilczynskis were to succeed in their claims in respect of the sliding doors, they might in theory also recover the excess (if any) of the amount paid to Australian Window Solutions to replace them over the amount paid or payable to Varmhus or Oknalux for the original doors or the second doors respectively. However, they appear to have paid $2,169.90 to Australian Window Solutions, which is less than the contractual price of the original doors or the second doors.
The second potential qualification is that, if it were found to be not unreasonable for the Wilczynskis to have the windows removed and refitted to rectify a breach of contract by Varmhus or Oknalux in respect of the windows, they might in theory also recover the excess of the amount quoted by Australian Window Solutions to remove and refit the windows ($3,960) over the contractual price for Varmhus to install the windows (say $1,200 allocated to window installation out of $1,760).
The third potential qualification is that, if the Wilczynskis were to succeed completely in their Varmhus claims in respect of the supply of the windows and if the cost of replacement of the windows exceeded the Varmhus contractual price of $5,390, the Wilczynskis might in theory recover the difference. However, as observed above, the Wilczynskis have not apparently replaced the windows, nor have they obtained a quotation to do so.
It is difficult to conceive that the Wilczynskis could recover any damages on account of diminution of value of their house because they are obliged to mitigate their damages by undertaking rectification works which would ensure that there would be no diminution of value.
Thirdly, the costs recoverable by the Wilczynskis if successful would be limited. Prima facie they would recover disbursements such as filing fees, expert report fees and expert witness fees and witness fees for themselves. They would not recover legal costs except the costs on the relevant scale of filing the Civil Review Application. On no account could they recover the costs of the first judicial review or the appeal to the Full Court because the Full Court ordered that each party bear their own costs of the proceedings.
Remedy and discretion
The grant of a remedy on judicial review is discretionary.
As observed above, the Wilczynskis informed me during the hearing that they had lost faith in the judicial system and did not want a rehearing of the minor civil review. Nevertheless they chose to proceed with the judicial review having been told that this was the only available remedy if they succeed in this action. I will give them an opportunity to make a final decision whether they seek an order setting aside the Judge’s decision and for remittal in light of my reasons for judgment before making final orders.
The Matejko Parties submit that the Court should exercise its discretion not to set aside the decision of the second Judge. I deal with the exercise of the discretion on the assumption that the Wilczynskis do seek an order for set aside and remittal.
The Matejko Parties refer to the nature of the minor civil jurisdiction exercised at first instance by the Magistrate and on review by the District Court referred to above, being designed to determine disputes in a simple, practical, time and cost efficient manner.
The Matejko Parties refer to the fact that the resources already directed to this matter historically have been utterly disproportionate to the amount in dispute; the litigation has now extended over eight years; the Wilczynskis have focused throughout the litigation not only on the issues the subject of the claim but also on extraneous matters; and the Wilczynskis were reluctant applicants during the Second Review process.
The Matejko Parties also refer to the principle of finality, citing the decision of the Full Court in Wilson Pastoral International Pty Ltd v George Street Steel Pty Ltd (No 2)[84] in the context of an application to reopen costs orders made on the final disposition of an appeal.
[84] [2020] SASCFC 26.
Dealing first with the principle of finality, that principle is the rationale for the Court possessing a discretion not to grant relief by way of certiorari despite the fact that a material jurisdictional error has been established. However, it does not have the same weight in the context of judicial review as it has in the context of an application to reopen a final judgment on appeal as was considered by the Full Court in Wilson Pastoral.
I accept that the time and cost expended in this litigation is completely disproportionate to the amount in dispute. I have addressed above the likely best result that the Wilczynskis could achieve if they were to succeed on a remission of the minor civil review. The combined past legal costs expended by the parties in the litigation are many times the amount in dispute. I take this into account.
If there had been only one or two jurisdictional errors with limited consequences, I would have exercised the discretion not to set aside the Judge’s decision. However, there are multiple material jurisdictional errors which had a pervasive effect on the hearing and determination of the minor civil review.
I take into account the fact that, if the decision of the Judge is set aside and the matter remitted to the District Court for hearing before another Judge, the parties will be self-represented. They will therefore not incur further legal costs, although there will be emotional costs and the costs of their own time. The past legal costs have been lost to the parties regardless of the manner in which I exercise my discretion on this judicial review.
The jurisdictional errors which I have found were made are such that it would be inappropriate to exercise the discretion not to set aside the Judge’s decision and remit the matter for rehearing if the Wilczynskis wish to pursue that course.
Turning to the declarations sought by the Wilczynskis, ordinarily when certiorari is granted, the Court does not grant declarations as to the basis on which certiorari is granted because it is unnecessary. This applies in the present case. I decline to make any declarations as sought by the Wilczynskis.
I will hear the parties as to the final orders to be made in light of my reasons for judgment.

[2022] SASC 115

13 October 2022