Wilczynski v District Court of South Australia - [2016] SASC 51

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
WILCZYNSKI & ANOR v DISTRICT COURT OF SOUTH AUSTRALIA & ORS
[2016] SASC 51
Judgment of The Honourable Justice Doyle
20 April 2016
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS
The plaintiffs sought judicial review of a decision of a District Court Judge affirming the earlier decision of a Magistrate in respect of a minor civil claim. The plaintiffs complained that the Judge erred in failing to afford them procedural fairness. In particular, the plaintiffs complained that there was a failure because the Judge failed to admit new expert evidence, failed to inquire into potential inconsistencies, and did not provide the plaintiffs with a reasonable opportunity to present their case.
Held (per Doyle J), dismissing the application:
1. The Judge did not fail to afford procedural fairness or otherwise make any relevant error.
Building Work Contractors Act 1995 (SA) s 6; Magistrates Court Act 1991 (SA) s 38, referred to.
Harradine v District Court of South Australia (2012) 280 LSJS 572; Lawrence v Sambevski (1996) 189 LSJS 451, discussed.
Kedem v Johnson Lawyers Legal Practice Pty Ltd (2014) 121 SASR 118, considered.

WILCZYNSKI & ANOR v DISTRICT COURT OF SOUTH AUSTRALIA & ORS
[2016] SASC 51
Civil.
DOYLE J:

The plaintiffs, Mr and Mrs Wilczynski, seek judicial review of a decision of a District Court Judge affirming the earlier decision of a Magistrate in respect of a minor civil claim. The essence of the plaintiffs’ complaint is that the Judge erred in failing to afford them procedural fairness in his review of the Magistrate’s decision.
In order to determine this matter it is necessary to set out the procedural background in some detail. But before doing so, and by way of overview, the dispute the subject of these proceedings arises out of the supply and installation of some replacement double glazed windows and doors at the plaintiffs’ house.
The plaintiffs initially contracted in September 2013 for the supply of the windows and doors with a business, trading under the name Varmhus and operated through a partnership consisting of Mr Banasiak, Ms Matejko and Mr Dubec. The only written evidence of the supply contract was an invoice dated 9 September 2013 for $7,590.
Before the windows and doors were ordered from Poland, Ms Matejko took some approximate measurements at the plaintiffs’ house. Mr Banasiak, or someone acting for him, took the final measurements before the order was sent. The doors and windows arrived in Australia and were delivered to the plaintiffs who paid the invoice in two instalments.
Mr Banasiak began installing the windows and doors in January 2014. However, before he completed the work a dispute arose between him and Mrs Wilczynski. Mrs Wilczynski claimed she told him to stop the installation because the windows were too small for the openings left after the old windows were removed. Mr Banasiak maintains that the dispute arose because of an issue concerning the door. In any event, Mr Banasiak’s installation work ceased before it was completed. He rendered an invoice for $1,760 in the name of Varmhus, dated 9 January 2014. The plaintiffs did not pay this invoice.
By the time of this second invoice, Ms Matejko was no longer a partner of the Varmhus business, having left the partnership in November 2013.
As will be explained later, the Magistrate and Judge treated the two invoices as relating to two separate contracts: a supply contract evidenced by the 9 September 2013 invoice, and an installation contract evidenced by the 9 January 2014 invoice. Given the timing of Ms Matejko’s departure from the Varmhus partnership, she was a party to the supply contract but not the installation contract.
Mr Dubec and Mr Banasiak remained partners of Varmhus at all relevant times and so were parties to both contracts. However, Mr Dubec has been in Poland at all relevant times, and hence took no part in the supply and installation work, or the subsequent court proceedings.
After Mr Banasiak had ceased his installation work, Mrs Wilczynski contacted Ms Matejko, who by then was operating her own business through Oknalux Pty Ltd. Ms Matejko inspected the work done by Mr Banasiak and said it was unacceptable. Ms Matejko, through Oknalux, completed the installation of the windows and doors by March 2014. While Ms Matejko regarded the installation as properly done once her work was completed, the plaintiffs continued to assert deficiencies in the work done.
It is accepted that the installation arranged by Ms Matejko was undertaken through Oknalux, and not in her capacity as a (former) partner of Varmhus. Oknalux invoiced for this installation work, although it appears that the plaintiffs did not pay the entire invoiced amount. In any event, Oknalux makes no claim in these proceedings.
The Magistrates Court proceedings
On 28 February 2014, Mr Banasiak commenced a minor civil claim in the Magistrates Court against Mrs Wilczynski in respect of the second invoice amount of $1,760.
On 21 March 2014, Mrs Wilczynski filed a defence and counterclaim in the Magistrates Court. In her defence, Mrs Wilczynski alleged that the work carried out by Mr Banasiak was defective. In particular, she alleged that the windows installed were of the incorrect size, and that parts of the window frames were exposed such that it was necessary to pay another contractor $3,398.26 to finish the works. She also alleged that Mr Banasiak did not have the necessary qualifications or certifications. In her counterclaim, Mrs Wilczynski sought a refund of the $7,590 paid for the windows and doors, plus payment of the cost of $3,398.26 incurred to finish or rectify the installation. She also sought “removal of the incorrectly ordered windows and doors from our property by Varmhus”.
In support of both the defence and counterclaim, Mrs Wilczynski listed seven defects or complaints:
1.   Incorrect measurement of the windows, resulting in windows that were too small.
2.   The windows were mounted defectively, with gaps between the window frames and surrounding building.
3.   Inappropriate material used to seal the windows.
4.   The screws securing the windows to the building were too short.
5.   The windows were not properly supported using support blocks.
6.   The installation did not comply with the relevant European standards.
7.   The plaintiffs stood to lose their warranty on the windows due to poor installation.
Mrs Wilczynski obtained two reports in support of her allegations as to the defective installation work. The first was dated 4 June 2014 from Mr Waring of Australian Window Solutions. The second was a joint report dated 21 July 2014 from Mr Jankovic and Mr Effingham of SA Building Consultants.
The trial was originally listed for hearing on 23 July 2014, but on that day Mr Banasiak was unwell and could not attend. Mrs Wilczynski, together with her witness, Mr Effingham (a licensed builder, and co-author of the 21 July 2014 report), did attend. The Magistrate took evidence from Mr Effingham and received his report, before adjourning the matter to 18 September 2014. His Honour noted that Mr Banasiak would be entitled to comment on the report on that occasion. The Magistrate also gave Mrs Wilczynski leave to join Ms Matejko and Mr Dubec as additional defendants to the counterclaim.
An amended defence and counterclaim was filed on 23 July 2014, which named each of Mr Banasiak, Ms Matejko and Mr Dubec as defendants to the counterclaim.
The matter came on for trial on 18 September 2014. Mr Banasiak, Mr and Mrs Wilczynski, and Ms Matejko attended. Polish interpreters were used. The tape of Mr Effingham’s evidence was played. The Magistrate proceeded to hear evidence and submissions from the parties, although the transcript suggests the hearing was largely conducted in an inquisitorial fashion by the Magistrate. His Honour received a number of exhibits, including the two reports I have mentioned.
The Magistrate reserved judgment. After he had done so, Mrs Wilczynski sought to place further material before him, and in particular, a further report from SA Building Consultants dated 13 October 2014. The Magistrate declined to receive this report.
The Magistrate delivered his reasons on 22 October 2014. The effect of his decision was to dismiss Mr Banasiak’s claim, and allow Mrs Wilczynski’s counterclaim, but only in part and only as against Mr Banasiak and Mr Dubec (and not against Ms Matejko).
The Magistrate largely rejected the complaints made by Mrs Wilczynski of defective work. He commenced by noting that the measurements were made by Mr Banasiak, with Ms Matejko’s involvement at that stage being confined to verifying the order and not the correctness of the measurements. His Honour also noted the need for the replacement windows to be smaller than the openings they were designed to fit. The Magistrate then turned to the evidence in relation to the alleged defects, and in particular the 23 July 2014 report of Mr Effingham. The Magistrate’s reasons for largely rejecting Mrs Wilczynski’s complaints were as follows:
Mr Effingham noted in his report (3.3.1.1) that generally the installed windows had a consistent gap of 10 mm on all four sides. He went on to say that this was considered poor workmanship but did not indicate that there was any further problem with this gap. Notwithstanding Mr Effingham’s remarks on this issue, I do not accept that a gap of 10 mm is excessive.
Mr Effingham also claimed that the external baton covers used to finish the window installation and shown in photographs 3 and 14 restrict design weep holes in the windowsills, an objection I do not accept. Mr Effingham concluded in 3.3.1.7 of his report that:
As the windows were to be manufactured to match the existing openings, we are advised, the windows do not comply with the owner’s expectations.
However, he did not say that the finished job was unsatisfactory and did not appear to dissent from my observation in relation to photographs 3 and 14, that the end result appeared satisfactory.
Photographs 9, 10 and 11 show how the windows were left when Mrs Wilczynski ordered Mr Banasiak to cease working. After that time, Ms Matejko’s workmen cut back the foam and applied the baton trims shown in photographs 3 and 14 leading to what appears to me to be a satisfactory outcome.
At one stage I took Mrs Wilczynski to be suggesting that because the windows did not completely fill the space created by the structural brickwork around the window openings that, that brickwork had cracked. If that was suggested, there is no support for it. The brickwork around the windows is self-supporting. The windows themselves are non-structural members. The size of the windows has no bearing on any cracking around them.
In s.3.3.3 of his report, Mr Effingham referred to photographs 1-6 which reveal cracking in the external brick reveals. He determined that this occurred when the existing windows were removed. I accept this criticism. I am not convinced the cracking is other than cosmetic.
The basis for dismissing Mr Banasiak’s claim was that because he did not hold a builder’s licence he was prohibited from recovering the contract price, by reason of s 6 of the Building Work Contractors Act 1995 (SA). The Magistrate held that Mr Banasiak was entitled to recover, on a quantum meruit basis, the value of the work done and the windows supplied. However, because the installation was completed by Oknalux for more than the amount of the outstanding invoice, his Honour found that the value of the work done by Mr Banasiak did not exceed the amount he had already been paid.
Turning to the counterclaim, the Magistrate reasoned:
For the reasons I have already given I reject Mrs Wilczynski’s claim for the value of the windows. The windows are adequate for their designed purpose and the final installation is satisfactory to my eye. Other than observing that ‘the windows do not comply with the owner’s expectations’ I do not take Mr Effingham to be dissenting from this position.
The Magistrate did, however, allow the counterclaim to the extent of $3,177.35. This was the total of two amounts, namely $1,142.35 and $2,035. The first amount was calculated on the basis that Mrs Wilczynski had a contractual entitlement to have the windows and doors installed for the amount paid to Varmhus, plus the amount outstanding of $1,760. As Mrs Wilczynski owed $2,902.35 to Oknalux for this work (which the Magistrate considered she should pay), she was entitled to recover from the partners of Varmhus the difference between the amount owing to Oknalux ($2,902.35) and what Mrs Wilczynski should have had left to pay ($1,760), that is, $1,142.35. The second amount was the quoted price to repair the brick reveals, in accordance with Mr Effingham’s report. While a claim for this amount had not been pleaded, the Magistrate did not consider that Mr Banasiak would be procedurally disadvantaged by allowing what would have been in effect a late amendment to the counterclaim.
Finally, the Magistrate held that the counterclaim was only allowed as against the first and third defendants by counterclaim (Mr Banasiak and Mr Dubec). The Magistrate’s reason for excluding Ms Matejko was that she was not a partner of Varmhus at the time of the installation work in January 2014. His Honour reasoned that it was this work which was the subject of Mr Banasiak’s claim; that it “was not part of the original tax invoice 5109 but apparently a separate contract for the installation of the windows”.
The District Court review proceedings
On 11 November 2014, Mrs Wilczynski filed documents seeking a review of the Magistrate’s decision under s 38(7) of the Magistrates Court Act. I shall return to the nature of the review process in due course.
Mrs Wilczynski’s application for review and written case were filed and (apparently) prepared by a solicitor then acting for her, although on the hearing the plaintiffs and Ms Matejko appeared in person.
Mrs Wilczynski’s application sought orders joining Mr Wilczynski as a joint applicant, and Oknalux as an additional respondent. It also sought an order that the respondents (Mr Banasiak, Ms Matejko, Mr Dubec and Oknalux) pay Mr and Mrs Wilczynski $12,441.36 comprising the amounts paid to Varmhus of $7,950 and Oknalux of $2,456.36, plus $2,035 on account of the quoted repair works, plus interest and costs. The application document detailed various asserted errors on the part of the Magistrate, including that his Honour erred in rejecting the allegations of defective windows and workmanship, and in finding that Ms Matjeko was not liable to pay damages by reason of her having ceased to be a partner.
The application was listed for hearing on 20 January 2015. On 19 January 2015, Mrs Wilczynski filed her “written case”. This document elaborated upon the alleged errors made by the Magistrate. It also foreshadowed reliance upon “additional evidence” in the form of five documents:
1.   A report dated 13 October 2014 from SA Building Consultants. This was the report that was provided to the Magistrate after he had reserved his decision but which he declined to receive.
2.   A report dated 15 January 2015 from SA Building Consultants. This was a further report as to the alleged deficiencies in the installation work, including allegations in relation to the doors as well as windows.
3.   A quotation dated 20 December 2014 from Sebastian Ungier. This was a quote for $627 to “repair floors damaged by faulty installation of doors”.
4.   A letter dated 8 January 2015 from Fountain Valley Medical Centre, relating to an injury the plaintiffs’ daughter apparently suffered when the door came off its tracks.
5.   A quotation dated 13 January 2015 from Australian Window Solutions for $3,600 plus GST to “remove, clean and refit” the double glazed windows.
While the allegations in relation to the defective installation of the windows were essentially the same as those made before the Magistrate, the allegations in relation to the doors (at least in so far as they extended to cracking in the frame and the door coming off its tracks) went beyond those made before the Magistrate.
The District Court hearing of the application commenced on 20 January 2015. As mentioned, the plaintiffs and Ms Matejko, were present. There was no appearance from Mr Banasiak or Mr Dubec, although his Honour was satisfied that appropriate efforts had been made to serve them. As there was no objection, his Honour at the outset made orders joining Mr Wilczynski and Oknalux as parties. Mrs Wilczynski was assisted during the course of the hearing by an interpreter.
During the course of submission by both parties, there was initially some confusion about whether Ms Matejko had seen all of the material upon which the Magistrate relied, including the expert evidence. She was given a short adjournment to consider the material. The hearing then resumed, and further submissions were made in relation to the alleged defects and more generally. However, it then became apparent that Ms Matejko wished to rely upon information she had not given to the plaintiffs ahead of the hearing. The Judge adjourned the hearing to 23 January 2015, with a direction that Ms Matejko provided the plaintiffs with a copy of all material she intended to rely upon.
On 22 January 2015, Ms Matejko filed and served her “written case”. Mr and Mrs Wilczynski only received this approximately 20 hours before the hearing resumed at midday on 23 January 2015. Ms Matejko’s written case was a five page document. It commenced by noting that Ms Matejko claimed to be qualified and accredited to comment on the reports by Mr Jankovic (of SA Building Consultants) and Mr Waring. The document then set out the various criticisms made by Mr Jankovic and Mr Waring and provided responses to them, in part pointing out limitations in the reports, in part referring to observations made by the Magistrate, and in part by reference to Ms Matejko’s own views. The document was largely in the nature of submission, although it did contain some statements which were in the nature of evidence from Ms Matejko.
The hearing resumed on 23 January 2015. Further submissions were made by the parties as to the alleged defects in the work done, and more generally. While Mr and Mrs Wilczynski did not in terms object to Ms Matejko relying upon her “written case” document, or seek an adjournment to have further time to consider it, Mr Wilczynski did make reference to it being “a little bit late to have this report”. He went on to challenge the expertise of Ms Matejko and to challenge some of the views that she expressed.
Having reserved judgment on 23 January 2015, the Judge delivered his reasons on 1 May 2015.
The District Court Judge’s reasons
The Judge’s reasons summarised the procedural and factual background, including the trial before the Magistrate. The Judge noted the paucity of evidence as to the identity of the contracting parties. In relation to the installation work, the only documentary evidence was the 9 January 2014 invoice for $1,760 rendered by Varmhus. As Ms Matejko had ceased to be a partner of Varmhus by the time of this invoice, his Honour was not satisfied that she was a party to any contract for the installation work.
Turning to the evidence in relation to the alleged defects, the Judge said:
The Magistrate made no findings about the reliability or credibility of the witnesses and was clearly in a better position to do so than I am. But I have read the transcript and had the opportunity to make some assessment of Mr and Mrs Wilczynski and Ms Matejko when they made submissions before me on review. Mr Wilczynski was not able to be of much assistance; he generally supported his wife. From my reading of the transcript, Mrs Wilczynski was at times evasive before the Magistrate and shifted her ground. She back-tracked in her evidence about whether or not she had paid a particular invoice and insisted that her “experts” had said that the windows and doors must be removed and replaced when their reports contain no such assertion. In my view, she has exaggerated her claims.
Ms Matejko, before me, made submissions in a calm and measured fashion. It seems to me that she tried to give clear and straightforward evidence before the Magistrate. She was at a significant disadvantage as, during the trial, she did not see either of the experts’ reports before the Magistrate. I am making no criticism of the Magistrate; he probably did not realise that Ms Matejko had not seen them. I turn to those reports.
I have already referred to Mr Effingham’s. He attended at the Wilczynski house on behalf of SA Building Consultants, a business which supplied a written report to the court. The report is signed by Peter Jankovic who, I suppose, is a principal of the firm. Mr Jankovic did not himself inspect the work. Mr Effingham was generally critical of the installation work. In particular, he was critical of the length of screws used in some places; of a door which could not be closed easily and was too close to the floor; of the size of gaps around the windows; of restrictions in design weep holes; and of damage to brick reveals. He asserted that the glazing did not comply with Australian Building Code requirements. In forming some of his opinions, it is clear that Mr Effingham was relying on assertions made to him by Mr and Mrs Wilczynski. He did not say that the doors and windows had to be replaced. He was not available for cross-examination at trial and there is no record showing that he was made available for cross-examination on the occasion on which his evidence was taped.
The other report was prepared by Mr Stuart Waring from Australian Window Solutions, Oknalux’s chief competitor. It does not appear that Mr Waring inspected the doors and windows. His report refers to “Dean’s visit”. His report is, generally, in very guarded terms. For example, he says that the damaged bricks “possibly” suggest inexperience, that (one aspect of the window installation) “may” lead to operational problems. Again, he does not give a firm opinion that the windows and doors must be replaced. Mr Waring was not in court and was not available for cross-examination. Ms Matejko did not see his report until the matter was before me on review.
…
In his judgment, the Magistrate did not refer to Mr Waring’s report. He considered Mr Effingham’s evidence and report but did not accept all of it. His Honour emphasised that Mr Effingham did not say that the finished job was unsatisfactory and went on to note that Mr Effingham did not appear to dissent from the Magistrate’s observation that, from photographs, the end result appeared satisfactory. I take that to mean that, when Mr Effingham was before the court on the occasion on which his evidence was taped, the Magistrate gave Mr Effingham the opportunity to comment on the finished job. His Honour accepted Mr Effingham’s evidence that cracking in the brick reveals was caused when the existing windows were removed.
The Magistrate found that Mr Banasiak was not in breach of contract but, because the work was completed by Oknalux for more than the amount of Mr Banasiak’s outstanding invoice, he dismissed Mr Banasiak’s claim. There has been no challenge to that finding and I say no more about it.
Dealing with the counter claim, the Magistrate found that the windows were adequate for their designed purpose and that the final installation was satisfactory to his eye. I have read that last comment in light of what I have already said about Mr Effingham’s having been given the chance to comment on his Honour’s opinion.

It is apparent from this that the Judge not only reviewed the Magistrate’s approach to the evidence, but also made his own assessment of it, agreeing with the conclusions reached by the Magistrate as to the outcome of both Mr Banasiak’s claim and the plaintiffs’ counterclaim.
The Judge referred to the plaintiffs’ attempts to rely upon the 13 October 2014 report from SA Building Consultants, which was provided to the Magistrate after he had reserved judgment. The Judge held that the Magistrate was correct to refuse to receive this report, reasoning that: “[t]he matter was before him as a minor civil action and Mr and Mrs Wilczynski had had adequate opportunity to put before the court at trial any material they thought relevant.” The Judge also referred to the plaintiffs’ request that he receive further material, namely the five documents referred to earlier in these reasons. The Judge declined to receive that material. He said:
On the application for review, Mr and Mrs Wilczynski asked me to receive further material, including further reports from SA Building Consultants. I decline to receive them. As I said earlier, the Wilczynskis have had adequate opportunity to put material before the court. While I accept that English is not their first language and that Mrs Wilczynski required the services of an interpreter before the Magistrate and before me, I do not accept that she was disadvantaged in the court below and that she did not adequately understand the proceedings. She had had plenty of time to prepare her case.
In rejecting the plaintiffs’ challenge to the Magistrate’s rejection of their complaints of defects, the Judge explained:
Mr and Mrs Wilczynski’s chief submission on review was that the Magistrate was in error in failing to accept what they described as the “uncontested” expert reports. Those reports were not uncontested. Ms Matejko, in particular, has not accepted the opinions of Mr Effingham and Mr Waring. She had not even seen Mr Waring’s report before the matter was in this Court and, as I have mentioned, she does not appear to have been given an opportunity to cross-examine Mr Effingham. It was quite apparent from her submissions before me that she hotly disputes some of the opinions in those reports. I found her criticism of Mr Effingham’s views about the drainage holes convincing: holes designed to drain water from interior window ledges are not necessary when the windows are designed not to open at all. I also thought that her criticisms of Mr Effingham’s opinion about the glazing seemed valid.
All of the applicants’ submissions turn on the correctness of the Magistrate’s finding that the windows and doors were adequate. His Honour was not obliged to accept the expert opinions, opinions which were not “uncontested”. The only work which the Magistrate found was substandard was that which resulted in damage to the brick reveals. His Honour has awarded damages for that. In my view, the findings which the Magistrate made were open to his Honour.
The Judge affirmed the decision of the Magistrate.
Procedural context
Before coming to address the plaintiffs’ complaints made in the judicial review proceedings before this Court it is important to understand the procedural context in which the three separate hearings in this matter has occurred.
The Magistrates Court proceedings involved a minor civil claim. The nature of the Magistrates Court jurisdiction to determine minor civil claims was explained in Harradine v District Court of South Australia.[1]In particular, under s 38(1) of the Magistrates Court Act 1991 (SA), the trial of a civil action takes the form of an inquiry by the Court, with the Court not being bound by the pleadings or rules of evidence. The Court is required to act according to equity, good conscious and the substantial merits of the case.
[1] Harradine v District Court of South Australia (2012) 280 LSJS 572; [2012] SASC 96 at [40]-[49]. See also Kedem v Johnson Lawyers Legal Practice Pty Ltd (2014) 121 SASR 118 at [42].
The procedure required under s 38(1) is plainly intended to ensure an informal and practical approach to determination of minor civil claims, in an attempt to ensure the proceedings are conducted in an efficient manner, commensurate with the limited size (in financial terms) of the issues at stake.
There is no right of appeal against the decision of a Magistrate in a minor civil claim. However, under s 38(6), a party is entitled to apply to a District Court Judge to “review” the matter.
The hearing of a District Court review is governed by s 38(7). Under that subsection, the Court may inform itself as it thinks fit and, in doing so, is not bound by the rules of evidence. The Court may rehear evidence taken before the Magistrates Court. The Court may affirm the judgment or rescind it and substitute the judgment that the Court considers appropriate. In hearing and determining the review, the Court must act according to equity, good conscious and the substantial merits of the case without regard to technicalities and legal forms.
The legislation contemplates that, in the ordinary course, parties will not be represented either at the Magistrates Court level or on review in the District Court.[2]
[2] Magistrates Court Act, s 38(4) and s 38(7)(a).
In Harradine v District Court of South Australia, Blue J said that the following principles apply to a review by a District Court Judge of a minor civil action:[3]
1.   The review is not in the nature of an appeal stricto sensu.
2.   The review is not necessarily a hearing de novo in that the Court is entitled to have regard to the evidence adduced before a magistrate and “may” rehear that evidence.
3.   The review is not necessarily an appeal by way of rehearing in that it is a “review” (not an “appeal”), the Court may inform itself as it thinks fit, the Court must act according to the substantial merits of the case and the Court may rehear evidence without being confined by the “fresh evidence” rules which apply to appeals by way of rehearing.
4.   The Court can tailor the nature of the hearing to the circumstances. In a case where the review will not turn on findings of fact or credibility of witnesses, the Court might simply have regard to the evidence adduced before a magistrate and a magistrate’s findings of fact. In a case which does turn on disputed issues of fact or credibility, the Court might simply proceed to hear the evidence afresh.
5.   If the District Court concludes that a magistrate made an error vitiating the judgment and had not made findings of fact necessary to determine the matter, it will be necessary for the Court itself to hear the evidence relevant to those findings of fact (as it does not have power to remit the matter for rehearing).
6. To the extent that the Court does itself hear evidence, it should proceed in a similar manner to that provided by section 38(1), namely adopting the form of an inquiry by the Court rather than an adversarial contest between the parties. This is because section 38(7) provides that the Court may inform itself as it thinks fit and also because it would be incongruous if the District Court were to adopt a radically different approach to the hearing to that required to be adopted by a magistrate at first instance given that there is no power of remitter.
[3]    Harradine v District Court of South Australia (2012) 280 LSJS 572; [2012] SASC 96 at [53].
Clearly the same concern and intention to ensure efficient and practical justice informs the approach to the District Court review process.[4]
[4] Kedem v Johnson Lawyers Legal Practice Pty Ltd (2014) 121 SASR 118 at [43].
Consistent with this, s 38(8) provides that a decision of the District Court on a review is final and not subject to appeal. The only further right a party has is to bring judicial review proceedings such as those brought by the plaintiffs here.[5]
[5] Harradine v District Court of South Australia (2012) 280 LSJS 572; [2012] SASC 96 at [33]; Kedem v Johnson Lawyers Legal Practice Pty Ltd (2014) 121 SASR 118 at [42].
Importantly, however, judicial review is not a form of merits based review.[6] The role of this Court on judicial review proceedings does not include or permit any general revisiting of the merits of the plaintiffs’ contentions before either the Magistrate or the District Court Judge. Rather, this Court’s role is confined to the identification of errors of the kind ordinarily sufficient to warrant intervention in judicial review proceedings.
[6] Harradine v District Court of South Australia (2012) 280 LSJS 572; [2012] SASC 96 at [35]; Kedem v Johnson Lawyers Legal Practice Pty Ltd (2014) 121 SASR 118 at [42].
Broadly speaking, this includes errors of two kinds: a denial of procedural fairness, or an excess of power or jurisdiction. The latter includes jurisdictional error, acts or decisions which are ultra vires, and errors of law. It is not sufficient to establish relevant error this Court would reach a different conclusion on the evidence. Unless the conclusion reached below was based on no evidence, was irrational, or was otherwise a decision which no reasonable decision maker could have reached, then errors in the reasoning process or findings of fact will not warrant intervention in judicial review proceedings.
Further, even if grounds for review are established, the Court retains a discretion whether or not to grant a remedy, and in particular whether to grant an order in the nature of certiorari quashing the decision below.[7]
[7] Harradine v District Court of South Australia (2012) 280 LSJS 572; [2012] SASC 96 at [92].
The plaintiffs’ grounds for review
The plaintiffs seek review of the Judge’s decision on four grounds.
1.   The Judge improperly exercised his discretion, granted pursuant to subsections 38(7)(b) and (c) of the Magistrates Court Act 1991 (SA), in that he failed to admit new expert evidence adduced by the plaintiffs post Magistrates Court trial but prior to the District Court Review.
2.   The Judge failed to inquire into potential inconsistencies in the third defendant’s evidence, namely that the installation work complained of was installed by a licensed builder, thereby failing to perform his judicial function and failing to afford procedural fairness to the plaintiffs.
3.   The plaintiffs’ interests were immediately affected in that their counter-claim was partially denied and the defective works remained in place posing a threat to health and safety.
4.   In failing to afford procedural fairness to the plaintiffs as described in the paragraphs above, they did not have a reasonable opportunity to present their case and have the matter heard and determined by the Court according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
I do not think ground 3 is a competent ground of review. It does not purport to identify any error in the relevant sense. I give it no further consideration.
Grounds 1, 2 and 4 are all allegations of a denial of procedural fairness. The focus of each differs slightly, although there is some overlap between them, particularly in the way they were developed orally during the course of the hearing.
The only respondents to the plaintiffs’ application for judicial review who appeared in this Court (or before the Judge) were Ms Matejko and Oknalux. They were jointly represented by counsel before me. While Mr Banasiak appeared before the Magistrate, he did not appear before the District Court Judge or before me. Mr Dubec did not appear at any stage of the proceedings. When I raised concerns at a directions hearing about Mr Banasiak and Mr Dubec not having entered any appearance in these proceedings, I was informed that unsuccessful efforts had been made to locate and serve both men. Further, and in any event, I was informed by Mr and Mrs Wilcynzski that they only sought relief in these proceedings against Ms Matejko and Oknalux. On the basis of this information I determined to proceed despite the absence of Mr Banasiak and Mr Dubec.
I note that these judicial review proceedings were issued out of time. At the first hearing of the proceedings I granted the plaintiffs an extension of time, but reserved the issue of permission to proceed to be dealt with upon the hearing of the application.
Consideration
The first ground of review challenges the Judge’s decision refusing to allow the plaintiffs to rely on the report of SA Building Consultants dated 13 October 2014, which was provided to the Magistrate after he had reserved judgment. Related to this was the further complaint (apparently advanced under the second or third grounds of review) that the Judge refused to allow the plaintiffs to rely upon the four additional documents provided to the District Court with the plaintiffs’ written case on 19 January 2015.
Section 38 of the Magistrates Court Act contemplates a range of different approaches that the Judge might legitimately take on a review hearing. The Judge might rehear all the evidence and decide the matter entirely on that basis. The Judge might hear no evidence, and determine the matter based entirely upon the evidence in the Magistrates Court. The Judge might alternatively adopt some hybrid approach involving the rehearing of some evidence, or the hearing or receiving of some additional evidence, but also having regard to the evidence before the Magistrate. The circumstances of some cases might require that a particular procedure be adopted, although often that will not be the case. Often there will be more than one approach legitimately open to the Judge. In deciding which procedure to adopt the Judge will generally have a broad discretion.
Here the Judge proceeded largely, if not entirely, on the basis of material before the Magistrate. The possible exception to this is the evidence of Ms Matejko which I address separately later, and the blurring of the distinction between submissions and evidence in the addresses by each of Ms Matejko and Mr and Mrs Wilczynski. As I have indicated in my summary of the procedural background, the Judge undertook an analysis of the documentary and oral evidence before the Magistrate, and reached conclusions (in line with those reached by the Magistrate) based on that material. In my view, while it would also have been open to his Honour to have heard the evidence afresh, it was within his discretion to proceed the way he did. The plaintiffs had been given the opportunity to present their case before the Magistrate, and had taken that opportunity. The Magistrate received two expert reports tendered by Mrs Wilczynski, and heard oral evidence from one of those experts, as well as from Mrs Wilczynski. My review of the transcript indicates that the hearing before the Magistrate was brief, did not descend into any great detail, and was conducted largely by way of an inquiry directed by the Magistrate. While perhaps unsatisfying for the plaintiffs, this is the very type of hearing contemplated by the legislative scheme in relation to minor civil matters. Mrs Wilczynski was not represented, but again the legislative scheme contemplates that this will be so in the ordinary course. English is Mrs Wilczynski’s second language, but she was assisted by an interpreter, and the transcript indicates that she was able to explain her position to the extent it required explanation beyond her reliance upon expert reports. On my reading of the transcript, neither party requested on the review hearing that the Judge rehear the evidence, or receive further oral evidence. In the circumstances, there was nothing about the matter that in my view required the Judge to rehear the evidence, or receive any additional oral evidence.
Having decided to adopt this approach of relying upon the evidence below, the Judge was still required to consider whether to make any exception to this in respect of the additional material or documents sought to be relied upon by the plaintiffs. In so doing, the nature of the hearing again meant that the Judge had a broad discretion to receive or decline to receive the additional material.
In the case of an ordinary appeal, the discretion to receive fresh evidence is generally only enlivened when the evidence (i) was not available at trial, and could not with reasonable diligence have been obtained for use at trial, and (ii) is such that it would likely have influenced the result. The nature of a s 38(7) hearing suggests a more flexible approach not necessarily requiring satisfaction of these pre-conditions. However, the interests of finality, and the concern to ensure a practical and efficient resolution of small claims, will nevertheless often justify the refusal of an application to adduce fresh evidence.
In Lawrence v Sambevski[8] Judge Lunn described the power to receive fresh evidence on a review hearing in the following terms:
The scope of any fresh evidence to be taken on a review cannot exceed that which the Magistrate was required to take on the trials of a minor civil action. It would defeat the objects of expedition and minimisation of costs if on a review a party could adduce fresh evidence which could go into all sorts or relevant issues which were not opened up in the trial before the Magistrate. Almost every party who loses an action would like the opportunity to re-run the trial on expanded evidence and arguments, but this would mean that there could be reviews in almost every minor civil action and potentially increase the costs and delays enormously. The basic rule must be that parties are bound by the conduct of the trial before the Magistrate and that good reason is required for any additional evidence to be admitted. It was suggested that because s38(1) (a) and (b) requires the trial to be an inquiry by the Court there was an onus on the Magistrate to see that all relevant evidence was adduced at the trial. While there is such a duty on a Magistrate on crucial and essential issues … it is not for the Magistrate to conduct the cases for the parties or to give them advice on evidence …It would make minor civil actions far more complicated and expensive than Parliament intended them to be if a Magistrate was obliged to ensure that all possible evidence was adduced on any issue to which he might ultimately have regard in the determination of the action. Ultimately, the duty of the Magistrate is to decide the claim on the material which is properly before him at the conclusion of the trial. If in his reasons he goes outside of that evidence, that may well be a ground for a District Court on a review to interfere with his findings on the basis that they were not justified by the evidence, but it is not in itself, as was contended here, a justification for a party to lead fresh evidence on the review on any such topic.
[8] Lawrence v Sambevski (1996) 189 LSJS 451 at 453-454.
In my view, it was an appropriate exercise of the Judge’s discretion to decline to receive the additional material which the plaintiffs sought to rely upon in this case. As the Judge explained, the plaintiffs had plenty of time to prepare the case prior to the hearing before the Magistrate. Further, they were given adequate opportunity to present the case, and did an adequate job of doing so.
While these were sufficient grounds in my view to refuse to receive the additional material, a consideration of the material sought to be adduced in my view reinforces that conclusion. Two of the documents were further expert reports from SA Building Consultants. These reports did go further in some respects (both in terms of content and tone) than the first report from SA Building Consultants, which was received and relied upon by the Magistrate. However, there remained a substantial overlap in the information provided in these subsequent reports. The other three documents would have been of little or no assistance. The two quotation documents were relevant only to quantum issues, which did not ultimately arise. The letter from the Fountain Valley Medical Centre asserted or assumed that the plaintiffs’ daughter suffered an injury when the door came off its tracks, but was not in my view probative of the precise circumstances of that incident, let alone any particular defect in the door.

In the course of the hearing of these judicial review proceedings, the plaintiffs made a number of criticisms relating to the conclusions and reasoning of the Magistrate and Judge which largely rejected their allegations of defects in the work carried out, and which accepted that Ms Matejko was not in any event a party to the contract to carry out the installation works. There is some force in several of the points made. For example, I have some reservations about the Magistrate’s statement that Mr Effingham “did not appear to dissent from my observation in relation to photographs 3 and 14, that the end result appeared satisfactory”, which the Judge relied upon in his reasons. To the extent this was based on Mr Effingham’s oral evidence, the transcript suggests that Mr Effingham never responded to the Magistrate’s observations. While it may be that the Magistrate took silence to be assent, or at least the absence of dissent, there is some ambiguity arising from the transcript. Further, the Magistrate’s and Judge’s reasons for rejecting some of the allegations of defects in the work performed are at least open to challenge.
But as I have explained, it is not appropriate in judicial review proceedings to embark upon a review of the merits of the decision below. The errors asserted in relation to the reasoning and conclusions of fact by the Judge, even if made out, would not constitute valid grounds for review.
The plaintiffs’ second ground for review seeks to elevate these factual challenges into a denial of procedural fairness, by contending that the Judge was required to inquire into the inconsistencies which the plaintiffs asserted in the evidence and findings of the Magistrate. In support of the submission the plaintiffs relied upon Harradine v District Court of South Australia.[9]In that case, Blue J held that the Judge’s failure on the review hearing to inquire into certain apparent inconsistencies in the evidence involved a failure to afford procedural fairness by way of a fair hearing. It is significant, however, that the Judge in that case (unlike the Judge in this case) heard the evidence afresh, with the determination of the outcome depending upon an issue of contested fact as to which two witnesses gave directly conflicting evidence.[10] In those circumstances, it is readily understandable that further inquiry was necessary so as to resolve the disputed issues.
[9] Harradine v District Court of South Australia (2012) 280 LSJS 572; [2012] SASC 96 at [91].
[10] Harradine v District Court of South Australia (2012) 280 LSJS 572; [2012] SASC 96 at [85].
Ultimately, the issue of how far the Judge is required to go in inquiring into the issues arising upon a review hearing can only be determined by reference to the facts and issues arising in a given case. Further, it is important to be mindful of, and adopt an approach which gives effect to, the clear legislative intention to determine minor civil claims in a practical and efficient way.
Here, where the Judge did not hear the evidence afresh, I do not think his Honour was required (as an aspect of affording procedural fairness) to make any further inquiry than he did through the course of submissions. In any event, the reliance placed upon Harradine v District Court of South Australia is misplaced because the Magistrate in this case did inquire as to, and ascertained, the plaintiffs’ evidence on the central issues as to the defective work. Properly understood, the plaintiffs’ complaint is better characterised as a complaint that the Magistrate resolved the inconsistencies against the plaintiffs rather than that he did not inquire into those matters. To the extent that the plaintiffs have identified some matters not inquired into or resolved by the Magistrate and Judge, in my view these are matters of detail which it was not necessary to inquire into or resolve as a matter of procedural fairness to the plaintiffs.
An issue focused upon by the plaintiffs in advancing the second ground for review was the Judge’s failure to inquire into the plaintiffs’ allegation that Ms Matejko and Oknalux were not licensed to carry out the remedial work they carried out. It appears from the Judge’s reasons that he assumed that Ms Matejko or Oknalux were licensed, or at least used licensed builders. It may well be that his Honour was mistaken in that assumption, or at least that the evidence did not permit this assumption to be made. However, in my view, an error of this type does not constitute a ground for intervening in judicial review proceedings. As for the complaint that his Honour was required to make further inquiry into this issue, I do not agree. Whether or not the remedial work was licensed was not a central issue in the case. The central issue was whether the work was defective or not. Whether or not the work was carried out by a licensed builder does not bear directly on this. To the extent that the value of the counterclaim was predicated upon an assumption that the plaintiffs were required to pay for the work done by Ms Matejko and Oknalux, it is relevant (on the basis of the Magistrate’s finding that the work was not defective) that the same or similar amount was probably payable by way of quantum meruit in any event.
Turning to the fourth ground of review, I have already largely addressed the matters relied upon by the plaintiffs. In addition, complaint was made about the Judge’s receipt of Ms Matejko’s written case despite it being provided to the plaintiffs only 20 hours prior to the second hearing date.
I note that the plaintiffs had only filed their written case one day prior to the first hearing date before the Judge, and so it is difficult to criticise Ms Matejko for also being late. During the first hearing, when it became apparent that Ms Matejko was seeking to rely upon material not previously provided to the plaintiffs, the Judge quite appropriately adjourned the matter to permit the plaintiffs to see the material before the adjourned hearing date.
Ideally Ms Matejko should have provided that material to the plaintiffs earlier than she did, but in my view the plaintiffs were not unfairly disadvantaged. As I have mentioned, the written case was only five pages long and was largely in the nature of submissions in response to the plaintiffs’ expert evidence, albeit some of it was presented in the form of factual assertions or evidence from Ms Matejko. But the document was not very detailed and dealt with matters with which Mr and Mrs Wilczynski were well familiar. I do not consider that the Judge’s decision to permit Ms Matejko to rely upon this material involved any denial of procedural fairness to the plaintiffs.
Conclusion
It is my view that grounds of review 1, 2 and 4 were reasonably arguable, and I propose to grant permission to the plaintiffs to proceed in respect of those grounds. I refuse permission in respect of ground of review 3.
However, for the reasons I have set out, none of the grounds have ultimately been established. I will dismiss the application for judicial review.
In the circumstances, it is not necessary for me to reach a conclusion as to whether there would have been discretionary reasons for refusing relief even if one or more of the grounds had been made out. The nature of minor civil claims and the clear intention of the legislative regime governing their determination, mean that there will on occasions be discretionary reasons to decline relief in judicial review proceedings arising out of minor civil claims. Too great a willingness on the part of this Court to interfere in such proceedings would tend to undermine the legislative intention to create a time and cost efficient regime for determining minor civil disputes.
I make the following orders:
1. Permission to proceed granted in respect of grounds of review 1, 2 and 4 but refused in respect of ground of review 3.
2. Application for judicial review dismissed.
I will hear the parties in relation to costs.