Xianzhu v Chen (No 2)

Case [2020] VSC 621


IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2018 02923

SHI XIANZHU Appellant
v
SHUANGCHAO CHEN Respondent

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JUDGE:

Ierodiaconou AsJ

WHERE HELD:

Melbourne

DATE OF HEARING:

11 June 2020

DATE OF JUDGMENT:

24 September 2020

CASE MAY BE CITED AS:

Xianzhu v Chen (No 2)

MEDIUM NEUTRAL CITATION:

[2020] VSC 621

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ADMINISTRATIVE LAW – Judicial review – Appeal from decision of a Magistrate on a question of law – Whether the Magistrate erred in law by excluding hearsay evidence – Whether the Magistrate erred in law by admitting an expert report into evidence and having regard to it – Gerlach v Clifton Brick Pty Ltd (2002) 209 CLR 478 – Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 – Wilson v Bauer Media (Ruling No 7) [2017] VSC 357 – Magistrates’ Court Act 1989 s 109 – Evidence Act 2008 ss 63, 79, pt 2 cl 4(1)(f) – Appeal dismissed.

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APPEARANCES:

Counsel Solicitors
For the Appellant Mr J Claridge McDonald Lawyers
For the Respondent Mr M W Seelig with Mr M J Latham Destra Law

TABLE OF CONTENTS

Summary.............................................................................................................................................. 1

Background......................................................................................................................................... 1

Amended notice of appeal............................................................................................................... 2

Applicable principles – s 109 of the Magistrates’ Court Act..................................................... 3

Are the two evidentiary rulings appellable?................................................................................ 4

Mr Xianzhu’s submissions........................................................................................................... 4

Mr Chen’s submissions................................................................................................................ 4

Analysis.......................................................................................................................................... 5

Did the Magistrate err in law by excluding hearsay evidence?................................................ 8

Mr Xianzhu’s submissions........................................................................................................... 8

Mr Chen’s submissions.............................................................................................................. 10

Analysis........................................................................................................................................ 10

Did the Magistrate err in law by admitting the Guan report into evidence and having regard to it?........................................................................................................................................................ 14

Mr Xianzhu’s submissions......................................................................................................... 14

Mr Chen’s submissions.............................................................................................................. 16

Analysis........................................................................................................................................ 17

Conclusion......................................................................................................................................... 27

HER HONOUR:

  1. The respondent took a painting to the appellant for framing and never got it back.  He obtained orders in the Magistrates’ Court that the appellant pay him damages.  Those orders are the subject of this appeal proceeding.

Summary

  1. The issues for determination and answers follow.

(a)        Did the Magistrate err in law by excluding hearsay evidence?  No.  Grounds 1 and 2 of the appeal are therefore dismissed.

(b)       Did the Magistrate err in law by admitting an expert report into evidence and having regard to it?  No.  Ground 4 of the appeal is therefore dismissed.

Background

  1. Mr Chen (the respondent) delivered a painting to a picture framing business operated by Mr Xianzhu (the appellant).  The painting was placed in a workshop and it was lost.  Mr Xianzhu acknowledges he bears some liability to compensate Mr Chen for the lost painting.  There is a dispute over the amount of compensation.

  1. Mr Chen applied to the Magistrates’ Court for compensation.

  1. On 22 November 2018, following a hearing several days earlier, a Magistrate made final orders.  They were for Mr Xianzhu to compensate Mr Chen the amount of $60,550.00 plus interest and costs.  The precise orders are as follows.

SHI XIANZHU to pay SHUANGCHAO CHEN

Claim $ 60550.00 and Interest $ 16215.14 Costs $ 0

COSTS (INCLUDING…

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Xianzhu v Chen (No 2) [2020] VSC 621
Case
[2020] VSC 621
Decision Date

CaseChat Overview and Summary

The appellant, Xianzhu, sought judicial review of a decision made by a Magistrate. The Magistrate had excluded hearsay evidence and admitted an expert report into evidence, both of which were contested by the appellant. The appeal was heard by the Supreme Court of Victoria. The central legal issues before the court were whether the Magistrate erred in law by excluding hearsay evidence and by admitting an expert report into evidence and having regard to it.

The court addressed the issue of hearsay evidence first, noting that the Magistrate had correctly excluded the hearsay evidence under the Evidence Act 2008. The court found that the Magistrate's decision was in line with the principles established in Gerlach v Clifton Brick Pty Ltd and Wilson v Bauer Media, which require that hearsay evidence be excluded unless it falls under an exception. The court further noted that the appellant had not demonstrated that the hearsay evidence should have been admitted under any of the exceptions. Regarding the admission of the expert report, the court found that the Magistrate had not erred in law. The court held that the expert report was properly admitted under the Evidence Act 2008, as it was relevant and the expert was qualified to provide an opinion. The court also found that the Magistrate's consideration of the expert report did not constitute an error of law, as the Magistrate had properly assessed the weight to be given to the report.

The court concluded that the appeal was without merit and dismissed it. The court found that the Magistrate's decisions on the hearsay evidence and the expert report were both correct and did not constitute errors of law. The court noted that the appeal was an appeal from a decision of a Magistrate on a question of law, and that the appeal was dismissed on the basis that no error of law was found. The court did not make any further orders beyond dismissing the appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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