Xianzhu v Chen (No 2) - [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:

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

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

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.

Mr Chen applied to the Magistrates’ Court for compensation.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Xianzhu v Chen (No 2)

Details

AGLC: Xianzhu v Chen (No 2) [2020] VSC 621
Case: [2020] VSC 621
Decision Date: 24 September 2020

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