Janice Mary Ferguson v ACT Electricity and Water [1995] ACTSC 47 (22 May 1995)

SUPREME COURT OF THE ACT

JANICE MARY FERGUSON v. ACT ELECTRICITY AND WATER
No. SCA49 of 1994
Number of pages - 5
Appeal - Evidence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Appeal - appeal following application for leave against decision of Magistrate - appellant self-represented - duty of the court to ensure proceedings are conducted fairly.

Evidence - lack of cogent evidence of appellant's indebtedness to Electricity and Water Authority - admissibility of evidence presented before the Magistrate - admissibility of "computer printouts" - ability to adduce further evidence on appeal - not in the interests of justice to permit further evidence to be adduced.

Evidence Act 1971 (ACT), s42

Electricity and Water Act 1988 (ACT), ss50(1), 79
Small Claims Act 1974 (ACT), s40

HEARING

CANBERRA, 17 March 1995
22:5:1995

Appellant appeared in person

Counsel for the Respondent: Mr K Holmes

Instructing solicitors: ACT Government Solicitor's Office

ORDER

THE COURT ORDERS THAT:

The appeal be upheld.
The judgment appealed from be set aside. In lieu thereof, there be judgment

for the appellant on the claim.

DECISION

HIGGINS J On 14 February 1995 I granted to the appellant leave to appeal against a decision of Special Magistrate Hardiman. That decision was, in effect, to enter judgment for a sum allegedly due for water and sewerage rates.

2. In my written reasons for granting leave I referred in detail to the proceedings before the learned Special Magistrate.

3. The appellant was self-represented in these proceedings. She has no legal qualifications. It is, therefore, incumbent on this Court to ensure that the proceedings are conducted fairly. Failure on her part to make submissions or to challenge propositions put by the respondent cannot be regarded as having the same significance as a similar failure made after legal advice or by a legally qualified person appearing for her.

4. Nothing put by the respondent on this appeal persuades me that the material placed before the learned Special Magistrate on behalf of the respondent warranted, as a matter of law, the conclusion to which he came. There was simply no cogent evidence of the appellant's indebtedness. It follows that the claim should have been dismissed.

5. The consequence of that would have been that the alleged debt was irrecoverable. The matter at issue would have been res judicata.

6. There was a submission that the document apparently placed before his Worship was a "computer printout" admissible pursuant to s42 of the Evidence Act 1971 (ACT).

7. That section provides:

In a proceeding (other than a criminal proceeding) in the
Supreme Court or in the Magistrates Court, a statement
contained in a document produced by a computer is, subject to
this Part and to the appropriate rules of court, admissible as
evidence of any facts stated in the document of which direct
oral evidence would be admissible if -
(a) the document was produced by the computer during a period
in which the computer was used to store or process information
relating to activities carried on, whether for profit or not -
(i) by a person;
(ii) by a body, association or institution, whether corporate
or not;
(iii) by an administrative unit of the Territory Public Service,
or a Department of State of the Commonwealth or of a State; or
(iv) by an authority established by or under an Act of the
Territory, an Ordinance, an Act of the Commonwealth, a State Act
or a law in force in another Territory.
(b) information of the kind contained in the statement or of the
kind from which the information contained in the statement is
derived was in that period regularly supplied to the computer
in the ordinary course of the carrying on of those activities;
(c) the computer was, throughout the material part of that period
operating properly or, if it was not, that any respect in which
it was not operating properly or was out of operation during part
of that period was not such as to affect the production of the
document or the accuracy of its contents; and
(d) the information contained in the statement reproduces or is
derived from information supplied to the computer in the ordinary
course of the carrying on of those activities.

8. The difficulty with applying that provision to the document in question is that its provenance was not explained. It was simply produced.

9. Assuming from its form, however, that it was "produced by a computer", and that the matters in (a) to (d) could be regarded as presumed, it would have been necessary to assume that "direct oral evidence" of the matter stated in the document would have been admissible. However, as I pointed out in my reasons for granting leave, what the respondent had to prove was not the matter shown on the print-out. That contained only conclusions. It needed to prove the facts upon which those conclusions were based. Those facts included the quantity of water supplied, the connection of sewerage to the subject premises as well as the relevant level of charges therefor as imposed by s50(1) of the Electricity and Water Act 1988 (ACT) (E and W Act).

10. The onus was on the respondent to adduce such evidence. It failed to do so. It was no part of his Worship's duty, in those circumstances, to notice what should have been apparent to the respondent and to have adjourned the matter to enable it to supplement its inadequate proof.

11. No doubt recognising that, the respondent, on the hearing of this appeal, seeks leave to adduce further evidence. I reserved the question as to whether the respondent should be permitted, at this late stage, to take that course. I received that evidence subject to that reservation.

12. Section 40 of the Small Claims Act 1974 (ACT) (SC Act) provides:

(1) Subject to this section, the Supreme Court shall determine an
appeal under this Part in accordance with the law as in force
on the date on which the hearing of the appeal is concluded and
on the basis of the report furnished to it in pursuance of
section 37.
(2) The Supreme Court, on the hearing of an appeal under this
Part, may, if it thinks fit, grant leave to a party to call any
evidence and may conduct its own inquiry into the matters at
issue between the parties in the proceedings from which the
appeal is brought.

13. The discretion conferred by s40(2) is a wide one.

14. It would be the more readily exercised if the evidence was, indeed, fresh evidence. This evidence is clearly not fresh evidence. It could have been tendered at the original hearing.

15. The first item offered was an affidavit from Ms Pope, who appeared for the respondent on the original hearing. She deposed that she had no formal legal qualifications. She deposed further that, apart from the computer printout generated for the purpose of the hearing, the respondent has no record of services provided to the appellant. It, presumably, has no record either of the applicable rates.

16. She explained that, if a meter reading is done, no record of that reading is kept. It is entered electronically into a computer. The computer then generates an account each quarter. No copy is kept. The only information able to be recalled, apparently, is the conclusion drawn by the computer from the entry of such information.

17. However, that evidence cannot be right. There would need to be more information than the meter reading. Payments made and the applicable rates are, presumably, recorded. So also would the fact of connection of sewerage to the premises be recorded.

18. There was also an affidavit of Mr Smalley, credit manager of the respondent. He confirmed the accuracy of Ms Pope's affidavit evidence.

19. Some reliance was placed in each affidavit on the fact that the respondent had no other documentary evidence and that the Small Claims Court appeared to accept the print-out as sufficient evidence.

20. I do not accept that those matters favour admission of the further evidence. It is obvious that further evidence could have been generated in "hard copy" form. Records could have been kept of documents generated and sent to the appellant had the respondent chosen to do so. It is no answer to claim ignorance of law or proper standards of proof. The respondent had access to legal advice from the Government Solicitor. More significantly, it had access to the mode of proof allowed by s79 of the E and W Act.

21. The evidence of Ms Pope and Mr Smalley, if admitted, would not suffice to provide proper evidence of the debt claimed.

22. Additionally, the respondent has sought leave to tender a certificate showing the quantity of water supplied to the premises of the appellant. If admitted, that would, by virtue of s79 E and W Act prove, at least to prima facie level, the quantity of water supplied to the appellant's premises in the relevant period.

23. However, the respondent still has failed to adduce any evidence of the applicable rate or as to the connection of sewerage to the plaintiff's premises.

24. This can only be a case where the respondent failed to adduce relevant evidence, not because it was unavailable, but because of failure to appreciate the need to do so.

25. On appeal, it must appear to be in the interests of justice to admit the further evidence. I am not persuaded that it is. If I admitted the evidence the respondent would still fail unless given a third opportunity properly to prove its case. There is no reason why that should be permitted.

26. The appeal is upheld. The judgment appealed from is set aside. In lieu thereof there will be an order that there be judgment for the appellant on the claim. The appellant's cross-claim is to remain dismissed.

27. I will hear the parties as to costs.