Appellant v Respondent

2 The central issue before the Magistrate was whether Ma was denied procedural fairness because the Judicial Registrar refused to admit into evidence recordings of telephone conversations between the parties and a person assisting Ma in the claims process, Mr Zhanyu Zhong, in the months after the collision. Ma argued that during those conversations, Ashraff made admissions about the circumstances of the collision and said that he had sent dash camera ('dashcam') footage of the accident to his insurer. Ma submitted that these matters were central to his argument that Ashraff was liable for the collision. The Magistrate found that the Judicial Registrar erred by refusing to admit the recordings into evidence, however, concluded that this error did not result in any unfairness or disadvantage to Ma because he had been allowed to ask questions of Ashraff on the basis of what was said in the conversations, and the transcripts of the conversations and Ashraff's answers to these questions did not advance Ma's case.

3 For the following reasons, I conclude that the appeal should be allowed and the review application remitted for reconsideration.

4 The collision occurred on 5 July 2022 in the vicinity of a service station in Caroline Springs. The parties agreed that prior to the accident, Ma slowed and attempted to enter the service station via an 'exit only' driveway. Ma alleged that Ashraff had been 'tailgating' him and collided with the rear of Ma's vehicle when he slowed down. Ashraff alleged that Ma reversed into the path of his vehicle after realising he had entered the service station incorrectly.

5 On 26 June 2023, Ma commenced proceedings in the Sunshine Magistrates' Court alleging that the collision was caused by Ashraff's negligence and claiming damages. Ashraff denied that the collision was his fault and made a counterclaim for the cost of repairs to his vehicle.

6 Shortly before the trial of the proceeding, Ma sought to issue subpoenas to Ashraff and Ashraff's insurer to produce documents. The schedule of documents sought by the subpoenas included:

(I): The defendant's original dashcam recording to prove motion images of the accident occurred on 5 July 2022, and a screenshot when the defendant sent such dashcam recording to Youi Insurance.

(II): Defendant's original claim lodgement stating that the plaintiff reversed to lead the accident, and a screenshot when the defendant electronically sent his written lodgement to the Youi Insurance. Or[.]

(III) The original audio recording of the Youi Insurance and the defendant about when the defendant verbally lodged a claim that the plaintiff reversed to lead the accident occurred.

It appears that the Court declined to issue the subpoena to Ashraff because he was a party to the proceeding, or to the insurer because there was too little time to respond to the subpoena before the hearing.

7 On 11 October 2023, the proceeding was heard by arbitration conducted by the Judicial Registrar pursuant to ss 102 and 103 of the Magistrates' Court Act 1989 (Vic) ('MC Act'). The parties agreed the quantum of the respective claims and the matter proceeded on the issue of liability only. Ma was self-represented and assisted by an interpreter. Ma, Ashraff and Ashraff's front seat passenger, Ms Fatima Basheer gave evidence.

8 At the arbitration, Ma did not raise the issue of the subpoenas or apply to adjourn the proceeding so that he could obtain a copy of the insurer's file.

9 It was not in issue at the arbitration that in a conversation immediately after the collision, Ashraff told Ma that his car would have dashcam footage of the collision and that he would send this footage to his insurer.

10 Ma said in evidence that he telephoned Ashraff when Ashraff's insurer had not contacted him by 8 July 2022. Ma said that Ashraff told him that he had sent the dashcam footage to his insurer sometime in the two days prior, and that the insurance company would look at the footage and decide who was at fault for the collision. When Ma attempted to give further evidence about his interactions with the insurer, Ashraff's counsel objected on grounds of relevance. The Judicial Registrar upheld the objection without hearing from Ma. Oddly, the Judicial Registrar then allowed Ashraff's counsel to cross-examine Ma about his interactions with the insurer.

11 There was then the following interaction in cross-examination of Ma about the dashcam footage:

And he [Ashraff] also said that later on after he'd gone home, he tried to get that dash cam footage but it did not record the incident at all. It was on stand-by mode. That's what he'll say. Do you have any comment?---I think that's not the truth.

Mr Ashraff will say that he did not have that dash cam footage and he did not give it to the insurance company, and that's why they would have told you that they didn't have it. Do you have any comment?---He told me several times over the phone that he had already gave the dash cam to the insurance company.

I suggest to you that's not true. My client never said that he had the dash cam footage and he never gave it to the insurance company and he never said it to you?---Okay then. We can play the telephone recording between him and me on 9 October.

12 When it was put to Ma that immediately after the collision both Ashraff and Basheer said that he had reversed his car out of the exit driveway, causing the collision, he responded:

All I want to say is [that] since the collision, Mr [Ashraff] has never mentioned anything that I reversed the car and caused the accident.

13 Ashraff gave evidence in chief by adopting a summary read by his counsel, which included the following:

Later on in the following period [after the collision], Mr Ashraff checked his dashcam but it was on standby mode and so he wasn't able to obtain any footage of the collision.

14 In cross-examination, Ma asked Ashraff why he had told him that he had given the dashcam footage of the collision to his insurer, if he had already discovered that no such footage had been recorded. Ashraff responded:

No, because - yes, I can recall because what happened was from the second day, he said because I am working in the NBN and I'm working most of the time and I'm very busy. Every time he'll call like 20 times a day. He was - he came so many times to my place and he came with a gang even for three or four people - lucky we were not home, so we had like security cameras and we checked. He was coming to home so many times. He'll come and take photos. He will call so many times. I said (indistinct words) yes, yes, I had done everything, all the things to Youi. They will contact you. I told him I'll contact my consultant and I'll ask her to call you if they're not contacting you. I have given everything to Youi.

I didn't call you 20 times a day, did you say?---Yes, you called so many time. Every like - like, every week you will call and you can check with my wife even.

15 Ma then asked the following question about a later phone conversation:

We had a phone conversation on 18 December. During that phone conversation you still - you were still saying that you have already sent the recording of the dashcam to the insurance company. If you haven't had a look at the recording, may I ask how did you send it to the insurance company?---I told him I had done all the things what they needed for this one, so they will decide. So that's why I was there and he was like, he couldn't understand English so I think December he rang with his - with one of his friends. I think he said he's in a legal (indistinct). He was talking with English. I told him, so I'll help you guys to contact Youi if they're not contacting you.

16 Ma then sought to play recordings of telephone conversations between him and Ashraff that occurred on 9 October and 18 December 2022 ('recordings'). Ashraff objected on the grounds that Ma may have breached the Telecommunications Act 1997 (Cth) in obtaining the recordings. The Judicial Registrar accepted the objection.

17 Ma then cross-examined Ashraff further in relation to the dashcam footage and the recorded conversations:

Now I want to ask you, have you submitted the recording of your dashcam the insurance company, yes or not?---No.

But in our telephone conversation on 9 October you said yourself that you have already submitted the dashcam recording to the insurance company. And again, on 18 December during our telephone conversation you said again that you have already submitted to the insurance company?---'Cause I told him I had to run everything through the insurance company because I spoke to Youi they told don't discuss anything with him so that's why we are representing you. Tell just, ah, (indistinct) just tell them to contact the insurance (indistinct). I have written to insurance company, contact them.

JUDICIAL REGISTRAR: So can I just clarify, Mr Ashraff, that you said that you had submitted everything to the insurance company. Were they the words that you used?---Yes.

18 At the end of the witness evidence, the following exchange occurred between Ma and the Judicial Registrar in relation to the recordings:

What I want to say is playing the recording between me and Mr Mohamed his vehicle because both of us are the parties of this matter. Only through the recording can I, um, protect my legal rights and to show Your Honour the truth. It will help Your Honour to make the right decision.

JUDICIAL REGISTRAR: Mr Ma, I'm not going to listen to the recording because you have not captured the recording legally. You cannot record telephone conversations without informing the other person that you are doing so. And in any event a recording between the parties that's discussing what information has been provided to an insurance company I don't consider to be relevant.

19 The Judicial Registrar found in favour of Ashraff and ordered that Ma pay the amount of the counterclaim, interest and legal costs.[3]

20 On 24 October 2023, Ma applied for review of the JR decision by a Magistrate pursuant to s 16K(3)(a) of the MC Act ('review application').

21 Ma produced transcripts of the recordings on the review application.

22 Ma telephoned Ashraff and asked whether Ashraff had contacted his insurer. Ashraff responded:

Mr [Ashraff] (00:44): Yeah. I told them just to, uh, this is why you came to my house. And like he said, the thing is like that you have to come to us. Yeah. Because you have insurance. Now we are the ones handling everything. Mm-hmm... And he, he said, ask them (Mr Ma) to call us, not you because you can't do anything because we are the one handling, we are the one had to pay you if they're, if they're paying or doing anything.

23 The following exchange occurred about dashcam footage:

Mr Ma (01:47): [the insurance representative] said, we don't have received, uh, record of the dash camera,

Mr [Ashraff] (01:57): Okay.

Mr Ma (01:58): And I just, uh, want to know you hand it over.

Mr [Ashraff] (02:03): Yeah. We have given, we have given everything. I sent a report and everything. Yeah.

...

Mr [Ashraff] (02:14): Yeah. So we emailed him everything. I sent a report. I told him everything. I called him...

Ashraff then attempted to explain to Ma at length that the claim was being dealt with by his insurer, who had advised him that Ma should speak to them and not to him. In this context, the following exchange occurred:

Mr Ma (06:31): He's confirm, he's uh, received your dash camera record right from that uh, the email.

Mr [Ashraff] (06:42): Yeah. So is there anyone who can speak proper English who can call them and talk to them? Because I think it's better you don't call them. Because things could have someone who can speak English very well call them. Yeah. Otherwise no point. When you call them, they can't understand you and you can't understand them. It's like it's a bit of problem[.]

24 After a short time, Ma returned to the dashcam footage issue:

Mr Ma (09:09): Before I just worry maybe Youi not received the, the dash cameras record. So I just ask you.

Mr [Ashraff] (09:19): That's why the thing is let, see, see, they should have all the records because otherwise they can't make a decision yet. So the problem is they are not going to make a decision. Uh, whose problem is this one who's fault. They won't make a decision. Yeah. Oh, okay. It's a legal thing. So they should have all the records then the Insurance should a have through everything and general decide. Yeah. Otherwise, like[.]

Mr Ma (09:46): Last time I show you his email, he said, yeah, you told them told Youi.

Mr [Ashraff] (09:51): Yeah[.]

Mr Ma (09:52): And my reverse hit your car. Did you mention that?

Mr [Ashraff](10:00): No, I sent a report to them what happened and everything. Okay. And, uh, I sent all the [records] and [all] the videos and everything. So with that one only they were, they said, so the best thing, yeah, you ask someone who can speak proper English to call them and talk to them because like it's no point otherwise, like say they're telling you one thing and like you can understand, and they are, because when we call, even because I, I rang the guy who's handling, he's a very good guy. So I spoke to him and I uh, I told him last time, when you came last time, the thing is like best thing someone to call, they'll explain and see because the thing is, they are the one handling. That's why I straight away. I told them because I don't want any issues.

25 This was followed by a further exchange about the allegation that Ma had reversed his vehicle:

Mr Ma (12:59): Uh, I, I read Youi's email to me said that you told Youi that my reverse to hit your car.

Mr [Ashraff] (13:11): 'because the thing is, see, the thing is like, see, now she can see the thing is like see if anyone, so I can tell anything. You can tell anything. So they, they will have to have proof. Yeah. Without proof they are not going to decide anything. Okay. Because[.]

Mr Ma (13:28): I, I say the [Ashraff] never talked about my, uh, car reverse to hit his car. So I the stranger. So[.]

Mr [Ashraff] (13:43): Yeah, the thing is, the, the thing is like say any insurance company, they won't just decide. They won't just listen whatever you tell or I am telling, they'll have proof and everything. Yeah. So they'll check all the proof and everything and they will decide whether, uh, it's my problem or your problem whether to repair the car or not. Everything. Okay?

A short time later, in the same vein, Ashraff said:

...They'll see, and because these guys are repairing so many cars, casinos straight away what happened and everything, they, uh, do the inspection and everything and they see the reports. They'll check the footages and everything. Only they will decide. So, uh, this is like, they have to deal with you. That's why they, so if there's anything, just if I think it's better as someone who can speak English to call them and see what's happening with them.

26 On this occasion, Ma telephoned Ashraff and had Zhong conduct the telephone call on his behalf. The following exchange occurred:

Mr [Zhong] (02:43): Yes. So what happened is, because I learnt from Mr, Ma I learned from Mr Ma, you told Mr Ma that you already have, uh, given, uh, given dash camera to, to the Youi Insurance. Is that correct?

Mr [Ashraff] (03:02): Yeah. So what happened was the dash cam was, uh, that, that was faulty, They couldn't read anything. Yeah. The video. Yeah. Video wasn't recorded properly. So that means, uh, they can't take that, uh, evidence at all. Okay. Now,

Mr [Zhong] (03:16): And also, and also, uh, so you, you, you did not, um, Mr. Ma said you did not make a complaint, uh, tell you that, uh, Mr. Ma was reversing hit you. What, uh, did you tell them?

Mr [Ashraff] (03:34): Yeah, because what happened was no, he like, uh, as far as I know, because we, uh, we got a couple of evidence too. Okay. Yeah. Now he was in the wrong thing, and he, uh--.

27 During the balance of the conversation, Ashraff repeatedly explained that he would contact his insurer to resolve the matter.

28 The review application was listed for mention before the Magistrate on 14 December 2023 and on 24 January 2024, with the latter hearing adjourned to 30 January 2024. In an affidavit filed in this proceeding and affirmed on 20 June 2024, solicitor Megan Fastuca said that she appeared for Ashraff at both hearings. She said that at the 30 January hearing the Magistrate asked Ma if the claim was to be heard again and aside from seeking to rely on the recordings, whether he would give evidence in any different way. She said Ma responded that he would call Zhong as a witness, because Zhong participated in one of the recorded telephone conversations with Ashraff. Fastuca said that Ma indicated he would otherwise give the same evidence if the case was to run again.

29 Ma disputes Fastuca's evidence and says that what was discussed at the hearing on 30 January 2024 is set out in a transcript that he produced. The three pages of transcript produced by Ma do not record the discussion about evidence referred to by Fastuca. However, it is evident that the transcript produced is an incomplete record of the 30 January hearing.

30 Ma filed the following documents in support of the review application:

(a) affidavit in support made by Ma on 23 October 2023;

(b) 'Submission on the Defendant's Perjuries and Conspired Fraud' dated 29 October 2023;

(c) 'Submission on Grounds of Application for Re-Hearing' signed by Zhong dated 5 January 2024;

(d) Statutory Declaration made by Zhong on 3 January 2024; and

(e) reply to the defendant's submissions opposing the review application dated 22 January 2024.

31 In his affidavit of 23 October 2023, Ma complained that the Judicial Registrar unfairly and improperly excluded the recordings. He said that the recordings were objective evidence that there was dashcam footage showing that he did not cause the collision, and that Ashraff had failed to produce the dashcam footage. Ma argued that the recordings were not illegally obtained and were therefore admissible as evidence in the proceeding.

32 Ma's submission of 29 October 2023 covered the same ground. In addition to the recordings, Ma sought to lead evidence from Zhong 'who was consented by the plaintiff and the defendant to have a phone conversation with the defendant on 18 December 2022'.

33 Ma's submission dated 5 January 2024, apparently authored by Zhong, set out four grounds for granting the review application. Grounds 1, 2 and 4 related to the alleged false evidence given by Ashraff and Basheer, and the Judicial Registrar's refusal to admit the recordings into evidence. Ground 3 reads:

After the defendant lawyer refused to voluntarily produce documents of the true and 1st original claim records of the defendant in proving or supporting the defendant's, claims in court then the plaintiff applied to the Court for subpoenaing Youi insurance to produce such evidence on 3 October 2023, but the court unfairly delayed to response it until 6 October 2023, when the Court refused plaintiff's application for such subpoena.

34 The submission sets out the following conclusion:

5. That is, the registrar jurisdictionally erred to prohibit the plaintiff to adduce objective and material evidence of recorded phone calls and evidence of Mr Zhanyu Zhong because following reasons:

5.1. The plaintiff is entitled to adduce his recorded private phone calls with the defendant.

5.2. He is a party to such private phone call and consented to record such conversations.

5.3. For protecting public interests from being scammed by the unethical industrialised insurance fraud against general members of the public, the court should have admitted the evidence and permitted the plaintiff to adduce the relevant evidence concerned.

5.4. For protecting the plaintiff's lawful interests from being a victim of industrialized insurance fraud that should have never been endorsed to victimise the plaintiff and vulnerable members of the public, the leave for the rehearing should be granted to the plaintiff.

35 Zhong's statutory declaration deals with four topics:

(a) what he was told by Ma about the telephone conversation on 9 October 2022;

(b) an email he sent to Ashraff's insurer on 6 November 2022 warning about 'deliberately mislead[ing] the court in a false claim';

(c) his telephone conversation with Ashraff on 18 December 2022; and

(d) a further telephone conversation that he said he had with Ashraff on 20 February 2022,[4] in which Ashraff said that Ma should directly contact his insurer 'to resolve his claim'.

36 In the reply submissions (also apparently authored by Zhong), Ma repeated complaints about the Judicial Registrar's exclusion of the recordings and his own evidence. Ma made the following submission and conclusion:

The Court should grant remedies to admit evidence of Mr Zhanyu Zhong and the recorded phone calls of the two parties, start the de novo hearing, hear such illegally excluded evidence and then Magistrate Thomas should determine whether on 11 October 2023 before JR Paton, the defendant did a perjury to make false claims with insurance fraud. That is, Magistrate Thomas should make his finding to substitute JR Paton's decision after the necessary de novo hearing is conducted.

37 The parties agreed that the review application was to be considered by the Magistrate in a two-stage process. First, the Magistrate was to consider the review application and decide whether there was any legal, procedural or factual error by the Judicial Registrar that resulted in unfairness to Ma. If the Magistrate determined the first stage in Ma's favour, the second stage involved him proceeding with a de novo hearing of the claim and cross-claim.

38 The Magistrate identified that the main issue raised by Ma on the review application was that he had been denied a fair trial because the Judicial Registrar excluded the recordings from evidence. The Magistrate noted:

Mr Ma seeks to place this evidence before this court, as I understand it because he believes that Mr Ashraff did forward the dashcam footage to the insurance company. And that that footage, in his view would show that he did not reverse into Mr Ashraff's vehicle. Mr Ma believes that Mr Ashraff did say that to either him or Mr Zhong that the dashcam footage had been sent. And these statements are contained in these telephone calls. Mr Ma appears to have formed the belief that the dashcam footage went to the insurer and they are somehow covering it up in refusing to pay Mr Ma's claim. And somehow inventing the story that Mr Ma reversed into Mr Ashraff's vehicle.[5]

39 The Magistrate accepted Ma's submission that taping the telephone conversations was legal, on the basis that s 6 of the Surveillance Devices Act 1999 (Vic) prohibits only the recording of conversations to which someone is not a party. The Magistrate concluded that '[t]here would have been no illegality in those conversations being either recorded or used to put to the witness'.[6]

Having read all of the [transcripts] that Mr Ma provided of the conversations, in my view they do not take his case or this issue any further... In any event, Mr Ma was permitted during his cross-examination to put a number of question to [Ashraff] during the hearing before the judicial registrar about this issue.[7]

41 The Magistrate referred to Ashraff's evidence that after the collision, Ma contacted him incessantly asking about the claim and the insurance company. The Magistrate said:

The defendant said in evidence that, he may well have said to Mr Ma that the dashcam or videos had been sent to the insurance company in response to this repeated and continual contact by the plaintiff.

This also explains the vast majority of the content of the recorded calls and transcripts where Mr Ashraff appears to be repeatedly asking that the plaintiff contact the insurance company and deal with them rather than ringing him, or coming to his house.[8]

42 The Magistrate found that while there had been an error of law by the Judicial Registrar in refusing to admit the recordings into evidence, this error did not result in any unfairness or disadvantage to Ma.[9] The Magistrate said:

Her Honour set out clear reasons for her decision in favour of the defendant in accordance with that evidence. Insofar as transcripts or telephone calls were concerned, Mr Ma was allowed to question the defendant along the lines of what was contained in those phone calls. And Mr [Ashraff] gave plausible explanation, or a plausible explanation as to why he may have given those answers.[10]

I note that in making my ultimate finding, that both the plaintiff and defendant stated at the hearing on 24 January that if the matter did in fact proceed to a de novo or new hearing, that they would not call any other evidence, save for Mr Ma having access to the telephone call transcripts that I have referred to. I therefore find that there was no error of law, procedure, or fact resulting in Mr Ma receiving an unfair hearing. And therefore, dismiss this application for review.[11]

44 The Magistrates' Court is not bound by the rules of evidence in conducting an arbitration, but is bound by the rules of natural justice.[12]

45 A review of the JR decision is governed by s 16K of the MC Act and r 16 of the Magistrates' Court Judicial Registrar Rules 2015 ('JR Rules'). Section 16K of the MC Act provides:

(1) The rules may provide for appeals from or reviews of a determination of the Court constituted by a judicial registrar -

(a) whether in respect of -

(i) the hearing and determination of any proceeding (whether criminal or civil); or

(ii) any interlocutory application; and

(b) whether in respect of specified kinds of application or proceeding or generally; and

(c) by specifying whether the procedure is by way of appeal or review or both; and

(d) by specifying the way in which the Court may be constituted for those appeals or reviews.

...

(3) Unless the rules otherwise provide, a determination of the Court constituted by a judicial registrar may be appealed from or reviewed -

(a) on application of a party to the proceeding; or

(b) on the Court's own motion.

(4) If the rules do not provide for an appeal from or a review of a determination of the Court constituted by a judicial registrar, the determination is to be subject to a review or an appeal conducted -

(a) by way of hearing de novo by the Court constituted by a magistrate; and

(b) otherwise in accordance with the rules, if any.

(1) An application under section 16K(3)(a) of the [MC] Act for review of a determination of the Court constituted by a judicial registrar must be -

(a) in Form 1; and

(b) accompanied by an affidavit that must state the reasons for the application.

(2) The application and the affidavit must be filed within 14 days after the day on which the determination was made.

(3) The Court may extend time under paragraph (2) before or after the time expires, whether or not an application is made before the time expires.

(4) The application for the review must be determined by the Court -

(a) after consideration of the application and the accompanying affidavit; and

(b) unless the Court otherwise directs, without notice to any person.

47 The process of appeal or review is not made entirely clear by the MC Act or the JR Rules. However, read together, the MC Act and the JR Rules suggest that a review proceeds in two stages: first, an application for review which may be granted or refused; and second, if the application for review is granted, the review itself.[13] This is the way in which the Magistrate and the parties agreed that Ma's review application was to be dealt with.

48 The MC Act and the JR Rules are silent as to the considerations relevant to determining an application for review. It appears that if an application for review is granted in accordance with the JR Rules, any subsequent review is to be conducted by way of a hearing de novo in accordance with s 16K(4)(a) of the MC Act.

49 A Magistrate determining an application for review in accordance with r 16 of the JR Rules must respond to the reasons for the application given by an applicant in accompanying affidavit material.[14] In this case, the Magistrate was required to have regard to the material set out in paragraphs [30]-[36] above on which Ma relied.

50 Pursuant to s 109 of the MC Act, a party to a civil proceeding in the Magistrates' Court may appeal against a final order of the Court on a question of law. Such an appeal is 'an appeal in the strictest sense, and is not, in any form, a re-hearing'.[15]

51 An appellant must identify precisely the questions of law which are the subject matter of the appeal.[16] Ma set out the following questions of law in the Notice of Appeal:

1. In the circumstances where judgmental reasons of Magistrate Thomas are so unreasonable to amount to the Wendnesbury unreasonableness, will one fair-minded and reasonably informed observer might consider that Magistrate Thomas might not have approached his task with a sufficient level of impartiality? Or whether his baseless decision of refusing to give effects of ss 55, 58, 106, and 140 of Evidence Act 2008 to evidence of the appellant, that imposed a duty on court to find the appellant's claim being proved as a fact that the appellant did not reverse his car to cause the collision, when Magistrate Thomas's decision might certainly and must be then caused by one of all other possible causes?
2. To consider all other possible causes, whether Magistrate Thomas has violated the appellant's human right arising under ss 8 and 24(1) of the Chater [a misspelled reference to the Charter of Human Rights and Responsibilities Act 2006], and particularly the causes of interpreter at the hearing, and causes of poor English skills for his case to be considered as whether he had a fair contest hearing?

52 The grounds of appeal relied on by Ma in relation to the first question include:

(a) that no court hearing occurred on 24 January 2023, that he never stated to the Magistrate that he would not call further evidence at a re-hearing, and that the Magistrate disregarded his submissions to the effect that he wished to subpoena the insurer file and lead further evidence at a de novo hearing; and

(b) the Magistrate, having found that the recordings were made legally and should not have been excluded, should have found the recordings were relevant to Ashraff's credit and admissible in accordance with s 106 of the Evidence Act 2008 (Vic) ('Evidence Act').

53 On an appeal, the Court does not have jurisdiction to interfere with a decision of the Magistrates' Court simply because it takes a different view of the facts. It is not sufficient for an appellant 'to demonstrate that it is open for this Court to come to a different conclusion on the evidence or even that the Magistrate made a wrong finding of fact'.[17]

54 An appeal against a discretionary decision is not an occasion to review the merits of the decision. Where an appellant appeals against a discretionary order of a Magistrate, such as in this proceeding, it is not enough that an appellate court considers that if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion,[18] such as because the Magistrate acted upon a wrong principle, took into account irrelevant matters or failed to take into account some material consideration, was mistaken as to the facts, or reached a result that is plainly unreasonable or unjust. There is a strong presumption in favour of the correctness of the decision appealed from unless the appellate court is satisfied that it is clearly wrong.[19]

55 Whether the exercise of judicial discretion is plainly unjust or unreasonable requires reference to the legislative source which provides for the exercise of the discretion.[20] While a Magistrate's discretion as to the matters relevant to an application for review is broad, it is not completely unconstrained.[21] French CJ noted in Minister for Immigration and Citizenship v Li[22] that where a discretion is conferred on either a judicial or administrative officer without definition of the grounds upon which it is to be exercised, then:

... the real object of the legislature in such cases is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case.[23]

The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker.[24]

56 A central issue on the review application was whether the Judicial Registrar erred by excluding the recordings from evidence. Once the Magistrate had concluded that an error was established, it was necessary for his Honour to consider the materiality of the excluded evidence and whether there was a realistic possibility that the JR decision could have been different had the error not been made.[25] 'There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration.'[26]

57 There was no basis to refuse the review application.

58 Ashraff's evidence in the hearing before the Judicial Registrar is inconsistent in critical respects with statements he made in the recordings concerning:

(a) whether there was dashcam footage of the collision;

(b) whether he sent the dashcam footage to his insurer; and

(c) whether, and if so when, Ashraff reported to his insurer that Ma had reversed his vehicle and caused the collision.

59 The recordings were not illegally obtained pursuant to s 6 of the Surveillance Devices Act 1999 (Vic).

60 The Judicial Registrar and the Magistrate unlawfully excluded the recordings from evidence. As a result, Ma was denied a fair hearing. Further, the Magistrate's conclusion about Ashraff's evidence and the confirmation of the Judicial Registrar's findings on liability are judicially unreasonable.

61 Ma was unfairly prevented by the Magistrates' Court from issuing the subpoenas to Ashraff and his insurer. If the review application had been granted, Ma intended to pursue the subpoenas for the purposes of the rehearing. It is not accurate to say, as the Magistrate did, that Ma did not intend to call any new evidence at a rehearing save for the recording transcripts.

62 The failures by the Magistrate represent a breach of ss 8 and 24(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic). On that basis, the appeal should be allowed.

63 The real controversy is whether the exercise of discretion by the Magistrate to dismiss the application for review was legally unreasonable so as to constitute an error of law.

64 The Magistrate correctly identified s 16K of the MC Act and r 16 of the JR Rules as the applicable legislative framework. The JR Rules provided the Magistrate judicial freedom to identify the relevant issues in the application before him, to formulate questions to be answered and to determine what evidence was relevant to those questions.

65 His Honour permitted Ma to file voluminous materials in support of his application and each party to make written submissions. It is also clear that the Magistrate listened carefully to the audio recording of the hearing before the Judicial Registrar and considered all of the material and submissions filed with the review application. His Honour directed himself as to the relevant question to be determined on the review application, being whether the hearing before the Judicial Registrar contained any legal, factual or procedural error which resulted in unfairness to Ma. The process undertaken by the Magistrate was entirely within the broad discretion afforded by the JR Rules such that, even if other judicial minds may have directed themselves differently, the way in which the Magistrate approached the task could not sensibly be said to be so unreasonable that the exercise of discretion constituted an error of law.

66 The Magistrate then embarked on a detailed examination of the evidence which was before the Judicial Registrar before considering the JR decision. It is clear from the Magistrate's reasons that his Honour read and considered the transcripts of the recordings in detail, and formed the view that they added no probative value to the issue of liability which the Judicial Registrar was to determine. The Magistrate's finding that the recordings were of little probative value is correct, and was in any event part of his Honour's discretionary evaluative assessment of the evidence which is not open to appeal on a question of law.[27]

67 For completeness, insofar as Ma raises a procedural fairness argument on the basis that the Magistrates' Court refused to issue a subpoena for production of documents on Ashraff's insurer prior to the hearing, the argument is unfounded. The Court refused to issue the subpoena because it involved a request for a large volume of documents only two days prior to the hearing, and on this basis was an unreasonable request and could not be complied with. Ma's suggestion that he did not request an adjournment of the hearing to pursue the request for documents because he was being indirectly 'bullied' by judicial officers is baseless.

68 The Magistrate determined that the Judicial Registrar erred in deciding that the recordings were illegally obtained and should be excluded from evidence. Ashraff's submissions seek to put in doubt the correctness of the Magistrate's conclusion. However, there has been no cross-appeal on this point. For the purposes of the appeal, the Magistrate's conclusion as to the legality of the recordings stands.

69 The case by which Ma sought to establish that the collision was caused by Ashraff's negligent driving was comprised of the following essential planks.

70 First, Ma wished to prove that there was dashcam footage of the collision. He argued that this footage would show that he had not reversed his vehicle and caused the collision. Ma wished to rely on statements Ashraff made at the scene of the collision and in subsequent conversations to the effect that the footage was available and had been provided to his insurer. Ma sought to subpoena the insurer to obtain the dashcam footage or documents which showed it existed.

71 A finding that the footage existed was likely to be critical to the determination of liability. Dashcam footage from Ashraff's car, if it existed, is likely to have included direct evidence of the collision. If dashcam footage was produced and tendered at a hearing of the claim, it would have at least been very relevant, and possibly determinative, as to whose version of events should be accepted. A failure by Ashraff or his insurer to produce any existing dashcam footage at a hearing would support inferences adverse to Ashraff relevant to liability.

72 Second, Ma sought to argue that the allegation that he reversed his vehicle and caused the collision was untrue and was first made by Ashraff some considerable time after the collision. Again, what Ashraff said in the recordings and in statements and reports to his insurer is directly relevant to the argument Ma sought to advance. Any evidence that Ashraff delayed reporting the reversing allegation or made inconsistent statements about the circumstances of the collision would clearly be relevant to whose recount of the collision should be accepted.

73 Third, Ma sought to make an associated attack on Ashraff's credibility. There are relevant inconsistencies between the evidence Ashraff gave at the arbitration and what he said in the two telephone conversations. First, Ashraff appears to say a number of times during the conversation on 9 October that he sent the dashcam footage to his insurer. In evidence in chief at the arbitration, he said that he wasn't able to obtain the footage because when he checked his dashcam he discovered it was on standby. In the conversation on 18 December, he told Zhong that the dashcam was faulty and that '[Youi Insurance] couldn't read anything'.

74 In those circumstances, the recordings would appear to be admissible pursuant to s 106 of the Evidence Act.

75 Because the review application was refused, Ma did not have the opportunity to subpoena the insurer file to attempt to show that there was dashcam footage of the accident.

76 Ma was prevented from pursuing his second line of attack on the basis of Ashraff's communications with his insurer because the subpoena he sought to issue was rejected, and because he was not permitted by the Judicial Registrar to question Ashraff about reports or statements he made to his insurer.

77 The Magistrate considered the transcripts of the recordings and concluded that Ashraff's credibility was not undermined by inconsistencies with his oral evidence at the arbitration hearing, because he gave a credible explanation for why his earlier statements differed from his evidence. However, for the following reasons, this finding by the Magistrate did not address the unfairness to Ma in the way the arbitration was conducted and the issues raised by Ma on the review application.

78 First, the Magistrate assessed Ashraff's credibility by comparing transcripts of the recordings to the transcript of the arbitration. The Magistrate did not have the advantage of assessing the witnesses firsthand, including Ashraff, or of listening to the recordings. In circumstances where Ma was not permitted to rely on the recordings or to pursue lines of attack against Ashraff at the arbitration, findings made by the Judicial Registrar did not assist the Magistrate in assessing Ashraff's credibility.

79 Second, there are the following issues with the Magistrate's finding that Ashraff's explanation for why he told Ma that he had given the dashcam footage to his insurer in the conversation on 9 October was plausible. The explanation was not put to Ma in cross-examination and he had no opportunity to respond to it. Further, the questions put to Ma, which it could be inferred were on instruction, were inconsistent with Ashraff's explanation. This matter was not addressed by the Magistrate. Finally, the Magistrate did not address the further inconsistency between what Ashraff said to Zhong and the evidence he gave at the arbitration.

80 Third, the Magistrate did not address the additional unfairness from the curtailing of Ma's attack based on what Ashraff told his insurer and when he first reported that the collision was caused by Ma reversing his vehicle.

81 The Magistrate said that at a hearing on 24 January 2024, both parties said that they would not call any further evidence at a de novo hearing, save for Ma tendering the recording transcripts. There was no hearing on 24 January. Presumably, the Magistrate intended to refer to the hearing on 30 January. The parties are at odds about what was said at that hearing, and the transcript of the hearing available to me appears to be incomplete. Fastuca's evidence does not exclude a desire by Ma to further cross-examine Ashraff at a de novo hearing. Ma's written submissions showed that he wished to subpoena the insurer's file. I accept that the potential differences in evidence between the arbitration and a potential de novo hearing extended beyond Ma simply tendering transcripts of the recordings.

82 It must also be borne in mind that Ma was a self-represented litigant with limited proficiency in the English language.

83 Ma was denied the opportunity at the arbitration to present evidence and make submissions on the related issues in dispute. There was a realistic possibility that the result of the arbitration could have been different if he was given the opportunity to run the case he wished to make. Further the Magistrate failed to take into account Ma's intention to subpoena the insurer file and his likely further cross-examination of Ashraff at a de novo hearing. I am satisfied in the circumstances that error has been established in determination of the review application.

84 The review decision will be set aside and Ma's review application remitted for reconsideration. I will hear from the parties as to the form of orders to give effect to these reasons.

[1] _Ma v Mohamed Ashraff (_Magistrates' Court of Victoria, Judicial Registrar Paton, 11 October 2023) ('JR decision').

[2] Jun Ma v Mohamed Ashraff (Magistrates' Court of Victoria, Magistrate Thomas, 5 March 2024) ('Review decision').

[4] I infer that this date is incorrect, as this conversation follows the conversation of 18 December 2022 in the chronology of events.

[12] Magistrates' Court Act (Vic) s 103(2).

[13] White v Ropata [2017] VSC 518, [81].

[14] Re Greco [2018] VSC 175, [37].

[15] Fiorelli Properties Pty Ltd v Professional Fencemakers Pty Ltd & Anor [2011] VSC 661, [43].

[16] Hoe v Manningham City Council [2011] VSC 37, [4], cited in Yehia v Williams [2022] VSC 197, [55].

[17] Zogiannis v Stevens [2012] VSC 264, [2].

[18] House v The King (1936) 55 CLR 499 (Dixon, Evatt and McTiernan JJ).

[19] Samsung Electronics Co Limited v Apple Inc (2011) 217 FCR 238, [39]; citing Australian Coal and Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621, 627 (Kitto J) and Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 634 (Wilson J).

[20] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, [19] (Gleeson CJ, Gaudron and Hayne JJ); Australian Post-Tensioning Pty Ltd v Workers' Compensation Regulator [2022] QSC 250, [25].

[21] Minister for Immigration and Citizenship v Li (2013) CLR 332, [23] (French CJ).

[25] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610, [16] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).

[26] Ramith v Homes Victoria [2025] VSC 2, [54]; citing Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80, [33] (Kiefel CJ, Keane and Gleeson JJ).

[27] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 155-156 (Glass JA).