McGuinness v ACM Group Ltd [2015] VSC 216

2 Pursuant to the further amended notice of appeal dated 15 May 2015, the grounds of appeal are as follows:

1. In making her decision, [the Magistrate] failed to take into account that the Respondent had the burden of proving that:

(a) The Appellant personally had requested that National Australia Bank enter into the Loan Facility by application to the National Australia Bank for the Loan Facility;

(b) The Respondent had actually given notice of the 'Conditions of use for credit cards' in operation in March 1993 to the Appellant;

(c) The 'Conditions of use for credit cards' or any subsequent variation of such terms and conditions authorised:

(i) The National Australia Bank to unilaterally assign any of its rights under the Loan Facility to any third person such as the respondent;

(ii) The respondent to charge penalties and/or interest on $28,408.25 in accordance with the terms of the Loan Facility as at the date of the initial assignment of the rights under the Loan Facility on 19 March 2008;

(d) The Appellant had personally paid $2,000 against the Loan Facility on 19 March 2007 and $2,000 on 27 April 2007;

(e) The Loan Facility and the Other Facility were one and the same account.

1. In making the said decision, the Magistrate took into account the following irrelevant considerations:

(a) That an application for an increased limit of the Other Facility was evidence of an application for an increased limit of the Loan Facility;

(b) An aide-mémoire prepared by the Respondent that purported to calculate the sum of $70,828.13 of which $42,419.88 was said to be for interest and late fees, as evidence of the actual damages recoverable from the Appellant.

3. There was no evidence that in 2008:

(a) The terms and conditions of the Loan Facility authorised the National Australia Bank to unilaterally assign any of its rights under the Loan Facility to any third person;

(b) The first assignee, [Accounts Control Management Services Pty Ltd]:

(i) Had itself any rights under the Loan Facility to recover interest and/or penalties from the Appellant;

(ii) Could assign any rights to recover interest and/or penalties from the Appellant to any third person such as the Respondent.

4. There was no evidence:

(a) That the Appellant had personally requested the Loan Facility;

(b) That the Appellant had notice, constructive or otherwise, of the 'Conditions of use for credit cards' or any subsequent variation of such terms and conditions;

(c) That the Loan Facility and the Other Facility were one and the same account;

(d) About how the sum of $42,419.88 as interest and/or late fees was calculated in accordance with the terms of the Loan Facility.

5. The decision was otherwise contrary to law.

1. The ... Magistrate ... failed to ensure a fair trial in that she failed to give proper assistance to a self-represented litigant, particularly by failing to advise in relation to the rules of evidence and to ensure the case was conducted in accordance with the rules of evidence.

3 The following facts were, at least by the time of this appeal, not contested.

(a) In November 1993, the National Australia Bank ('NAB') issued a NAB Gold Rewards Visa Card ('the Credit Card') in the name of the appellant.

(b) The appellant used the Credit Card from time to time between 1993 and December 2007.

(c) In or about late December 2007, the NAB issued a statement addressed to the appellant for a NAB Gold Rewards Visa Card with the account number 4557 0168 3700 5714 for the period 24 November 2007 to 24 December 2007. The statement identified the unpaid balance at $28,408.25.

(d) On or about 19 March 2008, the NAB assigned the debt due under the Credit Card to Accounts Control Management Services Pty Ltd. On or about 9 April 2013, Accounts Control Management Services Pty Ltd assigned the debt due under the Credit Card to the respondent.

(e) By a complaint in the Magistrates' Court filed on 15 April 2013, the respondent claimed from the appellant the amount of $28,408.25 plus interest and late fees of $42,419.88 being a total of $70,828.13. In particular, the complaint alleged as follows:

By an agreement made on or about 3 November 1993 between the Defendant and the National Australia Bank Ltd ('NAB'), NAB, at the request of the Defendant, agreed to loan moneys to the Defendant by provision of a credit card facility in exchange for the Defendant's undertaking to repay the monies loaned plus interest and any other charges...

(f) The matter came on for hearing in the Magistrates' Court on 7 March 2014. Mr Strauch of counsel appeared for the respondent and the appellant appeared in person. The respondent called two witnesses, being:

(i) Mr Wade Zhao, a Senior Associate employed by the NAB; and

(ii) Mr Trent Matthew Vieira, the National Manager of Operations for the respondent.

(g) At the conclusion of the evidence, the Magistrate made the following findings:

The issue that I have before me is whether you - you can sit down, please - whether you are indebted firstly to the National Australia Bank and then upon assignment to the plaintiff. I am in no doubt that that is the case and I will find for the plaintiff on that basis. The credit card was in your possession. It was in your name. You applied in 2001 under your own hand and your own signature for an increase in the credit limit applicable to that account.

The terms and conditions that applied in 1993 and applied right through until when the account was cancelled and called in by the bank in 2007 state very clearly that each transaction or the use of the card by transactions by the cardholder or persons authorised by them are an acceptance of the terms and conditions. You have had access to and transacted over many, many years purchases and other transactions on this account.

The bank is entitled to be paid for those transactions and the question I have before me clearly is, by whom? If it were to be said or had been put in issue that the transactions were undertaken or carried out by persons who were doing so by way of fraud or theft or matters of that kind and there was a real dispute about these matters, then those matters should've been reported to the bank and/or the police but these issues have never been raised.

Your defence is essentially this, "I can't recall in 1993 making an application for a credit card but since 1993 I have had a credit card in my name with the National Australia Bank and I've used it and payments have been made for transactions that I and perhaps others have undertaken".

It's unfortunate that this matter has gone on for as long as it has because the vast majority of the - well not vast majority but the majority of the claim now is made up in late fees, interest and sums of that kind, which are properly I find chargeable under the terms and conditions because payment of the principal sum - which was $28,000, a significant amount in itself - hasn't been made.

So to sum up I suppose the plaintiff has, in my view, more than adequately discharged the burden of proof that it carries - and I discussed this with you earlier - as to your indebtedness to the bank and its purchase and assignment of that debt to the plaintiff that now brings this claim and accordingly I'll find for the plaintiff.

(h) The Magistrate then entered judgment in favour of the respondent for the sum of $70,828.13 plus costs of $12,107.

4 On the hearing of the appeal, Mr Magowan, who appeared as counsel for the appellant, pressed the following grounds of appeal:

(a) The Magistrate erred in finding that the appellant had entered into the Credit Card agreement in 1993 ('the Credit Card contract'). In particular, the Magistrate's error consisted of:

(i) the subsidiary finding that the appellant, in 2001, had applied for an increase in the credit limit applicable to the relevant account ('the 2001 Variation Application');

(ii) admitting the evidence of Mr Zhao about the appellant applying for the Credit Card; and

(iii) the ultimate finding that the appellant entered into the Credit Card agreement when such a finding was not open on the evidence.

(b) The Magistrate erred in finding that Exhibit E 'Conditions of use for credit cards effective from the date prior to 01/12/93 and in operation in March of 1993' were the terms and conditions applicable to the Credit Card contract. In particular, the Magistrate erred in admitting and relying upon the evidence of Mr Zhao with respect to the applicability of the terms and conditions.

(c) The Magistrate erred in finding that the appellant was liable for interest and fees from 25 December 2007 to the date of the hearing. In particular, there was no evidence of the interest rates or other charges chargeable pursuant to the terms and conditions during this period.

(d) The Magistrate failed to ensure that the appellant as a self-represented litigant was given a fair trial and did not provide such assistance as was necessary to ensure a fair trial. In particular, her Honour:

(i) allowed the respondent to lead inadmissible evidence as to the establishment of the account and the applicability of the terms and conditions;

(ii) did not give the appellant a fair opportunity to cross-examine Mr Zhao by interrupting her; and

(iii) failed to give the appellant a fair opportunity to give her evidence in chief by interrupting her and effectively cross-examining her during the course of her evidence in chief.

Error in finding that the 2001 Variation Application was 'applicable to' the Credit Card

5 The appellant submitted that, in her findings[1], the Magistrate identified the following facts from which her Honour concluded that the appellant had entered into the Credit Card contract:

(c) In 2001, she had signed the 2001 Variation Application, which was applicable to the Credit Card.

6 The appellant challenged the third of those findings being that the 2001 Variation Application was 'applicable to' the Credit Card. The appellant relied upon the following:

(a) The appellant's evidence was that she had a number of credit cards.

(b) There was no evidence from the respondent's witnesses that the 2001 Variation Application related to the Credit Card.

(c) Counsel for the respondent did not put it to the appellant in cross-examination that the 2001 Variation Application related to the Credit Card.

(d) The 2001 Variation Application was not tendered, but it notes the card number as 4557 0168 3479 7552, which was different to the number on the Credit Card the subject of this dispute, being 4557 0168 3700 5714.

(e) The respondent did not make any submission to the Magistrate that the 2001 Variation Application did relate to the Credit Card.

7 On this appeal, the respondent submitted that there was evidence from which the Magistrate could have concluded that the 2001 Variation Application did relate to the Credit Card. The respondent relied upon the following:

(a) The appellant did not give evidence about whether any of her other credit cards were with the NAB.

Have you checked whether there's any other facilities, bank loans or accounts, just normal savings account, with this client?---No

You know of none or -? --- There is no - none on the system.

All right, so Ms McGuinness hasn't had a personal bank savings account or transaction account with the bank?---No.

That's correct?---Not according to the system, no.

Accordingly, it was submitted, the Magistrate could have concluded that the appellant only had one NAB credit card and therefore the 2001 Variation Application must have related to the Credit Card.

8 In my opinion, the Magistrate erred in concluding that the 2001 Variation Application related to the Credit Card for the following reasons:

(a) There was no evidence from any witness that the 2001 Variation Application related to the Credit Card.

(b) It was not put to any witness or to the Court on behalf of the respondent that the 2001 Variation Application did relate to the Credit Card. The cross-examination of the appellant used the 2001 Variation Application to attack her credit about her proposition that she had little or nothing to do with the family finances.

(c) The evidence of Mr Zhao did not state in terms whether the appellant had other credit cards with the NAB in the past. Further, the evidence did not detail the relevant circumstances to enable the Court to form any conclusion about the significance of the fact that Mr Zhao did not find a record on 'the system' of 'a personal bank savings account or transaction account with the bank' held by the appellant.

(d) Counsel for the respondent did not put to the appellant that she did not have any other NAB credit cards. It was not a matter explored before the Magistrate and counsel for the respondent candidly conceded on appeal that the questions asked of Mr Zhao, referred to in the previous paragraph, were not asked for the purpose of establishing that the 2001 Variation Application related to the Credit Card.

9 Accordingly, I accept the appellant's submission that the Magistrate erred in finding that the 2001 Variation Application related to the Credit Card.

Error in admitting evidence of Mr Zhao about the appellant applying for the Credit Card

10 Prior to the first witness being called, the appellant identified the issue as whether she had applied for the Credit Card. She said to the court:

... I acknowledge that I - there was a card that was actually issued under my name and that I was actually using. Back in 1993, I was in my 20s. I don't have any recollection of actually having applied for a credit card. Um, so basically I asked the plaintiff for proof of contract. Um, because there was no recollection. I know that I had a credit card, but it could have been one that my ex husband actually had given me...

11 With respect to the question of who applied for the Credit Card, Mr Zhao, after acknowledging that the NAB did not have the application or any other document executed in 1993, was asked the following questions by counsel for the respondent; and gave the following responses:

Now you say at Paragraph 6 that you searched through all of National Australia Bank's records, is that correct? --- Yes.

All right. Now if I take you over the page to Paragraph 6A, can you tell - Your Honour, I may just lead on this, because it's in writing and in affidavit as well.

HER HONOUR: All right.

MR STRAUCH: All right, a Gold Visa credit card was applied for, according to the NAB's records, by Ms Sandra McGuinness, is that correct? --- Yes.

And the date of birth recorded was 22 February 1965? --- Yes.

...

Now your records show that this was a - that the defendant was a sole and primary holder of the account? --- Yes.

Can you tell Her Honour what that means, just in simple terms? --- So they will be the one that's solely liable for the card.

HER HONOUR: It wasn't a supplementary card on someone else's account? --- No.

MR STRAUCH: And it also, if I may suggest and correct me if I'm wrong, it's not a joint account either, with equal liability with anybody else? --- No.

All right. Which goes to show at F, if I read further, there's no secondary account holder recorded underneath or behind Ms McGuinness, correct? --- Exactly, yes.

12 Mr Zhao said that, as at the time he gave evidence, he had been an employee of the NAB for six years [ie since 2008]. Cross-examination of Mr Zhao by the appellant included the following exchanges:

In terms of the accuracy of the records of the bank, how are the records actually entered? Like from when they were actually went into the record system? --- I - I don't know.

How does that work? --- I don't know.

Right. In terms of actually issuing a credit facility of this kind, um, basically what - what knowledge do you have - what does that person have to have to be able to get given a credit card? Do they have - do they need some consideration, like in - like being employed or you know, having an - - -? --- I don't know, I mean, it's not my area of expertise. I deal with the back end of the collection process.

OK. So how um - yeah, so basically we don't know really how the records are actually entered into the system, is that correct? You don't - you don't have any idea?---I don't know.

OK, so you cannot really say that they - they - in terms of reliability, how accurate those records could be? --- Yeah, I can't say that.

HER HONOUR: Which records? What records are you talking about?

Ms McGUINNESS: The records that basically he's - was talking in his affidavit that I was um, the primary card holder.

HER HONOUR: Yes.

Ms McGUINNESS: Um, so I want to know how those records were actually entered, for him to have that affidavit, that information. So um yeah, my question is, like that basically also um, here he was um - because it says on the affidavit that the account was actually opened on the - in - in March on 11 March in 1993? --- Yes, that's what it shows on our system.

Right. Does it - does it actually say who actually opened that account on that time? --- No.

There is no record of what - - - ?---It basically shows an account with a name and then the open date.

...

HER HONOUR: What's the account on the account? --- Sandra McGuinness.

Ms McGUINNESS: Just the name of the account, but it doesn't say who actually opened the account? --- No, no - - -

...

HER HONOUR: Even if you weren't the primary holder, you're still going to be liable for any amount that's owing.

13 The respondent did not tender the records to which Mr Zhao referred. The records presumably dated from about 15 years before Mr Zhao's employment with the NAB; and the evidence was clear that he was not familiar with the making of records relating to applications because he dealt 'with the back end of the collection process'.

14 Counsel for the appellant submitted that the above evidence of Mr Zhao was inadmissible and should have been rejected by the Magistrate. I accept this submission for the following reasons:

(a) The Credit Card contract itself was the document in question and could have been tendered pursuant to s 48 of the Evidence Act 2008 ('the Evidence Act').

(b) Assuming the evidence of Mr Zhao established that the Credit Card contract in question was not available[2] to the respondent, then the respondent could have produced evidence of the contents of the document in question by:

(i) tendering a document that was a copy of, or an extract from, or a summary of, the document in question; or

(ii) adducing from a witness evidence of the contents of the document in question.[3]

(c) Mr Zhao did not give evidence of the contents of the document in question (being the Credit Card contract), rather he purported to give evidence of the contents of the NAB records, which may have contained extracts of or a summary of the Credit Card contract. Such evidence was inadmissible but, subject to meeting the necessary requirements, he could have sought to tender the records of the NAB as constituting an extract or a summary of the document in question.[4]

(d) However, the respondent did not seek to tender the NAB records but sought, by a series of leading questions, to adduce from Mr Zhao evidence as to the content of, or conclusions he would draw, from the records. There was no suggestion that the records were unavailable or any other explanation as to why the records were not tendered. Accordingly, the evidence of Mr Zhao was not admissible under the Evidence Act. On this appeal, counsel for the respondent did not resist this proposition.

15 In fact, the same result would have resulted from the application of common law principles.

16 In Masquerade Music Ltd v Springsteen, Jonathan Parker LJ, with whom Waller and Laws LJJ agreed, stated:

In my judgment the authorities to which I have referred establish that by the mid 19th century, if not earlier, the so-called 'best evidence rule' was recognised by the courts as no more than a rule of practice to the effect that the court would attach no weight to secondary evidence of the contents of a document unless the party seeking to adduce such evidence had first accounted to the satisfaction of the court for the non-production of the document itself. But even if that conclusion be open to doubt, there can in my judgment be no room for doubt that as the law stands today, some 150 years later, that is the position. [5]

17 In the present case, there was additional cause for the Magistrate to be cautious about Mr Zhao's evidence because, in answer to a leading question from counsel for the respondent, he gave evidence that the appellant had applied for the Credit Card.[6] However, as noted above,[7] in cross-examination he said that the records did not say who 'actually opened the account'.

18 Further, I accept the appellant's submission that, by her failure to object:

(a) the admission of Mr Zhao's evidence as to the establishment of the Credit Card contract was not impliedly consented to by the appellant; and

(b) the appellant did not consent to dispensation with the rules of evidence under s 190 of the Evidence Act or otherwise waive a right with respect to the exclusion of the evidence.

The appellant was self-represented in the Magistrates' Court proceeding and she was not advised about her right to object to evidence. The evidence about the entry into the Credit Card contract was identified by the appellant, at the start of the hearing, as the principal issue in the case; and any requirement that it be properly proved in accordance with the provisions of the Evidence Act could not be said to 'cause or involve unnecessary expense or delay'.[8]

19 No submission was advanced as to how the failure by a self-represented litigant in these circumstances could constitute a waiver under s 190 of the Evidence Act or otherwise.

Was the finding of the entry by the appellant into the Credit Card contract open on the evidence?

20 The respondent submitted that, although (as conceded) the evidence of Mr Zhao with respect to the entry into the Credit Card contract was inadmissible, it was open to the Magistrate to find that the appellant had entered into the Credit Card contract on the basis of the following:

(a) The Credit Card had been issued in the appellant's name.

(b) The Credit Card had been used by the appellant (and possibly others) over the period from 1993 to 2007.

21 The appellant submitted that it was not open, on the evidence, for the Magistrate to find that the appellant had entered into the Credit Card contract for the following reasons:

(a) Although the Credit Card was issued in the appellant's name, there was no evidence from the NAB that this was only consistent with the entry by the appellant into the Credit Card contract. There was, for example, no evidence from the NAB that:

(i) the practices of the NAB meant that it was improbable, in 1993, for a NAB Gold Rewards Visa Card to be issued in the name of a person on the application by another, in particular in this case the appellant's husband; and

(ii) there was no admissible evidence from the NAB that its records were inconsistent with the Credit Card being issued as a supplementary card on the account of the appellant's husband.

(b) No Jones v Dunkel[9] inference could be drawn against the appellant because she gave evidence that she could not recall applying for the Credit Card and that at that time she was a housewife and it was her husband who managed the financial affairs of the family. It was further submitted that the Magistrate appeared to accept this evidence of the appellant when her Honour said:

And, Ms McGuiness, I can also tell you that I understand the concept of, I think it's referred to as sexually transmitted debt ... Clearly what's happened here is that you have not had, for many reasons, a day to day or even slightly less frequent details of the family's financial history, financial dealings etc. Those are those matters that you've left to your husband to take care of at the time and that is not uncommon.

(c) The respondent was unable to produce the Credit Card contract and it was conceded by Mr Zhao that the records of the NAB did not say who applied for the Credit Card.

22 Under s 109 of the Magistrates' Court Act 1989, appeals to this Court are confined to a question of law.

23 In Victoria v Subramanian,[10] Cavanough J considered the authorities with respect to the test to be applied, on an appeal under s 109 of the Magistrates Court Act 1989, in determining whether or not a finding was open on the evidence. His Honour concluded that the two formulations contemplated by the authorities should be regarded as equivalent. Accordingly, his Honour concluded that a determination of fact will not give rise to an error of law unless it is shown that the fact finding tribunal arrived at a finding that was simply not open to it from the acceptance of direct evidence to that effect or an inference of fact drawn from other facts found by the tribunal.[11]

24 I am also mindful of Cavanough J's caution that it is rarely easy to establish that the decision of the lower court was 'not open'.[12]

Conclusion on whether the finding of entry into the Credit Card contract was open

25 I accept the submission of the appellant that the essential finding that the appellant entered into the Credit Card contract was not open to the Magistrate. There was no direct evidence as to who applied for the Credit Card or entered into the Credit Card contract. In my opinion, on the evidence there were no facts from which the Magistrate could infer that it was the appellant, rather than her husband, who applied for the Credit Card and entered into the Credit Card contract. The only evidence available as to whether it was the appellant or her former husband who entered into the Credit Card contract was the appellant's evidence that, in substance, to the best of her recollection she did not apply for the Credit Card and at the relevant time it was her husband who took responsibility for their financial affairs. Accordingly, I conclude that the finding of liability against the appellant was based on a finding that she entered into the Credit Card contract which, on the evidence, was not open to the Magistrate.

26 I am fortified in this decision by the fact that the critical document in this claim was the Credit Card contract which had been in the possession of the NAB who later ultimately assigned the debt to the respondent. It was this document that the appellant expressly requested to see but the respondent was unable to produce because, as Mr Zhao explained, the NAB has a policy of only 'keeping documentation for a certain period of time'.

27 Mr Zhao said he believed that the policy was to retain the documents for seven years. It would seem surprising that a bank, which must have the facility to retain mortgages and other contractual documents for long periods of time, would destroy documents which evidence the terms of a continuing trading relationship without even retaining a copy. In my opinion, the circumstances of the document being destroyed would make the provisions of div 9 of the Evidence (Miscellaneous Provisions) Act 1958 applicable. Division 9 includes the following provisions:

89A Meaning of unavailability of document

For the purposes of this Division, a document is unavailable in a civil proceeding if -

(a) the document is, or has been but is no longer, in the possession, custody or power of a party to the civil proceeding; and

(b) the document has been destroyed, disposed of, lost, concealed or rendered illegible, undecipherable or incapable of identification (whether before or after the commencement of the proceeding).

89B Court may make ruling or order

(1) If, in a civil proceeding, it appears to the court that

(a) a document is unavailable; and

(b) no reproduction of the document is available in place of the original document; and

(c) the unavailability of the document is likely to cause unfairness to a party to the proceeding -

the court, on its own motion or on the application of a party, may make any ruling or order that the court considers necessary to ensure fairness to all parties to the proceeding, having regard to the matters set out in section 89C.

(2) Without limiting subsection (1), a ruling or order may be -

(a) that an adverse inference will be drawn from the unavailability of the document;

(b) that a fact in issue between the parties be presumed to be true in the absence of evidence to the contrary;

(c) that certain evidence not be adduced;

(d) that all or part of a defence or statement of claim be struck out;

(e) that the evidential burden of proof be reversed in relation to a fact in issue.

89C Matters the court must consider

Before making an order under section 89B, the court must have regard to -

(a) the circumstances in which the document became unavailable; and

(b) the impact of the unavailability of the document on the proceeding, including whether the unavailability of the document will adversely affect the ability of a party to prove its case or make a full defence; and

(c) any other matter that the court considers relevant.

28 In the circumstances, where the critical document in issue had been destroyed by the NAB, these provisions should have been brought to the attention of the Magistrate. I have no doubt that the failure to do so was solely the result of an oversight; but in my opinion the application of these provisions would have presented a further substantial obstacle to the success of the respondent's claim.

29 Counsel for the appellant made an alternative submission that the Magistrate erred in that she did not consider that it was necessary for the respondent to establish that it was the appellant who entered into the Credit Card contract with the NAB. The Magistrate does not specifically state that she found that the appellant had entered into the Credit Card contract with the NAB; and her Honour did, in the course of the hearing, make a number of statements which indicated that it may not be necessary to make such a finding. For example, she stated to the appellant 'If you weren't the primary holder, you're still going to be liable for any amount that's owing'. However, I have concluded that the Magistrate did intend to make such a finding on the following bases:

(a) Each of the facts referred to in paragraph 1 of the Magistrate's findings[13] could be relevant in considering whether an inference could be drawn that the appellant had entered into the Credit Card contract.

(b) The pleadings were based on the appellant entering into the Credit Card contract.

(c) It is inherently unlikely that the Magistrate would not have appreciated the necessity for privity of contract.

In any event, counsel for the respondent conceded (in my opinion, properly) that if the appellant had not opened the account but she was, for example, a supplementary holder, there was no evidence before the Magistrate which would support a finding of liability against the appellant.

Error in finding that the terms and conditions of the Credit Card contract were proved

30 The evidence with respect to the terms and conditions of the Credit Card contract consisted of the following:

(a) During the examination in chief of Mr Zhao, counsel for the respondent asked 'Is this a true and correct copy of the applicable general terms and conditions in relation to this facility, or the facility the subject of this case?' Mr Zhao said, 'Yes'. The document was then tendered as Exhibit B described as 'Conditions of use for credit cards published by the National Australia Bank effective from 01/12/93 for the period until 31/10/96'. Mr Zhao then went on to give evidence to the effect that there had been no change to the terms and conditions.

(b) In cross-examination, the appellant asked Mr Zhao whether he could explain how the terms which operated from 1 December 1993 could be applicable to the Credit Card that was issued on 11 March 1993. He answered that he did not know and that 'in this very instance, we have asked for a copy from a team and that's what they provided. And for some reason it is dated after the application.'

(c) When asked in re-examination whether the terms and conditions were 'your best search of what you could locate, going back to 92/93?' Mr Zhao said, 'I think - I - I - I don't know the reason why they actually gave me the copy of this'. Mr Zhao was then asked to make an inquiry about the terms and conditions for 1992/93 over lunch.

(d) After lunch Mr Zhao was examined by counsel for the respondent as follows:

If I can hand a document to you? In fact, I'll hand both at once. If I may approach the witnesses? Now the first document I've handed you, that was the terms and conditions that were in effect predating (technical malfunction) already tendered and at the time of the opening of this account, is that correct?---Yes.

All right. Can you just flick through them, if you have not already? Relevant - you gave evidence earlier there weren't material changes over the years in relation to the bank having the right to call in defaulted accounts. Can you just confirm that was in existence at the time of opening this account as well?---Yes.

And that term and condition is there?---Yes.

All right. And there is a term and condition you referred to in your affidavit in relation to use of the account is acceptance of its terms and conditions. That's likewise in that document?---Yes.

And Your Honour, I then tender the contemporaneous terms and conditions, if they could be called that, and apologise for earlier.

HER HONOUR: Yes.

MR STRAUCH: It's the only document on top for the minute.

HER HONOUR: Thank you.

Exhibit E - Conditions of use for credit cards effective from the date prior to 01/12/93 and in operation in March of 1993.

MR STRAUCH: And finally, in front of you, you have the terms and conditions applicable to these facilities as at the current date?---Yes.

...

And that's a much more recent document. Can you flick through it? I won't ask you individually the three questions. Does it have the same term and condition in relation to default?---Yes, the substance is the same, where it states you must pay NAB immediately unpaid balance of your account

Yes. I tender the current terms and conditions to a facility alleged.

31 Exhibit E[14] was a photocopy of a 10 page booklet headed 'Conditions of Use for Credit Cards' ('the Conditions') with the NAB logo on the front page. The booklet did not identify, on its face, the period to which it might have related except that:

(i) printed on the back page of the booklet was the NAB logo and ACN number together in the bottom right corner '141-081 (1/92)'; and

(ii) on the first page of the photocopy, beside the first page of the booklet, was handwritten and underlined the year '1992'.

The significance of these notations, and when the second was made, were not the subject of evidence.

32 In my opinion, the Magistrate erred in accepting Exhibit E as being the terms and conditions 'in operation in March of 1993' for the following reasons:

(a) The assertion by Mr Zhao, in response to the leading question, that these were the terms and conditions that were applicable to the Credit Card at the time of its issue was inadmissible because in the circumstances it was plain that Mr Zhao did not have any personal knowledge as to which terms and conditions would have been applicable to the Credit Card when it was issued in 1993. Mr Zhao had given evidence that he had only been employed by the NAB for six years and that he did not know the process for the issuing of Credit Cards because he said that he dealt 'with the back end of the collection process'.

(b) Mr Zhao's evidence had earlier been that Exhibit B[15] had been the relevant terms and conditions and, when the time gaps had been pointed out, he had explained the error by saying that 'I don't know the reason why they actually gave me the copy of this.' The only conclusion from the evidence was that he was merely passing on what he had been given by other unidentified persons.

(c) There was no submission that the court should have drawn inferences under s 183 of the Evidence Act or otherwise; and I do not consider that the document would have justified such inferences.

Error in finding that the respondent was entitled to interest and late payment fees under the Credit Card contract of $42,419.45

33 The Magistrate ordered that the appellant pay the respondent the sum of $70,828.13 being the amount due under the Credit Card facility as at 24 December 2007 of $28,408.25 plus interest and late fees of $42,419.75.

34 Counsel for the appellant submitted that there was no evidence to support the finding that the amount of $42,419.75 was due for interest and late fees for the following reasons:

(a) The Conditions provided that the NAB's current credit charge was as indicated in the Schedule to the Conditions ('the Schedule') but the Schedule itself was not produced or tendered.

(b) There was no evidence as to the interest rate or rates that were applicable to the Credit Card from 25 December 2007, nor any evidence of any late fees applicable to the Credit Card.

(c) The calculation of the interest and late fees, which ultimately became part of the Magistrate's order, was based on a list which was handed to the Magistrate only as an 'aide memoire'.

35 Counsel for the respondent submitted that the court was entitled to find that the interest and late fees had been properly calculated and payable under the terms of the Credit Card contract on the basis of the evidence of Mr Vieira, the National Manager of Operations for the respondent. Mr Vieira gave evidence about the assignments of the debt from the NAB to a company associated to the respondent and ultimately to the respondent. With respect to the amount of the debt, he then gave the following evidence in response to questions from counsel for the respondent:

All right. Now I don't know whether you compiled this table - I'll go back a step. You have searched and looked at all the records that your organisations have in relation to Ms McGuinness?---Yes.

That's correct. Can you tell Her Honour, with the late fees and interest, what the debt was as at the date of issue of this complaint, which was 15 April 2013? Do you have that figure in front of you?---Um, twenty - at the date of issue, it was, $28,408.25.

No, no, not the issue of the assignment, the issue of these proceedings?---Oh, the issue of proceedings.

If you don't have that - - -?---Seven - yeah, I do have it, it's - what, the claim amount?

Correct?---Yep, $70,828.13.

All right. And as I understand it, either you or my instructors, being your solicitors, have prepared what we call in court an aide-memoire, but really it's just a table of the monthly interest and fees from the date of the assignment to the date of issue of the compliant, that's that document?---Yes.

Have you looked through this document?---Yes.

All right and you've matched it with your records and confirmed that it's true and correct - - -?---Yes.

- - - in its calculation? All right, I'll just show that to the defendant. Your Honour, I tender that as an aide-memoire for the court. It's obviously not a document produced by the business - well, sorry, it's produced by the business for the purpose of proceedings and therefore not an exhibit or allowable under the Evidence Act.

HER HONOUR: Yes.

MR STRAUCH: It is simply an aide-memoire so Your Honour can see that from the date of assignment through to the date of issue of these proceedings, there are - there is interest and monthly fees which accrue over those years.

36 I reject the submission that the above evidence could satisfy a court that the interest and late charges payable under the Credit Card contract for the period from 25 December 2007 until August 2013 was the difference between $70,028.13 and $28,408.25 for the following reasons:

(b) Mr Vieira did not disclose the basis of the calculation.

(c) To the extent that the respondent may have had records, which were 'matched' by Mr Vieira, relating to the amounts payable, such records were not identified or produced.

37 Counsel for the respondent further contended that the Magistrate was entitled to order the interest and late fees because the interest rate in the aide memoire was lower than the interest rate which was shown on the statement for the period 24 September 2007 of 19.15% per annum.[16]

38 I reject this submission and, for the following reasons, I consider that the Magistrate erred in finding that the interest and late fees as claimed had been proved.

(a) Even assuming that the Conditions had been proved (contrary to what I have held above), the Conditions provided in cl 13 as follows;

Any amount outstanding at the end of the 25 day period will attract a credit charge comprising:

(a) an initial credit charge ..., AND

(b) a continuing charge calculated on a daily basis at the current rate from the end of the 25 day period until the amount is paid in full. Refer to the current Schedule to these Conditions of Use for applicable rate. [Emphasis added]

As noted above, the Schedule was not produced to the court.

(b) There was no evidence whatsoever of interest rates charged by the NAB on the Credit Card or credit cards of this type or generally for the period from 25 December 2007.

(c) There was no evidence whatsoever of the late fees which the NAB was entitled to charge under the Conditions or the late fees which the NAB charged credit card customers before or after December 2007.

39 Unfortunately, the Magistrate did not identify the reasoning which led her to infer that an interest rate of about 16.99% per annum and the various late fees were proved to the requisite standard.[17] With respect to the interest rate, and by reference to the submissions of counsel for the respondent, one might conclude that the reasoning process was that from the Credit Card statement for December 2007 (showing the interest rate being charged by the NAB was 19.15%), it could be inferred as follows:

(a) Retrospectively, by application of the maxim omnia praesumuntur rite et solemniter esse acta (the presumption of regularity),[18] if the NAB was charging 19.15% as at December 2007, that was the interest rate that it was entitled to charge under the Credit Card contract in 1993.

(b) Prospectively, by application of the presumption of continuance,[19] if the NAB was charging an interest rate of 19.15% as at December 2007, from that time until August 2013 the NAB was charging interest at a rate of not less than 16.99% (being the rate claimed by the respondent).

40 I do not consider that the presumption of regularity could be applied in these circumstances, particularly when a very favourable inference is sought to be drawn by reason of the respondent's failure to produce the Schedule.[20]

41 Nor do I consider that the presumption of continuance could be applied with respect to a matter as volatile as bank interest rates, particularly over a period of nearly six years in the absence of any evidence being called by the party carrying the burden of proof.

42 Accordingly, I consider that the Magistrate erred in allowing the respondent the amount of $42,419.75 for interest and late fees on the amount of the debt from December 2007 to August 2013.

Error in the Magistrate failing to ensure a fair trial, having regard to the fact that the appellant was self-represented

43 On appeal, counsel for the appellant submitted that the Magistrate had failed to ensure that the self-represented litigant was given assistance on matters of procedure and law so as to ensure that it was a fair trial. In particular, it was submitted on behalf of the appellant that the Magistrate failed in the following respects:

(a) Permitting leading questions with respect to the entry into the Credit Card contract (as referred to in paragraph [11] above), the applicability of the Conditions (as referred to in paragraphs [30] and [31] above) and the entitlement of the respondent to the interest and late fees (as referred to in paragraph [35] above).

(b) Allowing Mr Zhao and Mr Vieira to give inadmissible evidence on the same topics as referred to in sub-paragraph (a) above.

(c) Interrupting and cross-examining the appellant during the course of her cross-examination of Mr Zhao; and during her examination in chief.

Interrupting and cross-examining the appellant during her cross-examination of Mr Zhao

44 Counsel for the appellant submitted that the Magistrate interrupted and cross-examined the appellant during her cross-examination of Mr Zhao. Counsel referred to the fact that, after the appellant had commenced cross-examining Mr Zhao and obtained admissions from Mr Zhao that:

(a) he did not know how the records were entered into the system;

(b) he did not know whether the records were accurate; and

(c) the records did not record who actually opened the account;

the following exchange occurred between the appellant and the Magistrate:

MS McGUINNESS: Yeah, I mean, being - yeah, I mean, without the contract, it's hard - hard for me - or it's hard to prove, um, just from a record that I was the primary um, holder of the account.

HER HONOUR: Even if you weren't the primary holder, you're still going to be liable for any amount that's owing.

MS McGUINNESS: Right.

HER HONOUR: Aren't you?

MS McGUINNESS: Yeah, but I mean, I would need a contract for that.

HER HONOUR: There's an account opened in your name - - -

MS McGUINNESS: But I - I - I - I would have not opened that account on that date.

HER HONOUR: Are you denying - so I understand, just pardon me, Mr Zhao?---That's OK.

Are you denying that you have used this credit card and that a facility of this kind, with this number, with these transactions on it that we have now between 2007 and 2008 - - -

MS McGUINNESS: I'm not denying that I was actually an authorised user of that card, but what I am denying is that I actually did open - that I actually asked for this facility and that I did open that account. That's what - - -

HER HONOUR: Did you have - did you have a credit card from the National Australia Bank, a Gold Visa credit card?

MS McGUINNESS: I - I - I - my ex husband, I had many - like, basically whatever my ex husband gave me, like for the use.

HER HONOUR: Yes, all right.

MS McGUINNESS: For me to use. That I opened the account, I don't recall opening that account. That's why - - -

HER HONOUR: Well, you'll have to give some evidence about this, I don't want to just pursue this from the Bar table, while you're asking Mr Zhao some questions - - -

MS McGUINNESS: Yes and that - - -

HER HONOUR: But no, please go on.

Interrupting and cross-examining the appellant during her examination in chief

45 Counsel for the appellant submitted that the Magistrate interrupted and cross-examined the appellant during her examination in chief. Counsel referred to the fact that, after the Magistrate led the appellant through the early part of the evidence, the examination in chief proceeded with the Magistrate asking the questions and the appellant responding as follows:

All right, just let's go back a step. Leave 1993 for the moment. When - during what periods did you live overseas?---I lived overseas from 1993 until the year 2000.

Yes?---And then I moved to London from 2006.

Where were you between 2000 and 2006?---In Australia.

In Australia, right, yes. And from 2006?---Until 2010.

Yes?---I lived in London.

Did you return to Australia at any time between 2006 and 2010?

---Yes, I - I returned here, because my marriage sort of - it was a whole thing with my marriage and so I came here - - -

Pardon me for being personal, but when did you separate from your husband?---Um, in 2009.

Were you residing with your husband between 2007 and 2009?---Yes.

And you were living in London?---Yes.

What was happening with your mail?---I don't know.

Pardon?---Michael was receiving - my ex husband received - he managed everything. My - at the time, from 2007, when I arrived in London, was life was like a whole mess, because that's when all the divorce happened and yeah, I wasn't well and um, yeah - - -

I just asked you when you separated from your husband, you said 2009?---Yes.

Was it in fact earlier than that?---Well, we - - -

Not when you got divorced, when did you stop living together?

---We stopped living together, like - in the same house, we just had an arrangement.

All right?---It was a long history.

Yes, I understand. I don't mean to go into (indistinct)?

---Formally - formally we separated - formally that we actually - he ended up leaving the UK and we really separated in 2009.

Yes?---That we were not living under the same premises.

All right. Now this - so and you said that between 2006 and 2010 you returned to Australia from time to time?---I returned here, because I had - my children were all over the world and I returned here to sort things out. Um, basically because my husband had stopped also paying for the house and um - and that was what - the only thing that I had left. Um and so my son had just finished university and so um - and my children were not living in the house, while were in the UK, so I moved him back in the house and he got a job and he started paying for the house. He just rented the rooms out and that was a way that we survived during that - just to - yeah - to get over that crisis.

All right, so when were you in Australia?---I came back to Australia in - I think it was April 2010 - no, July 2010 actually.

July 2010?---I've got my passport here so we can confirm those dates.

The period I'm interested in is between 2006 and 2010, did you not return to Australia at all in that period?---Yeah, I returned in 2009.

Prior to 2009?---No, I didn't return to Australia then.

So you were in London between 2006 and 2010?---M'mm.

With a visit back to Australia in 2009?---That's correct.

All right, do you have Exhibit - what document I've marked Exhibit 'A' before you? Did you give this credit card to anybody else to use on your behalf?---Um I'm not sure what Michael did. I don't - I'm - I'm not really sure ---

Who's Michael? Your ex-husband?---My ex-husband.

Yes?---Because -yeah, I don't know what payments were coming out - - -

No, no. I'm not interested in what Michael did. You have a credit card from the National Australia Bank that's got your name on it. It's presumably in your possession?---M'mm.

During the period 2006 to 2010 did you give that credit card to anybody else?---Um he could've because my older - my older children were still in the country so - - -

In which country?---In Australia.

Yes?---Because they were finishing uni or they were at uni. He could've given my credit card to my eldest daughter.

How would he have that?---Well we had each other's things so he would just - yeah, hand it, because she was - she was, when I went to the UK she - they stayed here so I guess my eldest daughter had access to the card to pay - to make continue the payments, I don't know.

There are a number of transactions in 2007 - February 2007 where the credit card has been used?---M'mm.

They're not direct debits which might've been set up over a period of time, like the Foxtel payment et cetera?---M'mm.

Who was living in your house between 2006 and 2010?---Ah, not in my house. In - between 2006 and 2010 there were tenants in the house.

So you'd rented the property out?---They had - yeah, Michael had rented the property out and my children were living in a different premise.

All right then, so in 2007 - have you got the bank statements there? The credit card statements?---No, I don't.

All right, do you have a spare copy of those?

MR STRAUCH: I can get it. I just - my only concern is that these are issues that I'll take this witness to in cross-examination.

HER HONOUR: I know you will.

MR STRAUCH: And I know Your Honour's not cross-examining the witness - - -

HER HONOUR: I will be shortly, perhaps.

MR STRAUCH: And I'm concerned about that.

HER HONOUR: I'm not going to do that. I just wanted - - -

MR STRAUCH: Perhaps if it could be left with me to take those inquiries then for - - -

HER HONOUR: Well all right.

MR STRAUCH: Look, Your Honour, I don't think the matter will go any further regardless but it might be - - -

HER HONOUR: The line is always a fine one here, Mr Strauch.

MR STRAUCH: It always is. I really only want to assist the court but - - -

HER HONOUR: Well I'm trying to enable this witness to - - -

MR STRAUCH: Give an explanation perhaps.

HER HONOUR: - - - put her position as clearly as it can be and perhaps it needs to be left at this. Between 1993 and 2000 and between 2006 and 2010 the witness's evidence is that she was not residing in Australia.

MR STRAUCH: Yes, now the first question I'd be asking this witness in cross-examination is why she filed a document with this court signed by her with different dates so - - -

HER HONOUR: All right, well you can take up all those matters in cross-examination.

MR STRAUCH: I'll do that later. I'm happy to hand these bank documents - - -

HER HONOUR: Thank you.

MR STRAUCH: Yes, in examination. There is that line and I'll sit down.

HER HONOUR: Well, just have those with you, Ms McGuinness, and then Mr Strauch will be asking you some questions about those in more detail. What I'm trying to elicit here essentially is what your - what you say about the use of this card?---M'mm.

What did your ex-husband do for a living?---He works for an oil company.

Yes, so those statements - and you've seen them before - - -? ---Mmm.

- - - are sent to your residential address in Canterbury over a period of time?---M'mm.

And they show also that the card has been used from time to time over that period?---Yeah.

And as I said, in cross-examination you'll be taken in more detail to that?---M'mm.

But I just want to make sure that I'm very clear about this, that you say that in - you came back to Australia for a time in 2009?---That's correct.

And you came back permanently in July 2010?---M'mm.

And prior to that you were residing in London or in the Middle East?---That's correct.

All right - - -?---I came - I came back to Australia to reside in 2010.

Yes?---In July but I had been - I think at the beginning of 2010 I came back. I - there was a trip that I actually made back to Australia.

All right then. Well, is there anything else that you wanted to - you will get another opportunity once Mr Strauch has asked you some questions - is there anything else you want to put forward now or - - -?---Yeah, I mean, I - the only - the only thing that I can actually say about this - these payments, it could have been as you asked me, like who else could have had access. And it is possible that, because it was like car insurance. It could've been like things that my children could have purchased. During that time the house was also being renovated. So it wasn't - I - I wasn't in charge of that so - so basically - I mean I can see Bunnings and I guess like the Medibank things that were paid. So I mean I guess those costs could have been, you know, maybe my children could have made them. I'm not really sure. I cannot say exactly who actually made the purchase or - - -

46 Counsel for the respondent submitted that, looking at the totality of the transcript, the Magistrate explained the procedure, the evidence, the issues and provided ample opportunities for the appellant to present her case. It was further submitted that requiring the Magistrate to do more than what she did would place significant burden on a court that is designed to run its hearings in an efficient manner.

47 The relevant obligations on a court with respect to the conduct of a fair trial are as follows:

(a) The overriding duty on every judge in every trial, whether civil or criminal, is to ensure that the trial is conducted fairly.[21]

(b) With respect to self-represented litigants, Bell J described the obligation on the judge as follows:

The matters regarding which the judge must assist a self-represented litigant are not limited, for the judge must give such assistance as is necessary to ensure a fair trial. The proper scope of the assistance depends on the particular litigant and the nature of the case. The touchstones are fairness and balance. The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed.[22]

(c) In Neil v Nott, the High Court observed that a 'frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy'.[23] With a self-represented party, the court may be required to ask questions of a witness or scrutinise the evidence given and the submissions made.[24]

(d) While providing such assistance as the nature of the case requires, there is a need for the court to remain impartial and not to confer on the self-represented litigant 'a positive advantage' or to give to the other party less than the other party is entitled.[25]

48 The questions put by counsel for the respondent with respect to entering into the Credit Card contract, the applicability of the Conditions and the entitlement to interest and late fees were plainly leading questions. With respect to leading questions, s 37 of the Evidence Act provides as follows:

37 Leading questions

(1) A leading question must not be put to a witness in examination in chief or in re-examination unless -

(a) the court gives leave; or

(b) the question relates to a matter introductory to the witness's evidence; or

(c) no objection is made to the question and (leaving aside the party conducting the examination in chief or re-examination) each other party to the proceeding is represented by an Australian legal practitioner, legal counsel or prosecutor; or

(d) the question relates to a matter that is not in dispute; or

(e) if the witness has specialised knowledge based on the witness's training, study or experience - the question is asked for the purpose of obtaining the witness's opinion about a hypothetical statement of facts, being facts in respect of which evidence has been, or is intended to be, given.

(2) Unless the court otherwise directs, subsection (1) does not apply in civil proceedings to a question that relates to an investigation, inspection or report that the witness made in the course of carrying out public or official duties.

(3) Subsection (1) does not prevent a court from exercising power under rules of court to allow a written statement or report to be tendered or treated as evidence in chief of its maker.

49 None of the exceptions in s 37 is applicable, and, in particular, because the appellant was self-represented, s 37(1)(c) does not apply. More importantly, from the very start of the case, the appellant put in issue whether she ever had applied for the Credit Card and said that she had no recollection of doing so. Accordingly, the central issue in the case was whether the appellant had applied for the Credit Card or otherwise entered into the Credit Card contract. A subsidiary issue was necessarily, if the appellant did enter into the Credit Card contract, what were the applicable terms and conditions.

50 In my opinion, the leading questions only had the effect of obscuring whether the evidence was able to establish these critical issues. Contrary to the requirements of fairness to the self-represented litigant and s 37 of the Evidence Act, the leading questions should not have been asked in this form and the Magistrate should not have allowed the witnesses to answer the questions put in this form.

51 The fact that the self-represented litigant did not object to the questions as being leading did not permit them to be put in this form under the Evidence Act; and the failure of the court to intervene did not alleviate the specific disadvantage of the appellant in being self-represented. That is, as a self-represented litigant, the appellant did not know and was not advised that she was entitled to object to questions in this form.

52 For the same reason that the leading questions should not have been permitted in respect to these critical issues, the Magistrate should not have admitted the evidence, which, for the reasons referred to in paragraphs [14], [32] and [36] above, was inadmissible. This is not a matter of pedantry but, in my opinion, the fact that the critical documents from the NAB, being the application for the Credit Card, the relevant Conditions together with the Schedule and the relevant interest rates, were not or could not be produced by the NAB should have been a beacon to the Magistrate indicating that there was a real issue in this case as to whether the appellant was the person responsible for the debt; and the amount of proper chargeable interest and other fees. I am mindful of the pressure of work faced by magistrates; but in my opinion, the application of basic scrutiny to the evidence put forward by the respondent in this case would not have taken an undue period of time and was essential to ensure that the trial was fair.

53 Accordingly in my opinion, by the Magistrate's failure to ensure that proper questions were put; and inadmissible evidence was led on the critical features of the case, it cannot be said that the conduct of the hearing was fair for the appellant as a self-represented litigant.

Interruptions of the self-represented litigant

54 The transcript does indicate, on a fair reading, that the Magistrate did interrupt the appellant during the course of her cross-examination of Mr Zhao at a point when the witness was making some significant concessions. Similarly, it would appear that during the appellant's examination in chief, the Magistrate's initial attempts to assist the appellant in adducing her evidence of relevant issues descended to what may be regarded as cross-examination of the appellant.

55 Despite the fact that the conduct of the Magistrate could have had the effect of discouraging the self-represented litigant from continuing cross-examination; and exhausting all she wanted to put by way of examination in chief, it is not apparent that this occurred in this case. Counsel for the appellant was unable to put to me any prejudice suffered by the appellant either by her truncating her cross-examination or her evidence in chief and, accordingly, if this was the only complaint about the procedure adopted by the Magistrates' Court, I do not think it would have justified intervention by this Court.

(a) It was not open to the Magistrate to find that the appellant had entered into the Credit Card contract.

(b) It was not open to the Magistrate to find that the Conditions were the applicable terms of the Credit Card contract.

(c) It was not open to the Magistrate to find that the amounts claimed by way of interest and other charges from 25 December 2007 to August 2013 were payable under the Credit Card contract.

(d) The Magistrate, by allowing leading questions and admitting inadmissible evidence on critical issues, failed to ensure a fair trial for the appellant as a self-represented litigant.

57 Section 109(6) of the Magistrates' Court Act 1989 provides that, after the determination of an appeal, this Court 'may make such order as it thinks appropriate, including an order remitting the case for rehearing to the [Magistrates' Court] with or without any direction in law'.

58 It is common ground between the parties that a finding of a failure to ensure a fair trial would require that the matter be remitted to the Magistrates' Court for rehearing. However, the parties differ as to the appropriate relief to be granted on the basis that, on the evidence before the Magistrate, it was not open for her Honour to find that the appellant had entered into the Credit Card contract. The respondent submitted that, even if I was to hold that the Magistrate's finding of liability against the appellant was not open on the evidence, I should nonetheless remit the matter to the Magistrates' Court for rehearing for the following reasons:

(a) The objections to evidence on the basis of hearsay were first raised by counsel for the appellant on this appeal. Accordingly, the failure by the appellant to take the objections before the Magistrate deprived the respondent of the opportunity to agitate the matter before the Magistrate, seek to adjourn the matter to obtain further evidence (had the objection been raised in the original hearing and upheld), or to develop its own case in light of such ruling as it saw appropriate.

(b) There is no way of determining what the respondent would have done, how it would have presented its case, or how objections (had they been raised before the Magistrate) would have affected the hearing. Accordingly, the respondent ought to be able to present its case fully before an alternative magistrate.

59 The appellant submits that if, on the basis of the admissible evidence that was before the court, the finding of liability by the Magistrate was not open, then the orders of the Magistrates' Court should be set aside and the claim dismissed. It was submitted that if the respondent, at first instance, failed to prove its case on the basis of admissible evidence that was given or tendered before the Magistrates' Court, it was not through an error of the Magistrates' Court that it was unsuccessful. It had not suffered any prejudice by reason of the conduct of the Magistrates' Court.

60 The power of this Court under s 109(6) of the Magistrates' Court Act 1989, if it thinks appropriate, to set aside the order of the Magistrates' Court and make final orders in substitution is well-established,[26] and was not disputed by the parties.

61 In my opinion, on the basis of the findings I have made, I do not consider it appropriate to remit this matter for rehearing and I propose to make final orders for the following reasons:

(a) On the basis of the evidence presented by the respondent in the Magistrates' Court, the respondent failed to establish that the appellant entered into the Credit Card contract and, accordingly, the respondent's claim should have been dismissed.

(b) The respondent made its own forensic decisions as to the evidence it would lead and presumably the evidence that it would not lead before the Magistrate. The respondent should be bound by the way it chose to conduct its case below and I do not consider it should now be permitted to argue that, if the Magistrate had prevented it from conducting the case in the manner in which it did, it then would have sought an adjournment and led some unidentified further evidence. On this appeal, the parties were given a week to make further submissions on the appropriate relief, if the appeal was upheld, and there was no attempt, by submission or evidence, to identify further evidence that the respondent could have led if the Magistrate had refused to allow the inadmissible evidence.

(c) As noted above, the hearsay evidence of Mr Zhao was not apparently relied upon by the Magistrate in finding that the appellant had entered into the Credit Card contract. This is understandable because Mr Zhao's own evidence was that the unidentified records, to which he had had reference, did not show that the appellant had applied for the Credit Card.

(d) In these circumstances, to effectively now give the respondent another opportunity to attempt to prove its case with evidence that it did not seek to rely upon in the hearing before the Magistrate would be inconsistent with the obligations on this Court under s 8 of the Civil Procedure Act 2010, and in particular the matters to which it is obliged to have regard in exercising its powers pursuant to ss 9(1)(d)-(g).

62 Accordingly, I propose to order that the final order of the Magistrates' Court in Matter Number D11054960 made on 7 March 2014 be set aside and the claim be dismissed. I will hear the parties on the question of costs.

[2] The 'unavailability of the documents and things' is defined by clause 5 of Part 2 of the Dictionary to the Evidence Act.

[3] Evidence Act s 48(4).

[4] It may have been admissible as a business record under s 69 of the Evidence Act.

[5] [2001] EWCA Civ 318; (2001) 51 IPR 650 [77]. See Allen v Tobias [1958] HCA 13; (1958) 98 CLR 367 at 375

[8] Evidence Act s 190(3).

[9] [1959] HCA 8; (1959) 101 CLR 298.

[10] [2008] VSC 9; (2008) 19 VR 335.

[11] Ibid 348 [32]; based on the reasoning of Phillips JA in S v Crimes Compensation Tribunal [1998] 1 VR 83, 90. See also Myers v Medical Practitioners Board [2007] VSCA 163; (2007) 18 VR 48, 61-3 [51]-[54].

[12] Victoria v Subramanian [2008] VSC 9; (2008) 19 VR 335, 348 [34].

[14] Described by the Magistrate as 'Conditions of use for credit cards effective from the date prior to 01/12/93 and in operation in March of 1993'.

1. [17] This in itself would constitute an error of law; Hunter v TAC [2005] VSCA 1; (2005) 43 MVR 130 [21] (Nettle JA with whom Batt and Vincent JJA agreed); Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd [2001] VSCA 167; (2001) 4 VR 28, 35-6 [18] (Chernov JA).

[18] For a discussion on the presumption of regularity, see J D Heydon, Cross On Evidence (LexisNexis Australia, 10th ed, 2014) [1175].

[19] For a discussion on the presumption of continuance, see J D Heydon, Cross On Evidence (LexisNexis Australia, 10th ed, 2014) [1125].

[20] See the discussion on the Evidence (Miscellaneous Provisions) Act 1958 in [28] above.

[21] Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100, 129-30 [139] (Bell J).

[22] Ibid 130 [141]; approved by the Victorian Court of Appeal in Love v Roads Corporation [2014] VSCA 30 [21] (Maxwell P, Whelan and Santamaria JJA); and McWhinney v Melbourne Health (2001) 31 VR 285, 293 [25]-[26] (Neave, Redlich and Mandie JJA).

[23] [1994] HCA 23; (1994) 121 ALR 148, 150 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).

[24] Noone, Director of Consumer Affairs Victoria v Operation Smile (Australia) Inc [2011] VSC 153 [13] (Pagone J).

[25] Ibid citing Minogue v HREOC [1999] FCA 85; (1999) 84 FCR 438, 446 (Sackville, North and Kenny JJ) and Rajski v Scitec Corporation Pty Ltd (unreported, New South Wales Court of Appeal, Kirby P, Samuels and Mahoney JJA, 16 June 1986), 27 (Samuels JA).

[26] Tuckwell v Egg Marketing Australia Pty Ltd [2004] VSC 489 [25]-[27] (Kaye J); Tankard v Chafer [2005] VSC 171 [80] (Gillard J); Mendelsons Lawyers Pty Ltd v Hanlon [2013] VSC 320 [14] (Pagone J); Cetel Communications Pty Ltd v Parker [2014] VSC 318 [36]-[38] (Dixon J).