BEVERLEY GALE FRYER In Person [2025] SADC 122

First Applicant: STEPHEN JOHN SUTTON In Person Second Applicant: BEVERLEY GALE FRYER In Person Respondent: ROBERT THOMAS ANDREWARTHA In Person Respondent: T/A OPEN GARDENS SA INCORPORATED (ABN: 42164489511) Hearing Date/s: 25/08/2025 File No/s: CIV-24-011616 B DISTRICT COURT OF SOUTH AUSTRALIA (Civil: Minor Civil Review) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. SUTTON & FRYER v ANDREWARTHA [2025] SADC 122 Reasons for Decision of her Honour Judge Deuter 21 October 2025 MINOR CIVIL REVIEW - CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - FRAUDULENT CONDUCT - BURDEN OF PROOF The applicants conducted an ‘open garden’ at their property on 10 November 2024. Open Gardens SA Incorporated (the Association) were engaged to facilitate the open garden. The respondent Mr Andrewartha, is the treasurer and public officer of the Association. The applicants made allegations of fraud and breach of contact regarding the proceeds of their open garden. They alleged that Mr Andrewartha had retained the sum of $2340.00. The Judicial Registrar found that Mr Andrewartha had not engaged in fraudulent and/or dishonest conduct in relation to the proceeds of the open garden, and he was not party to any contract with the applicants. No claim for breach of contract could succeed. The applicants’ claim was dismissed. The applicants sought a review of the decision, again alleging fraud and/or theft of monies. Held: 1. The judgment of Judicial Registrar Burke is affirmed. 2. Costs to be awarded to the respondent of the review. Magistrates Court Act 1991 (SA) ss 38(6)(7)(e), referred to. Sutton & Anor v Andrewartha [2025] SAMC 107; Wilczynski v District Court of South Australia & Ors [2016] SASC 51; Harradine v District Court of South Australia [2012] SASC 96 at [53], considered. -- 1 of 10 -- -- 2 of 10 -- SUTTON & FRYER v ANDREWARTHA [2025] SADC 122 Introduction 1 This is an application pursuant to s 38(6) of the Magistrates Court Act 1991 (SA) (Magistrates Court Act) for review of a minor civil judgment, delivered on 8 May 2025.1 This decision concerned an ‘open garden’ that was conducted on 10 November 2024, at the property of Mr Stephen Sutton and Ms Beverley Fryer (the applicants). The open garden was part of an annual program conducted by Open Gardens SA Incorporated (the Association). The applicants allege that the respondent wrongly retained monies paid by visitors to attend the open garden. They claim that they are owed the sum of $2,340.00 The respondent denies the claim in its entirety. 2 In relation to the nature of the applicants’ claim, I rely upon the summary of facts set out in the minor civil judgment. Magistrates Court proceedings 3 The applicants are seeking review of a decision of Judicial Registrar Burke. The Judicial Registrar found that there was a fundamental issue with the cause of action of the applicants, in that Mr Andrewartha, the respondent, was not a party to the contract between the applicants and the Association. The applicants never had a contract with Mr Andrewartha. At all times their contract was with Open Gardens SA. He also found that Mr Andrewartha did not manipulate or tamper with documents regarding the EFTPOS card payments made by attendees to attend the applicants’ open garden. The applicants asserted that Mr Andrewartha participated in deceit, and or fraudulent misrepresentation in relation to the payment records. The Judicial Registrar concluded that the applicants’ allegations of fraud and/or any improper behaviour had not been made out. The nature of a review 4 Section 38(7) of the Magistrates Court Act sets out the inherent powers that the Court has in determining a review of a minor civil action. I will limit the discussion to the scope of this provision. Section 38(7)(e) of the Magistrates Court Act provides that I must act in accordance with equity, good conscience, and the substantial merits of the case. As such, an efficient and practical approach was administered in determining this minor civil review.2 5 The Magistrates Court Act provides that once I have considered all the relevant material, I can affirm the judgment of the Judicial Registrar or rescind it 1 Sutton & Anor v Andrewartha [2025] SAMC 107 (the decision). 2 As per Wilczynski v District Court of South Australia & Ors [2016] SASC 61. -- 3 of 10 -- [2025] SADC 122 2 and substitute a judgement that I consider appropriate.3 I can also re-hear evidence taken before the Magistrates Court.4 6 In determining the review, I have adopted the principles set out by Blue J in Harradine v District Court of South Australia.5 These are that: 1. The review is not in the nature of an appeal stricto sensu. 2. The review is not necessarily a hearing de novo in that the Court is entitled to have regard to the evidence adduced before a magistrate and “may” rehear that evidence. 3. The review is not necessarily an appeal by way of rehearing in that it is a “review” (not an “appeal”). The Court may inform itself as it thinks fit; the Court must act according to the substantial merits of the case; and the Court may rehear evidence without being confined by the “fresh evidence” rules which apply to appeals by way of rehearing. 4. The Court can tailor the nature of the hearing to the circumstances. In a case where the review will not turn on findings of fact or credibility of witnesses, the Court might simply have regard to the evidence adduced before a magistrate and a magistrate’s findings of fact. In a case which does turn on disputed issues of fact or credibility, the Court might simply proceed to hear the evidence afresh. 5. If the District Court concludes that a magistrate made an error vitiating the judgment and had not made findings of fact necessary to determine the matter, it will be necessary for the Court itself to hear the evidence relevant to those findings of fact (as it does not have power to remit the matter for rehearing). 6. To the extent that the Court does itself hear evidence, it should proceed in a similar manner to that provided by section 38(1), namely adopting the form of an inquiry by the Court rather than an adversarial contest between the parties. This is because section 38(7) provides that the Court may inform itself as it thinks fit and also because it would be incongruous if the District Court were to adopt a radically different approach to the hearing to that required to be adopted by a magistrate at first instance given that there is no power of remitter. Conduct of the Review (i) Directions Hearing 7 The parties were informed at a directions hearing on 4 August 2025 of the scope of a minor civil review; what evidence the parties could call; and what structure the review would take. The applicants explained the evidence they were seeking to lead, and I indicated how that should be done. I also informed the parties that I would have regard to the transcript of evidence in the Magistrates Court proceedings. This was particularly important, as the applicants indicated that they 3 Magistrates Court Act 1991(SA) at s38 (7) (d) (i-iii). 4 Magistrates Court Act 1991 (SA) at s38 (7) (c). 5 [2012] SASC 96 at [53]. -- 4 of 10 -- [2025] SADC 122 3 had the same evidence, and that they found no issue with me relying on the transcript. 8 Mr Andrewartha indicated that he was under the assumption, from previous statements made by the applicants, that if he provided the payment reports of the Zeller EFTPOS machine used to accept card payments at the applicants’ open garden (the Zeller reports), and if they confirmed that the EFTPOS machine records were correct, then the applicants would discontinue the review. The Zeller reports were obtained, and provided to the applicants. 9 The applicants advised that they were not discontinuing the review proceedings, despite the Zeller reports confirming the EFTPOS records were correct. They indicated that they were no longer prepared to rely upon the accuracy of the Zeller documents as “there's software programs out there that are used for that very thing, tax evasion, to delete point of sale records”.6 10 The applicants alleged that this had happened with the records related to the EFTPOS machine at their open garden. 11 The applicants alleged that the number of patrons who attended their open garden was many more than appeared on the count sheets, as their volunteers were ‘overwhelmed on the gate’.7 They alleged that the respondent Mr Andrewartha had engaged in fraudulent and dodgy behaviour.8 The applicants made it clear that their case was that the respondent had stolen funds that should have been provided to them for donation to their nominated charity. 12 As I attempted to explain to the applicants what was required, by way of evidence to be produced at the review hearing, further allegations of illegal conduct on the part of the respondent, Mr Andrewartha, were made. These included that: 1. funds had been misappropriated by the respondent;9 2. the attendance figures had been manipulated by the respondent;10 3. the affidavits the respondent tendered in the Magistrates Court were full of shameful lies.11 (ii) The Review Hearing 13 I set aside half a day for the review hearing, on 25 August 2025. I commenced the proceedings by having each of the applicants and Mr Andrewartha sworn in. I 6 Hearing 4 August 2025; T7.1-3. 7 Ibid, T6.15-29. 8 Ibid, T7.4-37. 9 Ibid T9.19 – T10.7. 10 Ibid T11.18-25. 11 Ibid T15.34 – T16.11. -- 5 of 10 -- [2025] SADC 122 4 explained that this meant their statements from the bar table could be used as evidence. 14 The applicants had filed and served an affidavit.12 This included an annexure, compromised of 17 credit/debit card transactions. Six of those transactions were marked with stars to indicate that the “card number did not appear on the EFTPOS transaction records that Robert Andrewartha sent [them]”13. As this was the applicants’ evidence, the affidavit was marked and exhibited as A1. 15 The applicants called two witnesses to give evidence. The applicants’ nephew, Jonathon Mark Sutton, and Mr Stephen Sutton’s twin brother, Mark Phillip Sutton. By their evidence they explained their role and involvement in the applicants’ open garden, including in relation to the number of attendees. 16 Mr Andrewartha made submissions and in doing so tendered the Zeller Site Report which outlined all of the EFTPOS transactions on the terminal given to the applicants by Open Gardens (terminal 11). This report was marked and exhibited as R1. (iii) Evidence 17 Jonathon Sutton (Jonathon) confirmed that the patrons attending the applicants’ open garden paid primarily by credit/debit card rather than cash. He said that from 12:00pm the garden became particularly busy, and he stopped taking count of patrons as they entered. He described hundreds of people attending, although these were not recorded on the count sheet. His evidence was that a gap in the attendance list between 12:15pm and 1:00pm was not accurate as he left his post over that period. 18 I pause to note that much of Jonathon’s evidence in chief was given in response to leading questions put by the applicants, despite my attempts to explain how questions should be put. At times the answers sought was directly put to Jonathon. 14 I have taken this into account when considering the weight of Jonathon’s evidence. 19 In cross-examination Jonathon’s evidence regarding the time he was counting entries and taking EFTPOS payments was challenged. It was clear from his answers that, at times he had in fact handed the count sheet to other persons to record the attendances. He agreed that the count sheet was ‘totally not accurate’.15 He also agreed that there was a period of 45 minutes when he was not taking count of who attended.16 12 FDN 7. 13 FDN 7 at [2]. 14 Trial transcript (TT) of proceedings dated 25 August 2025 at TT28.32 - TT29.36; TT31.5-9; TT34.1-11. 15 TT31.19. 16 TT31.12 - TT32.31. -- 6 of 10 -- [2025] SADC 122 5 20 Mark Sutton’s evidence was also impacted by leading questions and the applicants’ attempts to suggest the answers they were seeking.17 Mark Sutton’s evidence was that those at the front gate of the applicant garden were not flat out the whole time, he agreed that his attendance records may not have been completely accurate.18 21 The applicants also led evidence by way of an affidavit of a neighbour to prove that a larger number of people had attended the open garden, than the respondent had recorded. This evidence was by way of explaining that the street was filled up with cars. I find this evidence to be unhelpful as to determining the number of people attending the open garden. It is not precise - there was no record of the number of people in each parked car, or whether all persons who had parked their cars attended the open garden. The evidence was vague and inconclusive. 22 Mr Andrewartha, in giving evidence, confirmed that the contract for the applicants’ open garden was with The Open Gardens Association and not with him. In relation to attendance and banking records on the day, Mr Andrewartha explained that the applicants had run a site report, and not an EFTPOS terminal report. The EFTPOS figures came from the machine operator, Zeller. His evidence was that Zeller had made it clear that individual transactions could not be removed from the EFTPOS machine reports. 23 Mr Andrewartha denied any knowledge of ‘point of sale’ software that could be used to remove sales. It had not been used by him to remove data from the Zeller reports. He was clear that, there was no way he knew of, to manipulate the EFTPOS data. (iv) Assessment of Evidence 24 I have had regard to the evidence in all affidavits, and the evidence given in court in determining this review. I afforded the opportunity to both applicants and the respondent to outline their submissions. 25 Whilst I accept that proceedings in this jurisdiction can be stressful and bring angst amongst self-represented litigants, I have concern regarding the demeanour of the applicants. They often raised their voices, and interrupted both me and Mr Andrewartha. When I was speaking, I was particularly concerned with Mr Sutton’s behaviour. He displayed moments of sarcasm and impertinence, directed at both me and Mr Andrewartha. 26 Mr Sutton also attempted to guide his witnesses’ responses during examination in chief, and in cross examination. This continued even after Mr Sutton was warned. Mr Sutton and Ms Fryer continued to prompt the witnesses. I had to remind both Mr Sutton and Ms Fryer to stop nodding, and aiding witnesses through verbal and physical gestures directed towards them 17 See TT40.2-17; TT42.8-10. 18 TT44.2 – TT45.18. -- 7 of 10 -- [2025] SADC 122 6 during examination in chief, and in cross examination. While I accept that the applicants were self-represented, their behaviour was inappropriate, especially after warnings. It was not in the interests of a fair hearing. 27 The applicants appeared very embittered by their situation and what they believed was monies taken from their proceeds from the open garden. They at times were quite rude and sarcastic. I find that this impacted their reliability as witnesses. As witnesses they were given to suspicion and mistrust. 28 In contrast, despite the circumstances and allegations that Mr Andrewartha faced, he handled the proceedings in a straightforward and transparent manner. He assisted the Court to the best of his ability, and did not seek to engage with some of the inflammatory statements made about him by the applicants. He clearly found the allegations levelled against him to be distressing. He struggled to maintain his composure, but at all times attempted to assist the court, and explain the processes for payment at the applicants’ open garden. I found Mr Andrewartha’s evidence to be more balanced and reliable. Key issues of determination 29 The key issues arising for determination do not stray from the original issues that the applicants raised in the Magistrates Court proceedings. These were breach of contract by the respondent; the disputed Zeller documents; and fraud on the part of the Mr Andrewartha. 30 I turn now to address each of the issues for determination. (i) Breach of contract 31 At the earlier directions hearing, I raised with the applicants that there was no contract between them and Mr Andrewartha. On review Mr Sutton contended that if proceedings ought to have been against Open Gardens, why were the applicants unaware of that fact.19 I informed the applicants that this was not an issue for me, and that it was their claim which they had opted to pursue. It was also clear that the Judicial Registrar in his decision had raised the issue, and found, that there was no contract between the applicants and with Mr Andrewartha.20 32 Mr Sutton then asked if the applicants could “just get the form [and] cross out Robert Andrewartha”.21 I refused to allow the applicants to proceed in this way. The certificate of incorporation before me indicated that Open Gardens SA is an incorporated body, and Mr Andrewartha is a voluntary treasurer and public officer.22 19 TT5. 20 Pages 2-4 of the decision. 21 TT9. 22 TT7. -- 8 of 10 -- [2025] SADC 122 7 33 Mr Andrewartha is a not a party to any contract with the applicants. The contract was clearly between the applicants and the Open Gardens Association. I accept his evidence that Mr Andrewartha has been the voluntary treasurer for the Open Gardens Association for 10 years. However, Mr Andrewartha cannot be personally in breach of a contract he is not party to. I therefore dismiss this part of the applicants’ claim, and confirm the finding of Judicial Registrar Burke, that the claim for breach of contract must fail. (ii) Disputed Zeller documents 34 The applicants do not accept the authenticity of the Zeller EFTPOS documents, and the bank statements tendered by Mr Andrewartha in relation to their open garden. The applicants assert that there are receipts for six people that are not shown on the Zeller transactions, and that this demonstrates there were more people who attended the open garden. The applicants asserted that it was likely that Mr Andrewartha utilised software to reduce point of sales data. 35 Mr Andrewartha provided the National Australia Bank (NAB) reports from Open Gardens’ bank account indicating the deposits and the terminal reports from Zeller. These confirm the amounts received. Mr Andrewartha asserted that he had been in contact with Zeller, and they had verified the figures and confirmed that an individual cannot remove transactions on the individual listings.23 Mr Andrewartha denied having any knowledge of point-of-sale software that allows an individual to delete transactions. 36 The applicants did not present any evidence to the Court to establish that Mr Andrewartha had actually performed the act of deleting point of sale transactions; or that he had done any act to personally profit from the applicants’ open garden. 37 I do not find that Mr Andrewartha engaged in any fraudulent or dishonest behaviour, by stealing proceeds from the applicants. Judicial Registrar Burke did not accept the applicants’ evidence in this regard, and I confirm his findings in relation to Mr Andrewartha’s involvement in the applicants’ open garden. 38 I also accept Mr Andrewartha’s evidence that he has found it stressful and upsetting to have his character attacked. He is a person that I found to be a clear and reliable witness. He gave clear and rational evidence. This was not the case with the applicants. 39 Jonathon Mark Sutton and Mark Phillip Sutton gave evidence regarding their role on the day of the applicants’ open garden. I have had regard to their evidence and find that their evidence does not support, or provide substance to the applicants’ claim. Their evidence did not support or assist the applicants’ allegations against Mr Andrewartha. 23 T63. -- 9 of 10 -- [2025] SADC 122 8 (iii) Fraud 40 The applicants allege that the acts committed by Mr Andrewartha amount to fraud. They have not put any substantiated evidence before the Court that Mr Andrewartha took any money from the proceeds of their open garden. I do not accept that just because Mr Andrewartha is the voluntary treasurer for The Open Gardens Association, and transferred the calculated proceeds into the applicants’ bank account, that he “probably” took the money. I do not find on the balance of probabilities that this occurred. 41 When asked, the applicants were not able to provide any evidence that Mr Andrewartha stole or retained any monies. The applicants repeatedly argued that because large numbers of people came through their property, they must have paid, and if all those people paid, then there was money missing, and the only person who could have taken that money was Mr Andrewartha. This was because he was the Association’s treasurer. I am not prepared to accept this bold assertion, which is not supported by any evidence. 42 Proof of fraud is required for the applicants’ claim to succeed. The applicants have provided no evidence to suggest that Mr Andrewartha stole any money. There is no basis upon which to find that Mr Andrewartha took any money, even when taking the applicants’ evidence at its highest. Mere speculation is not sufficient to prove fraud. In any event, I am not satisfied that the applicants’ evidence was cogent, and established that monies were in fact taken. 43 On review, Mr Andrewartha found the allegations of fraud levelled against him distressing. I find that there is no evidence that Mr Andrewartha was involved in any fraudulent activity. For the reasons expressed, I am not satisfied that any claim in fraud has been made out. Decision 44 I find that there were no errors made by Judicial Registrar Burke in his consideration of the claim brought by the applicants. 45 I affirm the decision and dismiss Mr Sutton’s and Ms Fryer’s application for review. Costs 46 The respondent seeks the costs of the review. I am of the view that costs should be awarded in favour of the respondent. Mr Andrewartha has had to defend serious allegations at trial and on review. Those allegations have not been made out. I will hear Mr Andrewartha on the costs to be sought. -- 10 of 10 --