BETTINELLI v HONNER - [2023] SADC 126

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
BETTINELLI v HONNER
[2023] SADC 126
Judgment of her Honour Judge Bochner
11 September 2023
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA
This appeal relates to a number of interlocutory orders made.
Held: Ground 2 is dismissed; Grounds 1, 3, 4 and 5 are allowed.
Uniform Civil Rules 2020 (SA); Evidence Act 1929 (SA); Family Law Act 1975 (Cth); Intervention Orders (Prevention of Abuse) Act 2009 (SA), referred to.
House v The King (1936) 55 CLR 499, considered.

BETTINELLI v HONNER
[2023] SADC 126
CIVIL

On 3 April 2023, a District Court Master made a number of orders with respect to the ongoing interlocutory process of this claim. The applicant, who is representing himself, has now appealed those orders.
Background
The applicant and the respondent were in a de facto relationship; the relationship was a turbulent one and ended with lengthy proceedings in the Federal Circuit and Family Court of Australia in relation to the care of their children. During the course of the proceedings, the respondent made a number of allegations of abuse of their children and family violence towards her. These allegations were made to, inter alia, her general practitioner, her lawyer and the police. As a result of the allegations, the applicant was served with an interim intervention order and was subject to police investigation. Ultimately, the interim intervention order was revoked. Between 2016 and 2021, this sequence of events occurred on three separate occasions; each time, the intervention order was revoked and no charges were ever laid against him. I note that, throughout, the applicant has strenuously denied the allegations and no findings have been made against him in any court.
The applicant says that this conduct has caused him distress, upset and humiliation. As a result, he commenced this action, seeking damages from the respondent for malicious prosecution and intentional or reckless infliction of a recognised psychiatric injury. The action was transferred to the District Court, when the applicant amended his claim to seek damages well in excess of the jurisdictional limit of the Magistrates Court.
The interlocutory events leading to the institution of this appeal
On 31 October 2022, the applicant filed an application seeking orders to have certain questions of law referred to the Supreme Court (“the Magistrates Court questions of law application”). The questions all relate to the application of and/or existence of the causes of action on which the applicant seeks to rely. This application was dealt with by a magistrate on 3 November 2022, at which time the magistrate expressed a reluctance to make the orders sought by the applicant, and the respondent opposed the making of the orders sought. The respondent advised the Court that she would consider whether to bring a summary judgment application; further both parties were asked to consider whether a trial on liability alone would be a better way of answering the questions raised by the applicant in respect of his pleaded causes of action. At the same directions hearing, the applicant advised that he intended to amend his claim. The matter was listed for a further directions hearing on 2 December 2022.
On 21 November 2022, the applicant filed a further interlocutory application, in which he sought an order to have the matter transferred to the District Court on the basis that his amended claim exceeded the jurisdictional limit of the Magistrates Court.[1] While this application was initially opposed by the respondent, the order to transfer was made by consent on 19 December 2022.
[1] FDN 37.
On 23 January 2023, the applicant filed an Amended Claim (Revision 3) (“ACR3”). The earlier iterations of the claim had only pleaded circumstances relating to the first two intervention orders. On 14 October 2022, the third intervention order was revoked by the Court; as a result, he now wished to include this third sequence of events in his claim and seek damages in relation to it. On 27 February 2023, the respondent filed an amended defence in response to the ACR3.
On 31 March 2023, the applicant filed an interlocutory application in the same terms as the Magistrates Court questions of law application. I will refer to this application as the District Court questions of law application. On the same day, the respondent filed an application in which she sought a suppression order over the court file, pursuant to s 69A of the Evidence Act 1929 (SA), s 121 of the Family Law Act 1975 (Cth) and s 33 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA). I will refer to this as the suppression order application.
31 March 2023 was a Friday. The matter was listed for a directions hearing on the following Monday, 3 April 2023. This appeal deals with the orders made at that directions hearing. A transcript was made of the hearing, which indicates that it commenced at 11am and concluded at 11.28am. The record of outcome for the directions hearing reads:
Remarks
There are two applications before me today, FDN45 and FDN47. I have explained to the applicant that FDN45 is not an application that can be entertained. Either the respondent applies to strike out the statement of claim or the question of the cause of action is determined at trial. The second application is for the sealing of documents that refer to the Family Court proceedings. I have explained to the applicant the application of section 121 of the Family Law Act and the Harman Principle and the need for him to make application in the Family Court for release from the implied undertaking. If the applicant wishes to rely on the Magistrates Court IVO proceedings, an application for release from the implied undertaking will need to be made in that court too. This is a matter that cries out for mediation, and given the applicant is unrepresented and the respondent is not likely to have unlimited means, I consider that court-appointed mediation should be considered.
Order
1. I refer this action to Judge Soulio to consider the request for mediation by a Judge of this Court or a person enjoying the status of a Judge of this Court pursuant to r 131.3 of the UCR20 and s 32 of the District Court Act.
2. In the first instance, I direct the Registry to alert Judge Soulio to the previous order as soon as practicable and to notify the parties of that fact.
3. On FDN47, this will need to be argued but I wish to give the parties the opportunity to mediate first. I will make interim orders sought but whether they remain will be argued in due course.
4.     On receipt of draft orders from the respondent, I will make those interim orders.
5.     I adjourn the matter to 29/5/23.
6.     Liberty to apply.
7. With regard to the amended statement of claim, I see no reason to dispense with the presumption that the applicant bears the costs of amendment and the respondent be entitled to costs thrown away to be proved on taxation.
8. I dismiss FDN45 noting that a similar application was brought in the Magistrates Court. The respondent is to have her costs thrown away.
9.     The costs of today are otherwise in the cause.[2]
[2]    CIV-21-004214, FDN 49.
A further record of outcome dealt with the suppression application. It reads:
Remarks
Pursuant to Section 69A of the Evidence Act 1929 (SA) and consistent with Section 121 of the Family Law Act 1975 (Cth) and Section 33 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA), I make orders for interim suppression.
Interim Suppression Order
1.     The Court’s file with respect to these proceedings be sealed pending further order;
2. There be an order prohibiting from publication pending further order any documents, submissions or evidence subject of these proceedings which identifies or tends to identify: a.) a party to the Federal Circuit and Family Court of Australia (Division 1) Action Number ADC 1749 of 2016 (the Family Court Action); b) a person who is related to, or associated with, a party to the Family Court Action, or is alleged to be, in any other way concerned in the matter to which the Family Court Action relates; or c)      a witness in the Family Court Action; d) a person protected by an order made in IVO Proceedings, or a witness in IVO Proceedings (other than a person involved in an official capacity or the defendant); or e) a child of the parties to the IVO Proceedings.[3]
[3]    CIV-21-004214, FDN 50.
The appeal
I will deal with the grounds of appeal in the order in which they are listed in the applicant’s notice of appeal.
Ground 1
1. Master Olsson, before making the orders above, failed to afford the appellant any, or any reasonable opportunity to be heard in the circumstances which include:
1.1     The action was listed as a 10 minute directions hearing for Monday, 3 April 2023.
1.2     The respondent’s application FDN 47 and the appellant’s application FDN 45 were both filed on Friday, 31 March 2023. (leaving only the weekend intervening).
1.3 The respondent’s supporting affidavit to application FDN 47 divulges that the appellant had very short notice of the application generally and no notice at all of the respondent’s intention to rely upon s33 Intervention Orders (Prevention of Abuse) Act 2009.
1.4     The appellant had no reasonable opportunity to make an affidavit in answer to the respondent’s supporting affidavit (FDN 48)
1.5     Master Olsson made Order 3 (interim suppression) on the respondent’s application FDN 47 notwithstanding that such an urgent order was not sought.
1.6     On the Directions Hearing, the appellant, as an unrepresented litigant taken by surprise, was particularly disadvantaged vis a vis experienced counsel.
1.7     The appellant, was further disadvantaged as he has been diagnosed with a psychiatric illness (including anxiety) caused by egregious allegations made by the respondent. (These matters being specifically pleaded in the appellant’s amended claim)
1.8     Uniform Civil Rules 2020, Rule 102.1(6) & (7) proscribed the hearing of the two applications (FDN 45 & FDN 47) having been filed on 31 March 2023 from being heard on 3 April 2023.
1.9     Master Olsson fell into error by too readily acquiescing to the submissions of experienced counsel for the respondent whilst being cursorily dismissive of the appellant as an unrepresented litigant.
The appellant says that as a consequence of the above, Master Olsson failed to afford him procedural fairness.
The applicant says that he was taken by surprise by the Master’s dealing with the suppression order application and District Court questions of law application in a substantive way, first because they had only been filed one business day earlier, and second, because the parties were allocated a ten minute directions hearing. As a result, there was insufficient time, both for the applicant to deal with the applications, and for the Master to clarify appropriately the submissions that he was seeking to make. The consequence of this was that the hearing was rushed and failed to afford him procedural fairness.
The applicant submits that, as a self-represented litigant with psychological issues, he is under a significant disadvantage as compared to the respondent, who has instructed experienced solicitor and counsel. This disadvantage was compounded by the Master’s dealing with the suppression order application on short notice, notwithstanding that the orders were not sought by the respondent on an urgent basis.
The applicant further contends that the respondent contributed to his being taken by surprise as notice of the suppression order application was given in correspondence which also dealt with the respondent’s consent to the filing of the ACR-3. This letter was dated on 29 March 2023. In addition, the respondent did not advise that the suppression order application was reliant on the Intervention Orders Prevention of Abuse Act as well as the Evidence Act and the Family Law Act. As a result, the applicant was not afforded procedural fairness with respect to this application.
The respondent submits that an opportunity to make oral submissions will often form part of the requirements for procedural fairness. She says, however, that the requirements for procedural fairness are flexible and adaptable to the circumstances in which individual decisions are made. In this case, the Uniform Civil Rules 2020 (“the UCR”) promote the “just, efficient, timely, cost‑effective and proportionate resolution or determination of the issues in proceedings.”[4] Further, UCR 102.2(5) allows the Court to determine an interlocutory application without a hearing.
[4] UCR 1.5.
The respondent submits that, as the Master’s decision in relation to the suppression order application was a discretionary one, the applicant needs to establish an error of the sort identified in House v The King.[5] An appeal court should only intervene in the exercise of a discretion in exceptional circumstances.
[5] (1936) 55 CLR 499.
I am of the view that the Master failed to afford the applicant procedural fairness in relation to the suppression order application. While the application was filed on 31 March 2023, it is not clear to me when it was served on the applicant. At best, it cannot have been served prior to this date, and the applicant was given notice of it only two days earlier. I consider that, given that the applicant is self‑represented, insufficient time was allowed to permit him to familiarise himself with the issues raised in the application.
I note that the suppression order that was made was an interim order only. While I consider that there are circumstances where it is appropriate to make an interim order on the basis that the application is timetabled to a full hearing in the near future, that is not what occurred here. The interim order was put in place on the basis that it would remain in place until after the parties had attended mediation; thus it was put in place for an indeterminate period of time. As a result, the fact that an interim order was made does not affect my conclusion that a denial of procedural fairness occurred.
Ground 1 is allowed.
Ground 2
2. Master Olsson erred in misinterpreting s121 of the Family Law Act 1975 and in consequence thereof, erred in making orders 3 & 4.
2.1 Master Olsson also erred in having regard to the erroneous interpretation of s121 of the Family Law Act 1975 stated in the respondent’s affidavit which contained misconceived submissions and which set out incomplete sections of purportedly relevant legislation.
2.2     Master Olsson erred in failing to have any reasonable regard to established authority that did not support the making of orders 3 & 4.
2.3     Master Olsson erred in making orders that were duplicitous of applicable statutory provisions that already proscribed the relevant conduct.
2.4     Master Olsson erred in making the orders as the affidavit in support of them (FDN 48) did not provide a proper basis for the orders sought (in FDN 47).
This ground of appeal is misconceived. The Master made it clear that the suppression order application was not, at that time, being decided on its merits, and that, if necessary, this would occur in due course. As a result, it cannot be maintained that the Master made an error or errors in the application of the law.
This ground of appeal is not made out.
Ground 3
3. Master Olsson erred in exercising her discretion as to costs in making order 7, that the appellant bear the costs of the amendment, and in making the order failed to have any, or any reasonable regard that:
3.1     New facts had recently occurred, which were against those already pleaded in the respondent’s case, and thus necessitated that the respondent amend her defence.
3.2     The appellant was obliged to include the new facts in his existing claim (rather than commence another action) due to the doctrine that requires an avoidance of a multiplicity of actions.
3.3     A new fact (a dismissal of the respondent’s third IVO), prima facie evidenced further wrong doing by the respondent against the appellant and as such if the appellant had lodged a claim based thereon, then costs would unremarkably be in the cause.
It is the applicant’s position that the Master erred in ordering that he pay the costs of the respondent that related to his amendment of the statement of claim, on the basis that: first, new facts had occurred which necessitated amendment; and second, the applicant could have commenced a new action on the basis of the new facts, as a result of which he would not have suffered a costs penalty, but chose not to, to avoid a multiplicity of actions.
At the time that the Amended Claim Revision 2 was filed, there remained ongoing proceedings in the Family Court. Further, the third intervention order was still in place. The respondent’s defence to the Amended Claim Revision 2 pleaded that proceedings remained ongoing in the Family Court and that the third intervention order remained in place. She pleaded:
55.7the Third IVO thus remains in place on an interim basis at the time of preparing this Defence;
55.8the Applicant and Respondent also remain involved in proceedings before the Family Court of Australia in which factual matters including those addressed in the affidavits given by the Respondent and referred to in paragraphs 9, 13, 27 and 30 herein are in issue.
The third intervention order was dismissed on 14 October 2022 and the Family Court judgment was delivered on 19 December 2022. As a result of the resolution of these two outstanding matters, the applicant sought to amend his statement of claim, to respond directly to paragraphs 55.47 and 55.8 of the respondent’s defence.
The respondent says that there was no lack of procedural fairness to the applicant in the making of the costs orders. Further, not only is the question of costs a matter in the discretion of the Court, the UCR set out a presumption that the party amending a pleading bears the costs of consequent amendments made by the other side. It is only in rare circumstances that an appeal Court would find an error in adhering to this presumptive position. The respondent says that the occurrence of new circumstances giving rise to the need for amendment is not a novel circumstance; it can be presumed that the drafters of the UCR contemplated this situation when they were drafted.
In addition, the respondent says that the ACR3 did more than add the additional circumstances. It increased the quantum of the applicant’s claims substantially, with the effect that the matter was transferred to the District Court.
Finally, the respondent says that no prejudice will flow if, on taxation, the respondent is unable to establish that she incurred any costs as a result of the amendment. The respondent says that the applicant has not established an error sufficient to meet the test in House v The King.[6]
[6] (1956) 55 CLR 499.
In House v The King, the High Court said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.[7]
[7] Ibid, 504-505.

I consider that the Master failed to take into consideration a material consideration in making the costs order complained of. That consideration is that there had been a significant change in the factual situation to that pleaded in the ACR3 and the answering defence, as a result of which it is not surprising, if not inevitable, that the applicant would wish to amend his claim. This is particularly so given that the respondent had pleaded a positive case as part of her defence, in respect of both the third intervention order and the matters in dispute in the Family Court action.
I reject the respondent’s submission that the applicant has not suffered any prejudice as a result of the costs order. It is obvious that the respondent has filed an amended defence as a result of ACR3; even if the applicant is ultimately successful in this action, the respondent will be entitled to claim the costs associated with those amendments. I further reject the respondent’s submission that the costs order was justified on the basis that the amendment included an increase in the quantum of the claim. There appears to be no amendment to the defence as a result of the increased quantum.
In failing to take this matter into consideration, I am of the view that an error was made by the Master. I consider that the correct order is that the costs of the amendments be costs in the cause.
Ground 3 is allowed.
Ground 4
4. Master Olsson erred in making order 8 by which she perfunctorily dismissed the appellant’s application FDN45 without giving the appellant any reasonable opportunity to be heard on that application, without considering the relevant circumstances, and without providing any, or any sufficient reasons for dismissing the application.
4.1 Master Olssen also had regard to the irrelevant consideration that the appellant had previously brought a similar application in the Magistrates Court given that the previous application had not been argued, ruled upon or dismissed.
The applicant says that the Master failed to afford him procedural fairness when she dismissed the District Court questions of law application, she failed to consider the relevant circumstances, did not provide sufficient reasons and made an error in the application of the relevant law. She failed to recognise that the Magistrates Court questions of law application had not in fact been dealt with in any substantive way and she conflated the application with an application to strike out the claim.
The respondent says that she adopts a neutral position on the question of whether the applicant was afforded procedural fairness in relation to the District Court questions of law application. She is prepared to abide the order of the Court as to whether the applicant has satisfied his onus on appeal.
I consider that the Master made an error of the House v The King variety when she made the order dismissing the District Court questions of law application. It appears that she failed to appreciate that the Magistrates Court questions of law application had not in fact been dealt with. She also did not allow the applicant a sufficient opportunity to be heard.
This ground of appeal is allowed.
Ground 5
5. Master Olsson in making orders 1 & 2 (referring the matter to mediation), failed to have any, or any reasonable regard to; the appellant’s objections to such orders or that such orders could cause the appellant to be exposed to the tortfeasor as a person who has perpetrated psychological injury upon him (by the egregious conduct pleaded in his amended claim) and thereby placing the appellant at risk of exacerbation of those injuries.
In addressing this ground, I allowed the applicant to rely on new evidence that was not before the Master. This evidence was a report from his treating psychologist, who expressed the view that any form of mediation would be contra-indicated for his psychological health and is likely to cause an aggravation of his psychological condition with an unacceptable risk of additional traumatisation.
The applicant accepts that the consent of the parties is not required for a matter to be referred to mediation. He says, however, in referring the matter to mediation, the Master failed to have regard to his objection, on the basis of the abhorrent nature of the allegations made by the respondent about him, which form the basis for this claim. He submits that matters of a highly acrimonious nature, including those involving family violence, are not suited to mediation.
The respondent says that the making of a referral to mediation over the objection of a party is a discretionary matter, taking into account the prospects of success of mediation, the identity of the mediator, the costs related to mediation and benefits to the overall administration of justice through the saving of judicial resources when matters are resolved at mediation. The respondent says that the applicant’s position, even in light of the evidence from his psychologist, shows limited understanding of the flexibility of mediation process, which can be tailored to avoid any direct contact between the parties. Further, she says that the applicant’s submissions are based on the premise that his allegations have been proven. On the contrary, the allegations made by the applicant in the ACR3 are hotly disputed by the respondent.
The respondent submits that the applicant’s position in relation to mediation ignores the fact that any trial is likely to be damaging to both parties and is unlikely to give either of them a satisfactory outcome.
The respondent submitted that ultimately, she took a neutral position as to whether the matter should proceed to mediation; she did, however, warn against the precedent that might be set if a discretionary decision such as this one was set aside by an appeal court.
I consider that, on the basis of the evidence of the applicant’s psychologist, the ground of appeal should be allowed. The psychologist is clearly of the view that mediation will have a significant, detrimental effect on the applicant. There is no doubt that the respondent is correct to say that a trial will also be damaging; nonetheless, in the formal and confined environment of a courtroom, the parties may feel less vulnerable than in the more relaxed environment of a mediation.
I accept that it may be possible to structure a mediation so that the parties have little contact with each other; nonetheless, they would still be required to be in close proximity with each other which, in itself, may be damaging to the applicant. I do not consider that allowing the appeal on this ground, on the basis of expert evidence, will set a precedent of any kind. This decision is entirely based on the facts of this case, the most relevant of which were not available to the Master at the time that she made her decision.
This ground of appeal is allowed.
In summary:
·Ground 2 is dismissed; and
·Grounds 1, 3, 4 and 5 are allowed.
I will hear the parties on the question of costs.