Caruso v Hegarty - [2013] SADC 152

District Court of South Australia
(Civil: Minor Civil Review)
CARUSO v HEGARTY
[2013] SADC 152
Judgment of His Honour Judge Slattery (ex tempore)
30 October 2013
PROCEDURE - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE - ACTIONS TO REVIEW OR SET ASIDE JUDGMENT
Application by appellant to review a minor civil decision ordered and delivered by a Magistrate in 2011- unrepresented appellant sought Orders to set aside default judgment against the respondent - appellant did not appear.
Held: application dismissed. The issues raised by the appellant against the respondent are entirely without merit.
Legal Practitioners Act 1981 s.42 , referred to.

CARUSO v HEGARTY
[2013] SADC 152
JUDGE SLATTERY

In this matter Severina Caruso has made an application to review a minor civil decision being a judgment and orders delivered by Mr KA Millard SM, on 7 February 2013 in the Magistrates Court under file AMCC-14515 of 2011.
The application before Mr Millard was an application by Severina Caruso (who was unrepresented) in which Ms Caruso sought orders to set aside a judgment entered by default against her at the request of the respondent, Michael Hegarty. Mr Michael Hegarty is a solicitor of the Court and he is the principal of the firm of solicitors Michael Hegarty & Associates.
I have reviewed the Magistrates Court files prior to coming onto the bench today: in particular, I have read the whole of the transcript of the application before Mr Millard SM of 7 February 2013. At that time Ms Herriman appeared from the firm of solicitors, and the defendant, Ms Caruso, the appellant in these proceedings, appeared by telephone. Ms Herriman informed me today that there has never been an appearance in Court by Ms Caruso and that she has either not appeared or has appeared by telephone.
The transcript before Mr Millard discloses that Mr Millard SM attempted to ascertain from Ms Caruso the basis for her application to set aside the judgment. At the end of the application Mr Millard SM refused the application but advised Ms Caruso that she was at liberty under the rules of the Magistrates Court to file a fresh application to set aside the judgment if it was the case that she could alone or with advice prepare an appropriate affidavit in accordance with the rules of the Court.
The judgment obtained by the firm of solicitors was a judgment by default. The information that may be necessary to satisfy a Court that it is appropriate to set aside such a judgment is not significant. I am aware of the attitude of Courts generally in relation to such an application to set aside a judgment obtained on a default basis and not on the merits. However, no such further application was brought and no affidavit material was forthcoming from Ms Caruso.
Also instituted in the Magistrates Court by the firm of solicitors was a process called an investigation summons: that is a process allied to the judgment in respect of the recovery of the debt, the subject of the judgment. The Magistrates Court file shows that the investigation summons hearing took place on 11 April 2013 at 10 a.m., and subsequent to the refusal by Mr Millard SM to set aside the judgment entered by default.
In the documents filed on behalf of Ms Caruso at p.2 under the heading ‘The applicant seeks permission for review on the following grounds’, Ms Caruso has asserted the following and I quote:-
“The hearings were not conducted in a proper manner. The conflict of interest was not properly addressed. Perjury committed by the plaintiff was allowed by the Court. Questions of legality in regards to the investigation summons. Inaccurate Court transcripts in relation to AMCC-l4515 of 2011.”
On p.3 of the document under the heading ‘The grounds of appeal’ a number of matters are raised. I do not need to set them out fully here but in summary they are as follows: alleged conflict of interest of the firm of solicitors in a Guardianship Board hearing; a failure (by the firm of solicitors) to take into account information provided by Ms Caruso; a failure (by the firm of solicitors) to obtain transcripts and statements of reasons from the Guardianship Board in relation to a hearing concerning Ms Caruso’s late mother; a failure (by the firm of solicitors) to take into account a conflict of interest (whose conflict is not identified) and a questionable investigation by the Legal Practitioners Conduct Board; a complaint about an agreement made by the firm of solicitors in the absence of Ms Caruso (implicitly concerning Ms Caruso’s late mother in a matter before the Guardianship Board) and a refusal to allow evidence to be led (implicitly from Ms Caruso) which could possibly shed light on a conflict of interest (the conflict is unstated). There is also some unsubstantiated allegation of an unjust or incorrect decision.
In general these were the same matters that were ventilated before Mr Millard SM on 7 February 2013 but it must be said that they were not ventilated with the same specificity. However, similar to the situation that confronted Mr Millard SM on 7 February 2013, the material raised in the grounds of appeal are disconnected from the issues that were required to be considered by Mr Millard SM when his Honour reached his decision on that day.
In support of the application for review Ms Caruso has sworn and filed an affidavit of 28 October 2013. I have read the affidavit. It is a rambling discourse. It substantially complains about the conduct of caregivers (of her late mother), of the Commonwealth Department of Health and Ageing, of the Commonwealth Ombudsman and contains a series of disparate allegations against various persons. It is necessary to specifically mention one of those allegations, in which Ms Caruso expressly or impliedly suggests that her mother was killed and did not die from natural causes: the process which she alleges happened there is some form of indirect euthanasia.
Attached to the affidavit is also a written case which sheds no light on the matter. I have carefully read the written case which is in two typed pages and is dated 13 August 2013 as well as a handwritten letter sworn before a JP and dated 17 June 2013. I have also read all of the other documents that were attached to the affidavit of Ms Caruso. I have gained no assistance at all from that material.
Prior to today’s hearing I was notified by the registry of this Court that contact had been made with the registry by Ms Caruso seeking the permission of the Court to appear after 4.30 p.m. and by telephone. I was informed by the representative of the registry that (without reference to me) those requests were both refused. I agree with the fact of that refusal albeit that I had no part in the decision to refuse, which was administratively made within the registry of this Court.
In my opinion in this matter, having regard to the very serious nature of the allegations made by Ms Caruso, it was appropriate that she appear in person to make her submissions to me so that they could be heard both by me and responded to by Ms Herriman from the firm of solicitors in this application.
At the commencement of the hearing today there was no appearance for Ms Caruso. I instructed my associate to make an all Courts call for Ms Caruso and there was no response. I then asked Ms Herriman if she had any application and she informed me that her application was for dismissal of the application to review the minor civil decision and for costs. I am prepared to make an order for dismissal of the application to review the minor civil decision.
Having thoroughly read all of the papers in this matter I have formed the view that the issues raised by Ms Caruso are entirely without merit and purport to raise matters that are so extraneous as to be completely irrelevant. She also purports to raise matters which are entirely unconnected with the issues that were before Mr Millard and which are matters that, if they had any merit, would have to be resolved in some other place. I refer in particular to the questions before the Guardianship Board, the questions in relation to the Commonwealth Department of Health, the alleged unlawfulness of the death of Ms Caruso’s mother, the allegations concerning conflicts of interest and the other similar matters that have been raised by Ms Caruso.
Try as I have it has been impossible to identify where it might be said that any person who has been involved in this matter is labouring under a conflict of interest. Rather, this allegation would suggest that there is disparate reasoning operating on the mind of Ms Caruso, that has caused the raising of tangential matters completely unrelated to this proceeding.
Having read the file, I am also conscious of the fact that there has been a complaint made to the Legal Practitioners Conduct Board concerning the conduct of the firm of solicitors and the transcript discloses that the complaint of Ms Caruso was rejected. That was a matter for the Legal Practitioners Conduct Board about which I should make no further comment.
The contract of retainer between the firm of solicitors and Ms Caruso allowed the work to be done at an hourly rate of $250 per hour. This rate is below the maximum rate allowable under the Supreme Court Rules for practitioners of the Court.[1] That charged amount is a discount rate on the hourly basis provided for in the Supreme Court Scale of Costs. That is not to say that on a taxation of costs the taxing master may have acceded to the claim for costs of the firm of solicitors; but that is not a matter before me.
[1] The attendance of a solicitor where the nature of the work requires the exercise of special skill or legal knowledge, per hour
I refer in particular to s.42 of the Legal Practitioners Act 1981 which relevantly provides that a person who is a liable to pay any legal costs may apply to a Supreme Court to tax and settle the bill for those costs. There is no evidence before me that any request has been made by Ms Caruso for a taxation of costs. In my opinion there is a very obvious reason why this is so. The hourly rate charged by the firm of solicitors which, according to the transcript and the papers before me, was discounted further, was well below the maximum threshold that a solicitor was entitled to charge under the rates applicable and as provided by the Supreme Court from time to time (and which was particularly applicable to the work done in this matter).
That being the case and having reviewed the history of the matter from the affidavits, there are two important issues. The first is that the firm of solicitors achieved for Ms Caruso everything they were required to achieve in the hearing before the Guardianship Board. As a result of that application, separate representation was arranged to deal with the estate of Ms Caruso’s late mother. The orders that were made were limited because the substantial proportion of the assets of Ms Caruso’s late mother were jointly owned with her father, who was, it was accepted, of sound mind. That is, there is very limited prospect of activity which might attract an order by the Guardianship Board.
However, that said, the Guardianship Board did make orders removing the donees of powers of attorney who gave undertakings to the Guardianship Board (that they would not purport to exercise rights that they possessed as donees of the powers). Thus everything that Ms Caruso sought to achieve by those Guardianship Board proceedings was in fact achieved.
In those circumstances little would be gained by Ms Caruso in embarking upon a taxation of costs in the matter which was within such limited compass when it is known that in order to achieve a taxation of those costs, further costs and disbursements would be incurred in the Supreme Court in an application under s.42 of the Legal Practitioners Act.
I am satisfied in all of the circumstances that if that matter was ventilated before me, it would have little, if any influence, upon any decision that I would make in the matter.
If thus follows that my reasoning in relation to acceding to the request by the firm of solicitors for the dismissal of the application is twofold. The first is technical. I am satisfied that Ms Caruso had clear notice of the hearing and I refer in particular to her contact with the registry of this Court. I am therefore satisfied that her failure or refusal to attend today was deliberate. It is not necessary for me to decide whether it was contumelious.
The second ground is substantial. In my opinion, in the absence of any fresh material being brought forward by Ms Caruso, there is no merit in the application to review the minor civil decision of Mr Millard SM. I have also therefore decided that, in the absence of any power in this Court to remit the matter to Mr Millard, I would have reached the same decision as Mr Millard and I would have refused the application to set aside the judgment.
An application has been made by Ms Herriman for an order for costs. I have asked for a search to be made as to whether there is a special costs provision; namely, specific rules to the contrary concerning minor civil reviews. None has been identified to me and my researches have not provided any indication that such a special rule exists. I therefore operate under the provisions of rule s.263 of the District Court Rules.
I am prepared to make an order for costs in favour of the firm of solicitors for today. The formal order is therefore are as follows.
1. Application by Severina Caruso to review a minor civil decision of Mr K.A. Millard made on 7 February 2013 in the Magistrates Court under file AMCC-14515/2011 is dismissed.
2. Costs of incidentals of this matter are to be paid by the applicant, Ms Caruso, to the respondent, Mr Michael Hegarty.
ADDENDUM:
At the completion of these reasons I was handed a copy of an email sent by Ms Caruso to the registry of the court. It was received by the registry after I had commenced to undertake the hearing of this matter. It refers to the hearing today, the written case of 13 August 2013 provided by Ms Caruso and referred to whether or not Ms Caruso would need leave to issue a subpoena.
Ms Caruso seeks confirmation whether previous requests for orders to obtain information from the Guardianship Board and the Legal Practitioners Conduct Board have been granted or whether I require further information such as affidavits in addition to the written case of 13 August 2013 for the issuing of subpoenas. Ms Caruso also makes requests for the provisions of some other documents.
The email ends in the following ‘To avoid any misunderstanding and to ensure transparency, I ask this email to be brought to Judge Slattery’s attention’. Two things arise from this email.
Attached to the email is a medical certificate from Dr Benny Tang dated 16 October 2013. In that medical certificate Dr Tang says that he has seen Ms Caruso for the first time on 16 October 2010 and that she wishes to have her hearing in the afternoon because of sleep difficulties. Also attached to that is an email of 18 October 2002. In that letter Ms Caruso says that she “understands” (apparently from registry) that she must put in writing any request for a telephone attendance and that she must have a compelling reason in order for her request to be granted. There is no written request that has been brought to my attention. She then goes on to say that if the hearings cannot be held at a later time in the day, she would be unable to attend in person because of very irregular sleeping hours, hence her request for a telephone attendance. The letter is dated 17 October 2013.
Having read that material. There is nothing within it which would lead me to take any step to protect any alleged interest stipulated by Ms Caruso, nor would it lead me to change any view that I have expressed concerning my refusal, if I was asked, to allow Ms Caruso to attend this hearing by telephone.
In my opinion, the letter of 17 October 2013 adequately illuminates the view that I have formed. If Ms Caruso was able to send an email to the Court shortly after the time that this hearing commenced, then it is inexplicable why Ms Caruso, having done that, could not also have presented herself to the Court to put whatever submissions she saw fit to the Court concerning her application. Quite obviously her alleged sleeping condition was not troubling her at the very time that this application was due to be heard before the Court.
I am not prepared to accede to any request of Ms Caruso in that respect.

$263.00