Cheetham v Heuzenroeder No. Scciv-01-425

CHEETHAM v HEUZENROEDER
[2001] SASC 323
Magistrates Appeal
Nyland J

This is an appeal against the order made by a magistrate sitting in the civil jurisdiction of the Adelaide Magistrates Court on 18 December 2000. On that date the magistrate dismissed the claim filed by the plaintiff on 5 May 2000, on the basis that the plaintiff’s proceedings were manifestly groundless or without foundation and that it would serve no useful purpose to allow them to proceed.
The appellant was unrepresented in the proceedings before the magistrate and on the hearing of the appeal. The appellant was formerly married to Beverley Vera Cheetham. Mrs Cheetham instituted proceedings in the Family Court (inter alia) for resolution of matters of property settlement relating the former matrimonial home at 37 Waikerie Avenue, Hope Valley. The appellant’s purported cause of action against the respondent has its genesis in the property settlement proceedings heard by the Family Court.
In order to understand the argument presented on appeal, it is necessary to have some regard to the history of the Family Court proceedings. The details of the proceedings are set out in the reasons of the learned magistrate, but on the hearing of the appeal I also had regard to a judgment of the Full Court of the Family Court dated 26 March 1996 which related to these matters, and a chronology filed on behalf of the respondent and documents tendered by the appellant in the course of argument. On 4 November 1994, following a contested hearing in relation to custody of the children of the marriage and in relation to property settlement, Justice Gun ordered that the wife have custody of the two children of the marriage. He also made orders in relation to property settlement, one of which provided:
“That the former matrimonial home at 37 Waikerie Avenue Hope Valley in the State of South Australia be sold forthwith at a price and in a manner to be agreed between the parties and in default of agreement as may be ordered by this Court ...”
The appellant lodged an appeal against the order for custody which was dismissed by the Full Court on 19 April 1995. I believe there was subsequently an application for special leave to appeal to the High Court which was not successful but that aspect of the matter is not relevant to these proceedings.
The appellant did not, however, appeal against the order of Justice Gun which related to the sale of the property. On 22 February 1995, Mrs Cheetham filed an application in the Family Court of Australia seeking an order that the Family Court assist in effecting the sale of the property. On 1 March 1995, an order was made by a judge of the Family Court appointing Hookers-Modbury as the agents for the sale of the property and requiring the appellant to permit agents from their office to inspect the home prior to the preparation for the sales agency agreement. The order provided for a registrar of the court to be appointed to sign the sales agency agreement on behalf of the appellant as well as the contract and transfer documents.
Although the appellant did not appeal against the order of Justice Gun in relation to the order for property settlement it appears from the judgment of the Full Court that he made an application for stay of the order for sale of the property. That application was subsequently refused by a judge of the Family Court. The appellant did not appeal against that order but continued to reside in the subject property.
On 15 August 1995, Mrs Cheetham filed an application in the Family Court in which she sought an order that the appellant be ordered to vacate the matrimonial property. She asked that the appellant be restrained from re-entering thereafter and that he pay to her rent for his occupation of the property from 15 August 1995 until the date of settlement of the sale. That application came on for hearing before Justice Murray in the Family Court on 1 September 1995. On that date, Justice Murray made the following orders:
“(1)The husband do vacate the former matrimonial home situated at 37 Waikerie Avenue Hope Valley in the State of South Australia within seven (7) days of the date of this Order.
(2)That thereafter the husband be restrained and an injunction is granted hereby restraining him from re-entering the former matrimonial home.
(3)That the husband do pay the wife’s costs of this application such costs to be fixed by the court and paid from the husband’s share of the proceeds of sale of the former matrimonial home at the time of settlement of the sale.”
(4)That the husband do pay the wife’s net rent expenses from the date of this order until the date of settlement of the sale of the former matrimonial home such sum to be paid from the husband’s share of the proceeds of sale at the time of settlement of the said sale.”
On 4 October 1995, Mrs Cheetham filed a further application claiming contravention by the appellant of the orders made on 1 September 1995. That application was heard by Justice Murray on 16 October 1995. On that date she made the following orders:
“1.Pursuant to Section 112AD[2][a] of the Family Law Act 1975 as amended THAT the husband forthwith be imprisoned for six [6] weeks’s (sic) PROVIDED THAT should the husband vacate the property situated at 37 Waikerie Avenue, Hope Valley in the State of South Australia by 5.00 pm today such order for imprisonment be suspended until further order.
2.That further consideration of the matter be adjourned to the 17^th day of October 1995 at 4.30 pm.”
The appellant then lodged an appeal to the Full Court of the Family Court against the orders made on 1 September 1995 and 16 October respectively. In his reasons for judgment, Ellis J (with whom Barblett DCJ and Chisholm J agreed) described the majority of the matters set out as grounds of appeal as incomprehensible. However, he went on to refer to the orders sought by the appellant, namely:
“(1)All orders handed down by Justice Murray on the 1^st day of September 1995 be dismissed.
(2)That costs for all hearings, these applications be awarded to financially disadvantaged father as High Court documentation had been previously filed upon other party.”
And further
“(1)That all orders handed down by Justice Murray on the 16^th day of October 1995 be dismissed.
(2)That the husband be re-instated in the home at 37 Waikerie Avenue Hope Valley 5090, South Australia, immediately.
(3)That the husband not be restrained from re-entering the home or be in any way restricted from being on his joint property.
(4)Asking that the immediate sale of the property be stayed until these appeals and High Court custody decision resolved, by the documentation and for sake of children and their previous and future living standards.
(5)Asking for an immediate Full Court of Family Court hearing with this application, and the following appeal application being heard at the same time as 1^st appeal documentation forwarded initially 27^th day of September, 1995, due to eviction circumstances.
(6)Asking costs of this application be awarded to financially disadvantaged father, not bringing action, and previous full time spouse, housekeeper, care giver to children.”
After considering some of the matters raised by the notice of appeal, the Full Court eventually determined that there had been some procedural irregularity with respect to the making of the orders in question. Accordingly, on 26 March 1996, the Full Court ordered that the appeal against the orders of the trial judge of 1 September 1995 be allowed and the orders numbered 2, 3, 4 and 5 be set aside, and the application of the wife filed on 15 August 1995 be remitted for re-hearing before a single judge of the court, other than the trial judge. Similarly, in relation to the orders of 16 October 1995, the court ordered that the appeal be allowed and that orders 1 and 2 be set aside and the application by the wife pursuant to s 112AD of the Act filed on 4 October 1995 be remitted for hearing before a single judge of the court other than the trial judge.
On 12 April 1996, the appellant filed an application in the Family Court seeking a stay with respect to the order for sale of the matrimonial property. In response Mrs Cheetham filed an application seeking to dismiss the stay application on the basis that settlement in relation to the property took place on 12 April 1996.
On 15 April 1996, the appellant made an application for special leave to appeal to the High Court. On 21 April 1996, Justice Burton in the Family Court made an order that a stay be granted over the disposal of the proceeds of sale from the matrimonial home pending the outcome of the appellant’s application for leave to appeal to the High Court. The High Court subsequently refused that application. On 17 February 1998, Justice Murray made an order that the monies held in trust be disbursed. I am unaware of what proportion, if any, of those monies were paid to the appellant, but that does not affect the determination of the issues which arise in these proceedings.
On 5 May 2000, the appellant filed proceedings in the civil division of the Adelaide Magistrates Court seeking damages against the respondent. The respondent is a registrar employed in the Adelaide Registry of the Family Court. The statement of claim alleges that the respondent was negligent in failing to carry out the instructions of the regional appeals registrar, Mr Burke, in a letter dated 2 April 1996 following the resolution of the appeal that the matters be set down for re-trial. The appellant asserts that as a direct result of the failure of the respondent to take any steps in this matter for a period of 12 months that he had sustained loss and damage which are set out in para 6 of his statement of claim in the following way:
“6.As a DIRECT RESULT of the DEFENDANTS NEGLIGENCE, BREACH OF DUTY CARE, I the plaintiff incurred LOSSES and INTEREST, monetary, economic, property rental, chattels, inheritance, incurred penalties (fines) and expenses specified (i) to (vi) below:-
(i)Property rental to 11 April 1997, $7,200 to December 1997 $10,560 plus interest.
(ii)     Chattels $1,370.
(iii)    Portion expenses $411.
(vi)    (sic) Incurred penalties (fines) $190.
(v)     Inheritance $4,500.
(vi)    I The plaintiff suffered further economic losses.”
On 31 May 2000, the respondent filed a defence to the action in which he denied the allegation of negligence. He described the steps taken by him subsequent to the handing down of judgment by the Full Court. He said that he was advised by the regional appeals registrar on 11 April 1996 of the orders made by the Full Family Court on 26 March 1996. On or about 11 April 1996 he forwarded a memorandum to the Family Court list registrar for the re-listing of the applications in accordance with the orders. He said that on 15 April 1996, the appellant filed an application for special leave to appeal to the High Court of Australia. The list registrar was advised of the special leave application on or about that day. The High Court did not refuse the appellant special leave to appeal until 12 December 1997. On 17 April 1997 the appellant’s wife withdrew the applications. As a consequence there were no matters requiring re-listing.
On 18 October 2000, the respondent filed an application to strike out the appellant’s claim. That application was supported by an affidavit of Nerida Myfanwy Desmond Ware, a solicitor employed by the Australian Government Solicitor. She referred to the claim by the appellant for damages in the vicinity of $17,000 which were further particularised in a document filed by the appellant on 12 October 2000. This included further claims which appear to total the sum of $2,580 and includes the following items:
“(a)Typing – Janine Seipoth   $100             Required
(b)My tent – home since 16/10/95– Destroyed in weather – would have been non used   $800
(c)My tarp and beach shade – same as (b)    $120
(d)My esky and utensils (cooking, breadboard, cutlery set) all – thefts stolen from park   $250 (Result of eviction)
(From home) (e) and (f)
(e)My boat recovery – Council pound                   $100
(f)Police fine – address non change on licence $90         (d)
Total actually   $1460
And now further     $320 *
$1780 (Total)
(g)Car Pak Rak      (economic loss sold for food) $80
(h)Heater (same as (g))   $70
(i)Fan (same as (g) and (h))   $70
(j)Art (for food)     $100
$320 *
Further
(k)+ 2 seater lounge & side (top glass) table to pay rent         $800
$2580”
Ms Ware sought an order striking out the appellant’s claim on the basis that there was no causative link between the failure to re-list and the loss claimed by the appellant. The magistrate, in the course of dealing with the application, reminded himself that an application of this nature was not the arena where contentious issues of fact ought to be decided. He proceeded to deal with the application to strike out the proceedings by adopting a view of the facts and law which put the appellant’s case at its highest. He therefore proceeded upon the assumption that the appellant could establish that the respondent owed him a duty of care and that he was in breach of that duty of care by failing to set down for hearing the application of the wife filed on 15 August 1995. The magistrate assumed that para 5 of the appellant’s particulars of claim could be made out. In para 38, he summarised the appellant’s claim in the following way:
“The essence of the plaintiff’s complaint is that the result of the defendant’s failure to re-list his wife’s application for a re-hearing, meant that he was required, pending a re-hearing to find alternative accommodation. His claim relates to the costs which he incurred by way of rental. All his claims are based upon the premise that he was unable to return to the matrimonial home until his wife’s application was set down and re-heard.”
He then went on to refer to the submissions put by the respondent which were in effect that the financial loss claimed to have been sustained by the appellant was not caused by any failure of the respondent to set the wife’s application down for hearing. The magistrate accepted the contention of the respondent that the orders of the Full Court setting aside the orders made on 1 September 1995 and 16 October 1995 left the appellant in the same position as he had been immediately prior to those orders being made. Although that meant that there was still an application on foot by the wife restraining the appellant from re-entering the property, there was no actual order to that effect. The appellant could therefore have lawfully re-entered the premises and resumed residence after 26 March 1996.
The magistrate acknowledged that from a common sense point of view it might have been sensible and wise for the appellant not to have gone back into possession as, had he done so, the probability was that an urgent application to the court might have been made. Nevertheless, the magistrate held that this did not affect the legal position which was that, as at 20 March 1996, the appellant was still a registered proprietor of that property and there were no orders in existence preventing him from having access to or residing in the family home.
In my view the magistrate was correct, as a matter of law, in reaching this conclusion. There were some obvious practical problems about the appellant in fact resuming occupation of the premises as mentioned by the magistrate. If, however, the appellant had been concerned about exercising his legal right to return to the home there was no reason why he could not have applied to the court for directions as to that matter. The appellant did not, however, see fit to take steps of any kind to resolve any of these matters. He made it clear in the course of argument on the appeal that he considered the re-listing of this matter to be the sole responsibility of the registrar with no obligation upon him to do anything.
In any event, the fact of the matter is that the home was sold on 11 April 1996, that is, about 14 days after the order was made by the Full Court. In that circumstance, there was no point in re-listing the wife’s applications, which only related to the mechanics of the sale and the requirement that the appellant vacate the property, as opposed to the order for property settlement itself, which was not the subject of any appeal or stay order. As the magistrate found, it is difficult to see how the appellant could suffer any loss arising from the failure to re-list the matter for re-hearing, as by 11 April 1996, the re-hearing would have been of academic interest only because by then the property was sold.
The appellant made lengthy submissions on the hearing of the appeal, most of which were directed towards re-asserting his claim that the Registrar was guilty of negligence as a result of his failure to re-list the matter. On that basis he appeared to assume that the damages sought by him followed as a matter of course. I should mention that in the course of argument the appellant indicated that his claim for damages by way of reimbursement for cost of accommodation was not only limited to the period subsequent to the orders of the Full Court allowing the appeal, but should be calculated from the date from which he was obliged to vacate the house.
The appellant was also critical of the orders made by the magistrate on the basis that the pleadings had not been concluded as matters of discovery had not been resolved. The appellant also sought an order for costs in his favour upon the appeal being allowed, notwithstanding the fact that he was an unrepresented litigant and was aware of the legal authority which stood in the way of the making of such an order. It is unnecessary, however, to canvass those matters as most of the argument presented by the appellant demonstrated an inability or unwillingness by him to understand the course of proceedings in which he had been involved. In my opinion, the magistrate, in a very careful and considered judgment, had regard to all relevant matters. The magistrate correctly found that on any view of the facts, the appellant was not in a position to establish the cause of action pleaded and that the proceedings were therefore manifestly groundless.
In my opinion, the appeal should be dismissed.

[2001] SASC 323

21 September 2001