Dielos v Morgan - [2006] SASC 297

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
DIELOS v MORGAN & ANOR
[2006] SASC 297
Judgment of The Honourable Justice Gray
28 September 2006
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
PROCEDURE - COSTS - APPEALS AS TO COSTS
Magistrate entered judgment in favour of the respondents for costs incurred by the appellant for professional charges and disbursements - Appeal against the decision of the magistrate to enter summary judgment against the appellant - appeal lodged out of time - application for extension of time to lodge the appeal - consideration of matters to be considered on application to extend time following a decision of a magistrate - application for extension of time refused - appeal dismissed.
Police v Warren [2000] SASC 285; Hughes v National Trustees Executors & Agency Co of Australasia [1978] VR 257; Ratnam v Cumarasamy (1964) 3 All ER 933; Hall v The Nominal Defendant (1966) 117 CLR 423; R v Foster (1966) 187 LSJS 135; R v Trotter (1979) 22 SASR 64; Jackamarra v Krakouer (1998) 195 CLR 516; Gikas v Police (1999) 202 LSJS 301, considered.

DIELOS v MORGAN & ANOR
[2006] SASC 297
GRAY J:

This is an appeal against the decision of a magistrate to enter summary judgment in a civil proceeding.
Judgment was entered on 13 December 2005. The appeal was lodged on 28 July 2006, almost seven months out of time. On the hearing of the appeal, an oral application was made for an order extending time to lodge the appeal. That application has been opposed.
Before discussing the application to extend time to appeal, it is necessary to set out the background facts.
Background Facts
In May 2004, Dimitrios Dielos, the appellant, instructed Morgan Ward Solicitors to act for him in regard to his matrimonial affairs and in particular, to attend in the Federal Magistrates Court. On 24 June 2004, Mr Dielos was provided with a Bill of Costs claiming an amount of $5,163.38 with respect to professional charges and disbursements. On 14 July 2004, a further bill was sent for $1,597.73 in respect of further professional attendances and disbursements. The total claim for the two accounts was in the amount of $6,761.11.
Mr Dielos did not seek further particulars or challenge either account. No complaint was made about the quantum of charges. No application for taxation of costs was made. No payment was made.
Mr Dielos claims that at the time, he was in financial difficulty and on 16 June 2004, he accepts that he signed an irrevocable authority authorising a third party to pay $3,000 in respect of the then anticipated costs and disbursements of his solicitors from the proceeds of the sale of property in which Mr Dielos had an interest. On 25 June 2004, Mr Dielos signed a further irrevocable authority to the same third party but on this occasion in the amount of $6,000. In the event, no payments were made by the third party.
On 14 April 2005, Morgan Ward issued proceedings claiming that Mr Dielos was indebted to them in the amount of $6,761.11, being a debt in respect to the provision of legal services.
There were initial difficulties in effecting service but ultimately the proceedings were served on 21 October 2005. On 11 November 2005, Mr Dielos, by letter to the Magistrates Court, gave notice that he opposed the claim of Morgan Ward on the following grounds:
That the plaintiff, David Glyn Morgan forced upon me through his position, to sign certain documents against my will. He has used his position to take advantage of my situation, in that he knew I was not in a positive financial position, yet he agreed to undertake my case with this understanding.
He was told that when I was in a position to do so, I would pay him.
I believe that he has inflated his costs because of the position I was in, re my Divorce proceedings, thus forcing me to sign certain documents.
I am still not in a financial position to pay as at the moment I am receiving unemployment benefits.
I ask that the Court dismiss this summons until I am in a better financial position to come to an agreement based on discussions held with The Plaintiff, Mr Morgan at the time of my Divorce Proceedings.
I respectfully ask that this summons be withdrawn and that new discussions between myself and the plaintiff, Mr Morgan, take place.
The matter was listed for directions on 29 November 2005. The magistrate who presided over the directions hearing advised Mr Dielos to take legal advice and to request a taxation of the costs if his concern related to the quantum of costs.
On 6 December 2005, Morgan Ward made application to strike out the purported defence[1] and for summary judgment. In a supporting affidavit, Mr Morgan deposed as follows:
[1] The magistrate and the parties treated the letter of 11 November 2005 as a defence.
As to the matters raised by the defendant in the Defence I say as follows:-
(a)I did not force the defendant to sign any documents to which the defendant refers in his defence or at all. I did not use my position to take advantage of the defendant’s situation.
(b)At no time did I agree to undertake the defendant’s case on the understanding that the defendant was not in a financial position to pay for legal costs. I agreed to undertake the defendant’s case with payment to be made from the proceeds of the sale of a residence which the defendant was building at 15A Wellington Street Klemzig in the said State.
On the 28^th June 2005 the defendant sold this property and I was instructed that he did not directly receive any funds in relation thereto.
(c)On the 25^th of June 2004 an itemised account dated the 24^th of June 2004 was handed by myself to the defendant together with a Family Court costs advice. On the 14 July 2004 this office forwarded to the defendant Tax Invoices detailing the amounts owing to the plaintiff. …
(d)On the 25^th June 2004 the defendant signed an Acknowledgment of Debt for the sum of $6,000.00 in relation to the monies owed by him. …
(e)In spite of several phone calls in relation to outstanding legal fees, no further response was made by the defendant in relation to the said costs until such time as the Defence was filed in this matter. No request was made by the defendant for a more detailed account or for an account in taxable form.
In view of the above matters I respectfully submit that the defendant’s Defence discloses no defence on the merits to the Claim, does not validly dispute the amount claimed and does not comply with the Rules of Court with regard to the pleading of a Defence.
The strike out application was heard by the magistrate on 13 December 2005. The application was granted and judgment entered for Morgan Ward in the sum claimed. In the course of her reasons, the magistrate observed:
When this matter was before me on 29 November, I spoke informally to the defendant in relation to the dispute in the presence of the plaintiff’s counsel. The defendant was unrepresented. In accordance with the policies of this court to assist people who are unrepresented, I asked the defendant to focus on his defence and determine what issues were relevant to this dispute. As the plaintiff had not served the affidavit in support of the application, I adjourned for submissions to be made today at 9.30, to give Mr Dielos an opportunity to consider his situation. I spoke to the defendant in relation to his defence. As Mr Morgan correctly submits, the defence does not comply with the rules of this court. However, so as to not disadvantage the defendant, I will not strike out the defence on the basis that it does not comply with the rules.
...
I confirm for the record that para.1 of the defence lacks clarity and certainly goes nowhere near the point at which a court in either criminal or civil proceedings would look to duress.
In any event, I do not disqualify myself for what Mr Dielos considers to be a prejudicial remark. I am satisfied that I should proceed with this application, given Mr Dielos has sufficient information to analyse his position and has been given an opportunity to prepare for this application.
It would have been in Mr Dielos’s interest to seek legal advice because he fundamentally misunderstands the outcome that he is able to achieve. I say that because of a number of very uninformed views that Mr Dielos has expressed.
...
It should have been clear to Mr Dielos on the last occasion this matter was before the court and it should have been clear this morning given he heard the plaintiff’s submissions, that the plaintiff is not prepared to negotiate any further. In fact, the plaintiff complains about delay. Mr Morgan said the delay in settling this matter was caused by his inability to contact Mr Dielos. Mr Morgan made it clear today that the costs have been outstanding for some time because he was unable to find the defendant. Mr Morgan stated that the defendant has not taken up his opportunity under the Family Law Act to challenge the bill and to have the bill presented to a taxing officer in taxable form. The plaintiff wants this matter to be finalised. Therefore, I am disappointed that Mr Delios did not understand the urgency of the situation.
...
Apart from wanting to settle the matter amicably, Mr Delios does not accept that he should be responsible for this amount. He says that he was forced to sign the documents that the plaintiff relies upon to pursue this claim, as annexed to the affidavit of Mr Morgan and the annexure marked ‘DGM1’. His only other submission was that he denies withdrawing an irrevocable authority to a building company, which is a side issue. He says that he has made no bones about his feelings.
I intend to proceed to finalise this matter. Both parties are entitled to determine their dispute either informally or formally. The affidavit of David Glyn Morgan, signed on 6 December, has answered the defence. The annexure ‘DMG1’ and the contents of the affidavit show clearly that the plaintiff is entitled to summary judgment. It was up to the defendant, if he wished, to avoid the consequences of a judgment against him to raise a defence on the merits. He has failed to do so. He has not taken the options open to him under the Family Law Act in relation to any dispute as to costs. The mere assertion that costs are inflated is certainly not sufficient to suggest that there is a defence.
Following the entry of judgment, costs of the action were taxed in the sum of $927.49.
Mr Dielos did not satisfy the judgment or costs order. Bankruptcy proceedings were issued. Those proceedings have been adjourned pending the hearing of this appeal. Costs have been fixed in those proceedings in the order of $2,723.
The bankruptcy costs were in addition to the $6,761.11, the costs the subject of this appeal. No order for payment has been made for these costs.
The Appeal
On the hearing of this appeal, counsel attended on behalf of Mr Dielos. He informed the Court that he had been providing advice for Mr Dielos for approximately two months in regard to his general affairs including some general advice in regard to these proceedings. However, counsel had not been instructed to appear on this matter until shortly before the hearing.
Counsel, in the course of his submissions, informed the Court that the defences of duress and unconscionable conduct were abandoned. He submitted that the real issue related to the quantum of costs and whether the claimed charges were in accordance with the appropriate scale. It was asserted that Mr Morgan had not attended to his obligations in regard to the provision of a costs notice or of providing an itemised bill and that in the circumstances, the appeal should be allowed and that there should be a taxation of costs.
In support of these assertions Mr Dielos deposed by affidavit that he did not receive a costs notice and had not been given a properly itemised bill. These matters were disputed by Mr Morgan.
When pressed about the basis for the application for an extension of time in which to appeal, counsel sought to rely on an unsworn statement by Mr Dielos in which he asserted that he did not know that he had a right of appeal until late July 2006. As this statement was not sworn, I gave leave to Mr Dielos to swear and file the affidavit by 4.30pm on 12 September 2006. The affidavit was subsequently sworn and filed.
Extension of time
In Police v Warren,[2] I summarised the matters to be considered on an application to extend time following a decision of a magistrate:[3]
[2] Police v Warren [2000] SASC 285.
[3] Police v Warren [2000] SASC 285 at [16]-[17].
The following rules guide the court in considering an application to extend time:
-      The discretion exists for the sole purpose of doing justice between the parties.[4]
[4] Hughes v National Trustees Executors & Agency Co of Australasia [1978] VR 257; Gallo v Dawson (1990) 93 ALR 479.
-      Some material must be advanced upon which the court can exercise its discretion.[5]
[5] Ratnam v Cumarasamy (1964) 3 All ER 933 at 935.
-      There is an obligation to explain with frankness and candour the reason for delay.[6]
[6] Hall v The Nominal Defendant (1966) 117 CLR 423 at 435.
-      The longer the delay the more exceptional or substantial the explanation required.[7]
[7] R v Foster (1996) 187 LSJS 135; R v Balchin (1974) 9 SASR 64; R v Armstrong (1983) 35 SASR 356.
-      If no sufficient grounds of appeal are disclosed an extension will not be granted.[8]
-      The court is not obliged to consider the merits in detail.[9]
-The court will consider whether any substantial grounds exists for apprehending a miscarriage of justice.[10]
-Absent satisfactory explanation about delay an applicant is still entitled to an extension if otherwise there will be a miscarriage of justice.[11]
The above rules are subservient to the overriding principle that the court should grant of extension of time to avoid a miscarriage of justice.   As Kirby J said in Jackamarra v Krakouer[12] at [66]:
"Procedural discretions, such as those in question here, are typically expressed in very wide language. (Boomalli Ltd v Hake [1985] WAR 7 at 9.) In the exercise of such discretions, courts should not be trammelled by a rigid set of rules, whether called guidelines or principles, which would impede the application of rules of court with the flexibility needed to do justice in the particular case. (In re Coles and Ravenshear [1907] 1 KB 1 at 4; Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 at 412.) This is why it is impossible to lay down fixed and binding rules for the exercise of discretions to enlarge time. Of necessity, each case must depend upon its own particular circumstances (Christie v Harvey and Hayward (1900) 2 WALR 146 at 148; Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 at 947; [1985] 2 All ER 517 at 521; Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 167.)
... Nevertheless, it is useful to keep in mind a number of considerations which have commonly been taken into account."
[8] R v Trotter (1979) 22 SASR 64.
[9] Jackamarra v Krakouer (1998) 195 CLR 516.
[10] Gikas v Police (1999) 202 LSJS 301 at 306.
[11] Gikas v Police (1999) 202 LSJS 301 at 306.
[12] Jackamarra v Krakouer (1998) 195 CLR 516 at 539.
Having regard to these considerations, I have reached the conclusion that the application for an extension of time to appeal should be refused. In the present proceedings the delay is for a period of seven months, a very lengthy delay. The explanation for the delay is perfunctory. There is no disclosure about the suggested circumstances under which Mr Dielos became aware of his rights. Further, grounds for defence initially advanced before the magistrate have been abandoned. The only complaint now pursued relates to the appropriateness of the charges. In substance, what is sought is a taxation of costs. Mr Dielos does not challenge the detail of the professional services rendered. His complaint relates to quantum only. This is the very matter the magistrate raised with him on 29 November 2005 and which he declined to pursue at that time.
No sufficient grounds for appeal have been disclosed to warrant an extension of time. There has been a failure to explain the delay with the frankness and candour expected having regard to the lengthy delay that has occurred. There does not appear to be merit in the suggested defence. Itemised bills indicating the nature of the work undertaken and the dates of attendances were provided in 2004. Only a bare assertion of overcharging has been advanced. The justice of the case does not call for an extension of time.
Conclusion
Having regard to all of the above considerations, the application for extension of time is refused. The appeal is dismissed.