Djukanovic v Andersons Solicitors No. Scciv-01-761

[2001] SASC 175

DJUKANOVIC v ANDERSONS SOLICITORS
[2001] SASC 175

Civil

1. PERRY J.   (ex tempore)                I note that Andersons Solicitors (“Andersons”) are not represented before me, although they were duly notified both by telephone and by letter of the fact that the matter was coming on for hearing this morning.

2. Mr Djukanovic appears in person. I have read his affidavit sworn in the proceedings in this Court on 13 May 2001 and its exhibits and I have perused the District Court file.

3. Mr Djukanovic is the defendant to proceedings instituted in that court by Andersons. They claim $31353.95 alleged to be due by Mr Djukanovic by way of legal fees for services rendered by Andersons between July 1994 and December 1997, together with disbursements and interest. The proceedings are defended.

4. When the matter came on for hearing in the District Court before Judge Lunn on 17 April 2001, Mr Djukanovic appeared on his own behalf. Andersons appeared by Mr Costello of counsel.

5. Before the matter had proceeded very far, and before any evidence had been taken, the learned trial Judge saw fit to order, on his own motion, that there be an inquiry into the question whether or not Mr Djukanovic was a person under disability within the meaning of District Court Rules r 5.

6. Under that rule:

   “‘Person under disability’ means an infant, and any person, who by reason of physical weakness or intellectual or mental impairment or other condition whether temporary or permanent, is unable to give sufficient instructions to take, defend or compromise proceedings.”

7. As a consequence of the order made by Judge Lunn, Worthington CJ on 8 May 2001 directed that the inquiry be conducted by a Master.

8. At the same time the Chief Judge noted that an application taken out by Mr Djukanovic in the District Court dated 7 May 2001, was “effectively an appeal” against the order and direction made by Judge Lunn. The Chief Judge intimated that if an appeal was to be pursued it should be directed to the Supreme Court.

9. In response to that intimation, Mr Djukanovic took out an application in this Court on 14 May 2001 seeking “general directions” and “leave from the Supreme Court to grant him an extension of time because the appellant is out of time to file an appeal in respect to the orders made by Judge Lunn of the District Court of Adelaide 17 April 2001”.

10. In fact, not only is Mr Djukanovic out of time, but given that the order which he wishes to have this Court review by way of an appeal is an interlocutory order, the right of appeal given by s 43 of the District Court Act is conditioned by Supreme Court Rules r 96A.02 by the requirement that leave must first be obtained from this Court.

11. In support of his application to this Court, Mr Djukanovic has annexed to his affidavit sworn on 13 May 2001 a number of documents, including recent reports of Dr Andrew Czechowicz, who is a very experienced psychiatrist, Dr Greg Otto, a surgeon, Dr James Siow, a general practitioner and Dr Roman Nowosilskyj, another general practitioner.

12. It is unnecessary to go into the detail of those reports except to note that all four doctors in one way or another express the opinion that Mr Djukanovic is capable of understanding the court processes, and is capable of giving instructions and of appearing on his own behalf.

13. It seems unlikely that those opinions will be challenged by Andersons, having regard to the terms of an affidavit sworn in the proceedings in this Court by Mr Frank Condon of that firm. In his affidavit he asserts that the District Court proceedings were settled following discussions between him and Mr Djukanovic in the precincts of the court on 17 April 2001, on the basis that an offer by Mr Djukanovic to pay $9000 inclusive of costs and disbursements in settlement of the claim was subsequently accepted by Andersons. Settlement documents were prepared for execution by Mr Djukanovic but have not so far been executed.

14. It seems likely that they will not be executed, at least willingly, by him, as I was informed by Mr Djukanovic this morning that he disputes that the matter has been settled.

15. Be that as it may, the importance of the affidavit of Mr Condon for present purposes is that the clear inference to be drawn from the demeanour and apparent capabilities of the defendant when discussing settlement was that he was capable of rational discussion, capable of conducting settlement negotiations and capable of reaching a binding settlement.

16. It seems to me that in those circumstances, given the evidence before me which was not before Judge Lunn, and without any criticism of the course taken by him, it would be futile to allow the order for an inquiry to be carried into effect. It seems to me that on the hearing of any inquiry, it is unlikely that there would be any evidence offered to contradict the clear import of the reports which Mr Djukanovic has put before this Court.

17. In those circumstances, it seems better that I should take a course which will enable the matter to be reinstated in the District Court and brought to trial without further delay.

18. No doubt Andersons can be given an opportunity in that court to raise by way of an amended defence any allegation they may wish to make as to settlement and to seek orders to enforce the settlement which they allege has been reached, should they wish to do so.

19. For present purposes, I am disposed to extend the time for the bringing of an application for leave to appeal, to grant leave to appeal from the District Court, to dispense with the filing and service of a Notice of Appeal, and to allow the appeal to the intent that the orders made by Judge Lunn on 17 April 2001 be discharged. I would further order that the action be re-listed in the District Court for hearing and determination at the earliest available date.

20. I so order.