Edwards v Beecroft - [2019] SADC 118

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
EDWARDS v BEECROFT
[2019] SADC 118
Judgment of His Honour Auxiliary Judge Clayton
21 August 2019
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - JUDICIAL REVIEW
Application to extend time for the review of the decision of a magistrate in a minor civil claim refused.
Held:
The decision of the magistrate is affirmed.
Ulowski v Miller (1968) SASR 277, considered.

EDWARDS v BEECROFT
[2019] SADC 118

On 5 January 2018 Ms Edwards failed to attend a court hearing and a magistrate entered judgement against her in a minor civil claim for the sum of $2630 inclusive of court fees. The magistrate did not address the counterclaim of Ms Edwards. On 11 July 2019 Ms Edwards lodged an application to review the minor civil decision. The application form seeks an extension of the time within which to seek a review. The first matter for me to consider is whether an extension of time should be granted.
In the exercise of my discretion I have considered the five matters referred to by Bray CJ in Ulowski v Miller (1968) SASR 277. While that case concerned an extension of the time within which to commence proceedings the same considerations are relevant to cases such as the present. They are the length of the delay, the explanation for the delay, the hardship to the (defendant) if the application is dismissed, the prejudice to the (plaintiff) if the action is allowed to proceed notwithstanding the delay and the conduct of (the plaintiff) in the litigation. Bray CJ said:
I think the discretion…should be exercised as seems best in the interests of justice after considering in relation to the particular case the five matters mentioned above.
In order to put the issues into context it is necessary to consider the lengthy history of the claim.
History
By proceedings instituted on the 20 July 2016 Mr Beecroft claimed amount of $2400 plus court fees from Ms Edwards for 120 hours work performed from 1 November 2014 to 23 February 2015 at the rate of $20 per hour. The alleged duties included gardening, cleaning, house repairs, washing, drying, rubbish removal, shopping, paying bills and general household duties. The Claim alleges that Ms Edwards has acknowledged the debt on numerous occasions but refused to pay.
On 18 August 2016 a default judgement was entered against Ms Edwards, but on 24 October 2016 that judgement was set aside and Ms Edwards was given leave to file a defence and/or counterclaim within 21 days.
On 14 November 2016 Ms Edwards sent an email to the Registry of the Christies Beach Magistrates Court stating:
(a) I Sandra Edwards do not owe any money to Jack Beecroft (sic) of Morphett Vale, I sadly think his extended love of Alcohol could behind this ridiculous claim for money from myself!
(b) I have to date only heard of this imaginary debt in the last 5 months!
(c) I would like to be paid for the extensive counselling (sic) provided to Mr Jack Beecroft! (An account will be available into course due to the fact I need to find the dairy which has my records in it. (sic)
On 15 November 2016 the Registry of the Christies Beach Magistrates Court advised Ms Edwards that the document was not acceptable, provided copies of form 4 (defence) and form 5 (defence and counterclaim) and suggested that the appropriate document be completed and filed immediately.
Ms Edwards failed to appear at a hearing on 28 November 2016. A note by the magistrate recorded that Ms Edwards was not allowed entry into the Christies Beach Magistrates Court because she had a large dog with her. The magistrate granted leave to file a defence and/or counterclaim within 14 days and noted that should Ms Edwards fail to file a defence and/or counterclaim within the granted extension she would have judgement re-entered against her. The matter was adjourned to 12 December 2016.
A note on the court file dated 9 December 2016 recorded that Ms Edwards had attended at 4.45 and was refused entry ‘as previous reason’. (Presumably referring to the dog). The note recorded that Ms Edwards was advised that the matter was listed for 12 December 2016 at 10 AM. She advised that she would be present at 9 AM to lodge a defence and counterclaim. That note also recorded that she “scribbled a defence quickly while here it was unreadable and was asked to redo neatly as magistrate will throw it out if not readable.”
On 12 December 2016 a message was left with the Christies Beach Magistrates Court advising that Ms Edwards could not attend court “due to medical reason” and that she had a doctor’s certificate. Ms Edwards requested an adjournment to lodge a defence and counterclaim. The magistrate adjourned the matter to 23 January 2017 and made the following note on the file:
The defendant has failed to attend and has left a message with the Court advising that she is unable to attend due to medical reasons and is to provide a medical certificate. She is seeking an adjournment and an extension of time to lodge a defence and/or counterclaim. Leave was granted to the defendant on 24/10/16 to file her defence and/or counterclaim within the next 21 days. She failed to do so on 28/11/16. An extension was granted for her to file a defence and/or counterclaim within 14 days of that date. She has continued to fail to file a defence and/or counterclaim. Should the defendant fail to file a defence and/or counterclaim within the new granted extension, then she will be barred from doing so and a judgement will be re-entered against her.
The magistrate made orders as follows:
1.Leave to the defendant to file a defence and/or counterclaim within 28 days of today’s date noting the Christmas closure. If she fails to do so judgement will be re-entered against her.
2. Adjourned to 23/1/17 at 11:30 AM. Registration notify the defendant of the orders made today.
On 23 January 2017 the Christies Beach Magistrates Court received a medical certificate certifying that a doctor had examined Ms Edwards on 22 January 2017 and that Ms Edwards would be ‘unfit for her normal work’ on 23 January 2017.
On 23 January 2017 Ms Edwards failed to attend the hearing. Judgment was re-entered for the plaintiff in the amount of $2630. The magistrate published reasons for decision stating:
1. The situation is one, which is unsatisfactory, because the defendant for various reasons has failed to file a defence and/or counterclaim.
2. The defendant has failed to attend once again. She has provided a medical certificate from Hackham Medical Centre dated 22 January 2017 stating that she is unfit to attend today.
3. I am not satisfied that the defendant has complied with the orders of the court and I outline the defaults of the defendant as follows.
4.Judgement was entered against the defendant on 28/9/16 and was set aside on 24/10/16 on condition that the defendant was file a defence and/or counterclaim within 21 days. She has failed to do so.
5. The matter was back before the court on 28/11/16 and the defendant was granted a further extension to file a defence and/or counterclaim within 14 days of that date. She has failed to do so.
6. The matter was back before the court on 12/12/16 and the defendant was granted a further extension of time to file a defence and/or counterclaim within 28 days. She has failed to do so.
7.. The defendant has failed to litigate this matter and has been provided with 3 opportunities by the court as outlined to file a defence and/or counterclaim which she has failed to do.
8. Judgement is re-entered for the plaintiff in the amount of $2630.50 inclusive of filing fee, issue fee and service fee.
Ms Edwards sought a review of that judgement. It is significant that her Application to Review a Minor Civil Decision in respect of the judgement entered on 17 January 2017 was not lodged until 10 March 2017. In the application Ms Edwards sought an extension of time. Ms Edwards must have become aware of the time limit that applied.
On 26 May 2017 Ms Edwards appeared before a District Court judge whom she told that she attended the court but was not allowed to enter because the court officials did not recognise her “service dog”. At that time, the dog was not a certified service dog, although Ms Edwards told His Honour “he is in the process of being done at the moment”. His Honour said:
… Ms Edwards has a disability and it’s not for me to question the need for a service dog or other-she’s indicated that she’s been dealing with people who provide training for these things et cetera. It’s not for me to enquire into that…All I’m saying is that I don’t think she’s received appropriate assistance at the Christies Beach court and now the sheriff, Mr Stokes, has intervened, this shouldn’t be repeated… As I say, it’s not your fault and I don’t think it’s her fault; I think it’s the courts fault quite frankly, and we should try to put things right.
His Honour allowed the application for review and pursuant to S 38 (7) (d) of the Magistrates Court Act remitted the matter to the Christies Beach Magistrates Court for hearing before a different magistrate.
A review of the court file indicates confusion as to whether Ms Edwards’ failure to attend when the default judgement was entered was a consequence of the court officials failing to recognise her “service dog” or was based upon the certificate dated 22 January 2017 from the Hackham Medical Centre which stated that Ms Edwards was ‘unfit for work on 23 January 2017’. Para 2 of the magistrate’s reasons refers to the medical certificate. However, Ms Edwards said to the District Court Judge:
I went at the court but I wasn’t being let in by people who did not recognise my service dog and refused to allow us into the court. We were actually at court doors with papers, everything, several times and we were refused entry.” (Footnote-transcript 26 May 2017 P3-6).
On 26 June 2017 default judgment was again entered for the plaintiff, no defence and/or counterclaim having been filed in accordance with the order of the District Court Judge. That judgment was set aside by consent on 28 June 2017 and leave to file a defence and/or counterclaim within 7 days was granted on the basis of a medical certificate which stated that Ms Edwards had been” sick the past few weeks with multiple issues and had not been able to complete paperwork related to her legal defence. (sic)”
An affidavit of Ms Edwards dated 26 June 2017 was filed denying the plaintiff’s claim and claiming an amount of $4587 plus GST by way of counterclaim for counselling.
On 28 June 2017 Ms Edwards lodged a defence and counterclaim with the court. In the particulars of defence she alleged that she did not employ the plaintiff to do any work for her and she did not owe any money because the plaintiff did nothing for her.
In the particulars of the counterclaim she alleged:
As Jack kept coming to my home to talk about his problems and he was told that I would charge him for the service and he spent 83.5 hours at $55 at my home drinking coffee.
Ms Edwards wrote she was not able to send an account because the plaintiff did not have a permanent address. The particulars allege that the total owing was $4587 plus GST.
No proper details of the alleged counterclaim have been provided. The fact that no account was ever provided is significant.
On 14 July 2017 the matter was listed for trial on 6 October 2017 and an order was made for discovery. The plaintiff made discovery but the defendant did not. The fact that the plaintiff made discovery of documents which corroborate his case but the defendant never made discovery is a relevant matter in assessing the merits of their respective cases
On 6 October 2017 both parties attended the court. The plaintiff provided to Ms Edwards a copy of each of the documents upon which he intended to rely and a copy of the affidavit of each of the 2 witnesses upon whose evidence he intended to rely.
The magistrate ordered that within 21 days the defendant file a copy of the documents upon which she intended to rely.
The trial date was vacated upon the application of the defendant, against the opposition of the plaintiff, on the ground that the defendant, whilst in hospital, lost her briefcase containing all of her documents relating to the trial. The trial was adjourned to 5 January 2018 and a direction was made that within 28 days the defendant deposit with the court every document upon which she intended to rely together with a list of documents.
On 4 January 2018 Ms Edwards lodged an affidavit with the court stating:
I Sandra Edwards of 6 Carmela Avenue, Morphett Vale 5162 wish to inform the Christies Beach court that I have had a family emergence (sic) therefore I am unable to attend court on 5 January 2018. I would ask the court to relist the civil matter between Jack Beecroft and Sandra Edwards as soon as possible after 12 January 2018. I will be away in February from the 12^th to 4 March 2018. I am deeply disappointed as I want this matter to come to an end as soon as possible, I thank all concerned for their understanding in this urgent situation.
My main witness Jan Williams is also away until 12 January 2018 another urgent family matter.
As I’m going to have to rely on a pone (sic) my witnesses someone contacted the party who has my evidence in my briefcase telling him I was married and my husband was taking me away until 6 January 2018. He has now again sent my documents to me by post, but I am still awaiting them to arrive and I would like to ask the court for permission to loge(sic) them if they do arrive before the next court date so we may have a fair trial.
Thanking the court for their understanding.
Sandra Edwards
As foreshadowed the defendant did not appear on 5 January 2018. The plaintiff opposed any further adjournment and added that any evidence Ms Edwards should bring should not be allowed because she had 28 days from the last hearing to file any documents that she had but had failed to do so.[1] He told the magistrate that the case had been going on for 18 months and he wanted the matter dealt in Ms Edwards’ absence.[2] The plaintiff asserted the application for an adjournment was a stalling tactic and Ms Edwards’ claim was not a genuine claim.[3]
[1]    T P 2-31
[2]    T P 3-5
[3]    T P 3-18
At the magistrate’s invitation the plaintiff pointed to the history of the matter and in support of his submission that it was just a stalling tactic said that it was the 7^th or 8^th time they had been to court to hear the matter.[4] The magistrate noted there had been no compliance by Ms Edwards with the order for discovery which had been made on 6 October 2017.
[4] T P 3-29
The magistrate accepted the submission by Mr Beecroft that Ms Edwards’ application to adjourn the trial was “simply a further effort by the defendant to delay these proceedings.” His Honour reviewed the history of the matter in detail, noted that there had been no compliance with the order for discovery made on 6 October 2017, accepted the plaintiff’s submission that the adjournment application was simply a further effort by the defendant to delay the proceedings and declined to adjourn the trial. He proceeded to hear the evidence of Mr Beecroft.[5]
[5] T P 5-6
Mr Beecroft gave evidence which established that he had carried out work at the request of Ms Edwards and that there was an agreement that she would pay $20 per hour.[6]
[6] T P 8-31
Mr Beecroft had kept a record of the hours for which he claimed.[7] One of the documents which the plaintiff disclosed was an invoice book containing duplicate copies of 15 invoices which he had issued to different clients between 24 March 2014 and 15 March 2015. Invoice number 11 dated 23 December 2014 is addressed to the defendant and relates to 60 hours work, which is detailed, at $20 per hour, a total of $1200. Invoice number 13 which is dated 19 February 2015, also lists work carried out and claimed another 60 hours at $20 per hour.
[7] T P 5-6
Ms Edwards claimed at the hearing before me that she never received the invoices and that the book is a forgery. The detail and the chronological sequence of the 15 invoices in the book indicates that is not the case.
In his reasons His Honour said:
After he had been doing the work for a couple of weeks Mr Beecroft requested payment but Ms Edwards said she was waiting to get money from Disability SA.[8] It was Mr Beecroft’s practice to issue invoices. The invoice book was tendered.[9] (T11).
When Mr Beecroft gave Ms Edwards an invoice dated 23 December 2014 she said “Look I’ll pay you as soon as I get the money from my super.”[10]
Mr Beecroft did not return on the following day and Ms Edwards rang him. Mr Beecroft said he wanted his pay and Ms Edwards said, “Oh well, I’ll give you the money when I get it”. Mr Beecroft said, “If I don’t get it soon I am not coming back” and she said “Look I’m sorry, please come back. I need you to help me.”[11]
Later when Mr Beecroft raised the fact that Ms Edwards had constructed a new fence and asked when she was going to pay the money that she owed him she replied that she didn’t have the money at the time, that one of her dogs was in season and that if the dog had a litter she would sell them and give the money to Mr Beecroft.[12]
[8] T P 9-29, T P 10-1
[9] T P 11.
[10] T P 12-6, T P 13-28
[11] T P 13-26
[12] T P 15
Mr Beecroft said that there was no basis for a counterclaim. He said he would not have Ms Edwards as a counsellor, that he had not agreed to be counselled by her and did not agree to pay $55 per hour for counselling.[13]
[13] T P 15-29
In his reasons, His Honour was satisfied that on the evidence of Mr Beecroft that there was an agreement that he do household work for Ms Edwards at the rate of $20 an hour, that he did work in accordance with the agreement and rendered invoices pursuant to the agreement, but they remained unpaid. He entered judgement in favour of the plaintiff for $2650.50 which included the filing fee, issue fee and service fee.
An Application to Review of a Civil Decision must be filed within 21 days of the magistrate’s judgement. In this case the judgement was dated 5 January 2018.The application was filed on 11 July 2019. It was over one year and five months late.
There are 5 grounds of appeal listed in the Application To Review a Minor Civil Decision. The first alleges harassment over Ms Edwards disability from a member of the Sheriff’s Office. The second asserts that the plaintiff had been caught taking Ms Edwards’ mail. The third asserts that Ms Edwards did not know “when court is on so I cannot attend due to Mr Beecroft’s actions.”
The fourth ground alleges:
I do not own (sic) this money and I can prove this it only came into his head after he reconciled his account for my life counselling and I can prove this.
Finally the fifth ground asserts that Mr Beecroft had threatened Ms Edwards several times and that she is now scared.
Apart from ground 4 none of the 5 grounds question the merits of the decision of the magistrate or provide a reason to extend the time for making an application.
As I have mentioned Ms Edwards has not provided satisfactory details of the counterclaim and she has no invoices or other documents which corroborate her claim.
At her request, I provided an opportunity for Ms Edwards to provide further material to the court and she has done that. I do not know whether that material has been provided to the plaintiff. That material is not evidence. I have treated it as an indication of the case that Ms Edwards would pursue if her application to extend time was successful.
Consideration

Ground 4 is a bare denial of the debt which is inconsistent with the evidence that Mr Beecroft gave to the magistrate. The magistrate was entitled to accept the evidence of Mr Beecroft. The findings of the magistrate were open on the evidence before His Honour.
The trial took place in the absence of Ms Edwards. The history of the matter, which I have recited justified the magistrate proceeding in the way that he did.
As the history reveals this is the second occasion on which Ms Edwards has lodged an Application to Review a Minor Civil Decision in these proceedings. She was aware of the procedure. Having made an application for an extension of time on the earlier occasion Ms Edwards should have been aware of the time limit.
The only reason for an extension of time set out in the Application to Review a Minor Civil Claim states:
I am ill very ill and if the court could bring this matter on in the middle of August as I need surgery and I want to be in court to defend his claim to pursue mine.
That statement does not excuse the delay of over one year and 5 months. I find that Ms Edwards has not provided a satisfactory excuse for the very lengthy delay.
The magistrate found that Mr Beecroft had proved his claim and that there was no basis for a counterclaim. The matters of which Ms Edwards has given notice do not indicate that her defence or counterclaim has any real merit.
On 26 April 2018, the plaintiff requested the registrar to issue a warrant. Proceedings to enforce the judgement have been on foot since that time. It is unnecessary to descend to the complications which have delayed execution of the warrant but it is easy to infer that it has been the warrant which has provided the impetus for this review.
The question before the court at the moment is whether the time for lodging the Application to Review a Minor Civil Claim should be extended. The application is more than 15 months late. No satisfactory reason has been provided for such a lengthy delay.
Ms Edwards has argued that the delay should be excused by reason of her illness. The alleged illness is to be contrasted with the email from an officer of the City of Onkaparinga which attests to the fact that notwithstanding her undisputed disability Ms Edwards was capable of undertaking work around the house with the consequence that she did not need assistance from the plaintiff. I do not accept the alleged illness as an excuse for the delay which has occurred.
The evidence before the magistrate established the plaintiff’s claim and none of the material produced by Ms Edwards suggests that if the review was to proceed she could produce any material that would justify upsetting the decision of the magistrate. None of the five matters referred to by Bray C J in Ulowski v Miller (supra) justify an extension of time.
In my opinion the period of the delay by itself is sufficient for the application to extend time to be refused. Having regard to the history of the claim the magistrate was justified in proceeding to hear the claim in the absence of Ms Edwards.
I have carefully read the material which Ms Edwards has emailed to the court. One of the lengthy documents appears to be a diary kept by her but it lacks particularity and authenticity does not indicate any basis on which she could establish a meritorious defence and counterclaim. The material provided by Ms Edwards does not provide the basis for an extension of time.
The decision of the magistrate is affirmed.