Jeanette Woo v SA Dental Service - [2017] SADC 129

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
JEANETTE WOO v SA DENTAL SERVICE
[2017] SADC 129
Ruling of His Honour Judge Slattery
26 October 2017
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - JUDICIAL REVIEW
Applicant's application under s 38(7)(d)(i) of the Magistrates Court Act (1991) (SA) is dismissed, and the judgment of the learned magistrate affirmed.
Magistrates Court Act (1991) (SA) s 38; District Court (Civil) Rules (2006) (SA) 279A; Limitation of Actions Act (1936) (SA) s 48; Evidence Act (1929) (SA) s 67C; Magistrates Court (Civil) Rules (2013) (SA) 87, 28, referred to.
Prater v Grope Hamilton Lawyers [2017] SASC 55; Aon Risk Services Ltd v Australian National University 239 CLR 175; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, considered.

JEANETTE WOO v SA DENTAL SERVICE
[2017] SADC 129

This is an application under s.38 of the Magistrates Court Act. Under that section (s.38(6)) the court constituted of a judge may, on the application of a party who is dissatisfied with a judgment of a Magistrate in a minor civil action, review the judgment. S.38(7) then sets out the considerations that govern such a review.
I may inform myself as I think fit and I am not bound by the rules of evidence. I may, if I think fit, rehear evidence taken before a Magistrates Court. In determining the matter I may affirm the judgment or rescind the judgment and substitute a judgment that I consider appropriate. In hearing and determining this review I must act according to equity, good conscience, and the substantial merits of the case without regard to technicalities and legal forms.
District Court rule 279A applies to such reviews. That rule sets out some of the powers of the court in relation to the hearing of the review and rule 279A(10) sets out the powers that the court may exercise in relation to a review.
For example, I may correct an error or omission in a notice or cross-notice. I may correct an error or omission generally. I may exercise any procedural or other powers that the court from which the review lies had in relation to the original proceeding. I may give such judgment or directions as may be just in the circumstances and I may make an order for costs of the review. I have had all of those powers clearly in mind when considering this application.
Under rule 6DCR 279A(2) the application for review must be commenced within 21 calendar days. On my calculation the judgment of the learned magistrate was dated 31 July 2017. But the application for the minor civil review was not commenced until 28 August 2017. The applicant, Ms Woo, would therefore require an extension of time prescribed under rule 279A(2). In doing so I would need to apply s.48 of the Limitation of Actions Act and in so doing I would review the merits of the matter and then decide whether or not I would be prepared to grant an extension of time. For those reasons it is necessary for me to review the merits of the matter and then to come to my decision about whether or not I would extend the time prescribed for the commencement of this review.
By a Magistrates Court minor civil claim commenced 2 June 2006 Ms Woo brought an action against a defendant described as the SA Dental Service. Notwithstanding that this name may not necessarily be the correct description of the defendant in the action, nothing turns on that matter.
Ms Woo gives her address and at the bottom of the front sheet there is a heading 'Particulars' which invites Ms Woo to state what remedy she seeks from the Court. There are documents attached to this form. Ms Woo has shown me today a stamped copy of the form which she received from the court. I have compared that document to the document on the court file, they are relevantly identical, the only difference is the handwriting in pencil added to the documents by Ms Woo. Nothing turns on that point.
The front sheet of the claim at about point 4 on the page identifies a method of service; the parties are required to tick a box. The choices are: registrar; sheriff; plaintiff's solicitor; and party. The party box is ticked. Therefore Ms Woo informed the court that she was going to serve this claim.
Before proceeding further it is necessary to identify some peculiar matters about the description of the claim attached to the summons. It is not a pleading. It consists, firstly, of a letter written by Ms Woo to Mr Peter Bercys at the SA Dental Service, dated 16 December 2005. Secondly, there is a letter addressed to Mr Martin Doolan dated 22 March 2006. And the third is another letter to Mr Doolan dated 2 April 2006. The fourth is a document entitled further particulars dated 2 June 2006.
All of the documents are under the hand of Ms Woo, they are original documents, they are signed by Ms Woo and her handwriting is on some of the pages. A matter that was not adverted to by the learned magistrate but which is, in my opinion, important in the context of this review is that the first document, being the letter of 16 December 2005 consisting of four pages, is identified as being without prejudice. It is a document which attracts the protection of s.67C of the Evidence Act.
This document is directed to the defendant. When the contents are read and understood, it is a document directed towards settlement. So much was made plain to me by Ms Woo in her submissions. She accepts that these documents are connected with attempts by her to settle the claims that she says she has - the claims in respect of damages for which she says she has an entitlement - without the need for legal proceedings
Under s.67C(1) of the Evidence Act:
The evidence of communication made in connection with an attempt to negotiate the settlement of a civil dispute or of a document prepared in connection with such an attempt - and these documents attached to the court form are such documents, - are not admissible in any civil proceeding.
Under s.67C(2) of the Evidence Act:
The evidence, being those documents and of course the evidence of the fact of the negotiation, is only admissible if the parties to the dispute consent.
It is not possible for one party to a without-prejudice negotiation to waive privilege. If the content of documents, being a first offer by a plaintiff to a defendant, is marked 'without prejudice', and it is truly a document that attracts that description, that document may not come into evidence except with the permission of both of the plaintiff and the defendant.
So much is made clear from the wording of S.67C(1) and (2) Evidence Act. Even though the subsequent documents are not marked 'without prejudice', they are documents communicated in connection with an attempt to negotiate the settlement of the civil dispute. The same rule would apply.
It follows that, in general terms, there is no claim communicated to the court and to the parties as the particulars attached to the minor civil action claim form because the documents that purport to be pleadings cannot be read as such. In those circumstances, when these provisions of the Evidence Act are strictly applied, it would not be possible for an assessment to be made of the merits of the claim of Ms Woo. That, of course, is pertinent to the considerations of the application of rule 87 of the Magistrates Court Rules. I will come to that matter later.
Returning then to the minor civil action claim form, the method of service indicated was by the party - that is, Ms Woo. There is no evidence before the court that Ms Woo served this claim. On 5 June 2007, the registry of the Magistrates Court sent a notice of intent to inactivate action to Ms Woo. That notice set out Magistrates Court Rule 28(3). That rule applies to questions of service. The notice informed Ms Woo that the action No.4621/2006 would be dismissed without further notice should that rule not be complied with. The notice was sent to Ms Woo's address as shown on the summons.
The notice reads: 'Rule 28(3)(a) provides "If, at the expiry of 21 days after the time for service of an action or extension thereof - (i) judgment has not been signed; or (ii) defence has not been filed - the action will stand dismissed for want of prosecution". At the time of the issue of this notice judgment has not been signed and a defence has not been filed in this action. It goes on to read:- “If the above rule is not complied with, the action shall be dismissed without further notice to you. Registrar.”
The notice is addressed to Ms Woo at her home address. I am satisfied, on all of the documents in the court file, that this is her actual correct address. The court file discloses that no action was taken by Ms Woo and on 31 July 2007 the action was dismissed for want of prosecution. That was a power that was open to the court to exercise where the time for the service of the action had expired, where judgment had not been signed and a defence had not been filed. The power of the court under rule 28(3)(a) Magistrates Court Rules was properly exercised.
Almost exactly 10 years later Ms Woo brought an interlocutory application in the Magistrates Court in the same action. She sought orders for reinstatement of the claim and, in a second document called 'affidavit', she informed the court of the following in support of her application: '1. I live in a dwelling which has been made to be surrounded with radiation since 2005. As a result, I have become rather frail and unwell from 2006 onwards. 2. There were continued neighbour disputes. 3. I was away seeking treatment overseas in 2005 and 2008 and 2017. 4. In-between times, I have sought treatments in Melbourne for at least several times. 5. In early-2014 I suffered from a significant fall and since then was highly involved with the investigation and treatment of various injuries. 6. The manner in which the staff from the dental hospital had treated me was like an animal; it remained very hurtful to me and this scar need to be healed by addressing it. 7. This claim/matter is one of the bucket lists that I need to attend to as my aging life journey moves on. 8. Recently I discovered a once-open wound which was caused by enormous force and size of an oversized muddy-pink stuffed wrapped over the too-large mouthguard for my mouth and despite has been sealed with a scar tissue was not permanent. 9. The once-broken fibres of the connected tissues around the mouth become deep-set wrinkles around the scar of the lip and mouth. 10. In around 2015, Mr Campbell said he would act for me without fee. However I was tied up with various treatments and investigation of my injury. Recently when I contacted him again, he appeared to be too busy. I have since then contacted another solicitor who advised me to apply for an extension of time and discovery. 11. I was scared by the power and the bureaucracy of the dental hospital and have relied on legal profession to assist, however Mr Campbell had let me down. The recent treatment trip has awakened me to the fact if I do not do it now I will never be able to do it.'
It is quite apparent from the content of the affidavit that Ms Woo was completely aware of at least these things:
1.That she was required to serve the minor civil action dated 2 June 2006 in action 4621 of 2006.
2.She had not served that document.
3.The failure to serve had accrued at least 10 years ago.
4.That if she was to take the proceedings further it would be necessary to set aside the orders of the Court.
5.In order to do so, she would need to show reasons why she had not served the documents previously.
6.This affidavit was her attempt to inform the court of reasons. It follows that the application before the court that was considered by the learned magistrate was properly considered under rule 87 of the Magistrates Court (Civil) Rules (2013) (SA) (MCCR). That rule reads as follows:
87.(1)    The Court may set aside or vary a judgment (not being a final judgment).
(2)     The Court must not set aside such a judgment unless the party seeking to set it aside establishes that he or she –
(a)has an arguable case on the merits; and
(b) has a reasonable excuse for not having complied with these Rules, or an order of the Court, or any time limit fixed by these Rules or order of the Court, in respect of the action or proceeding.
(3)     When setting aside a judgment the Court may order –
(a)payment to the other party of costs thrown away;
(b)payment or security under Rule 81.
I am satisfied from the material which I have seen on the court file that there was no lack of information in that file and the records of the court were complete. Those records contained the original claim that I have now been referring to in due course in this judgment. Thus the court had before it the original claim of Ms Woo. Any assertion to the contrary is manifestly incorrect.
I am also satisfied that the suggestion that Ms Woo did not receive the notice of intent to inactive action in June 2007 is not true; it has no merit. The document on the court file is a copy of the notice sent to Ms Woo. It is evidenced by the record of outcome.
There is no evidence to suggest that the notice was not delivered to Ms Woo and in fact, when the affidavit in support of the interlocutory application is properly read and understood, it is suggested, at least indirectly, that Ms Woo knew that that document had been sent to her but as a result of other issues involved in her life, she didn't get around to doing anything about it.
It is not necessary for me to decide whether pursuant to MCCR 28 there is or there is not a requirement for a notice of intent to inactive action prior to the action being dismissed for want of prosecution. I think that submission is right and it merely adds force to my decision in this matter.
I return to the topic of the rules of Court. Under MCCR 28, an action must be served within one year of the date of filing, therefore in relation to the original action it was required to be served on or before 3 June 2007.
The time for the service of an application may be extended by interlocutory application. That interlocutory application must be filed before the expiration of the time allowed for service. Under sub-rule (3) if at the expiration of 21 days after the time for service of an action judgment has not been signed or a defence has not been filed, the action will stand dismissed for want of prosecution.
I accept, as the respondent submits, that Ms Woo was sent a notice of intent to inactive action on 6 June 2007. I am satisfied that the court record is a business record and I have accepted that the Court records accurately reflect that fact.
I would not accept that Ms Woo did not receive such a notice as a result of the material that I have read in the documents tendered before the court.
Under rule 87 of the Magistrates Court rules a court must not set aside a judgment unless the party seeking to set aside establishes that she has an arguable case on the merits and has a reasonable excuse for not having complied with the rules in respect of the action or the proceeding. The party seeking to set aside the judgment bears the onus of establishing the matters set out in MCCR 87(2)(a) and (b).
As I have earlier indicated in my reasons, it is completely unclear to me whether there is any evidence that the plaintiff has an arguable case on the merits because the documents that she purports to refer to as being the recital of the relevant material facts in support of her claim may not be received by the court because of the operation of s.67C of the Evidence Act.
I consider that the learned magistrate could have decided that there was no evidence that Ms Woo had an arguable case on the merits because of that fact, however, I will leave that matter aside for the purposes of this decision.
When one reviews each of the affidavits filed by Ms Woo, it is plain that Ms Woo has not explained to the court why it is that for a 10-year period she has not served the documents. It is also plainly implicit from the content of the material that Ms Woo was quite aware of her obligation to serve the documents but her affidavits are an attempt to explain away what was going on in her life as the reasons why she did not serve those documents. Merely because other matters were occurring in the life of Ms Woo, is not a ground to be taken into account in the exercise of the discretion by this court to give Ms Woo some further time in which to serve the documents. The documents are now referring to events, potentially, that occurred 10 or more years ago.
Whatever Ms Woo says in her affidavits, in my opinion they do not constitute anything in the nature of a reasonable excuse for not having complied with the rules. The learned magistrate was correct to find that it would be a miscarriage of justice if it could be said that the reasons supplied by Ms Woo constituted a reasonable excuse for not complying with the rules. It was open to the learned magistrate to find that a reasonable excuse for not having complied with the rules has not been established.
Also, in my view, any suggestion that it was for the magistrate to be satisfied from the point of view of the respondent of the content of MCCR 87(2)(a)(b) is misconceived. So much was made clear by the decision of Parker J in Prater v Grope Hamilton Lawyers [2017] SASC 55 [38]. It is for Ms Woo to satisfy the court of the arguable case and the reasonable excuse. If one or other or both of those matters are not established by her, a magistrate is at liberty not to set aside the judgment. That is what has occurred here.
There is a further matter. I have already said that the events the subject of this matter occurred 10 or more years ago. My reading of the content of Ms Woo's affidavits indicates that there are references back to events occurring in the 1990s. There is no explanation why this matter has not been pursued with due alacrity. It was necessary for Ms Woo to serve the proceedings upon the defendant and for relevant issues to then be joined and the action heard. A delay of 10 years is an unacceptably significant delay. Courts are increasingly faced with claims that require or potentially require reviews of matters that occurred very long ago. There is a significant prejudice for a party to be called upon to dredge documentary records and memories in an attempt to answer a claim brought many, many years after events.
The modern approach to extensions of time is reflected in the decision of the High Court in Aon Risk Services Ltd v Australian National University 239 CLR 175. Each of the judges of the High Court who published decisions were of the same view. The general attitude of the High Court is reflected in the judgment of French CJ at [5]:
Delays prejudice a fair trial of proceedings. The High Court has accepted that delays will vex parties who are required to dredge memories and documents in an attempt to respond to claims. At some point, where a delay is so long, the prejudice to the fair trial will override the merits of the claim.
I also refer in particular to the comments of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551 et seq.
In this matter, my conclusion is that for the defendant now to be required to force the hand of Ms Woo to properly plead a claim and then, to attempt to answer the claim by dredging memories and documents in respect of events that have happened more than 10 years ago, is an unacceptable prejudice. It is so unacceptable it would, in my opinion, amount to an abuse of process.

I return then to the question of the operation of 6 DCR 279A(2) and s.48 of the Limitation of Actions Act. In the circumstances and having regard to the whole of the comments that I have made, I would not exercise my discretion to grant an extension of time to Ms Woo to bring this application. My view is that the application is entirely without merit, the prejudice to be suffered by the defendant so far outweighs any benefit to Ms Woo, that it would constitute an abuse of process and that on no basis, would or should this court, grant an extension of time to bring the application. In those circumstances, the application is dismissed and under s 38(7)(d)(i) of the Magistrates Court Act (1991) (SA). I affirm the judgment of the learned magistrate.