Liang v Yap - [2018] SADC 138

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
LIANG v YAP
[2018] SADC 138
Judgment of His Honour Judge Tilmouth
14 December 2018
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - DISTINCTION BETWEEN ADMINISTRATIVE AND JUDICIAL FUNCTIONS
Held: Judgment given in the Minor Civil Claims jurisdiction varied on the basis of evidence not available to the Magistrate.
Magistrates Court Act 1991 (SA) ss 38(5), 38(7)(b), (c) and (d), referred to.

LIANG v YAP
[2018] SADC 138
District Court Proceeding

Ms Liang brings this application for the review of a decision given in the minor civil jurisdiction of the Adelaide Magistrates Court, entering judgment against her for the sum of $342 in favour of Dr Yap. Dr Yap responds by seeking outstanding professional fees of $4,282.75.
The underlying proceeding was a claim in debt of $6,174.10 launched by Dr Yap for professional medical services provided to Ms Liang, in respect ante-natal and in-patient treatment between 6 July and 20 November 2015, and during admission to the Flinders Private Hospital between 21 September and 3 October 2015. Ms Liang gave birth to a son by caesarean section on 5 October 2015.
The minor civil action
By originating proceedings lodged with the Adelaide Magistrates Court in its Civil jurisdiction on 27 September 2016, Dr Yap claimed the above sum ‘as per our agreed terms of engagement signed by Ms Liang on 2 July 2015’. The particulars referred to an invoice dated 9 February 2016 totalling $11,105, of which it claims Ms Liang paid $6,820.25 on 16 January 2016, so that she owed the balance of $4,095. As will be seen this is actually a little more than the $6,506 she claims to have paid him. The Magistrate treated the claim as one for the former sum.[1] Ms Liang filed a defence in general denial of the claim without particularisation, in mid-October 2017.
[1] Yap v Liang ELCCI-17-11372, 25 July 2018, [2].
By 17 April 2018 Ms Liang had filed a draft defence and counter-claim amounting to $5,880, for alleged overcharging, which she particularised by date and extent in dollar terms. The Magistrate granted formal leave to file the counter-claim in those terms. The action was referred for mediation following a directions hearing, which failed to resolve the dispute. The Magistrate later endeavoured to ‘ascertain if there was a way this matter could be resolved, given the emotional nature … and energy’, without success.[2]
[2] Ibid [24].
A trial was held over three part days on 19 April, 2 and 25 July 2018. The transcript is difficult and confusing to follow. It is replete with allegation and counter-allegation. This compounded the task of understanding and resolving the issues, making it particularly difficult for the Magistrate. At one point in her judgment she observed that some of the evidence was ‘somewhat confusing and contradictory and does not essentially go to the nub of the claim or defence’.[3] The mode and manner of presentation in the review process was not any better.
[3] Ibid [10].
Ms Liang first consulted Dr Yap an obstetrician, for the purposes of pregnancy management and delivery of her second child on 6 July 2015. The fees charged were said to be by reference to those prescribed by the Australian Medical Association Fee Schedule. These usually resulted in a ‘fee gap’ between the fees charged for particular services and the level of coverage provided by her private medical health fund, Medibank Private.[4]
[4] Ibid [3].
The Magistrates Court judgment
In an extempore judgment delivered on 25 July 2018, her Honour examined the issues in some detail before pronouncing the judgment referred to earlier. The central findings leading to that outcome are these:
·    Ms Liang acknowledged and confirmed the ‘terms of engagement’ sent to her, by which she was to be charged $140 for a first session of 30 minutes, and $90 for every 15 minutes thereafter, at [33];
·    A second fees schedule provided for an estimated total fee structure of $5,706 with out of pocket expenses estimated at $1,759.63, at [6];
·    Ms Liang accepted the fees in the case of a complicated delivery would cost $3,875, or the health fund gap scheme, at [7];
·    An updated fee structure document given to her on 18 September 2015 provided the cost of the first consultation $140, at [9], which Ms Liang did not clearly accept and so Dr Yap was not entitled to charge a gap fee thereafter, at [28];
·    The items in dispute relate to the period of admission to the Flinders Private Hospital between 27 September and 3 October 2015, at [13];
·    Dr Yap was entitled to charge a fee based on a complicated delivery of $3,875 plus $90 for post-natal visit ‘as per his fee disclosure agreement’ or the AMA schedule fee for those consultations, at [16] and [28];
Based on these primary findings of fact, her Honour drew the following conclusions:
·    It was clear that it was not intended that any gap be charged for any item if not covered by a private health fund, at [8];
·    An updated fee structure document provided by Dr Yap’s staff identifying the fees would lead her to believe that the first consultation was to be for $140.00 and that ‘thereafter ante-natal care would be provided pursuant to the pregnancy plan until the patient was admitted to hospital for delivery, at which stage the fee structure related to either an uncomplicated or complicated delivery would be invoked’, at [9];
·    Dr Yap’s evidence was deliberately vague when referring to the fee documents and that accordingly three consultations up until 21 September 2015 were overcharged by $90 each, at [26];
·    If Dr Yap could not establish the ‘contractual arrangement with Mr Liang … he is entitled to the value of his services on a quantum meruit … based on the AMA schedule of fees’: [Ibid [25]];
·    Dr Yap was entitled to charge for the amount which Ms Liang contracted to pay, or the AMA fee whichever is greater’, at [28];
·    Dr Yap was entitled to receive $2,100 for pregnancy management, $3,875 as agreed for a complicated delivery, $180 for the ante natal consultation in November plus $108 for each of eight ante natal visits in hospital, at [30];
·    These amounts total $7,019 of which Ms Liang paid $6,820, that is $199 short of that to which Dr Yap is now entitled, at [30];
·    Ms Liang received a rebate from Medibank totalling $1,461.65 and therefore has personally paid a gap of approximately $5,368.35, at [30];
· Ms Liang was therefore to pay Dr Yap the sum of $199 ‘in a broad-brush way’ as ‘the most practical and straightforward way to deal with the issue’, at [31].
The application for review
In her application for review filed in this court on 15 August 2018, Ms Liang makes multiple claims of error in respect of the amounts she paid to Dr Yap, and that credits of $2,388.25 remitted to him by Medibank Private should be taken into account. She contends Dr Yap in fact received a total of $12,258.50 from either Medibank, Medicare or herself, of which she contributed $9,870.25.
Then in an amended written case filed on 2 November 2018, Ms Liang expands in some detail on these claims. They gel into these points:
1.Complicated delivery fee – the Magistrate’s conclusion that Dr Yap was entitled to $3,875 was erroneous (at [30]) given her conclusion that procedures would be charged to either the health fund gap scheme or if the patient has no private health coverage, in accordance with the AMA recommended fee (at [8]). Since Medibank Private remitted $2,198.50 to him for this service on 22 October 2015, and it is accepted that Ms Liang paid a $500 gap payment in December 2015, Dr Yap was only entitled to a $500 payment.
2.Fee for ante-natal visit – this was essentially allowed at $180 (at [30]), which did not occur. It is suggested her Honour combined this with a post-natal visit which she allowed at $90 (at [28]).
3.Her Honour ought to have found that Dr Yap was entitled to a total of $5,752.50 comprising:
a.$2,100 for pregnancy management;
b.a $2,698.50 gap payment (including Medibank Private and Medicare payments) for a complicated delivery;
c.a $90 post-natal consultation fee; and
d.$864 for 8 ante-natal consultations
4.Since Dr Yap was paid a total of $12,258.50 from Medibank Private, Medicare as well as herself, Ms Liang should have judgment for the difference of $6,506.
In a long affidavit of 5 November 2018, Dr Yap purports to refute these allegations. He claims the terms of engagement were according to a binding agreement entered into on 2 July 2015, which set consult fees at $140 for the first session of up to 30 minutes and subsequently $90 every 15-minute interval thereafter. He contends outstanding professional fees remain at $4,282.75, and he refers to an obligation on his part to refund an amount of $2,388.25 to Medibank Private. He seeks orders:
That the Appellant be ordered to pay the Respondent the outstanding professional fees of $4,282.75 and thereafter the Respondent can issue a receipt of the remaining payment to the Appellant and return the previously claimed amount of $2,388.25 to Medibank Private.
Both sides presented prolix, discursive and confusing oral submissions to both courts. It is not apparent how the sums claimed by each party are calculated. At the invitation of this court, further materials were forwarded after the hearing of 7 November 2018 with respect to the question of the Medibank Private refund contemplated by Dr Yap. This material was received pursuant to s 38(7)(b) and (c) of the Magistrates Court Act 1991 (SA). It therefore becomes necessary in an attempt to distil the issues into something of a coherent form, in endeavouring to bring this long-standing acrimonious dispute to an end.
Complicated delivery fee
Both parties were in uncompromising dispute as to the total amount of payments made by Medicare. In her amended written case Ms Liang claims Dr Yap received a total of $12,258.50 in fees, either from her, Medibank Private or Medicare. This is made up of a charge of $3,050 (for antenatal care which is not disputed), $6,820.25 received from Ms Liang for hospitalisation and post-natal care (between 21 September and 20 November 2015), plus the $2,388.25 received from Medibank Private. She annexed a series of Mastercard statements and a single page showing a Medibank Private ‘Statement of Benefit’ amount amounting to $189.75, with a second showing a remittance of $2,198.50. These however merely prove payments by her of $3,050, and $2,388.25 from Medibank Private, totalling in all $5,438.25.
For his part Dr Yap insists the total sum received by him on account of Ms Liang was $9,870.25, resulting in a difference of $2,388.25. He explains the difference is accounted for by a receipt of the latter amount from Medibank Private pursuant to a claim incorrectly lodged by his staff. These were received from Medibank Private in two payments, $189.75 on 22 September and $2,198.50 on 3 October 2015.
Her Honour expressly found the invoice rendered for the complicated delivery on 3 October 2015 was $3,875, which was ‘consistent with the fee structure’, $500 of which was paid, and which she assumed was ‘made by Ms Liang’s health care health fund’.[5] She further considered this was ‘Medicare item 6522, would be charged at $3,875 or health fund gap scheme’,[6] and that Dr Yap was entitled to charge $3,875 for that procedure.[7]
[5] Ibid [16].
[6] Ibid [21].
[7] Ibid [28] and [30].
During the course of the District Court review, Dr Yap explained that a deadlock over the dispute as to how much is owing came about because the payment to him of $2,198.50 was withheld by Ms Liang, and once it was paid it ‘will be refunded back to the health fund for her to make her own claim’.[8] There is no question that he was entitled to the advance of $189.75 for a different service. In his application filed in this court seeking judgment for ‘outstanding professional fees of $4,282.75’, Dr Yap states that once paid ‘[he] can issue a receipt … to [Ms Liang] and return the previously claimed amount … to Medibank Private’.
[8] T25.14-26.7.
There is no cross-appeal as such, but so as to resolve all matters in dispute, this aspect of the matter is treated for practical purposes as a notice of cross-contention and cross-appeal. As will become apparent, this sum remains in dispute because Ms Liang claims credit for the Medibank Private payment to Dr Yap of $2388.25, to which he says he was not entitled.
The Medibank Private materials
Following the oral hearing, Dr Yap submitted a letter from Medibank Private to him dated 4 October 2017. This acknowledges that ‘Medibank subsequently paid the Gap Cover at a rate of $2,198.50 for this claim …’. The letter goes on to observe that a second invoice for $3,875 ‘also happens to include the amount that was previously paid to you by Medibank ($2,198.50 – including the Medicare rebate applicable for the service in question)’. This letter concludes by suggesting the second invoice was issued in error and requests him to withdraw it, since ‘the original invoice was fully satisfied by the Customer and by our own Gap Cover (including the Medicare contribution) …’. In another email of 20 October 2017, Medibank Private confirms ‘no part of the benefit ($2,198.50) made to you … should be refunded … [and] … should be treated as a payment towards the charges …’.
The further material forwarded by Ms Liang contains an email chain between her and Medibank Private confirming the recommendation that Dr Yap retract the amended invoice, in which case she ‘should have no liability for further fees for this particular service’. This recommendation was made on the basis that ‘Medibank considers that Dr Yap has not acted in accordance with the Medibank Gap Cover terms and conditions when he submitted the amended invoice to you.’ It offered her two options, either to ‘confirm that you still prefer that Dr Yap refund Medibank’, in which case she ‘will then be liable to pay the full amount … [of] … the second invoice’, or to confirm she ‘no longer wishes for Medibank to process a refund … and instead agree … the amended invoice is retracted …’, in which case ‘our payment of the doctor’s original invoice … along with your own payment of $500 … fully satisfied his entitlements’ and in that event she ‘will not be liable for any further payments towards this service’. She opted for the latter course.
It is apparent that the two invoices referred to in this correspondence were an original dated 22 October 2015 and a revised invoice of 25 January 2016. Both provide a description in identical terms of the complicated delivery on 3 October 2015, and both charged the $3,875 he was entitled to charge according to the reasons of the Magistrate. The former however gave credit for the $500 received from Ms Liang, whereas the latter gave credit of $2,198.50 received from ‘Medicare Health Fund’, in addition to an unspecified and unexplained ‘discount’ of $1,176.50, leaving a balance of $500.
In the result the issue in dispute boils down to this. In the common figure of $12,258.50 both sides agree was received by Dr Yap on account of medical services provided to Ms Liang, there was a component of $2,198.50 from Medibank Private to which he was not entitled. So as to create a situation which enabled him to refund that sum without altering her liability to him, he created the second invoice. Whatever its status, it was legally ineffective to alter her obligations to him under the first invoice, which were in any event discharged by her contribution of $500 and the Medibank Private contributions for the balance.
Complicated delivery fee - analysis
On this footing the balance owed to him must therefore be reduced by $2,198.50 and she must be refunded that amount.
On the basis of this material Dr Yap clearly fails to demonstrate his charges in respect of the second invoice were either reasonable, or indeed proper. Therefore whilst at first sight it appears Ms Liang remained indebted to him for $3,875, liability is unproven on the basis of the evidence now before the court; if anything it is proven her liability to him on the first account is completely discharged.
As confusing as the circumstances appear at first sight, it is tolerably clear that what remains in issue is the Medibank entitlement. It is even clearer that what Dr Yap purported to do by the second invoice was to alter the substance of the legal obligations with Ms Liang by giving ‘credit’ for the fund payment of $2,198.50, and by then significantly discounting it to bring it to the sum of $500 already paid by her. The ‘discount’ of $1,176.50 has no reference to anything other than this. It is obvious that this invoice was created to deal with an impasse between him and Medibank Private to overcome the error made by his staff in claiming the fee in the first place.
In so doing he cannot thereby effectively alter the legal relationship between himself and Ms Liang. The dispute with Medibank Private remains as between him and them. His insistence that Ms Liang must first pay him $2,198.50 can only be referrable to the so-called ‘discount’ device referred to in the second invoice, an invoice having no legal standing and which therefore cannot form any part of the contractual arrangements between the parties.
It was unsurprising in the least that her Honour did not advert to this issue given the confusing nature of the presentations to her, and of course because this Court was provided with additional material which was not made available to her.
The fee for an antenatal visit
The Magistrate found Dr Yap was entitled to $90 for a post-natal visit and $180 for the ‘antenatal consultation in November, plus $108 for each antenatal visit in hospital’.[9] She had previously observed that an account for a ‘post-natal visit on 20 November 2015’ was rendered by Dr Yap,[10] and she obviously allowed the ‘antenatal attendance’ of $108 according to the AMA fee structure on the basis that after 18 September 2015 Ms Liang had ‘not clearly accepted’ the revised fee structure presented to her on that day by Dr Yap’s staff.[11]
There is an obvious slip here, since Ms Liang gave birth in early October 2015, there could be no subsequent antenatal visit afterwards. This minor aspect of the judgment must be corrected to read $90 in lieu of $180 accordingly. This was something the Magistrate could have done herself if asked, pursuant to MCCR 103 (2)(b) of the Magistrates Court (Civil) Rules 2013 (SA).
Entitlement to fees of no more than $5,752.50
As seen above, the one thing that becomes tolerably clear in the course of this review was that Dr Yap had received a total of $12,258.50 from the Medibank Private and Medicare funds as well as from Ms Liang herself. Her claim to an entitlement to the difference between what she has paid and the $12,258.50 paid to Dr Yap is difficult to follow, in light of the discussion as to the complicated delivery fee above, and in light of her Honour’s conclusion that she ‘accepted the fees set out in the second schedule’.[12]
Even so, irrespective of any obligation on Dr Yap to repay Medibank Private, that legal obligation is not established on the materials now available to the court, and it is certainly not established as between him and Ms Liang.
Conclusion and orders
[9] Ibid [28] and [30].
[10] Ibid [14].
[11] Ibid [28].
[12] Ibid [7].
In light of the above analysis, the judgment entered in favour of Dr Yap in the sum of $199 plus a filing fee of $143 (amounting to $342 in all), is set aside pursuant to s 38(7)(d)(ii) of the Magistrates Court Act 1991 (SA). In lieu thereof judgment is entered in favour of Ms Liang pursuant to s 38(7)(d)(iii)(B) thereof, calculated as follows:
1.The sums of $2,198.50 for the wrongly paid Medibank Private overpayment plus $90 to account for overcharging an antenatal consultation, bringing a total of $2,288.50.
2.As Ms Liang was more successful than not, the order requiring her to pay the filing fee of $143 in the Magistrates Court is set aside. She is entitled to the payment of the filing fee of $163 for instituting the review application to this court.
3.Judgment is therefore entered in favour of Ms Liang against Dr Yap of $2,451.50.

Insofar as she seeks the recovery of legal fees for the cost of consulting a solicitor during the course of the Magistrates Court proceedings, they are precluded because the parties were not represented by counsel and because ‘special circumstances’ do not otherwise exist so as to engage an award of such costs: s 38(5) Magistrates Court Act.
Insofar as Dr Yap seeks to enforce the payment by Ms Liang of the second invoice, to compensate him for ‘income loss (from practice disruption and online slandering), intervention orders against Ms Liang and referral of her to the relevant authorities (Medicare, Police or Higher Court) for any conduct deemed unlawful’, such matters are of course beyond the review jurisdiction of this court, just as much as they were beyond the jurisdiction of the Magistrates Court in the underlying proceedings.