Markon v WILLIAMS No. Scciv-02-252

[2002] SASC 216

MARKON  v  WILLIAMS
[2002] SASC 216

Magistrates Appeal:  Civil

1. MULLIGHAN J                 The appellant brought an action in the civil jurisdiction of the Adelaide Magistrates Court in effect for breach of an agreement which she claimed to have reached with the respondent on 23 March 2000. She claims a substantial sum, in the order of about $38,000. The proceedings were commenced on 19 January 2001. The respondent has filed a defence in which he denies the claim and made a counterclaim. The amount claimed by him is now in the order of a little over $36,000, which includes a claim for the return of property to the value of a little over $20,000 and for money amounting to about $15,000.

2. One item of property is acknowledged no longer to be in the possession of the appellant and that is a motor vehicle to the value of about $16000. It is alleged that it was stolen and that the appellant has received the proceeds of insurance on the vehicle. Those proceeds are now part of the counterclaim of the defendant. The proceedings have had a lengthy history. The appellant has at times been represented by a legal practitioner and at other times has not.

3. As I understand the position the respondent has always been legally represented but not by the same practitioner. In March 2001 it was ordered that the appellant give discovery and further and better particulars of her claim. The matter was set for trial in June 2001. The appellant had not complied with the interlocutory orders, which I have mentioned. A date was fixed for a conciliation conference prior to the trial and she failed to attend. An order was made requiring her to attend on another occasion and her claim was dismissed in June 2001.

4. The claim was reinstated on 15 June 2001 and again she was ordered to file amended particulars which were filed and a list of documents was filed. It was noted by the Magistrate who heard the matter that the amended particulars were substantially different from those which had been originally pleaded and that there were some arithmetical inaccuracies about the amended particulars, but nevertheless he ordered that there be mediation.

5. The mediation was unsuccessful and the matter was set for trial on 23 January 2002. Before that time criminal proceedings had been instituted against the appellant in relation to money which is the subject of the civil proceedings. Those criminal proceedings had not been resolved and so the respondent sought an adjournment of the civil trial. That application was opposed by the appellant and the trial was adjourned to 14 February 2002.

6. I am informed that Mr Caldicott, who by that time was appearing for the defendant, had opposed the adjournment to 14 February as he was not available on that date. His opposition was not successful but he was able to make himself available and the defendant and his counsel were ready to proceed on 14 February. The appellant attended at the trial and sought an adjournment. She claimed that the lawyer who had been advising her was ill and unable to proceed at that time.

7. Enquiries were made by Mr Caldicott and I am informed that the lawyer concerned informed him that he was not acting in the civil proceedings and that he was not ill. The Magistrate refused to grant the adjournment sought by the appellant. He dismissed the claim and, having sought an intimation from Mr Caldicott that in those circumstances the defendant would not proceed with the counterclaim, it was also dismissed but on the understanding that if there was an appeal against the orders made by him with respect to the claim that the respondent retained the right to reinstate the counterclaim. The respondent did not seek costs on that occasion on the basis that the action had been completed but the learned Magistrate reserved to the respondent the right to pursue costs if the claim was reinstated.

8. The appellant appealed and has represented herself throughout the appeal. The ground of her appeal is that she was unable to proceed before the magistrate on 14 February as witnesses were not available and had to be compelled to attend. She also claimed that her previous solicitor who had acted for her for some time had not complied with the previous orders and she was seeking assistance from another solicitor.

9. The appeal came on for hearing before me on 23 April 2002. The appellant did not attend having sent in a document to the effect that she was unable to attend due to ill health. I adjourned the appeal sine die, which left the orders made by the Magistrate untouched. The appellant has now brought the appeal on for hearing.

10. She has placed before me some brief medical reports, some of which are presently relevant. Her doctor, Dr Rogers, signed a letter, which is undated, expressing the opinion that she was suffering from an anxiety state and depression and was consequently unfit to attend court proceedings from 21 January 2002 until 28 February 2002. He also signed a certificate for the Department of Social Security certifying that she had seen the appellant on 7 December 2001 and that she was unfit for work from that date until 3 January 2002.

11. He signed another certificate indicating that he had seen the appellant on 5 March 2002 and that in his opinion she was unfit for work from 28 February 2002 to 30 April 2002 and he signed another certificate certifying that he had seen her on 9 May 2002 and that she was unfit for work from 30 April 2002 until 30 June 2002.

12. A report from a radiologist was also placed before me which indicated that the appellant was under medical examination in March 2002 for a condition of her abdomen which was not specified.

13. These certificates are imprecise and inadequate in some respects. It may be seen that although Dr Rogers certified her as being unfit for work from 30 April 2002 to 30 June 2002 the appellant has attended here today and presented her argument. I have mentioned that he certified her to be unfit for work from 21 January 2002 until 28 February 2002 but she had been able to attend the Adelaide Magistrates Court and oppose the application for an adjournment on 23 January 2002. So as I say, the medical opinions put before me do not really address the question of whether the appellant was able to conduct a trial in February of this year, but they are sufficient to establish that she was generally in ill health and suffering from anxiety and depression, apart from the abdominal condition.

14. There is a fundamental principle in the law that a party to litigation is entitled to his or her day in court unless there is some good reason to the contrary. It follows that a party who brings a civil suit is entitled to have it heard unless it is plainly untenable or there is some reason due to the conduct of the party which should prevent that person from proceeding with the action. I think that in the present case the appellant has undergone some difficulties in the course of these proceedings by reason of her state of health, lack of legal representation at times and not having available to her advice and assistance which if available may have avoided some of the delays in this matter.

15. Nothing put before me indicates that the respondent is in any way responsible for the difficulties in which the appellant has found herself in the context of these proceedings, but that is not the test. The test is whether she should be denied the ability to proceed with her proceedings due to some fault of her own. What is really the subject of this appeal is the decision made by the Magistrate on 14 February. He has based his decision, it seems to me, on the grounds that the plaintiff had not made sufficient attempts to prepare for trial and that she had attended at the court on the day of the trial without documents and witnesses and was not in a position to proceed at all.

16. She gave an explanation to the Magistrate which is not discussed by him in his reasons. She explained the difficulty with legal representation, which I have briefly mentioned, and that she needed to subpoena witnesses to bring them to the trial. The Magistrate has also had regard to the background of the matter, to her failure to comply with orders in the past, although it seems that by the time the matter was again listed for trial she had complied with the orders. He had regard to the respondent indicating that he would not pursue his counterclaim or an order for costs and went on to say that in his view the proper and just result in the matter, both in terms of case flow management and also as a broad axe view of the right result between these parties in monetary terms, is that the claim should be dismissed.

17. I can see no basis for that approach at all. He had not heard any evidence. He really knew nothing about the case in the context of its merits. He appears to have been basing his opinion on the interlocutory history of the matter. To dismiss a person’s claim of this magnitude on the ground that she was not ready for trial and the respondent was willing to abandon his claim seems to me to be a miscarriage of the discretion that he had to exercise. This was not an application for summary judgment. It was not an application to dismiss the claim for want of prosecution.

18. The only application before the Magistrate at that time was for an adjournment for two weeks. The case flow management principles incorporated into the rules of the Magistrates Court are not designed to deny justice to a party. They are designed to ensure that contested claims proceed expeditiously and fairly in the interest of both parties. It would be quite wrong, in my view, to dismiss a claim merely on the grounds of case flow management if there were some other explanation for non-compliance with the principles of case flow management other than fault. So, in my view, the Magistrate erred in the exercise of his discretion and there was no basis to dismiss the claim for the reasons which he gave.

19. The question then is whether it would have been a proper exercise of the discretion to grant an adjournment for a short period. Given the matters that I have mentioned concerning the health of the appellant and her claim at that time to have had difficulty in legal representation, an adjournment for a short period of time could have hardly been contrary to justice and in my view the Magistrate was wrong in denying that application. Of course he could have imposed terms. He could have ordered that the appellant should pay the costs thrown away on that day as she had insisted upon the trial proceeding when the application for an adjournment had been made by the respondent on 23 January 2000. Such an order might well have been appropriate as it could be expected that she would be ready for trial on the date that was fixed at 14 February, otherwise she would not have opposed the adjournment sought by the defendant.

20. In my view, the order that should have been made on 14 February was that the trial be adjourned either to a specified date, if availability of a magistrate to hear the case could have been known by the Magistrate, or to a date to be fixed by the court to accord with its other business and that the appellant should have been required to show cause why she should not pay the costs of the respondent thrown away on that day.

21. The orders I make are that the appeal be allowed and that the order made by the Magistrate on 14 February 2002 dismissing the appellant’s claim be set aside and that the order made on that date by the magistrate dismissing the counterclaim be set aside. I confirm that the respondent is at liberty to pursue a claim for costs of the action. The appellant must pay the respondent’s costs thrown away on 14 February 2002 and I direct that those costs are to be taxed if not agreed. By costs thrown away I mean the costs of counsel, the attendance of witnesses, of having to rearrange witnesses and of having to further proof them in the event of that being necessary upon the trial proceeding. I do not include the costs of preparing for trial as that work was necessary in any event, but I leave to the discretion of the taxing officer the inclusion of items which will have, in effect, to be incurred twice.