Noel's Caravans P/L v SA Health Commission No. DCCIV-97-490 Judgment No. D3616

[1997] SADC 3616

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Judgment of His Honour Judge Worthington (ex tempore)

Hearing

27/05/97.

Catchwords

Review of minor civil action - applicant's action summarily struck out - failure by applicant to attend - misunderstanding - action reinstated.

Representation

Applicant NOEL'S CARAVANS PTY LTD:
Represented by: Mr N. Faggotter - in person

Respondent SOUTH AUSTRALIAN HEALTH COMMISSION:
Counsel: Ms K. Parouchais - Solicitors: Crown Solicitor

DCCIV-97-490

Judgment No. D3616

27 May 1997

On Appeal from MAGISTRATES' COURT

(Civil: Application For Review)

NOEL'S CARAVANS PTY LTD v SOUTH AUSTRALIAN HEALTH COMMISSION

Civil

Judge Worthington

HIS HONOUR: The summons in this matter was issued by the applicant on 20 February 1997.On 14 March, the respondent took out an application to strike out the claim.The hearing of that application was set for 10 a.m. on 4 April. The application was served by post on Mr Faggotter, the Managing Director of Noel's Caravans, which is at Pooraka.It was posted on Friday, 14 March.Mr Faggotter is not sure exactly when he received it, but it appears likely that it was received early in the week commencing Monday, 17 March 1997.

By letter dated 20 March 1997, Mr Faggotter wrote to the court, pointing out that he was committed to business arrangements already made in Sydney on 4 April and said that it was not possible for him to attend.He pointed out that he was available from 8 April through to 21 April, and then unavailable again between the 22 and 25 April.He apologised for the inconvenience and asked if he could be advised what day he would need to attend court.

It appears that the court did not ever answer that letter.However, by a computer notice generated on 26 March, some few days after that letter was sent, Mr Faggotter was advised by the Registry of the Adelaide Magistrates' Court that there would be a directions hearing at 3.00 p.m. on Monday, 21 April.That, of course, was one of the days nominated by him as being a day on which he could attend court.That notice was received by him on 27 March.Mr Faggotter was not aware of the difference between a directions hearing and an application to strike out, and I make no criticism of him for that.It would be most unusual if a person who was not involved in the legal system would know what the difference was.

Given that Mr Faggotter wrote a letter on 20 March pointing out his difficultiesand given that he then received this letter from the court on 27 March, fixing a hearing date that fitted in with the times indicated by him in his letter,it is reasonable that he should have assumed that the notice about the directions hearing on 21 April was, in fact, in response to his letter of a few days before,and that he therefore assumedthat there had been a change in the date of hearing of the application to strike out, from 4 April to 21 April.

Mr Faggotter then went off to Sydneyand did not attend on 4 April.On that day, the matter was called on and the learned Special Magistrate looked at the letterof 20 March, but he refused the application to adjourn.His Honour dismissed the claim as disclosing no cause of actionand ordered that the plaintiff pay the defendant's costs of action to that stage, in the sum of $150.Mr Faggotter obeyed the notice of 26 March and attended court on 21 April to find that his action had been dismissed.

Although the learned Special Magistrate saw the applicant's letter requesting an adjournment, there is nothing to indicate that he saw the computer notice of 26 March indicating the hearing date of 21 April, and therefore his Honour was not aware of the juxtaposition of the dates of those two letters.So the learned Special Magistrate would have had no reason to have been aware of or even suspect, the quite understandable assumptionmade by the applicantthat he need not attend on 4 April.The respondent's solicitor was also unaware of that letter because its copy had been sent to a wrong address.

The effect of what occurred, has been that the applicant was denied the opportunity to explain what his cause of action is about, and it is difficult to understand what it is, by reading the statement of claim on the summons.He has also been denied the opportunity to rectify the description of his claim on his summons, and so in the absence of that, his Honour presented with the situation as it was, struck out the claim. Although the application before me is couched in terms of appealing against the refusal of the adjournment, the real decision under appeal is the summary dismissal of the claim because the summons, as it was worded and without the applicant's explanation, disclosed no cause of action.

In the circumstances it is my opinion that that decision should be reviewed; the action should be reinstated so that it can be dealt with; the costs order against the applicant of 4 April should be set aside; and the costs of that hearing and today's hearing should be costs in the cause.

Iorder accordingly andthe action between the applicant and the respondent will be reinstated and remitted to the Magistrates Court for it to be dealt with.