Ong v Adelaide Retaining Walls

Case [2022] SASC 37

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeal: Civil)

ONG v ADELAIDE RETAINING WALLS

[2022] SASC 37

Judgment of the Honourable Justice Parker 

21 April 2022

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COURT SUPERVISION - AMENDMENT - ORIGINATING PROCESS, PLEADINGS ETC

COURTS AND JUDGES - JUDGES - POWERS AND DUTIES IN RESPECT OF UNREPRESENTED LITIGANTS

The appellant has appealed from a decision of a Magistrate in favour of the respondent in the amount of $67,176.67 (inclusive of GST), making an order for enforcement of a registered lien and awarding a sum of $5,800 in lieu of interest.

The appellant had engaged the respondent in July 2017 to perform substantial outdoor building works at her property, including construction of a retaining wall and fence between the appellant’s property and that of her neighbour. Once works had been substantially completed, the Respondent requested payment in the sum of $70,067.67. The appellant, who had paid only $4,600.68 by way of deposit, considered that the works were incomplete and defective and refused to make further payment.

In January 2019, the respondent filed a claim in the Magistrates Court in the sum of $70,076.67. Before the Court were eight quotations which had been exchanged between the parties relating to various iterations and stages of the works. It was the respondent’s position that the work undertaken was subject to quotes numbered 4, 7 and 8 in the value of $10,734.97, $18,738.50 and $40,603.20 respectively. The appellant claimed that the works were undertaken subject to quote 8 only and that the sum of $36,002.52 (taking into account the deposit) was only payable once the works were completed to a good and proper standard.

The trial was heard over nine days. At the commencement of the trial, the appellant made a written application to seek leave to file a counter claim in the sum of $90,000. The Magistrate refused this application on case management grounds given the inordinate delay in making the application and due to concerns around the prospects of the counter claim’s success. On a subsequent day in the trial, the appellant made an oral application seeking leave to amend her Defence in order to withdraw an unqualified admission in that document. The Magistrate refused to consider the application orally but invited the appellant to file a written application in accordance with the court rules. This did not occur.

Ultimately, the Magistrate found that the agreed works were the subjects of quotes 4, 7 and 8 totalling $70,076.67 and that this sum was due when the works were substantially completed on 17 December 2018. However, her Honour reduced this amount by $2,900 setting-off an amount which represented the appellant’s rectification costs relating to minor defects in the work.

The appellant appealed the decision to the Supreme Court. In an Amended Notice of Appeal, she raised several grounds which can broadly be summarised as follows:

1.The appellant was not afforded the opportunity to fairly put forward her case before the Magistrate including because she…

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Ong v Adelaide Retaining Walls [2022] SASC 37
Case
[2022] SASC 37
Decision Date

CaseChat Overview and Summary

In Ong v Adelaide Retaining Walls, the appellant, Ms Ong, appealed against the decision of the Magistrates Court of South Australia, which dismissed her claims against the respondent, Adelaide Retaining Walls. Ms Ong alleged that the respondent had breached their contract by not adhering to specific requirements for the construction of a retaining wall. The court was required to determine whether the magistrate erred in handling the case, particularly in relation to the appellant's procedural complaints and the application of the rules concerning self-represented litigants.

The court examined whether the magistrate had correctly applied the principles governing the treatment of self-represented litigants. The central issues included whether the magistrate appropriately balanced the need to assist Ms Ong with the requirement to maintain impartiality and whether the procedural decisions made during the trial were justified. The court also considered whether Ms Ong had established any grounds for a set-off or other relief in relation to her complaints, which were not pleaded in her defence.

The court found that the magistrate had appropriately balanced the need to assist Ms Ong with the need to maintain impartiality. It held that the procedural decisions, including the refusal to allow an oral application to amend the defence and the refusal to permit a counterclaim, were justified. The court further determined that Ms Ong's evidence did not substantiate her claims of contract breach, and therefore, the magistrate's findings were upheld. Consequently, the appeal was dismissed on all grounds, and the parties were directed to be heard on the issue of costs.

Orders

Orders of the court

Held, per Parker J:

1. The appeal is dismissed on all grounds.

2. Parties to be heard on costs.

Background

Background to the litigation

The Lodging Party contends that the decision could also have been made on the following grounds: 1.In respect of paragraph 4a. of the Notice of Appeal: 1.1 The complaint the subject that paragraph was not pleaded by the Appellant in her Defence. 1.2 To the extent that the complaint should have been addressed by the learned Magistrate (which is denied), the complaint was unmeritorious in that: 1.2.1Variations to the originally quoted works negated the necessity for up to 8 metres of the retaining wall that had been estimated at 38 metres in the original quote. 1.2.2The sleepers from this up to 8 metre section of the retaining wall were allocated by the Respondent towards the works the subject of the variations. 1.2.3Over the entire works, the Respondent supplied more sleepers than it had quoted for the entire works. 1.2.4No evidence as to quantum was adduced by the Appellant in relation to this unpleaded complaint. 1.2.5The Appellant did not establish any basis for a set off, or any other relief, in relation to this unpleaded complaint. 2.In respect of paragraph 4b. of the Notice of Appeal: 2.1 The complaint the subject that paragraph was not pleaded by the Appellant in her Defence. 2.2 To the extent that the complaint should have been addressed by the learned Magistrate (which is denied), the complaint was unmeritorious in that: 2.2.1The alleged 4 metre width requirement was not a term of the contract between the Respondent and the Appellant. 2.2.2Any discussion between the Appellant and Mr Brad Reddaway of the Respondent in relation to the width of the terraced garden occurred on 20 November 2018, being after the quote for the works concerned had been accepted, and did not have any contractual force, or consideration in contract. 2.2.3There was no independent or expert corroboration or evidence in relation to the measurements that were relied upon by the Appellant, and the measurements were therefore not established by the Appellant. 2.2.4If there was any difference between the alleged 4 metre width requirement and what has been constructed by the Respondent (which is not admitted), such difference was negligible and within reasonable tolerances. 2.2.5It was important to the Appellant that the wall of the lower terrace be built no closer than 6.5 metres from her house (as the Appellant acknowledged in her evidence), and in adopting that measurement, as the Respondent did, the lower terrace garden could not have been constructed any wider than it was. 2.2.6No evidence as to quantum was adduced by the Appellant in relation to this unpleaded complaint. 2.2.7The Appellant did not establish any basis for a set off, or any other relief, in relation to this unpleaded complaint. 3. In respect of paragraph 5 of the Notice of Appeal, if leave had been granted to the Appellant to bring a counterclaim alleging that the retaining wall was an encroachment for the purposes of the Encroachments Act (SA) 1944, the counterclaim would have been unsuccessful because the retaining wall is situated entirely on the Appellant’s land (as found by the learned Magistrate) and therefore it could not be an encroachment and the Encroachments Act (SA) 1944 does not apply.Background

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It is apparent that notwithstanding the objection by the respondent, and although the issue had not been pleaded in her Defence, the appellant was allowed to adduce evidence concerning the width of the terraced area. However, that evidence fell far short of establishing either any contractual obligation on the part of the respondent or a breach of any such obligation. I dismiss ground 4(b).Conclusion I dismiss the appeal on all grounds. I will hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

The respondent also submits that the contention by the appellant that she was somehow prevented from adducing the evidence that she wished to lead in relation to her non-acceptance of Quote 7 is baseless. Notwithstanding the admission that she had made at [9] of her Defence, the appellant gave extensive evidence in relation to this issue and was cross-examined at length in relation to the events relating to Quote 7 and the works done pursuant to that quote. The evidence of Mr Rawson was that the appellant had verbally accepted Quote 7 and that he had explained to her that Quote 7 was in addition to Quote 4 and Quote 8. There was no objection to this evidence. In these circumstances the Court was able to and did find that the appellant had authorised the Quote 7 works independently of the admission that she had made at [9] of her Defence. Consideration It is convenient to consider the grounds of appeal in an order that differs from that chosen by the appellant. The written and oral submissions advanced by counsel for the appellant focused upon a complaint that she was denied a fair trial for two reasons. First, she was not permitted to pursue any factual matters that did not strictly arise from her Defence. Secondly, she was not permitted to apply to amend her Defence without filing a formal written application with a supporting affidavit. These matters are primarily pressed under grounds 4 and 5 of the Amended Notice of Appeal. I will deal first with ground 5. Ground 5 The appellant alleges in ground 5 that the Magistrate erred in law by not permitting her to make an oral application for leave to amend her Defence by withdrawing the admission that she had made at [9], i.e that she had accepted Quotes 4 and 7 in addition to Quote 8. This refusal allegedly prevented her from adducing evidence and cross-examining on issues relevant to that and thus aspects of the real controversy between the parties were not determined. The appellant also complains about the refusal of the Magistrate to allow her to proceed with her counter claim. The procedural decisions which are the subject of ground 5 occurred in circumstances where the appellant was self-represented. She contends that it was apparent that she did not understand the rules of pleadings nor the consequences of something not being pleaded and the need to make a formal application. Before considering the specific allegations, it is necessary to refer to the general principles concerning the approach to be adopted where one party to the proceedings is not legally represented. In Kenny v Ritter, after reviewing a number of authorities, including the decisions of the High Court in Cachia v Hanes[15] and Dietrich v R[16], decisions in New South Wales and in the United States and decisions by single judges of this Court, Gray and Layton JJ summarised the relevant principles in the following terms:[17][15] (1994) 179 CLR 403.[16] (1992) 177 CLR 292.[17] [2009] SASC 139 at [23].These authorities clearly demonstrate that when the self-represented litigant is before the court, the judge must ensure that a fair trial takes place. In order to achieve this, the judge is required to assist the self-represented litigant. However, the judge must equally ensure that despite any assistance to the litigant in person, the perception of impartiality is maintained. In our view, the following principles emerge from the authorities discussed.-A litigant has a fundamental right to appear in person. When faced with a litigant in person, the court is under a duty to give such assistance to that litigant as may be required to ensure that there is a fair trial. The purpose of the assistance is to ensure that as far as possible, the disadvantage that litigants may suffer as a result of lack of representation is adequately addressed. -Although the duties of the court in relation to self-represented litigants are discussed by numerous authorities, it is difficult to ascertain a common approach as to the manner and form in which assistance is provided which can be applied in practice to all circumstances. This is unsurprising bearing in mind the myriad of circumstances in which litigants may appear in person. However, the authorities do provide general guidance as to principles which can be applied by the courts. -Judicial assistance would include ensuring that unrepresented litigants are aware of their substantive and procedural rights, which in turn would depend upon the nature and circumstance of the case. -The degree and form of the judicial assistance required depends upon several factors, including the overall knowledge and skills of the litigant and the particular circumstances of the case.-Judicial assistance is to be limited to that which is necessary to diminish so far as possible the disadvantage that the unrepresented litigant will suffer when another party or parties are represented by a lawyer. It is a matter of redressing imbalance so far as possible but at the same time ensuring that the party who is represented is not thereby disadvantaged and thereby obtains less entitlements.-In order to provide assistance to redress any imbalance or disadvantage which may arise by reason of lack of legal representation, the court should first assess the degree to which an unrepresented person may require assistance. This is not to be an automatic assumption. -It is not part of the role of a judge to become an advocate for the unrepresented person; or stand in the shoes of counsel acting for that litigant; or unduly interfere with the conduct of the trial on the litigant’s behalf. Instead, the court has the difficult task of striving to achieve a balance between these seemingly conflicting duties to ensure that there is a fair trial. -The court at all times is under an obligation to maintain the appearance of impartiality and neutrality and not be seen to apply preferential rules to the self‑represented litigant to the disadvantage of the represented litigant.