Woo v The State of South Australia
[2014] SADC 188
•14 November 2014
DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative Appeals Tribunal: Appeal Against a Master's Decision)
WOO v THE STATE OF SOUTH AUSTRALIA
[2014] SADC 188
Judgment of His Honour Judge Brebner
14 November 2014
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE
Appeal against a Master's decision.
Held: No error of fact or law found. Appeal dismissed.
Evidence Act 1929 s 67C; District Court Civil Rules 2006 R 242, referred to.
Garrett v Mildara Blass [2009] SASC 19; Chandless v Nicholson (1942) 2 KB 321; Siebe Garman & Co Ltd v Pneupac (1982) 1 All E.R. 337; Blunden v Littlemore (1996) SASC 5697 (unreported); T v The Medical Board of South Australia (1996) 58 SASR 382; Lujans v Yarrabee Coal Company Pty Ltd (2008) 249 ALR 663; Dearman v Dearman (1909) 7 CLR 549; Mac Audio and Accoustical Consultants Pty Ltd v Eddy [1999] SASC 443; Warren v Coombs (1979) 142 CLR 531; Rajski v Scitec Corporation Pty Ltd (1986) unreported NSW Court of Appeal, applied.
WOO v THE STATE OF SOUTH AUSTRALIA
[2014] SADC 188
This is an appeal from a Master of the Court.
The appellant claimed that she had been wrongfully arrested and that this gave rise to a number of causes of action. She commenced proceedings against the State of South Australia and the police officers involved.
Master Norman ultimately ordered that the action be dismissed and that each party was to bear their own costs. It is apparent that he did in the belief that the appellant consented to his so doing. The appellant applied to Master Rice for an order setting the judgment entered by Master Norman aside. Master Rice dismissed the application. In essence he did so on the basis that there was an enforceable agreement between the parties for the action to be dismissed by consent with each party to bear their own costs and that the justice of the case did not require that the judgment should be set aside. The appellant appeals Master Rice’s order.
The appellant acted on her own behalf before both Masters. English is not her first language. The Crown Solicitor acted for the respondents. A Ms Young of the Crown Solicitor’s Office had the carriage of the matter. Essentially the appellant complains that Master Rice made a number of errors of fact and law. Specifically she complains that there was no enforceable agreement between the parties for the action to be dismissed and that there was no true consent on her part to the action being dismissed on the basis that the parties bear their own costs.
Grounds of appeal
The grounds of appeal are as follows:
1.The learned Master erred in fact and in law in finding that the letter of 8 November 2013 from the plaintiff, Ms Woo, to Ms Young of the Crown is “express and unambiguous”. The learned Master did not consider that the plaintiff’s first language is not English and that her letter dated 8 November 2013 demonstrates this. The learned Master ought to have found that the plaintiff did not understand that the offer could not be separated with the parties agreeing to bear their own costs.
2.The learned Master erred in fact and in law in finding that “there was a valid settlement between the parties”. The learned Master did not consider that the plaintiff’s first language is not English. The learned Master should have found that the plaintiff did not agree to a settlement where the parties bear their own costs and the proceedings are dismissed; therefore there was no contract.
3.The learned Master erred in fact and in law in finding that “[h]er communication of the agreement to settle the action was not made through inadvertence” after concluding that “[t]here is no doubt the plaintiff did not appreciate some of the finer points of the procedure”. The learned Master did not give sufficient consideration to the plaintiff’s uncertainty “as to procedure and Court directions and what would happen with the other obligations of further discovery and the defence”. The learned Master did not take into account the plaintiff’s lack of legal representation. Further, the learned Master relied on selected parts of the sentences in the transcript of proceedings on 20 November 2013 before Master Norman, and did not consider context, misunderstanding and/or confusion by the plaintiff. The learned Master should have found that there was at least doubt as to the plaintiff’s understanding and consent.
4.The learned Master erred in fact and in law in by not considering District Court Rule 286.
5.The learned Master erred in fact and in law in finding that there was no mistake on the hearing before Master Norman. Furthermore, the learned Master erred in fact and in law in not considering an alternative view of the responses by the plaintiff to the questions of Master Norman. The learned Master did not consider that the plaintiff was agreeing to a no costs order but not an order finalising the action.
6.The learned Master erred in fact and in law in not considering adequately the interests of justice.
As can be seen, there is some overlap between some of the grounds.
Chronology
The parties began exploring the possibility of resolving the proceedings sometime in 2013. The relevant sequence of events begins on 11 October 2013 when the appellant’s then solicitor wrote to Ms Young proposing a resolution. The proceedings were then listed before Master Norman for directions. Exchanges of correspondence and telephone conversations between the appellant and Ms Young then followed. Eventually Ms Young set the action down for hearing before Master Norman in the belief that it had settled. Master Norman apparently satisfied himself that the appellant consented to her action being dismissed on the basis that the parties bore their own costs and he made orders accordingly.
The exchange of correspondence and the transcript of the proceedings before Master Norman were before Master Rice on the application to set aside. It is necessary to set out the correspondence and the transcript of the proceedings before Master Norman in full. The emphases by way of underling are Master Rice’s and those by way of bold type are mine.
On 11 October 2013 Ms Young wrote to the appellant’s then solicitor stating, amongst other things, the following:
“I am instructed that my client’s best offer is that Miss Woo discontinue her proceedings and each party bear their own legal costs”.
The letter went on to say that the offer would remain open for 28 days.
On 21 October, Master Norman conducted a directions hearing. Ms Doecke of the Crown Solicitor’s Office appeared for the respondent. The relevant portion of the transcript of the hearing is set out in the reasons of Master Rice as follows:
Ms Woo: “I am a bit confused because I have the letter from my solicitor Tony Kerin, and also from Amanda Young [from the Crown Solicitor’s Office saying that they are giving me 28 days to accept the offer and the offer is that each of us bear our own costs. But now Alison is saying something slight different which I don’t quite follow. She was more saying, like, about discovery, like, pre-trial discovery, and also –
Master: I think discovery in the action itself is what she is saying…
Ms Woo: Yes, but that would be outside of the time limit for that offer that each of us bear our own costs.
Master: I don’t know about the matter. That is a private matter. It is probably better that I don’t know about that but maybe Ms Doecke would reconsider the offer in view of the timetable – I just don’t know – but I don’t know about the offer. It is not in any information before me.
Ms Doecke: I can indicate it was referred to before Judge Tilmouth. The defendant has made a ‘without prejudice’ offer that remains open for 28 days…
Ms Woo: I am a bit confused. They give me an offer but then at the same time they are giving me some information, which I was denied last time when I was in the Magistrates Court, so I was hoping that this might be something good but I don’t know.”…
Ms Woo: It isn’t advise. So when you are actually give me back, let me know, let me know. Actually, after all this on 19 January I have lost confidence in the judicial system and I have no interest of keeping the matter because there is no justice basically and it is just wasting my time but anyway they did actually mention that there was an offer for me, so when is this? It’s not that the offer is good, doesn’t touch on any of the things I have written to Mr Todd Golding about, what actually the police has done to me has actually caused me problem and that problem, not one problem, there is quite a lot of problem, like personal safety.
On 22 October, Ms Young wrote the appellant in the following terms:
“I confirm that you asked Ms Doecke whether or not the defendant would extend the time within which the offer was available for acceptance. Noting that the offer conveyed in our letter to Johnston Withers of 11 October 2013 and copied to yourself was stated to remain open for 28 days.
My client has instructed me to reiterate that the offer to you discontinuing all proceedings and each party bearing their own legal costs is available for acceptance for 28 days, namely up until 5pm on 1 November 2013.
On 28 October, the appellant wrote to the Crown Solicitor noting that the expiry date set by the respondents of 1 November, 2013, is not 28 days from the date of the Crown’s letter of offer 11 October 2013.
On 3 November, the appellant wrote to Ms Young about a number of issues, including amendments to the defence.
On 4 November, Ms Young wrote to the plaintiff informing her that that the offer would remain open until 5pm, 8 November 2013.
On 6 November, the appellant spoke to Ms Young by telephone. According to Ms Young she asked the appellant “what do you want to resolve it.” Also according to Ms Young, and towards the end of the conversation, the appellant enquired what the respondents was willing to pay whereupon she informed the appellant that “the letter was the offer” and that she was free to reject it and make a counter offer if she was minded to.
Also on 6 November, the appellant responded to Ms Young by letter stating, amongst other things:
Further to our phone conversation this afternoon, I have already posted you my general practitioner’s report this afternoon and you should get it on the next day.
As also discussed, I am making a counter offer. You said you would get back to me by the mid-day of this Friday, the 8th November 2013.
…
In order to allow myself to have a closure and pursue my intellectual property for the benefit of the world, I would accept $80,000 plus some assurance for personal safety.
On 8 November 2013 Ms Young wrote to the appellant by email rejecting the counter offer in the following terms:
“I advise that I have taken instructions from my client in relation to the offer contained in your letter and advise that the counter offer is rejected.
Please be advise that in future all communications will be in writing via post and will not be by telephone or email.
All future correspondence must be in writing via post [the writher’s emphasis] to the following address:
…
I confirm correspondence via any other means will not be attended.
Also on 8 November, the appellant wrote to Ms Young on a without prejudice basis in these terms:
“Without an option for choice, I would like to accept the offer of bearing each party’s costs as there has not been any honesty in the dealings with the matter in the past and present and future.
The Crown Barrister, Ms Alison, and Miss A. Young have suggested to me to make a counter claim as part of the negotiation package and which I had tried but just result in wasting my time and efforts. Ultimately, its aim is just for my opposition party to know more about the plaintiff’s claim. In the meantime, despite the Crown advising the court, it only takes a few days to edit the defence, the Crown has not honoured its submission. As usual the plaintiff still has no discovery from day one of the incident back in 2008.
Good luck to you and the rest of the legal team I had dealings with regarding this matter and in particularly (sic) Ms Amanda Young whose name could not be located in the staff directory. Justice will not go far if parties or party is not being truthful to the fact and or with the dealings and interaction.
Good Luck and all the Best!”
On 11 November 2013 Ms Young replied to the appellant by email in these terms:
“I confirm that in that letter you accepted my client’s offer that the parties walk away bearing their own costs.
I will be contacting Master Norman’s Secretary to arrange a time when we can attend before Master Norman to have this recorded in Court”.
Ms Young then contacted Master Norman’s Chambers and set the proceedings down for entry of judgment by consent. Master Norman then called the proceedings on for hearing on 20th November 2013. Ms Doecke again appeared for the respondent. The transcript of the hearing reads as follows:
“MS DOECKE: Ms Woo has indicated that an offer to resolve the matter has been accepted. So the matter’s been called on today for that settlement to be noted and the respondent would ask that the matter be dismissed with no order as to costs.
MASTER: All right. Do you want to say anything about that Ms Woo? Do you agree with that order?
MS WOO: Yeah. We agree to settle, to bear our own costs. But then you write something about in principle you are settled, but I think that you made your, what is it called, your orders in the chambers and it wasn’t relying on what actually said at the time during the hearing last time.
MASTER: Well I don’t quite – okay, well I was simply told that the matter had settled so I made an order, or a notation on the file noting what had been put to me or to my clerk and that the matter was brought on today so the matter could be finalised. So that’s the only reason it’s coming on today, on the basis that I was told that the matter had been settled, which is what Ms Doecke has put to me.
MS WOO: Yeah, like, but then you made the order that was outside of the chamber without actually consideration of what was actually –
MASTER: No, it’s not an order, it’s simply saying what I was told.
MS WOO: Told by who?
MS DOECKE: My instructing solicitor emailed your clerk and sent a copy to Ms Woo on 11 November at approximately 12.05.
MASTER: Yes. Thank you for reminding me. It’s on the court file, but that’s what the court was told.
MS WOO; But then I don’t quite understand that you did mention that your order was made in the chamber and it wasn’t based on the submission of the party. Because what actually happened –
MASTER: Ms Woo, what I was told was that the matter had been settled. I simply, at the request of the defendant had the matter brought back on today. That’s all that’s happened. I’m now doing the formalities. So now is the time to address what the parties want me to do. I’m told by the defendant that the parties want me to dismiss the claim on the basis that each party will bear their own costs.
MS WOO: But I think that was not the submission that was made by Ms Alison Doecke, because the submission that she has made that it was only take a few days to edit the defence and also within the days that the discovery can be made. But that was over two weeks, nothing has been done and because your order was made in such a way that it was 30 days –
MASTER: No.
MS WOO: - 28 days for each party, so they just said that they would follow the order. Actually in the transcript – or on the day of the actual hearing as well, that is the third thing I need to brought up, is that there was this dialogue between you and Alison to say that for the discovery part the defendants will pay the costs. I did actually query about it because it wasn’t apparent in the transcript and I did ask the registry to ask for the transcript to be look at. The first transcript there was some errors there and there were some mistake that was noted.
MASTER: All right, well I can’t confirm or deny. I haven’t personally checked the transcript, but the transcript is only an aid to be of assistance, it’s not sworn evidence, it’s just what parties say.
MS WOO: Yeah, well it wasn’t parties say and then you will say that you will look at it and then would do the –
MASTER: Well, you’re not answering my question which is, Ms Doecke’s put to me that the agreed resolution to this matter is that it will be dismissed and that each party will pay their own costs. Do you agree to that finalisation of the matter? That’s what I want to know from you. That’s what she’s told me that you have agreed with, with the Crown.
MS WOO: Yeah, the letter that I have written to them I actually want to read it out.
MASTER: All right.
MS WOO: ‘Without an option for choice … bearing each parties – [The appellant then read her letter of 8, November to the Crown Solicitor to the Master]
Because I’ve been trying to do all these other things with the registry and with you but you said wait until this court hearing so I just thought I’d wait and then in the meantime because there was a due date and Alison said that she would ask for instruction. Subsequently I got a letter from Amanda which originally said that it was even earlier, but then later said there was a typing error and it was due on 8 November. So on 8 November I fax and posted to them about what I’m say now here,
I just feel that I have no justice throughout this whole process.
MASTER: All right. Well, you’ve –
MS WOO: Even I try so hard from the Magistrates Court up to now and the whole matter I think is over five years.
MASTER: Well, I want you to answer my question which is a very simple one. The Crown has told me that they wish the action to be dismissed on the basis that you have accepted their offer to have the proceedings dismissed without any orders as to costs. I want you to say yes, have you agreed with that, do you agree with that proposal?
MS WOO: No, I think you did mention in your order, you did mention about that costs in the cause in your order.
MASTER: Ms Woo, do you confirm that the agreement which the Crown has indicated is an agreement you have made with the Crown and is it your wish also for these proceedings to be dismissed? I want your answer to that question, because that’s been put to me by the Crown.
MS WOO: Yeah because if they are dishonest there’s no point of going further. I’ll be driving myself nuts. I was on the nervous, of nervous breakdown, so why should I carry on. This is – like even if get anything it’s dirty money anyway and in the meantime the system won’t change, the police won’t get better or whatever it is. They still carry on their own way and I’m just wasting my time thinking that I’m doing such a good job of pushing the human rights forward a bit.
But I think in your order it actually says costs in the cause, so I don’t understand what you mean.
MASTER: Sorry Ms Woo, I’m asking you a question and can I have an answer to my question?
MS WOO: Yes.
MASTER: What is your answer to the question?
MS WOO: What is your question again?
MASTER: My question is the Crown has said that you have settled the case with them on the basis that the proceedings are to be dismissed and each party is to bear their own costs. That’s what they’re asking me to do. I’m asking you do you agree with that as representing what you have agreed with the Crown?
MS WOO: Yes, I have no alternative but to agree because there is no justice for me. What can I do?
MASTER: Ms Woo has confirmed that arrangement so on that basis I will formally order that the proceedings be dismissed without order as to costs. Does that formally reflect the agreement, Ms Doecke?
MS DOECKE: The offer –
MASTER: Each party to pay their own costs I think was what you said to me.
MS DOECKE: Each party to bear their own costs, yes.
MASTER: Do you want me to simply note that instead of without order as to costs on the basis that each party bear their own costs?
MS DOECKE: The parties will bear their own costs, yes.
MASTER: All right.
MS WOO: Excuse me, can I say something? In the submission Alison didn’t mention about the discovery that the defendants will pay and I actually made discovery to them, my doctor’s report and Tony Kerin from Johnston Withers has written several letters to the GP and I have also incurred costs for consultation and subsequently after many months there was a medical report.
MASTER: I can’t comment anything further, Ms Woo. If you have any queries you’ll have to raise those with whoever you consider appropriate but I’ve made a formal order dismissing the proceedings. So I do propose now to adjourn the court.
MS WOO: But isn’t it earlier they – in last hearing didn’t you actually have a dialogue with Alison that for any discovery that Alison has agreed that the defendants will pay for the costs of discovery?
MASTER: I formally made an order dismissing the proceedings. I don’t think it’s appropriate that I engage in any further dialogue.
MS DOECKE: No. There is one other matter that I need to raise unfortunately.
MASTER: Yes, all right.
MS DOECKE: As you will recall your Honour heard argument and entered a judgment which has been appealed from.
MASTER: Yes.
MS DOECKE: That appeal remains on foot although the proceedings have been dismissed. It’s an interlocutory –
MASTER: That’s within the court.
MS DOECKE: Yes.
MASTER: If the proceedings are dismissed don’t all matters within it fall?
MS DOECKE:: That’s my understanding and I just wanted to clarify with the court that the appeal, the next hearing for the appeal on 3 December would be vacated.
MASTER: Yes. I’ll vacate the directions hearing which has been fixed for 15 January and I vacate the appeal hearing which will necessarily follow from the fact that the proceedings have been dismissed. The appeal is not outside this court is it?
MS DOECKE: No, it’s not.
MASTER: It’s an internal appeal from a master to a judge.
MS DOECKE: It is.
MASTER: I think for the sake of precision I will note on the formal record that I vacate the directions hearing before me on 15 January ’14 and I will vacate the appeal hearing before the short notice list judge on 3 December 2013.
MD DOECKE: Thank you.
MASTER: Is there anything further?
MS DOECKE: No, thank you.
MASTER: I NOW ADJOURN THE COURT.
Ms woo: Can I ask you something?
The application to set the judgment aside
Master Rice took the view that the offers and responses embodied in the correspondence were admissible by virtue of s 67C of the Evidence Act 1929 and that both parties had waived privilege. Neither party now contends otherwise.
The power to set judgments aside is conferred by Rule 242 of the District Court Civil Rules 2006 which provides as follows:
“242 – Power to correct, vary or set aside judgment
(1) The court may correct an error in a judgment at any time.
(2) If satisfied that the justice of a case so requires, the Court may –
(a)vary a judgment; or
(b)set aside a judgment and reopen an action.
Example
The court might set aside a judgment and reopen an action if satisfied that the judgment is vitiated by a mistake.
(3) The Court may act under this rule on its own initiative or on application by a party.
(4) If the Court proposes to act under this rule on its own initiative, it must notify the parties and allow them an opportunity to make representations on the proposed course of action.”
The appellant’s fundamental submissions to Master Rice were that there was no properly concluded agreement between her and the respondents for her to consent to the action being dismissed on the basis that each party was to bear their own costs and that her acquiescence in Master Norman making the orders was not a true and properly informed consent. She also advanced a number of other submissions to Master Rice which were not ultimately re-advanced before me.
Consent judgments which are linked to a contract can only properly be set aside if the contract can also be set aside: Garrett v Mildara Blass [2009] SASC 19. Furthermore, actual consent must be expressed and a mere failure to object to an order being made does not amount to consent properly so called: Chandless v Nicholson (1942) 2 KB 321 at 324. On a subsequent application to set aside, the Court may inquire into the nature of the apparent consent given in order to determine if it is in fact a consent which the law will recognise: Siebe Gorman & Co Ltd v Pneupac (1982) 1 All E.R. 337
Master Rice concluded that the appellant’s letter of 8 November 2013 amounted to a valid acceptance on her part of the respondents initial and oft repeated offer to resolve the matter on the basis that her action would be dismissed with each party to bear their own costs. He also found that there was no relevant mistake on her part. He ultimately concluded that the justice of the case did not require that the judgment should be set aside.
Affidavits
An affidavit sworn by the appellant was before me for the purposes of the appeal. The relevant correspondence was exhibited to her affidavit.
The appellant swears that English is not her first language. She says she suffers from a number of conditions which make it difficult for her to cope with confrontation or duress. She says she felt pressured by Ms Young’s letter of 8 November rejecting her counter offer and that she then unsuccessfully attempted to obtain advice. She says that when she ultimately replied to Ms Young on 8 November she did not mean to convey that she consented to her action being dismissed and that she knows of at least one court where orders for costs are not made. She says she was surprised when she read the reference to “walking away” in Ms Young’s letter of 11 November because she did not agree to walk away.
She also swears that she had an expectation that Master Norman would “sort out the mess” but that her expectation was not met in that the Master “did not want to know what happened behind the scene (sic).” She says she became upset and as she was “unwell, exhausted, disappointed and frustrated” with the proceedings she might have said “yes” once. She says she did not intend to consent to the action being dismissed and she raised the issue of discovery in the belief that her action was still on foot. She implies that she suffers from psychological conditions which impair her ability to concentrate and she implies that she found the hearing before the Master confrontational and she re-iterates that she has difficulties in dealing with confrontation.
An affidavit of Ms Young was also before me.
Ms Young swears that she has had a number of dealings with the appellant and that the appellant has demonstrated “a very good command of English.” The transcripts of the directions hearing conducted by Master Norman on 19 October and of the hearing of the application to set aside before Master Rice are exhibited to her affidavit.
Counsel for the appellant did not seek to cross-examine Ms Young and nor did counsel for the respondent seek to cross-examine the appellant.
The nature of the appeal
Appeals such as this are to be heard and determined in conformity with Rule 286 of the District Court Civil Rules 2006 which provides as follows:
“286 – Hearing of appeal
[Rule 286 substituted by District Court Civil Rules 2006 (Amendment No 12)]
(1) An appeal is to be by way of rehearing (unless the law under which the appeal is brought provides to the contrary).
(2) Subject to any limitation on its powers arising apart from these rules, the Court may determine an appeal as the justice of the case requires despite the failure of parties to the appeal to raise relevant grounds of appeal, or to state grounds of appeal appropriately, in the notice of appeal.
(3) Subject to any limitation on its powers arising apart from these rules, the Court may –
(a)Draw inferences of fact from evidence taken at the original hearing and, in its discretion, hear further evidence on a question of fact;
(b)Amend or set aside the judgment subject to the appeal and give any judgment that the justice of the case requires;
(c)Remit the case or part of the case for rehearing or reconsideration;
(d)Make order for the costs of the appeal.”
The rehearing is of both fact and law: Blunden v Littlemore (Unreported) Supreme Court of South Australia: 1996 S5697. I am required to conduct an independent review of the proceedings under appeal in the sense that I must subject the evidence and the findings of Master Rice to close and critical scrutiny: T v The Medical Board of South Australia (1996) 58 SASR 382. I am also required to consider all of the evidence which was before him and reach a proper conclusion on it: Lujans v Yarrabee Coal Company Pty Ltd (2008) 249 ALR 663. I have a duty to give the judgment that I consider should have been given at first instance: Dearman v Dearman (1909) 7 CLR 549. This notwithstanding, I cannot merely substitute my own discretion for the Master’s and I must be satisfied that his exercise of his discretion is attended by error before I can intervene: Mac Audio and Acoustical Consultants Pty Ltd v Eddy [1999] SASC 443. On appeal I may draw my own inferences about the facts and determine the issues myself: Warren v Coombs (1979) 142 CLR 531 at 551.
It is plain that if additional evidence is admitted by virtue of R 286 3(a) must be evaluated in the ordinary way and then taken into account when addressing the principles identified above.
Subject to the above, the discretion conferred by Rule 286 (3)(b) requires me to “give any judgment that the justice of the case requires”.
Submissions
Counsel for the appellant, Mr Campbell submits that the findings of fact which were made by Master Rice were not open to him. He submits, in essence, that the correspondence demonstrates that there was no meeting of minds and no concluded and enforceable agreement between the parties for the action to be dismissed with no order as to costs, that the appellant was labouring under a relevant misapprehension which goes to the justice of the matter, that Master Norman should have been alive to the fact that the appellant was uncertain about the precise ramifications of what she ultimately agreed to and that he should have explained what the ramifications really were before entering judgment and that this also goes to the justice of the matter. He also submits that some of the statements the appellant made in answer to questions put to her by Master Norman demonstrate that she did not understand that what she ultimately agreed to would bring her action to an end and that this supported his submission that she was under a misapprehension. He further submits that Master Rice gave no, or insufficient weight to the fact that English is not the appellant’s first language and that she was unrepresented at all relevant times.
Counsel for the respondent, Mr O’Leary, submits that when the correspondence and the transcript is read together, and as a whole, it can be seen that all of Master Rice’s findings of fact were legitimately open to him and that they are not attended by error.
The written and oral submissions of each counsel were properly focused, clear and concise. This was of considerable assistance.
Fundamental issues
At the outset Mr Campbell made it plain that Master Rice’s summary of the principles of mistake was accepted.
One of the fundamental issues is whether it was legitimately open to Master Rice to find that that the appellant’s letter of 8 November, amounted to a valid and binding acceptance of the respondent’s initial offer of 11 October, as reiterated in Ms Young’s letter of 22 October, and then verbally confirmed by her on 6 November.
Mr Campbell’s argument in this and other regards relies heavily on English not being the appellant’s first language and on her lack of representation.
The extent to which the appellant was, or might have been, disadvantaged by either or both of these considerations and if so, how it might bear on this issues are plainly matters of fact and degree.
The appellant has reasonable English, she is reasonably intelligent and she was not significantly disadvantaged by lack of representation
The material before me which bears on the appellant’s command of English, her knowledge, if any, of any of the relevant law and procedure and the extent to which she was disadvantaged by lack or representation is to be found in the correspondence and verbal exchanges between the appellant and Ms Young, the transcripts which are exhibited to Ms Young’s affidavit and the transcript of the hearing before Master Norman of 20 November, and Ms Young’s assertion that the appellant “has a very good command of English.”
In her affidavit the appellant simply states that English is not her first language. She does not however, swear that she was at any relevant disadvantage because of this. Indeed it is plain from the transcripts and the correspondence that she could not make any such complaint.
When one reads the transcripts and the correspondence as whole it becomes plain that the appellant has a good command of English in the sense that it is clear that she both speaks and writes good English, that she comprehends both what is said to her and the contents of letters that are written to her without any apparent difficulty and that she has no difficulty in conveying that which she intends to convey, both orally or in writing. Also when one reads the transcripts and the correspondence, one gets the impression that she is reasonably intelligent.
It is also plain from the transcripts that the appellant has some experience as a litigant. It is also clear from the transcripts that she was not in any way overawed by the situations in which she found herself on any of the occasions she was before either of the Masters and that she had the confidence to put her points across, ask questions and to say what she wanted to say.
The appellant understood and accepted the respondent’s offer
In addressing the issue of the inferences which were available from the correspondence Mr Campbell proceeded letter by letter. Mr O’Leary submitted that the correspondence had to be read as a whole. Mr O’Leary is plainly correct.
The respondents put their offer to the appellant in Ms Young’s letter of 11 October. The letter states that the respondent’s “best offer” is that “Miss Woo discontinue her proceedings and each party bear their own legal costs.” At the directions hearing before Master Norman on 21 October the appellant informed the Master that she had received Ms Young’s letter of offer and that “the offer is that each of us bear our own costs.” The following day Ms Young again wrote to the appellant and informed her that she had been “instructed to reiterate to you that the offer to you discontinuing all proceedings and each party bearing their own legal costs.”
On 6 November Ms Young advised the appellant orally that the letter was the offer. The appellant made her counter offer in writing later the same day. On 8 November Ms Young advised the appellant that her counter officer was rejected. Later that day the appellant sent the letter which Ms Young construed as an acceptance by the appellant of the respondents original and reiterated offer. On 11 November, Ms Young confirmed to the appellant that she had accepted “my client’s offer that the parties walk away bearing their own costs” and advised her that she will be setting the matter down to “have this recorded in court” accordingly.
The expressions employed in each of the letters of offer are clear and unambiguous, especially when they are read against the background fact that the appellant instituted the action. The words “best offer is that Miss Woo discontinue her proceeding and each party bear their own costs” are ordinary words. The appellant has good English and she is reasonably intelligent. She would have understood that that the two letters of offer called upon her not to take her action any further and to bring it to an end thus abandoning their claim to the relief sought on the basis that each party was to bear their own costs. Even if what she said to Master Norman on 21st October does reflect a relevant misunderstanding on her part, any such misunderstanding would have been dispelled by the letter of 22nd October and Ms Young’s verbal confirmation of 6 November.
With regard to whether it was open to Master Rice to find that there was a properly concluded agreement between the parties that the action was to be discontinued with no order as to costs, Mr Campbell pointed to the terms of the appellant’s letter of 8 November and Ms Young’s letter of 11 November, the appellant’s assertions in her affidavit that she was surprised at the reference to walking away in Ms Young’s letter of 11 November because she had no intention of walking away and to her asserted expectation that Master Norman would sort things out and he submits that if there was any agreement between the parties, it was that the action was to continue with each party bearing their own costs at the end of the day.
As can be seen from the correspondence, the appellant’s counter offer of 6 November was rejected. By that time Ms Young had told the appellant twice by letter and once orally what the respondents would accept.
When one reads the appellant’s letter of 8 November as a whole and in the light of the appellant’s good English and reasonable intelligence, it is necessarily implicit in her use of the expression “without and option for choice I would like to accept the offer of bearing each party’s costs” that she has come to the reluctant conclusion that the respondents will accept nothing less than discontinuance. It is also necessarily implicit in her, sarcastically no doubt, wishing Ms Young and the rest of the “legal team” good luck, and her signing off in terms of “(g)ood luck and all (t)he best” that she anticipates that the result of her accepting the offer in the terms that she employed will result in her dealings with Ms Young and the “legal team” coming to an end which in turn necessarily implies that she understands that accepting the offer will bring her action to an end and that she used the words “accept the offer of bearing each party’s costs” as form of shorthand for the full offer.
It necessarily follows that the terms of the appellant’s letter of 8 November do not compel the conclusion for which Mr Campbell contends.
Ms Young’s response of 11 November is not couched in the precise terms of the offer either however, it nonetheless states that “you accepted my client’s offer that the parties walk away bearing their own costs.” Again, and in the light of the letters of offer, the appellant’s good English and reasonable intelligence, she would have concluded that that the respondents believed that the original offer had been accepted and that Ms Young’s use of the expression “walk away” meant that the respondents believed that she was agreeing to abandon her claim and that the expression walk away was being used in substitution for the words “discontinue the proceeding” as they appeared in the letters of offer.
Mr Campbell submits that Ms Young’s purported letter of confirmation could have been more happily phrased and Mr O’Leary properly concedes that this is so. I do not think Ms Young can be criticised for this as it is easy to see how she came to use the expression “walk away” and as she regards the appellant’s English as very good, there would have been no reason for her to think that the words had any potential to confuse.
If the appellant did not understand what Ms Young meant when she employed the expression “walk away bearing their own costs” then one might have expected her to raise the issue with Ms Young in the same way that she had queried the expiry date of the original offer. Moreover, and as I have already found, the terms of her letter of 8 November, imply that that she realises that agreeing that each party bear their own costs will bring the action to an end which in turn further suggests that she would have understood the implications of “walking away”.
For the above reasons I have come to the conclusion that it was legitimately open to Master Rice to conclude that there was a valid and enforceable agreement between the parties for the action to be dismissed with each party to bear their own costs. It has thus not been demonstrated that his findings in this regard are attended by error.
I should nonetheless spell out that which is necessarily implicit in the proceeding paragraphs, namely that the fact that English is not the appellant’s first language, the fact that she was unrepresented at all relevant times, nor the combination of the two considerations cannot call Master Rice’s finding that there was a valid agreement in existence into doubt.
The hearing of 20 November before Master Norman
Mr Campbell submits that the exchanges between the appellant and Master Norman at the hearing of 20 November further demonstrates that there was no true meeting of the minds in the correspondence that the action was to be dismissed without costs and that Master Norman failed to discharge his obligation to make relevant enquires and to give relevant explanations to the appellant.
It is well settled that a judicial officer is obliged to render advice and assistance to an unrepresented litigant provided that the officer does not compromise his or her position.
A statement of general principle is to be found in Rajski v Scitec Corporation Pty Ltd (1986) Unreported NSW Court of Appeal where Samuels JA said at 14:
In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent. … At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement. An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.
Mahoney JA made the following observations (at 27):
Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done.
These comments have been referred to with approval in subsequent cases: see In the Marriage of Johnson (1997) 139 FLR 384 (Fam Ct.FC), at 406 (and cases cited there); Morton v Vouris (1996) 21 ACSR 497, at 513-514, per Sackville J. There is nothing in Neil v Nott inconsistent with what was said in Rajski v Scitec Corporation.
When the matter was called on for hearing before Master Norman on 20 November, counsel for the respondents, who was again Ms Doecke, informed him that the appellant had accepted an offer to resolve the matter and asked him to dismiss the action with no order as to costs.
The Master thereupon asked the appellant if she agreed. She said that the parties had agreed to settle and to bear their own costs and went on to say something about a belief on her part that the order had already been made in chambers.
The Master, in conformity with his obligations, did not immediately act on the appellant’s statement that the parties had agreed to settle. Rather, he told her that the issue of whether the action was to be dismissed with each party to bear their own costs had to be addressed. The appellant then made unresponsive statements about discovery, the filed defence and errors to the transcript. The Master then repeated the terms of the proposed settlement and asked her if she agreed to “that finalisation of the matter.” She then read out her letter of 8 November, and went on to repeat her assertion that she had been denied justice.
The Master then repeated the proposed terms of settlement yet again and asked the appellant if she agreed with that proposal to which she said no and that she thought he had said something about costs in the cause in his order.
In an apparent attempt to clarify precisely what the appellant wanted him to do, or not to do, the Master then asked her if it was her wish to have the proceedings dismissed. She then replied in the affirmative and made it plain that she was doing so because she thought it was pointless to continue. The Master sought to clarify her position by asking her to give a direct answer to his question. She asked him what the question was and he repeated it and asked her if that represented what she had agreed with the Crown. She said “yes” and then went on to complain that she had no alternative because there was no justice for her.
The Master then made the orders sought by the respondents. The appellant then enquired about the costs of discovery. The Master informed her that this was nothing to do with him.
Master Norman had conducted the directions hearing of 19 August. That hearing lasted for a few minutes short of an hour. A significant portion of the hearing was taken up by the appellant’s submissions. The Master thus had a good opportunity to assess her command of English, her apparent intelligence and the limits of her knowledge of procedure. I have no doubt that he would have intuitively come to the same conclusions on these issues as have I. The Master would thus have been well aware as of 20 November, that the appellant had good English, that she was reasonably intelligent and that she had some grasp of procedure.
The appellant understood the terms of the respondents offer and the implications of walking away. The concepts involved in the ultimate question that the Master put to her before he made his orders are simple. If she understood the terms of the offer and the ramifications of walking away she would also have understood that the Master was asking her if she agreed to the action being dismissed without costs. Given that Master Norman would have known that the appellant had a good English and that she was reasonably intelligent it was legitimately open to him to proceed on the basis that she would need little, if any, assistance from him in order properly to understand, the ramifications of the orders Ms Doecke was seeking and to give a properly informed consent to the action being dismissed if that was what she wanted to do, irrespective of how reluctant she might have been to bring the action to an end. It is plain from the transcript that the Master proceeded on the basis that it was incumbent on him to satisfy himself that the appellant was consenting to her action being dismissed without costs before he could properly make orders to that effect. It is equally plain that this is what led him to repeatedly ask her if she consented to the action being dismissed without costs and why he did and not to make the orders until she said that she did.
In all the circumstances, it was legitimately open to the Master to bring the appellant to the crux of the matter and to insist that she address it. It was also legitimately open to him to believe that he was employing language which was apt for that purpose and to believe that she understood the ramifications of what he was asking her to address and to believe that her non-responsive answers were the product of prevarication rather than misunderstanding. It was further legitimately open to him to regard her final response as a communication on her part that she was voluntarily, albeit with the greatest of reluctance, concurring in the respondent’s proposal that the action be dismissed with each party to bear their own costs.
Furthermore, there is nothing in the transcript which suggests that the appellant did not understand the crux of the matter. The Master permitted her appellant to say whatever she wanted to say on a number of issues before he brought her back to the fundamental issue on each occasion that he did so, and indeed he allowed her to read her letter of 8 November to him before he again brought back to the point. Further still, there is nothing in the transcript which objectively suggests that the appellant was overawed, overborne, confused, confronted, or in any other way prevented from doing justice to herself in the situation in which she found herself. If it was true that she thought that there was a mess that she wanted the Master to sort out, then she had ample opportunity to bring the specifics of the mess to his attention and to tell him that she was not agreeing to walk away.
True it is that the appellant appears not to have understood some of the finer points of procedure, as is evidenced by her raising the costs of discovery after Master Norman had pronounced his orders, but there is plainly a distinction between comprehension of the finer points of procedure and the comprehension of the simple concept of an action being dismissed without costs and, in all the circumstances, I do not think that any misunderstandings on her part about the costs of discovery have the capacity to call any of Master Rice’s findings into doubt.
What is deposed to in affidavits is ordinarily to be accepted unless it is plainly incredible or contradicted by objective facts or other findings. The findings I have made that there was an enforceable agreement between the parties and that the appellant’s ability to do justice to herself before Master Norman was not compromised lead me to reject her sworn assertions in these regards.
The findings that I have made in the immediately preceding paragraphs lead me to conclude that in all the circumstances justice did not miscarry because of any failure on the part of Master Norman adequately to discharge his responsibilities to the appellant as an unrepresented litigant, that there was no relevant confusion in the appellant’s mind, that she properly understood the relevant concepts and to conclude that she ultimately gave a properly informed and voluntary consent to the proceedings being dismissed because she recognised that it was futile to continue.
It was thus legitimately open to Master Rice to make the findings that he did.
In all of the circumstances there is no residual risk that justice has miscarried and so the interests of justice do not require that the judgment be set aside.
The appeal is dismissed.
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