TONIA MARIA ODGERS In Person v DW FOX TUCKER PTY LTD [2024] SASC 129

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE BARNETT) CIV- 21-010792 Appellant: TONIA MARIA ODGERS In Person Respondent: DW FOX TUCKER PTY LTD Counsel: MS L WOOD - Solicitor: DW FOX TUCKER PTY LTD Hearing Date/s: 25/09/2024 File No/s: CIV-24-003960 B SUPREME COURT OF SOUTH AUSTRALIA (Magistrates Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. ODGERS v DW FOX TUCKER PTY LTD [2024] SASC 129 Judgment of the Honourable Justice McDonald 8 November 2024 MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - GENERALLY PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS This is an application for leave to appeal the decision of a Magistrate made on 12 March 2024 to decline an application to vary the amount and sum of the Summary Judgment of 24 January 2022 as well as to decline the alternative order, that the judgment be stayed, or the proceedings be adjourned. The appellant seeks leave to appeal on the basis that the decision of the Magistrate was ‘discretionary and erroneous’, that the Magistrate made an error of principle by failing to consider the fact that the appellant was self-represented and that there was a denial of ‘natural justice.’ The appellant further contends that the Magistrate failed to exercise his discretion in adjourning the proceedings as an alternative to the orders made and that the Magistrate erred in law in awarding costs in favour of the Respondent. Upon the appellant’s filing of the Notice of Appeal, the respondent foreshadowed that unless further particulars were provided, an application to strike out or dismiss the appeal would be pursued on the basis that the grounds as drafted did not disclose a reasonable cause of action. On 29 August 2024, the appellant was ordered to provide further and better particulars by 20 September 2024. The appellant failed to provide any further particulars. On 24 September 2024, the respondent filed an Interlocutory Application seeking an order that the appellant’s Notice of Appeal be struck out pursuant to r 34.1(1) and r 215.5 of the Uniform Civil Rules 2020 (SA) (‘the Rules’) on the basis that the grounds of appeal were frivolous, vexatious, or an abuse of the process of the Court, or in the alternative, that pursuant to r 143.1(1) the appeal be dismissed on the basis that the grounds revealed no reasonable cause of action. -- 1 of 11 -- On 25 September 2025, the appellant filed a Revised Notice of Appeal together with an Interlocutory Application seeking an extension of time for leave to file the Revised Notice and requesting an adjournment to allow the appellant time to consider the material provided by the respondent. On that occasion, leave was granted for the substitution of the Revised Notice of Appeal. An adjournment was also granted to the appellant to provide her time to prepare submissions in response to the respondent’s Interlocutory Application seeking to strike out the Revised Notice of Appeal. The respondent submits that for the same reasons that applied to the original Notice of Appeal, the appellant’s revised Notice of Appeal should be struck out. Alternatively, the respondent seeks the appeal be dismissed. Held; the appeal is dismissed: 1. The appellant’s revised Notice of Appeal does not establish any reasonable cause of action. 2. No orders as to costs should be made in relation to these proceedings. Uniform Civil Rules 2020 (SA) r 12.1, r 34.1(1), r 143.1(1), r 186.1(2)(b) and r 215.5, referred to. -- 2 of 11 -- ODGERS v DW FOX TUCKER PTY LTD [2024] SASC 129 Magistrates Appeal: Civil McDONALD J. 1 On 19 April 2024, Toni Maria Odgers (‘the appellant’) filed a Notice of Appeal against a decision made in the Magistrates Court on 12 March 2024. The appellant’s grounds of appeal were as follows: 1. This appeal is by way of rehearing of the Magistrate’ s reasons, the decision of the Magistrate was discretionary and erroneous. 2. The Magistrate made an error of principle and failed to take into that the Appellant was an individual and non-lawyer and was denied natural justice and the Magistrate’s decision is unreasonable or plainly unjust. 3. The Appellant is entitled to procedural fairness (Natural Justice) notwithstanding delay, ‘finality in litigation’ is a different question, but what is clear in those principals are not determining factors in this matter on balance. 4. The Respondent’s judgment is for legal fees of which the Appellant says given passage of time the judgment monetary amount is incorrect and unreliable and should be adjusted that relates accrued legal costs for work alleged to have been undertaken which claim has not been tested. 5. The Magistrate had the power to adjourn CIV-21-010792 proceedings as an alternative to the orders made. 6. The Respondent is a legal firm that is pursuing the Appellant for legal costs and as a self-litigant the Respondent is not entitled to costs in CIV-21-010792 or the Appeal proceedings, which is supported by an Australian High Court decision. The Magistrates has erred, and all costs awarded in CIV-21-010792 in favour of the Respondent should be revoked. 2 The respondent has filed an Interlocutory Application (FDN 5) seeking an order that the appellant’s Notice of Appeal be struck out pursuant to r 34.1(1) and r 215.5 of the Uniform Civil Rules 2020 (SA) (‘the Rules’) on the basis that it is frivolous, vexatious or an abuse of the process of the Court, or alternatively, that pursuant to r 143.1(1) the appeal be dismissed on the basis that there is no reasonable cause of action. The history of the proceedings 3 To understand the nature of the decision made by the Magistrate it is necessary to step back in time. The respondent was previously the appellant’s legal representative. On 7 September 2017, the respondent took action to recover outstanding legal fees owed by the appellant. The legal fees were taxed in the Supreme Court and the debt proceedings were stayed. -- 3 of 11 -- [2024] SASC 129 McDonald J 2 4 Ultimately this resulted in the parties entering into a Deed of Settlement on 28 August 2019. That was evidently unsuccessful, as on 21 September 2021, the respondent commenced Breach of Deed proceedings in the Magistrates Court to enforce the terms of the deed. The respondent sought summary judgment. That application was supported by affidavit evidence. 5 On 3 November 2021, a Notice of Acting was filed by the appellant’s solicitors. At a directions hearing on 4 November 2021, the appellant’s solicitor sought an adjournment on the basis that they had only been recently instructed. 6 On 24 January 2022, the appellant failed to attend Court and her solicitor was granted leave to cease acting for her. 7 Summary judgment in the amount of $55,523.50 was awarded by Magistrate Fotheringham against the appellant on 24 January 2022 (‘the first Fotheringham judgment’). 8 On 2 February 2022, the Official Receiver issued a Bankruptcy Notice (‘the first Bankruptcy Notice’) against the appellant on the basis of the first Fotheringham judgment. 9 The first Bankruptcy Notice was served on the appellant by email and Facebook Messenger pursuant to an order for substituted service on 20 May 2022. 10 On 21 June 2022, the appellant filed an application in the Breach of Deed proceedings to set aside the first Fotheringham judgment and on 22 June 2022, the appellant filed an application to set aside or stay the first Bankruptcy Notice. 11 On 20 July 2022, Magistrate Fotheringham dismissed the application to set aside the first Fotheringham judgment (‘the second Fotheringham judgment’). In that judgment, Magistrate Fotheringham found that not only did the appellant have no reasonable excuse for failing to attend Court on 24 January 2022, but also had no arguable case. There was no material before the court that provided any basis to set aside the judgment and/or the deed. 12 Magistrate Fotheringham also considered whether pursuant to r 186.1(2)(b) of the Rules, he should exercise his discretion to set aside the judgment “in the interests of justice”. The Magistrate recognised that in considering the overall interest of justice, it was necessary to weigh up the appellant’s interest of having the judgment set aside against the right of the respondent to rely on a regularly obtained judgment. -- 4 of 11 -- [2024] SASC 129 McDonald J 3 13 Magistrate Fotheringham concluded:1 On the evidence before me, I consider that it is not in the interest of justice to set aside the judgment and that there needs to be finality in this matter, particularly where I have found that there is no reasonable basis to defend the claim. (Emphasis added) 14 On 18 August 2022, the appellant filed a Notice of Appeal in the Supreme Court in relation to the second Fotheringham judgment. 15 There were two attempts to stay the second Fotheringham judgment pending the outcome of the appeal. These were by applications filed on 19 August 2022 and 14 September 2022. Both were unsuccessful. 16 On 2 November 2022, the appellant discontinued the Supreme Court appeal proceedings on the basis that an agreement had been reached in relation to the first Bankruptcy Notice that the appellant would pay $42,500 to the respondent by instalments. One of the terms of the agreement was that:2 in the event the [Appellant] fails to strictly comply with the terms of the Payment Arrangement, the Appellant will then become liable for the full amount of the Summary Judgment (less any payments made) and the Respondent will issue a fresh bankruptcy notice based on the amount of the Summary Judgment then outstanding. 17 Subsequent to this, there was a period of over 12 months during which there was no further litigation. 18 Between December 2022 and April 2023, the appellant made the required payments, albeit they were generally late. 19 On 2 May 2023, the respondent agreed to the appellant’s request for an amendment to the Payment Arrangement. The appellant did not meet the terms of the new arrangement, defaulting in some payments. 20 On 28 July 2023, the respondent notified the appellant that she was in breach of the Payment Arrangement and foreshadowed that if payment of the balance of the Settlement Sum was not received by 31 July 2023, a Bankruptcy Notice would be issued and served without further notice. 21 The appellant did not meet that deadline and only made a further part payment. On 31 August 2023, the respondent made a final demand for payment of the balance of the Settlement Sum. On 9 October 2023, the Official Receiver issued a second Bankruptcy Notice against the appellant on the basis of the first Fotheringham judgment. On 17 November 2023, the second Bankruptcy Notice 1 Decision of Magistrate Fotheringham [2024] SAMC 35 at [31]. 2 CIV-21-010792, FDN 29, Affidavit of Lachlan John Goddard made on 21 February 2024 at [25]. -- 5 of 11 -- [2024] SASC 129 McDonald J 4 was served on the appellant by express post and email after attempts at personal service failed. 22 On 6 February 2024, the appellant filed an Interlocutory Application seeking an order that the first Fotheringham judgment be varied or stayed.3 23 That application first came before Magistrate Barnett on 26 February 2024. On that occasion, the appellant appeared unrepresented and sought an adjournment to enable her to have the opportunity to obtain legal representation and to file further affidavit material. 24 Magistrate Barnett granted the request for an adjournment. 25 The matter next came before the same Magistrate on 6 March 2024. On that occasion the appellant failed to attend and no further affidavit material had been filed. The appellant sent an email to the Registry saying that there had been a death in her family and that she could not attend in person. The appellant, however, declined an offer made by the Registry to appear by telephone. 26 The appellant’s Interlocutory Application was adjourned to a further hearing on 12 March 2024. The appellant again appeared unrepresented and made a request for a further adjournment on the same basis upon which the previous adjournment had been granted; namely to obtain legal representation and file further affidavit material. 27 That application was refused. Magistrate Barnett dismissed the application to stay the first Fotheringham judgment and ordered costs in relation to those proceedings against the appellant (‘the first Barnett judgment’). 28 In that judgment, Magistrate Barnett considered the procedural fairness that had been afforded to the appellant by way of the various adjournments and the opportunities provided to the appellant to present evidence by way of affidavit or to make submissions before the Court. The Magistrate concluded that there was no basis upon which to further adjourn the proceedings in circumstances in which the appellant was unable to identify any additional matters that might impact upon the exercise of the Court’s discretion in relation to the appellant’s Interlocutory Application. 29 In dismissing the application, Magistrate Barnett correctly identified that the Court has a wide discretion in determining whether to grant a stay. His Honour observed:4 … Whilst it is not necessary for an applicant for a stay to establish special circumstances, the party seeking a stay must demonstrate a proper reason or that it is an appropriate case to warrant the exercise of the discretion to grant a stay in his or her favour. The Court generally proceeds from the starting point that the decision and the judgment is correct and 3 CIV-21-010792, FDN 27. 4 Decision of Magistrate Barnett [2024] SAMC 37 at [5]. -- 6 of 11 -- [2024] SASC 129 McDonald J 5 properly entered. From that starting point, the Court exercises a broad discretion which entails consideration of the competing rights of the parties and any prejudice that is likely to be suffered by the party in the event that stay is or is not granted and the overall balance of convenience see Lesses v Maras (No 2) [2016] SASC 140 at [6]. 30 The Magistrate found that the appellant had not demonstrated a proper reason, nor could she establish that it was an appropriate case in which to exercise the discretion to grant a stay. Magistrate Barnett also found that the appellant had not put forward a proper basis for the application to vary the judgment sum. 31 As I have previously mentioned, on 19 April 2024 the appellant filed a Notice of Appeal in this Court. 32 On the same day the appellant filed an application in the Magistrates Court to stay the first Barnett judgment. That application was listed for argument on 14 May 2024. 33 On that date the appellant again failed to attend Court. Magistrate Barnett proceeded in the absence of the appellant and dismissed the application in relation to the stay, however revoked the order made against her for costs in the first Barnett judgment. 34 In her Notice of Appeal, the appellant has made complaints about both aspects of the first Barnett decision however, given the events of 14 May 2024, the ground relating to the March 2024 costs order falls away. Proceedings in the Supreme Court 35 On 15 July 2024, after three attempts to find a date that was suitable to the appellant, the appeal was listed for hearing on 29 August 2024. In confirming that date, the appellant was advised of the statutory time frames for the filing and service of written submissions, lists of authorities, chronologies and the appeal book. 36 The appellant failed to comply with those time frames. None of the requisite documents were filed. 37 When it became apparent that there had been non-compliance, I called the matter on for a further directions hearing on 23 August 2024. 38 The appellant was permitted to attend by telephone. 39 At the directions hearing, the appellant said that the reason that she had not filed the necessary documentation was because she had “a lot on” and she was intending to obtain some legal advice. It readily became apparent that the hearing could not proceed on the scheduled date. That hearing date was vacated, and the matter was listed for a further directions hearing on 29 August 2024, by which time it was hoped that the appellant would obtain some legal advice. -- 7 of 11 -- [2024] SASC 129 McDonald J 6 40 On 28 August 2024, the appellant emailed a document entitled “written submissions of the appellant”. It appeared to be a brief history of payments that the appellant had purportedly made to the respondent. It concluded: The Respondent is not responsive to the Appellant’s request to deal, provide an account and finalise this matter. The Appellant seeks the intervention of this Honourable Court to resolve the impast between the Appellant and the Respondent. The Appellant is prepared to participate in a mediation. 41 It is apparent, not only from this conclusion, but also the general tenor and nature of this document, that the appellant fails to appreciate the role of this Court and is of the view that some form of roving enquiry can be conducted into past events that have occurred between the appellant and the respondent. 42 On 29 August 2024, when the matter next came before the Court, the respondent raised the lack of particulars in the appellant’s grounds of appeal. The respondent foreshadowed that, unless further particulars were provided, there would be an application to strike out or dismiss the appeal on the basis that the grounds as currently drafted, did not reveal any reasonable cause of action. 43 On that basis, I ordered that the appellant file further and better particulars by close of business on 20 September 2024, and listed the matter for hearing on 25 September 2024 for submissions on the strike out application. On that occasion, dependent upon any particulars provided, there would either be a strike out or summary dismissal application, or there would be timetabling for the hearing of the appeal. 44 The appellant failed to provide any further particulars. 45 On 24 September 2024, the respondent filed an Interlocutory Application seeking an order that the appellant’s Notice of Appeal be struck out or summarily dismissed. That application was supported by an affidavit which set out the lengthy litigious history of the dealings between the parties, much of which has been unnecessary to canvass in these reasons. 46 On the morning of 25 September 2024, the appellant filed a Revised Notice of Appeal deleting the grounds that had become obsolete as a result of the second Barnett judgment and adding further grounds relating to the second Barnett judgment. The grounds of appeal as set out in the Revised Notice of were: 2. The Magistrate made an error of principle and failed to take into that the Appellant was an individual and non-lawyer and was denied natural justice and the Magistrate’s decision is unreasonable or plainly unjust. 3. The Appellant is entitled to procedural fairness (Natural Justice) notwithstanding delay, ‘finality in litigation’ is a different question. but what is clear in those principals are not determining factors in this matter on balance. 4. The Respondent’s judgment is for legal fees of which the Appellant says given passage of time the judgment monetary amount is incorrect and unreliable and -- 8 of 11 -- [2024] SASC 129 McDonald J 7 should be adjusted that relates accrued legal costs for work alleged to have been undertaken which claim has not been tested. 5. The Magistrate on 12 March 2024 had the power to adjourn CIV-21-010792 proceedings as an alternative to the orders made. 6. That the matter be referred to a mediation in the Magistrates Court of South Australia with an accounting expert in attendance. 7. That the Respondent, a law firm and self-represented should not be entitled to any costs incurred in light of Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29 “…a solicitor acting for him or herself is treated the same as any other self- represented litigant. There is no entitlement to an order for costs”. Therefore, the costs component in the Respondent’s judgment should be reviewed and no costs should be awarded in subsequent proceedings and in these Appeal proceedings. 8. The flow on effect is that the monetary amount in the judgment and the subsequent Bankruptcy Notice is incorrect. 47 At the same time, the appellant also filed an affidavit in support of an extension of time to file and serve the Revised Notice of Appeal. In that affidavit the appellant submitted that she was in compliance “with order 1 made on 29 August 2024 by Her Honour Justice McDonald” and requested a further “extension of time” to consider the material provided by the respondent on 24 September 2024. 48 The application for an extension of time to file the Revised Notice of Appeal was supported by a medical certificate stating that the appellant “will be unavailable for their usual duties on the 24/09/2024 to the 26/09/2024 due to mental health leave as a result of significant anxiety and stress”. 49 There are two fundamental difficulties with this aspect of the application for an extension of time. Firstly, the appellant appears to be conflating the order that was made for further and better particulars to be filed prior to 20 September 2024, with her attempt to now file a Revised Notice of Appeal. The Revised Notice of Appeal includes no further particularisation of the original appeal grounds, but rather adds further grounds of appeal. The second is that the dates covered by the medical certificate fall outside of the Court ordered time frame and relate to dates upon which the appellant in fact filed additional documentation in this Court. 50 In relation to the application for an extension of time to consider the material provided by the respondent, the appellant relied on the volume of material that she had received on 24 September 2024. On that date at 12.35pm the respondent served the appellant with an Interlocutory Application with a supporting affidavit with annexures totalling 425 pages. At 4.35pm the respondent sent a second email to the appellant, although I have no information about what that email related to. -- 9 of 11 -- [2024] SASC 129 McDonald J 8 51 At the hearing on 25 September 2024, the respondent opposed an extension of time for leave to file the Revised Notice of Appeal and the application for an adjournment to allow the appellant time to consider the material that had been provided the previous day.5 52 The basis for the opposition was the delay in filing the Revised Notice of Appeal. It was also submitted that there was nothing new in the affidavit, and the annexures were all documents previously seen by the appellant.6 Counsel for the respondent explained that the only reason for filing the affidavit and annexures was to assist the Court in understanding the history of the matter.7 53 The appellant took issue with the suggestion that there was nothing new in the affidavit and annexures, suggesting that there were documents that she had not previously seen.8 54 In response to this, the respondent indicated that they were prepared to disavow any reliance on the affidavit or annexures and proceed on the other documents that had previously been filed.9 55 I determined to take a pragmatic approach to the appellant’s application for an adjournment. I granted leave for the substitution of the Revised Notice of Appeal and invited counsel for the respondent to make submissions on the Interlocutory Application for the Revised Notice of Appeal to be struck out or dismissed. I advised the appellant that given she had a medical certificate; I would not call upon her to make submissions that day and listed her submissions to be heard on 8 October 2024. The respondent’s submissions 56 It is the respondent’s submission that the appellant’s Notice of Appeal and Revised Notice of Appeal should be struck out pursuant to r 12.1, r 34.1(1) and r 215.5 of the Rules or, in the alternative, that the appeal be dismissed pursuant to r 143.1(1) of the Rules on the basis that it is frivolous, vexatious or an abuse of the process of the Court and/or that no reasonable cause of action can be established in the grounds of appeal. 57 To put the proposed appeal grounds into context, the respondent set out some of the history leading up to the current proceedings and in particular highlighted that at its core these proceedings commenced as litigation to recover legal fees owed by the appellant to the respondent that has now continued over eight years. During that time there have been eight applications made in an endeavour to set aside the underlying judgment, usually to avoid the finalisation of bankruptcy proceedings. These proceedings are the second appeal filed in this Court. The 5 T7. 6 T7. 7 T8. 8 T9. 9 T8. -- 10 of 11 -- [2024] SASC 129 McDonald J 9 first appeal raised similar complaints about a denial of natural justice and an absence of procedural fairness. As I have mentioned that appeal was abandoned on the basis that a Settlement Agreement was entered into. 58 In summary, it was the respondent’s primary complaint that the grounds of appeal are non-compliant, in that they fail to identify specific paragraphs or reasons in the decisions of Magistrate Barnett that are said to be erroneous nor do the grounds set out a basis on which the appellant contends that the Magistrate erred. The appellant’s submissions 59 When the matter resumed on 8 October 2024, the appellant handed up written submissions upon which she relied. 60 The written submissions made various assertions of fact about the amounts that the appellant claimed she had paid and consequently the remaining outstanding balance at various points in time. Putting to one side the absence of any evidence in support of these assertions, these written submissions yet again highlight the appellant’s misunderstanding of the role of this Court. This Court cannot and should not be engaging in some form of forensic accounting analysis. The issue for determination by this Court is whether the grounds of appeal identify any error of outcome or approach in the two impugned decisions of Magistrate Barnett. Consideration 61 The respondent does not seek an order for costs in these proceedings, therefore ground 7 of the Revised Notice of Appeal falls away. 62 As to the remaining grounds, I am highly cognisant of the fact that the appellant has had no legal assistance in drafting the appeal grounds or other supporting documents. For that reason, I have given careful consideration to both of the decisions of Magistrate Barnett. If there is any merit to the issues raised by the appellant, it would not be fair or appropriate to take a technical approach to the manner in which the appeal grounds have been drafted. 63 There is however force in the submission that the grounds of appeal as currently drafted do not reveal any reasonable cause of action. They are broad, generalised complaints about the absence of procedural fairness and natural justice with no detail as to the basis of the complaints. Despite having been put on notice about the deficiencies of the grounds and having been afforded considerable time to remedy the situation, the appellant failed to take up the opportunity to do so. 64 In those circumstances I dismiss the appeal. -- 11 of 11 --