KYM RANDALL WHEARE In Person v WEBSTER LAWYERS SA PTY LTD [2024] SADC 139

On Review from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE SCHULZ) CIV- 21-014158 Appellant: KYM RANDALL WHEARE In Person Respondent: WEBSTER LAWYERS SA PTY LTD Counsel: MR A CARPENTER - Solicitor: WEBSTER LAWYERS SA PTY LTD Hearing Date/s: 13/06/2024 File No/s: CIV-24-001861 B DISTRICT COURT OF SOUTH AUSTRALIA (Civil: Minor Civil Review) 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. WHEARE v WEBSTER LAWYERS SA PTY LTD [2024] SADC 139 Judgment of his Honour Chief Judge Evans (ex tempore) 13 June 2024 MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA Minor Civil Review Application for review is dismissed. Judgment of Magistrate affirmed. Magistrates Court Act 1991 (SA) s 38(7), referred to. Wilczynski & Anor v District Court of South Australia & Ors [2016] SASC 51; Harradine v District Court of South Australia (2012) 280 LSJS 572, considered. -- 1 of 6 -- -- 2 of 6 -- WHEARE v WEBSTER LAWYERS SA PTY LTD [2024] SADC 139 1 This matter comes before me as a minor civil review pursuant to s.38 of the Magistrates Court Act. Websters Lawyers SA Pty Ltd had instituted a minor civil action in the Magistrates Court seeking payment from Mr Wheare of $724.22 in legal fees for services provided to him in a criminal matter. The fees were the total fees outstanding on three invoices dated 13 and 23 November 2020, and 14 January 2021. 2 The minor civil action was commenced in the Magistrates Court by a claim filed on 30 December 2021. Mr Wheare filed a defence on 11 February 2022. 3 Mr Wheare was granted permission to appear in the Magistrates Court by telephone. The matter was listed for a directions hearing on 3 May 2022 at 10.15 a.m. Mr Wheare did not call the court and the court telephoned Mr Wheare twice at about 10.30 on that morning but did not get any response. The judicial registrar entered a default judgment for $981.22, being the $724.22 and fees of issuing and serving the claim. 4 Some five months after the default judgment was entered, Mr Wheare filed an application in October 2023 applying for the default judgment to be set aside. That application came on before a magistrate on 27 November 2023. Mr Wheare filed an affidavit on 14 November 2023 in support of his application. Andrew Carpenter, a solicitor in the employ of Websters Lawyers, filed an affidavit on 16 November 2023. In addition, Mr Wheare gave evidence and was cross- examined in relation to the application before the Magistrate at the hearing on 27 November 2023. 5 The Magistrate dismissed Mr Wheare's application to set aside the default judgment and made no order as to costs. It is the decision of the Magistrate to dismiss the application to set aside the default judgment that Mr Wheare has applied to this court to review. The application for review was filed on 27 February 2024, some three months after the Magistrate's decision. 6 The hearing of the review is governed by s.38(7) of the Magistrates Court Act. Doyle J in a decision of Wilczynski & Anor v District Court of South Australia & Ors [2016] SASC 51, had this to say in relation to how a hearing is to be held when it is governed by s.38(7). He said that 'Under s.38(7), the court may inform itself as it sees fit and in doing so is not bound by the rules of evidence. The court may rehear evidence taken before the Magistrates Court. The court may affirm the judgment or rescind it and substitute the judgment that the court considers appropriate'. I just add in addition to that because it is relevant to the particular matter before me - this application - s.38(7)(d)(iii) provides that 'In determining the matter the court may if a review arises from a default judgment or summary judgment rescind the judgment and (a) substitute a judgment that the court -- 3 of 6 -- [2024] SADC 139 2 considers appropriate or (b) remit the matter to the Magistrates Court for hearing or further hearing'. 7 Doyle J went on and said, 'In hearing and determining the review, the court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms'. Doyle J in that decision in para.47, also referred to certain principles which were set out by Blue J in the matter of Harradine v District Court of South Australia (2012) 280 LSJS 572, and Blue J's comments were in particular at paras.40-49, and I do not set those principles out here but I say that I am aware of them and it is on that basis that I consider the review that is before me today. 8 I have had regard to the material that was before the Magistrate, the transcript of the evidence of Mr Wheare's evidence and cross-examination, the reasons of the Magistrate, the notice of review, written submissions of Websters Lawyers which were filed on the review and the submissions that have been made before me today, together with the medical report that Mr Wheare handed up and I read on to transcript which was a medical report dated 7 June 2024 from Dr Spiro Doukakis (Exhibit A1), and the two invoices of 13 and 23 November 2020 that were handed up by Mr Carpenter (Exhibit R1). 9 I accept that Mr Wheare had certain health issues which might cause him certain pain. Reading from the medical report that he provided today, Dr Doukakis said that his left ankle pain ‘has affected him severely from time to time since 2018 where the pain can be severe enough to make walking difficult'. I accept that Mr Wheare was given permission to appear at the hearing in the Magistrates Court by telephone. 10 It appears from the material that Mr Wheare was aware of when the matter was next listed for hearing in the Magistrates Court, that he knew that he was to appear and that he had been given permission to appear by telephone. He says that his telephone was faulty at the time and from his evidence it appears that he knew that his phone was faulty at the time he was given the permission by the Magistrates Court to appear by telephone. He says that he made contact with the Magistrates Court within the week after the hearing had occurred to find out what had happened. 11 The defence that he has set out in relation to this claim for the $724.22 was not a denial that he ever received the invoices nor does he assert that the $724.22 was actually paid in response to the invoices, rather the defence goes into general complaints about the conduct of Websters Lawyers and their performance. 12 The affidavit of Mr Carpenter that was before the magistrate referred to and annexed what was described as a final taxation invoice, dated 14 January 2021, for the total sum of $724.22. This invoice was provided following Mr Wheare terminating the instructions of Websters Lawyers. -- 4 of 6 -- [2024] SADC 139 3 13 The additional invoices that were provided today that I have referred to, make it clear that the three invoices of 13 and 23 November 2020, and 14 January 2021, were the same total amount of $724.22 as Mr Carpenter referred to in his affidavit, and was the subject of this claim. 14 I also note that the report by the then Legal Profession Conduct Commissioner dealt with the complaint by Mr Wheare as to his complaint of overcharging by Websters Lawyers. The report was completed on 10 August 2021, and although it did not on its face specifically refer to each of the individual three invoices that are the subject of this claim, it dealt extensively with the various costs agreements, the services provided by Websters Lawyers and the costs charged during the period up to determination by Mr Wheare of those instructions, and I am satisfied that the amount of $724.22 was part of the fees that were the subject of the complaint of overcharging. 15 In relation to the total fees, including that $724.22, the Legal Profession Conduct Commissioner, having referred to the signed client services agreement, said in his report dated 10 August 2021, that the invoices were calculated conservatively with many telephone attendances on the complainant being entered at no charge. 16 Mr Wheare's notice of review sets out various grounds of review, which I do not repeat, but are set out on the face of the notice. There are 15 in total. It then goes on in part 3 and sets out the orders that he sought. I do pause on that for one moment. 17 The orders that he seeks are said to be: 'A full refund of the wasted monies spent on Websters Lawyers, plus financial compensation of $250,000 plus from Websters Lawyers, as they made my case worse by having it adjourned beyond acceptance, and because of their threats.' 18 He then sets out 13 details which include allegations of incompetence, negligence, abuse of process, failing a duty of care, economic and noneconomic loss, and similar. 19 I have reviewed the evidence adduced before the magistrate and have had regard to the findings of fact that were made by the magistrate. I have reviewed the circumstances of the entry of the default judgment, the reasons for non-attendance of Mr Wheare, and the matters raised by Mr Wheare as to his basis for defending the claim, both before the magistrate in the written documents, and today in court. I have also had regard to the Legal Practitioners Act 1981, and to the report, which of course was annexed to the affidavit of Mr Carpenter, the report of the Legal Profession Conduct Commissioner. 20 I am satisfied that it was appropriate in all of the circumstances that were before the Magistrate for her to dismiss the application to set aside the default judgment. I further considered those matters before the Magistrate and the -- 5 of 6 -- [2024] SADC 139 4 additional matters that have been raised on review and find that there is nothing that has been raised that would cause me to reach a different conclusion than that reached by the magistrate. In all of the circumstances, I dismiss the application for review and affirm the judgment of Magistrate Schulz. -- 6 of 6 --