Abdou Nassar v Australian Telecommunications Corporation No. SCRG 92/2376 Judgment No. 3842 Number of Pages 3 Courts Practice and Procedure

[1993] SASC 3842

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA DEBELLE J

CWDS
Courts - practice and procedure - Magistrates Court - Conciliation conference appointed - Plaintiff and defendant both present - Magistrate gives judgment for plaintiff on application for summary judgment listed for hearing four days later - Application not served - No jurisdiction to order summary judgment at conciliation conference - Breach of rules of natural justice - Judgment set aside
Magistrates Court Act 1991, s.27 and Magistrates Court (Civil) Rules 1989, r.89. Carr v Finance Corporation of Australia Ltd (No. 1) (1981) 147 CLR 246; R v North; ex parte Oakey (1927) l KB 491; Barnes v Oliver (1970) 16 FLR 366 and Forbes v New South Wales Trottinq Club Ltd (1979) 143 CLR 242, applied.

HRNG ADELAIDE, 2 March 1993 #DATE 4:3:1993
Counsel for appellant:         Mr A Colton
Solicitors for appellant:     Coltons
Counsel for respondent:        Mr G Santini
Solicitors for respondent:     Adams Kandelaars

ORDER
Appeal allowed.

JUDGE1 DEBELLE J The facts leading to this appeal can be set out in the following chronology:-
    1992 6 April The respondent issued a summons out of the Local
    Court of Adelaide, in its limited jurisdiction, claiming
    $8,410.76 being money due for network charges and telephone
    calls made.
    22 April The appellant entered an appearance.
    20 May The respondent's solicitors issued a notice requiring
    discovery of documents.
    6 July The Magistrates Court Act, 1991, commenced operation.
    The respondent's action then proceeded in accordance with the
    Magistrates Court Act and Rules thereunder: s.20(2) of the
    Statutes Repeal and Amendments (Courts) Act 1991 and Rule 141 of
    the Magistrates Court (Civil) Rules, 1992. All subsequent
    references to Rules will be to the Magistrate Court (Civil)
    Rules.
    14 July The Magistrates Court issued a notice requiring the
    parties to attend a conciliation conference on 17 August 1992.
    7 August The appellant not having given discovery, the
    respondent applied for an order that the appellant do so within
    seven days.
    14 August The application of the respondent for discovery was
    heard. An order was made requiring the appellant to give
    discovery within seven days. On the same day, the respondent
    applied for summary judgment. The application for summary
    judgment was listed for hearing on 21 August.
17 August The conciliation conference took place. 2. The conciliation conference was conducted by a special magistrate. The appellant was present but did not have a legal representative. The respondent was represented by Mr Santini, a member of the firm of solicitors acting for the respondent. There is no record of what occurred at the conciliation conference. Mr Santini, who also appeared for the respondent on the hearing of this appeal, said the magistrate endeavoured to narrow the issues. It appears that the magistrate also asked some questions concerning the merits of the defence. Attempts at conciliation did not bear fruit. In the end, the magistrate made an order that judgment be entered for the respondent. He fixed interest in the sum of $500. He allowed $60 costs on the application and ordered that the appellant pay the respondent's costs to be taxed or agreed. Mr Colton, who appeared for the appellant, said that the account given by Mr Santini accorded with his instructions. 3. Rule 87 enables a party to apply for leave to set aside judgments which are not final. Rule 104 enables a party to apply to set aside a final judgment. The grounds on which it is possible to apply to set aside a final judgment are very restricted. The appellant did not fall within any of the grounds listed. In my opinion, the judgment ordered on 17 August finally disposed of the rights of the parties and was, therefore, a final judgment: Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246. The only avenue by which the appellant could, therefore, challenge the final judgment entered against him was to appeal to this court. If I am wrong and this was not a final judgment, I hold that the appellant did not come within Rule 87 and this is a proper case for leave to appeal. 4. The orders made by the magistrate were made on the application of the respondent for summary judgment. Although the application does not in terms seek an order for summary judgment, the affidavit filed in support of the application made it clear that the respondent was seeking summary judgment pursuant to Rule 8 on the ground that the appellant did not have a good defence to the action. The respondent's application was issued on Friday, 14 August. It had not been served on the appellant before the conciliation conference, which was held on the following Monday. Immediately before the conciliation conference, Mr Santini had attempted to serve it. However, the appellant was entitled to four clear days' notice of the application: see Rule 64(3). The effect of what the magistrate did, therefore, was to bring forward the application for summary judgment from the date listed for hearing, namely 21 August, to the date of the conciliation conference. The magistrate then made the orders sought by the respondent on an application which had not been served on the appellant and of which the appellant had had no reasonable notice. In adopting this course, the magistrate acted without jurisdiction and in breach of the rules of natural justice. 5. The source of the power to conduct a conciliation conference is to be found in s.27 of the Magistrates Court Act. Section 27(5) provides for the circumstances in which judgment may be entered. It reads: "Where a case is settled under this section, the terms of the settlement may be embodied in a judgment." No other power to enter judgment at a conciliation conference is provided by s.27. Indeed, one would not expect any other power to enter judgment to be provided since that would be entirely contrary to the purpose and intent of a conciliation conference. The appellant in this case did not consent to the application for summary judgment. The magistrate, therefore, had no jurisdiction to enter judgment and the judgment and orders made on 17 August are a nullity. 6. I do not think that there is anything in Rule 89 which affects this conclusion. Rule 89 regulates, inter alia, the procedure at conciliation conferences and provides for the kinds of matters which the court and parties must consider at such a conference. Rule 89(2) provides: "At a conciliation or listing conference or directions hearing the court may make any order or do any act or thing that it is empowered to make or do under these rules." Rule 89(2) cannot authorise the Court to do anything at a conciliation conference which is not authorised by s.27. The powers provided to the court by Rule 89(2) must be read down so as not to exceed the power vested in the Court by s.27. Thus, although the Court is empowered to order judgment in the circumstances provided in the Rules, the Court has no power to enter judgment at a conciliation conference other than with the consent of the parties. 7. The breach of the rules of natural justice lies in the failure to give the appellant reasonable notice of the application for summary judgment. The rules of natural justice require reasonable notice to be given of a hearing and the issues to be dealt with: R v North; ex parte Oakey (1927) 1 KB 491; Barnes v Oliver (1970) 16 FLR 366. That principle is obviously reflected in the Magistrates Court (Civil) Rules, which provide that a party seeking an order must make an application, serve an affidavit in support, and give four clear days notice of the application to the other party: see Rule 64. The appellant had not been served with the application for summary judgment. He came to the court expecting to participate in a conciliation conference, not to meet an application of this kind. There was no basis upon which the magistrate could have abridged the time for hearing the application for summary judgment. The failure of the magistrate to observe the rules of natural justice also leads to the conclusion that the orders made on 17 August were a nullity: Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242, 277. 8. For these reasons, the appeal will be allowed. The judgment entered for the respondent on 17 August 1992 and the orders for costs made on that date will be set aside. The matter will be remitted to the Magistrates Court (Civil Division) for further consideration and determination. The parties have agreed the orders which should be made to enable the action to proceed in the Magistrates Court. There is no need for the respondent to issue a fresh application for summary judgment. There will be orders as follows:
    1. Appeal allowed.
    2. The judgment and other orders entered in this action on 17
    August 1992 are set aside.
    3. The action is remitted to the Magistrates Court (Civil
    Division) for further consideration and determination.
    4. The appellant shall within 14 days of this date file and
    deliver such affidavit as he may be advised in answer to the
    respondent's application for judgment dated 14 August 1992.
    I will hear the parties as to the costs of this appeal. 9. Before leaving this matter, I should add that I think it would be appropriate to amend the form of the notice of a conciliation conference. In its present form, the notice does not inform the parties of the kind of matters which will be dealt with at a conciliation conference. Many of the parties in actions in the Magistrates Court will not have legal representation and will not be aware of what the Rules provide concerning the matters to be dealt with at the conference. It is desirable, therefore, that these persons should be informed, at least, of the matters listed in Rule 89(5). Parties attending the conciliation conference will then be informed of what they might expect to be dealt with at the conciliation conference and might be a little more able to deal with them.