Argentieri v Andersons Solicitors - [2018] SADC 142

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
ARGENTIERI v ANDERSONS SOLICITORS
[2018] SADC 142
Judgment of His Honour Judge Tilmouth
19 December 2018
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - NATURE OF RIGHT - SCOPE AND EFFECT OF APPEAL
Held: The order of a Magistrate refusing to set aside a default judgment rescinded on the basis that the Magistrate failed to accord procedural fairness by offering the applicant an adjournment to place supporting material before the court and to consider obtaining legal representation. The decision of the Magistrate is nevertheless upheld on the merits, so the application for review is dismissed.
Magistrates Court (Civil) Rules 2013 (SA) r 2, r 13(4) r 47(1), r 60(1), r 61(1), r 87, r 103(1), r 104(1), 108(1); Real Property Act 1936 (SA) s 26; Magistrates Court Act 1991 (SA) s 38(1), s 38(4), s 38(7); Law of Property Act 1936 (SA), s 26(2); Legal Practitioners Act 1981 (SA) Sch 3 cl 37, referred to.
Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203; Saunders v Esanda Finance Corporation Ltd (Unreported, Supreme Court of South Australia, 31 May 1996, S 5631, applied.
Pipikos v Trayons (2018) 359 ARL 210; [2018] HCA 39; Aveling v Knipe (1815) 34 ER 580; Stephenson Nominees Pty Ltd v Official Receiver (1987) 16 FCR 536; Avco Financial Services Ltd v White [1977] VR 561; Snel v Beenham [2017] SADC 51; Plos v Mroz [2015] SADC 87; Stegbar Pty Ltd v Piscioneri [2016] SADC 47; Atkins v O'Brien [2018] SADC 93; Cubelic v T & D Lock Pty Ltd t/as Top Cat Landscaping [2009] SASC 397; SA Repairs & Painting Pty Ltd v Trenka Pty Ltd (1993) 171 LSJS 300; Hanson Construction Materials Pty Ltd v Vimwise Civil Engineering Pty Ltd (2005) 12 BPR 23,355; Warden v Mortgage House No 1 Pty Ltd (2006) 13 BPR 24,375; Bellissimo v JCL Investment Pty Ltd [2009] NSWSC 1260; Cradock v Scottish Provident Institution (1893) 69 LT 380; Pettitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Trittenheim Pty Ltd, Heaney & Heaney v H & H Gill Nominees Pty Ltd (1994) 63 SASR 434; Russito Pty Ltd v Russo (1993) 173 LSJS 14; Park v Evans (1993) 173 LSJS 432; Bayram v Benton (t/as Digital Dynatronics Australia) (1994) 98 NTR 1; Davies v Pagett (1986) 10 FCR 226; Browne v Browne (Unreported No 2828 10/5/1991; BC9100450, 25); Watson v Anderson (1976) 13 SASR 329; Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 92 ALJR 248; Mahon v Air New Zealand Ltd [1984] AC 808; Koutalis v Pollett (2015) 235 FCR 370, considered.

ARGENTIERI v ANDERSONS SOLICITORS
[2018] SADC 142
The issues

Biagio Argentieri brings this application for the review of a decision made in the exercise of the minor civil jurisdiction of the Adelaide Magistrates Court, refusing his application to set aside a default judgment entered against him.
The central issues calling for resolution are whether reviewable error is demonstrated and if it is, what the appropriate order is to substitute in its stead.
Proceedings in the Magistrates Court
By an originating claim filed on 13 April 2018, Andersons Solicitors,[1] brought proceedings against Mr Argentieri for the recovery of legal fees of $4,570.83, pursuant to an invoice dated 29 September 2017. The fees related to work undertaken between 26 July and 26 September 2017 for the provision of ‘urgent professional legal services’ to Mr Argentieri in respect of District Court proceedings then on foot. Those proceedings were set for further hearing on 28 July 2018 at 2.00 pm. Andersons’ claim alleges a retainer and costs agreement was executed on 26 July 2018 pertaining to his application to extend the time for lodging a caveat over real property situated in Prince Street, Alberton.
[1] ABN 40 487 571 470
The court file notes the claim was served by way of pre-paid post on 17 April 2018, as permitted by MCCR 47(1)(a) of the Magistrates Court (Civil) Rules 2013 (SA). Hence the 21 days expired on 9 May 2018. No defence being filed within 21 days of service as required by MCCR 60(1), Andersons applied to a Registrar of the Magistrates Court to sign judgment in default. A Registrar of the court duly signed judgment in default the same day, that is on 17 May 2018 in the sum of $4,963.83, including costs of $393, by exercising the power contained in MCCR 61(1)(a) with respect to claims in debt.
On 5 July 2018 Mr Argentieri filed an interlocutory application seeking to set aside, on the basis that he ‘has a valid, arguable defence and counter-claim’. It annexed an affidavit in which he deposed:
…
2.The Defendant says that for an innocent and inadvertent error, the Defendant failed to file its defence in the allocated time and otherwise says that it has a valid defence and counter claim against the Plaintiff.
3.On 25 July 2017, the Defendant admits that he attended at the plaintiffs’ offices and provided the Plaintiff with detailed instructions by way of a comprehensive DRAFT affidavit in preparation for the Plaintiff to represent the Defendant at a Directions Hearing scheduled at 2:00pm on 28 July 2017 before a Master in the District Court.
…
9.On 28 July 2017, the Plaintiff attended with the Defendant at the District Court where the extension of the caveat was to be decided by the Court. At that attendance, and contrary to the Defendants explicit and prior instructions, the Plaintiff stated to the presiding Master, amongst other things, that he had no instructions from the Defendant.
…
12.As a direct consequence of the Plaintiffs wrongful statement and failure to file the Defendants affidavit and or present them to the Master on 28 July 2017, the Defendants application to extend the caveat was dismissed.
…
19.The defendant has suffered loss and damage arising out of the Plaintiffs actions and or inaction and that are yet to be determined.
One appreciates the proposed defence was based on alleged legal negligence.
The application to set aside
The power to set aside default judgments is conferred by MCCR 87 in the following terms:
87.(1)     The Court may set aside or vary a judgment (not being a final judgment.)
(2)     The Court must not set aside such a judgment unless the party seeking to set it aside establishes that he or she –
(a)     has an arguable case on the merits; and
(b) has a reasonable excuse for not having complied with these Rules…, or any time limit fixed by these Rules…, in respect of the action or proceeding.
A further power to set aside in the case of an irregularly obtained default judgment is contained in MCCR 104(1)(b)(iv), but that power was not engaged in this instance. The capacity of the Magistrates Court to set aside, depends upon satisfaction of both limbs of MCCR 87(2), namely an arguable case on the merits and that reasonable excuse exists for not filing a defence within the prescribed time: SA Repairs & Painting Pty Ltd v Trenka Pty Ltd.[2]
[2] (1993) 171 LSJS 300, 302-303.
The application to set aside came before the Magistrate on 25 July 2018.[3] It was disposed of in a matter of minutes. It was opposed on the basis that there was no material before the court outlining an excuse for not filing a defence. As to this topic Mr Argentieri advised the court:[4]
I was unaware of it – I had so many things going on. I found out late. I had someone helping me with this and it is just getting beyond me. I mean I originally went to get some help. I had one meeting and eight minutes in court and that was it.
[3] Andersons Solicitors v Argentieri, Biagio Wednesday 25 July 2018 No. AMCCI-18-1157.
[4] T2.17-.21.
Her honour immediately turned to the question of demonstrating ‘a bona fide defence’, explaining to him ‘it seems to me that this is really an argument over how much is owed …’ She then indicated:[5]
… at this stage without any affidavit and material as to why you didn’t file your defence in time, I am not prepared to grant the application … what was the reasons why you didn’t file it.
[5] T2.32-.36.
Mr Argentieri responded: ‘… my mistake. I had too much going on and I just couldn’t keep track of it all’.[6] At this the Magistrate indicated ‘this is not going to be a sufficient excuse I am afraid … I will dismiss the application’.[7]
[6] T2.37-.28.
[7] T3.1-T.113.
The application for review
In an affidavit filed in support of the application for review, Mr Argentieri confirms that he attended Andersons on 25 July 2017 and provided them with ‘detailed instructions by way of a comprehensive draft affidavit in preparation’ for the directions hearing in the District Court on 28 July 2017 at 2.00 pm. It continues to repeat essentially the same matters already advanced in his affidavit filed in the Magistrates Court. He further claims a proposed affidavit was given to him beforehand on the 28th and discussed at length at that time. This affidavit was meant to support the survival of the caveat. His case in defence of the action remains based on the premise that Andersons ‘knew or ought to have understood that they represented detailed instructions’ for them to proceed at the hearing on 28 July.
In the draft affidavit provided to Mr Monteleone of Andersons, he claims to have lent $100,000 to a Mr Landolfi in 2003, that it was repayable over a period of three years and advanced ‘to invest in and develop real property’ and that he lent Mr Landolfi ‘$100,000 to invest in and develop the property’. He referred to a number of subsequent loans in lesser amounts, and he made reference to an irrevocable authority for the payment of $20,000 executed on 27 February 2017, repayable on settlement of the subject property.
Mr Monteleone gave Mr Argentieri a copy of a letter from the solicitors for Mr Landolfi maintaining that ‘the caveat has no legal standing as there was no written agreement’ as required by s 26 of the Real Property Act 1936 (SA). That of course was not a valid objection since there can be no doubt there was part performance by way of repayments: Pipikos v Trayans.[8] This letter pointed out that Mr Landolfi was incurring monthly mortgage repayments of $2,983, that the caveat was holding up sale of the property and that his Bank may take action as mortgagee in possession.
[8] (2018) 359 ALR 210; [2018] HCA 39, Law of Property Act 1936 (SA), s 26(2).
An affidavit of Mr Monteleone filed in the Magistrate Court stated that he ‘did not have all the relevant information before me to settle the affidavit’. He denied representing to the District Court Judge ‘that he had no instructions from the defendant’.
During the course of the application for review filed in the District Court on 7 August 2018, Mr Argentieri described being in negotiations and in settlement discussions over the loan dispute between the times he was served with the action and the time for filing a defence, and that he did not ‘knowingly or negligently fail to file his defence and counter-claim in time’. Andersons’ written submission in this court points out that he did not provide a draft defence at the hearing before the Magistrate, and it maintains that since there was no evidence before that court supporting the reasons for failing to provide a defence, the Magistrate correctly dismissed the application to set aside.
The underlying District Court action
The proceedings between Mr Argentieri and Mr Landolfi, seeks to enforce an original loan of $100,000.[9] The record shows the time for removal of the caveat over the subject property was extended on 2 and 16 June 2017, and on 5 July and on 18 July 2017, by the same Judge. At the hearing of 28 July 2017, Mr Monteleone now appearing for Mr Argentieri, applied for an adjournment to enable him to read the papers, given that the plaintiff was ‘self-represented to this stage’, and given that he was just instructed the previous Wednesday (this hearing was on the following Friday).[10] Counsel for Mr Landolfi, maintained the position that there was no caveatable interest.
[9] Biagio Argenteri v Dominic Landolfi , DCCIV-17-780.
[10] T10.20-10.27.
In the event his Honour made no order with respect of the application to extend the caveat, which meant that it lapsed. He directed Mr Argentieri to file a Statement of Claim by close of business Thursday 31 August 2017. It is apparent that what moved the Judge to take that course appears from what he said to Mr Monteleone at the time:[11]
HIS HONOUR: Mr Monteleone, I haven’t considered the merits of this. The fact remains it is six or seven weeks since the matter was before me. I’ve encouraged your client on every occasion without being able to give legal advice to obtain legal assistance and Mr Lazarevich has a point. Each time he has come along and I have simply adjourned it at his request. You may well be barking up the wrong tree when it comes to the remedy. This is a debt. Anyway, I’m not going there at this stage.
What are you asking me to do, Mr Lazarevich; simply make no order?
MR LAZAREVICH: Simply make no order …
[11] T11.19-T11.30.
The merits of the District Court Action
It is with respect, somewhat surprising that the Judge summarily dismissed the application to extend the caveat, since there had been no argument as to whether there was a caveatable interest or not. It was not correct to observe that proceedings were adjourned each time at the request of Mr Argentieri. On 2 June 2017 an order was made extending the caveat for two weeks, there being no appearance by or for Mr Landolfi. The caveat was next extended on 16 June 2017 at the request of defence counsel, who sought seven days to file an affidavit in response, and at the same time intimating that argument on the point would take ‘at least half an hour’.[12] On 3 July 2017 the proceedings were adjourned again at the request of defence counsel. At this time Mr Argentieri was counselled by the Judge to obtain legal advice.
[12] T2.21-2.28, 16 June 2017.
He appeared again unrepresented before the same Judge on 18 July 2017, when the caveat was further extended and when again the Judge urged him to obtain legal advice. The Judge added the proviso that ‘at the end of that time the caveat would end if you hadn’t taken any proceedings for other relief by that time’ and ‘you are going to have to get cracking …’ And he was further warned that there was ‘a valid point … that you may not have a caveatable interest’.[13]
[13] T6.16-6.18, 7.24-7.32, 18 July 2017.
By this time the Judge was provided with a written submission on behalf of the defence, which was only served on Mr Argentieri late the night before. Proceedings were adjourned on this occasion because of the Judge’s intimation for Mr Argentieri to ‘take these submissions to a solicitor and obtain some advice’.[14] This was not opposed by defence counsel in fairness to Mr Argentieri, and ‘because the material was only delivered late’.
[14] T6.23-6.26.
Defence on the merits
The transcript of 28 July 2017 conclusively demonstrates that Mr Monteleone did not say that ‘he had no instructions’, or anything like it. He in fact advised the court:[15]
… I haven’t had the opportunity to go through the defendant’s affidavit so what I was respectively requesting was an adjournment to allow me to file a responding affidavit on behalf of the plaintiff given he has been self-represented to this stage, so basically his first affidavit, which I have just been kindly provided by my friend, might have some errors or misconceptions in there.
The alternative, I know the plaintiff hasn’t given an undertaking as to damages and I note on the last occasion your Honour asked. My client is quite willing for the caveat to be removed, for the first mortgagee to be paid out their due amount and for the balance to be deposited into the District Court suitors fund and any further orders of this court.
and he added soon after:[16]
I just haven’t had the time to go through it. The defendant would not be prejudiced. The plaintiff would be prejudiced if the money was not to be deposited into the suitors fund to the extent of the loan amount.
Although not mentioning it, one assumes his Honour was against payment into court for similar reasons.
[15] T10.20-10.34.
[16] T11.14-11.18
Based on this course of events, there is simply no sufficient basis on which to defend Andersons’ action on account of negligence. It was prudent to defer filing an affidavit on behalf of Mr Argentieri without first taking instruction on the materials filed by the defendant. Mr Monteleone would have every reason to expect the matter was to be set for argument on the outstanding caveatable interest issue, given the earlier intimation by defence counsel as to taking that course.
Insofar as the dismissal of the application to extend the caveat might or might not be considered too pre-emptory, the remedy was in an appeal. It was in any event well within the Judge’s discretion to so act, given the protracted nature of the proceedings, in light of ‘threats that the Bank may take action as mortgagee in possession’ and that ‘no undertaking as to damages has ever been provided.[17]
[17] T10.7-18, 28 July 2018, Mr Lazarevich.
There was in these circumstances no actionable negligence on the part of what Andersons did or did not do at this hearing. It follows that the proposed defence was without merit. Given this conclusion it is not strictly necessary to resolve the question of the interest in land, and yet it is in the circumstances desirable to say something about it.
Caveatable interest
The question of a caveatable interest rests on the ostensibly slender basis of a loan to a relative ‘to invest in and develop real property’, without the specification of any particular property in question. The caveat itself was worded in vague terms:
The caveator claiming to be beneficially entitled to an estate in fee simple in some at present indefinable share or shares in the land above described having contributed a portion of the monies required for the purchase, improvements or maintenance of the said land.
It is doubtful these words comply with fundamental requirements for a caveator to fully and properly describe the interest claimed: Hanson Construction Materials Pty Ltd v Vimwise Civil Engineering Pty Ltd,[18] Warden v Mortgage House No 1 Pty Ltd,[19] Bellissimo v JCL Investment Pty Ltd.[20]
[18] (2005) 12 BPR 23,355, [28].
[19] (2006) 13 BPR 24,375, [15].
[20] [2009] NSWSC 1260, [7].
There is very little evidence that any particular property was mentioned or was in mind when the loan was advanced. The written submissions filed in the Landolfi proceedings by counsel for the defendant admits a loan of $100,000 in 2003, but asserts there were no particular terms of repayment. It points out that there was no assertion of any agreement to charge any particular property as security. The submission admits use of the loan to fund renovations to the subject property, a property that cost $241,000 and on which $300,000 was spent in renovations. The submission further admits substantial repayments and hence part performance.
This submission also points to the principle that unless a caveator can demonstrate an express trust in land in his favour, the relationship will be limited to donor and donee, or lender and borrower and no more, a proposition supported by reference to Aveling v Knipe,[21] and Stephenson Nominees Pty Ltd v Official Receiver.[22] In considering whether a caveatable interest exists, the court is required to fairly gather from the instrument or agreement in question, an intention by the parties that the property in question should constitute a security’: Avco Financial Services Ltd v White,[23] Cradock v Scottish Provident Institution.[24]
[21] (1815) 34 ER 580.
[22] (1987) 16 FCR 536.
[23] [1977] VR 561, 563.
[24] (1893) 69 LT 380, 382.

It is difficult to garner from the bare facts relied upon by Mr Argentieri, that it was intended the property subsequently purchased was intended to provide security for the loan(s). It is therefore more than likely that he was bound to fail to establish a caveatable interest in the subject property. His counsel in the review proceedings did not contend otherwise.
The judgment under review
These conclusions return the inquiry to a consideration of the merits of the decision of the Magistrate to refuse the application to set aside the default judgment. As indicated above, the hearing was quite short. No formal reasons were given. The power to set aside judgment is that furnished by MCCR 87(1)(2) in cases involving judgments obtained in a default of an appearance or a defence. The powers of disposition on review are those contained within s 38(7)(d) of the Magistrates Court Act 1991 (SA), essentially of affirmation or recession. The power to remit only arises in the case of default or summary judgments: s 38(7)(d)(iii)(B). For the reasons explained in Snel v Beenham,[25] this power arises in the circumstances of this case because the refusal to set aside the default judgment is effectively a final judgment. In any case the circumstances amount to a review arising ‘from a default judgment’: s 38(7)(d)(iii) Magistrates Court Act.
[25] [2017] SADC 51, [7].
Putting to one side and without resolving whether the hearing before the Magistrate amounted to a sufficient ‘enquiry … into the matters in dispute’ as required by s 38(1)(a) of the Magistrates Court Act, several procedural issues call for closer examination. The very existence of the right of review demonstrates that the ordinary incidents of the judicial process are engaged. Accordingly courts exercising the minor civil jurisdiction remain ‘subject to the requirements of procedural fairness’: Uelese v Minister for Immigration and Border Protection,[26] and Plos v Mroz.[27] This requirement is regarded as an essential aspect of the exercise the judicial process itself: Pettitt v Dunkley,[28] and Soulemezis v Dudley (Holdings) Pty Ltd.[29] Procedural fairness is moreover an essential characteristic of the exercise of the minor civil jurisdiction inherent in the statutory remit contained in s 38(1)(f) of the Magistrates Court Act, to:
… act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
See Trittenheim Pty Ltd, Heaney & Heaney v H & H Gill Nominees Pty Ltd,[30] Russito Pty Ltd v Russo,[31] Park v Evans.[32]
[26] (2015) 256 CLR 203 [102], and the authorities referred to therein footnote 64.
[27] [2015] SADC 87, [32].
[28] [1971] 1 NSWLR 376, 388 and 390.
[29] (1987) 10 NSWLR 247
[30] (1994) 63 SASR 434, 441-442.
[31] (1993) 173 LSJS 14, 23-24.
[32] (1993) 173 LSJS 432, 435-436.
The requirements of procedural fairness entails the duty to give adequate reasons: Koutalis v Pollett,[33] Plos v Mroz,[34] Snel v Beenham,[35] and Stegbar Pty Ltd v Piscioneri.[36] However the reasons are plain enough from the record quoted earlier. Nevertheless, whilst MCCR 103(1) provides that the court ‘must give reasons for final judgment after the conclusion of a contested hearing’, it remains desirable when making interlocutory orders having the effect of disposing of an action, for Magistrates to give brief reasons so as to enable the review court to adequately perform the function of appellate review: Atkins v O’Brien.[37]
[33] (2015) 235 FCR 370, [40].
[34] [2015] SADC 87, 32.
[35] [2017] SADC 51, [9].
[36] [2016] SADC 47, [32].
[37] [2018] SADC 93, [12].
The requirements of procedural fairness equally entail the necessity of allowing the parties a sufficient opportunity to put their cases on the merits: Bayram v Benton (t/as Digital Dynatronics Australia).[38]So much was made clear by Lander J in Saunders v Esanda Finance Corporation Ltd,[39] in the very context of both MCCR 87(2)(a) & (b):
The fundamental duty of the court is to do justice between the parties. It is, in turn, fundamental to that duty that the parties should each be allowed a proper opportunity to put their cases upon the merits of the matter. Any limitation upon that opportunity will generally be justified only by the necessity to avoid prejudice to the interests of some other party, occasioned by misconduct, in the case of the party upon whom the limitation is sought to be imposed. (Davies v Pagett)
[38] (1994) 98 NTR 1
[39] (Unreported, Supreme Court of South Australia, 31 May 1996, S 5631).
In the case of Davies v Pagett[40] referred to by Lander J, Morling, Beaumont & Wilcox JJ held:
… speaking generally, the cases show that a defendant who has an apparently good defence should not be refused the opportunity of defending, even though a lengthy interval of time has elapsed, provided that no irreparable prejudice is thereby done to the plaintiff (see Atwood v Chichester (1878) 3 QBD 722 ; Rosing v Ben Shemesh [1960] VR 173 ; National Mutual Life Association of Australasia Ltd v Oasis Developments Pty Ltd [1983] 2 Qd R 441 at 449.
In similar vein, White J in Browne v Browne[41] observed that ‘… the court should ensure that the defendant is appraised of his rights and his duties at all times, and be vigilant to keep the proceedings free of error or misunderstanding.’
[40] (1986) 10 FCR 226, 231.
[41] (Unreported No 2828 10/5/1991; BC9100450, 25).
By telling Mr Argentieri that more was required than just mere assertion, her Honour no doubt had in mind the observations of Walters J in Watson v Anderson,[42] as applied by Duggan J in Cubelic v T & D Lock Pty Ltd t/as Top Cat Landscaping:[43]
… a mere statement by a defendant that he has a good defence is not sufficient to justify a review of the exercise of a judicial discretion. He must go further and demonstrate “a very compelling reason” for his failure to appear in the action, and, further, that he has a plausible defence either in law or in fact. True it is that on an application to set aside a judgment by default, the court does not pronounce on the law or the facts, but it seems to me that before allowing a defendant to come in and defend, the court should have before it materials which enable it to say how it came about that the defendant found himself bound by a judgment regularly obtained; that the defendant genuinely desires to be allowed to come in and present his case; and that issues are raised in such form as to require serious consideration of the defence which he would put forward. In the words of Jenkins LJ in Grimshaw v Dunbar “the judge is entitled to satisfy himself that the party applying has a bona fide intention of defending the action, and that there is some possibility of his doing so with success”.
[42] (1976) 13 SASR 329, 341.
[43] [2009] SASC 397.
This exercise does not however require the resolution of disputed questions of fact:[44] Furthermore as Lander J points out in Saunders v Esanda Finance Corporation Ltd:[45]
In the circumstances where both of the matters referred to in the rule have been made out, and the delay in the application explained, and no real prejudice established, it would be appropriate to exercise the Court’s discretion in favour of the appellant.
[44] (1976) 13 SASR 329 at 334, per Bray CJ
[45] (Unreported, Supreme Court of South Australia, 31 May 1996, S 5631).
Clearly Mr Argentieri was not afforded any realistic opportunity to comply with the requirements of MCCR 87(2)(a) & (b), even though his affidavit amounted effectively to a draft defence and counter-claim. The issues raised in it were essentially questions of fact. In it he put forward a sufficient factual basis for defending the claim for legal fees, and potentially circumstances which might amount to a caveatable interest in the subject property.
The only reasonable course to adopt in those exigencies in order to give due effect to the principle of fairness, was to adjourn the proceedings to afford him the opportunity to remedy any shortfall in the material put forward by him, before summary dismissal. The application for review must succeed on this ground alone, because the failure to afford procedural fairness is recognised as a species of jurisdictional and hence appealable error: Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd,[46] and Mahon v Air New Zealand Ltd.[47]
[46] (2018) 92 ALJR 248, [72]-[75].
[47] [1984] AC 808, 820.
The same result comes about for an additional reason. Andersons were represented by a legal practitioner, a Senior Solicitor in the firm. This gave rise to the potential for Mr Argentieri to seek legal representation, pursuant to s 38(4)(a)(i) of the Magistrates Court Act. This provides:
(4)     The following provisions govern representation in minor civil actions:
(a)     representation of a party by a legal practitioner will not be permitted unless—
(i)    another party to the action is a legal practitioner; or
(ii)    all parties to the action agree; or
(iii)the Court is of the opinion that the party would be unfairly disadvantaged if not represented by a legal practitioner;
This provision applies equally to the right of representation in the review process in the District Court under s 38(7)(a) of the Magistrates Court Act. It is for that very reason Mr Argentieri was offered an adjournment to obtain legal assistance, an offer he accepted. In this respect Magistrates are further required to consider whether the want of legal representation leaves the unrepresented party ‘unfavourably disadvantaged’ and to weigh the several matters referred to in MCCR 13(4), namely:
13(4)In deciding whether a party would be unfairly disadvantaged in a minor civil action, if not represented by a legal practitioner, the Court must have regard to whether—
(a)     the party has a judgment in his/her favour in the action,
(b)     the party will suffer undue expense or inconvenience in attending,
(c)     the party is unable to attend due to ill health,
(d)     any other proper cause exists.
The Magistrate plainly failed to advert to this consideration in this particular instance and obviously did not draw these options to the attention of Mr Argentieri, or afford him an opportunity to obtain legal assistance. As explained in Atkins v O’Brien,[48] Magistrates are required in the due discharge of the minor civil jurisdiction, to consider the question of legal representation when it arises and to discharge the function of determining whether a party would be unfavourably disadvantaged if not represented.
[48] [2018] SADC 93, [27].
Due exercise of the powers of review
The powers of disposition on review are those contained in s 38(7)(d) of the Magistrates Court Act 1991 (SA). As demonstrated above, the power of remission arises in circumstances such as these because the refusal to set aside a default judgment is in effect a ‘final judgment’, that is ‘a summary judgment’ within in the meaning of MCCR 2: Snel v Beenham.[49]
[49] [2017] SADC 51, [7].
It follows from these observations that in the ordinary course of events, it was otherwise appropriate to order remission so as to permit Mr Argentieri the opportunity to file the requisite material to support the claim to an arguable case (even though the draft defence was sufficient for that purpose), to better explain his failure to file a defence and for a Magistrate to determine the question of legal representation. All the same for the reasons explained above, that course is a futile one. The appropriate course then is to allow the application for review but to order that it be dismissed on the merits.
Conclusion and orders
For all of the above reasons, the application for review must succeed on procedural grounds and the decision made on 25 July 2018 rescinded, pursuant to s 38(7)(d)(ii) of the Magistrates Court Act. Since Mr Argentieri is unable to demonstrate a reasonable defence to the claim in debt is open to him on the merits, the most practical option is to substitute an order dismissing the application for review, pursuant to s 38(7)(d)(iii)(A) of the Magistrates Court Act.
As Mr Argentieri succeeds in part and fails in part, and as there was some merit in bringing the application for review at least on procedural grounds, it is inappropriate to make any order for cost in either court, other than for Andersons to pay Mr Argentieri his court fees for filing the application for review of $163.00.
Insofar as there remains any residual dispute as to the quantum of the fees charged, that is a matter for resolution by taxation under MCCR 108(1), or potentially pursuant to clause 37 of the third Schedule to the Legal Practitioners Act 1981 (SA).