ASKARI v Nassiri

[2025] SADC 55

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil: Minor Civil Review)

ASKARI v NASSIRI

[2025] SADC 55

Reasons for Ruling of his Honour Judge Soulio  (ex tempore)

14 March 2025

MAGISTRATES - APPEAL AND REVIEW

Review of a Minor Civil Decision pursuant to s 38 of the Magistrates Court Act 1991 (SA).

Appellant seeks review of Magistrate's decision dismissing the applicant's claim against the respondent. Application dealt with as application to set aside default judgment in favour of respondent.

HELD:  Application granted. Default judgment set aside. Matter remitted to the Magistrates Court to be determined on the merits.

Magistrates Court Act 1991 (SA) s 38, referred to.
Watson v Anderson (1976) 13 SASR 329, considered.

ASKARI v NASSIRI
[2025] SADC 55

[Minor Civil Review]

Introduction

1. The claim by the applicant is a claim for work done. The amount of the claim, as expressed in the original claim, was for $8,676.25. I note that there is a dispute about the quantum of the invoice rendered and there is a dispute raised on the defence and counterclaim as to the quality of the work performed and remedial work required. The defence refers to the rectification of the allegedly defective works costing over $13,000, but then amended that to seek an amount in excess of $40,000.

   Application

2. This matter comes before me on a Notice of Review, seeking a review of a decision of a magistrate made on 21 May 2024. On that date the magistrate, amongst other things, ordered that the respondent’s counterclaim be amended and increased to the sum of $40,000. That, in my view, had the immediate effect that the action was no longer a minor civil claim, being a counterclaim in excess of the monetary limit for such claims.

3. The magistrate said that the amendment of the counterclaim had been allowed, so that in the event that the applicant's claim was on a future date reinstated, the respondent's position was protected.

4. The magistrate noted that the respondent then elected to withdraw the counterclaim provided the applicant’s claim was dismissed.

5. The magistrate dismissed the applicant’s claim on the basis that he had failed to attend a directions hearing within 15 minutes of the appointed time.

6. As I have said, I consider that the order that the counterclaim be extended beyond the monetary limit of a minor civil claim meant that the matter was in the ordinary list at the Magistrates Court.

7. I consider that the most expedient course is to sit as a magistrate pursuant to s 22 of the Magistrates Act, and treat the Notice of Review as an application to set aside the default judgment, that is, the dismissal of the applicant’s claim.

8. I note that the Notice for Review was issued within three weeks of the default judgment. There was no evidence before me as to the reason that the applicant did not attend the trial, other than a brief statement in the Notice of Review apologising for the lack of appearance due to “workload and completely forgetting about the hearing date”. The applicant requested the magistrate provide another opportunity for a hearing date for the trial.

9. I provided an opportunity for the applicant to give evidence on oath. Having done so I note that the trial was listed for hearing on 7 May 2024. On 6 May 2024, according to the record of outcome, the parties were advised that the matter could not proceed on that date, and the matter was relisted for directions on 15 May 2024. On 9 May 2024 the parties were again emailed advising that the directions hearing on 15 May 2024 could not proceed, and the matter was relisted for 21 May 2024. That, on the face of the record, could only have been an adjourned directions hearing.

10. The applicant did not attend that adjourned directions hearing.

11. Having considered the nature of the claim, the material available, and the interlocutory process undertaken, I consider that the applicant has an arguable claim,[1] and that the reason for his non-attendance, given by way of evidence on oath, is understandable, particularly having regard to his lack of familiarity with the court process, and the fact that the trial had been adjourned by the court of its own motion, and the matter had been relisted for directions hearings on two occasions by the court of its own motion.

    [1]    See Watson v Anderson (1976) 13 SASR 329.

12. Having regard to the merits of the claim, and the reasons for non-attendance to which I have referred, I consider that the particular circumstances of this matter justify setting aside the default judgment which had been granted, in favour of the respondent.

13. Accordingly, that default judgment is set aside. The respondent's counterclaim may be filed in accordance with the original order of the magistrate, if the respondent so decides.

14. I remit the matter to the Magistrates Court for listing for a directions hearing at a time and date to be notified to the parties by the registry of the Magistrates Court.

15. I reserve to the magistrate dealing with the matter henceforth the question of an award of costs thrown away to Mr Nassiri by virtue of the applicant's non-attendance at the directions hearing on 21 May 2024, and of the hearing today.