Attorney-General (SA) v Marmanidis

[2019] SASCFC 3

Supreme Court of South Australia

(Full Court)

ATTORNEY-GENERAL (SA) v MARMANIDIS

[2019] SASCFC 3

Judgment of The Full Court

(The Honourable Justice Blue, The Honourable Justice Nicholson and The Honourable Auxiliary Justice Tilmouth)

17 January 2019

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - DEFAULT JUDGMENT - SETTING ASIDE - GENERALLY

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS - ACTIONS TO REVIEW OR SET ASIDE JUDGMENT OR ORDER  - WHERE JUDGMENT OR ORDER MADE IRREGULARLY, ILLEGALLY OR AGAINST GOOD FAITH

ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - DISCRETION NOT TO ENTERTAIN APPLICATION

In July 2013 the second respondent Mr Germein issued in the Magistrates Court a minor civil claim against the first respondent Dr Marmanidis for damages of $2,080 arising from an alleged collision between his Alfa Romeo and her BMW caused by her negligent driving on 21 November 2012. The damages comprised $1,589 cost of repairs, in respect of which Mr Germein attached an RAA Insurance internal document, and $491 cost of hire car, in respect of which Mr Germein did not attach any document. The claim was to be served by post by the Court.

In August 2013 Mr Germein requested the entry of default judgment for $2,080 plus costs, which judgment was entered by the Registrar. Subsequent steps were taken to attempt to enforce the judgment, culminating in the issue of a warrant of sale of Dr Marmanidis' house, which was executed by the Sheriff in April 2016.

In July 2016 Dr Marmanidis applied to set aside the default judgment supported by an affidavit in which she denied receipt of the claim and denied liability. She subsequently gave oral evidence and filed a further affidavit in which she denied that she was involved in a collision in her BMW on 21 November 2012 or any collision in any motor vehicle since 2006. Mr Germein filed an affidavit in which he said that his vehicle was involved in a collision with the BMW driven by Dr Marmanidis and that following the accident scene he exchanged details with the driver of the BMW.

In October 2016 a Magistrate dismissed the application. The Magistrate found that Dr Marmanidis had not received the claim but she failed to establish an arguable case on the merits or a reasonable excuse for not having complied with the Magistrates Court Rules 2013.

In October 2016 Dr Marmanidis filed a notice of appeal in the Supreme Court appealing against the Magistrate’s decision. As no appeal lies to the Supreme Court against a decision in a minor civil action, this was converted by consent to a judicial review action.

In October 2016 a Judge heard the judicial review action. The Attorney-General intervened pursuant to section 9 of the Crown Proceedings Act 1992 and submitted that it was or would have been preferable for the matter to have proceeded by way of minor civil review rather than judicial review.

In July 2017 the Judge held that the default judgment was irregular because Mr Germein had not served with the claim a copy of an invoice for the hire car cost component of the claim as required by rule 61 and quashed the default judgment.

The Attorney-General appeals, supported by a cross-appeal by Mr Germein, on the ground amongst others that there was a denial of procedural fairness because they were not afforded an opportunity to make submissions on quashing the 2013 default judgment as opposed to quashing the Magistrate’s 2016 decision.

Held:

1. (per Blue J and Tilmouth AJ, Nicholson J not deciding) There was a denial of procedural fairness. The Full Court should determine the parties’ contentions on the merits (at [72] per Blue J and [209]-[210] per Tilmouth AJ).

2. (per curiam) Ordinarily the Court should not entertain an action for judicial review of a decision by a Magistrate when there is available an alternative remedy by way of minor civil review. However, the position is complicated by the fact that Mr Germein consented at the outset to the matter proceeding by way of judicial review and the point was not raised by the Attorney-General until the day of trial (at [143]-[147] per Blue J and [204]-[206] per Tilmouth AJ, Nicholson J agreeing).

3. (per curiam) Mr Germein was not entitled to sign judgment at least in respect of the cost of the hire car because rule 61 required service with the claim of any relevant evidentiary material upon which the plaintiff is intending to rely and he did not serve an invoice or any other material in respect of that cost (at [82] per Blue J and [182] per Tilmouth AJ, Nicholson J agreeing).

4. (per curiam) The Magistrate’s failure to consider irregularity of the default judgment at least in respect of the cost of the car hire constituted jurisdictional error (at [115] per Blue J and [196]-[201] per Tilmouth AJ, Nicholson J agreeing).

5. (per Tilmouth AJ, Nicholson J agreeing). It was open to the Magistrate to conclude that Dr Marmanidis failed to establish an arguable case on the merits (at [192]-[195] per Tilmouth AJ, Nicholson J agreeing).

(per Blue J dissenting). It was not open to the Magistrate to conclude that Dr Marmanidis failed to establish an arguable case on the merits (at [128]-[139]). The Magistrate did not afford procedural fairness to Dr Marmanidis (at [117]-[118].

6. (per Blue J, Nicholson J and Tilmouth AJ not deciding) The Magistrate addressed the wrong question in considering whether Dr Marmanidis established a reasonable excuse for not having complied with the Rules and ought to have found that this was established (at [119]).

7. (per Tilmouth AJ, Nicholson J agreeing). The RAA Insurance document complied with rule 61(2) (at [180]-[181] per Tilmouth AJ, Nicholson J agreeing).

(per Blue J dissenting). The RAA Insurance document did not comply with rule 61(2) (at [85]-[92]).

8. (per Tilmouth AJ, Nicholson J agreeing). If the Magistrate had correctly addressed the issues, the Magistrate ought to have set aside the judgment to the extent of the amount of the cost of the hire car and remitted that aspect for assessment of damages under rule 62 (at [182] and [198]-[201] per Tilmouth AJ, Nicholson J agreeing).

(per Blue J dissenting). If the Magistrate had correctly addressed the issue, the Magistrate ought to have set aside the judgment and directed that the matter proceed to trial (at [105]-[108]).

9. (per Tilmouth AJ, Nicholson J agreeing). Judicial review should be refused in the exercise of the discretion (at [213]-[219] per Tilmouth AJ and [165]-[168] per Nicholson J).

(per Blue J dissenting). Judicial review should be granted to set aside the decision of the Magistrate refusing to set aside the default judgment and the Court should itself exercise the discretion to set aside the default judgment (at [149]-[153]).

10. (per Tilmouth AJ, Nicholson J agreeing). Appeal allowed. Judgment of the Judge set aside (at [221] per Tilmouth AJ, Nicholson J agreeing).

(per Blue J dissenting). The appeal should be allowed to the limited extent of substituting an order setting aside the decision of the Magistrate refusing to set aside the default judgment, setting aside the default judgment and directing that the matter proceed to trial (at [155]).

Building and Construction Industry Security of Payment Act 2009 (SA); Crown Proceedings Act 1992 (SA) s 9; District Court Act (1991) s 24; Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA) s 5; Magistrates Court Act 1991 (SA) s 38; Magistrates Court Rules 2013 (SA)  ss 3, 46, 47, 52, 60, 61, 62, 87, 101,103, 104; Supreme Court Civil Rules 2006 (SA) s 200, 200C; Supreme Court of Judicature Act 1875  (Eng & Wales), referred to.
Marmanidis v Germein & Anor [2017] SASC 103; Marmanidis v Germein & Anor (No 2) [2017] SASC 114, discussed.
Beck v Thornett  (1984) 6 ALN N209; Browne v Dunn (1893) 6 R 67; Burrell v The Queen (2008) 238 CLR 218; Clarke v Tull [2003] QB 36; Dearman v Dearman (1908) 7 CLR 549; Clone Pty Ltd v Players Pty Ltd (2018) 92 ALJR 399; FJ Hospital Enterprises Pty Ltd v Grimes & (1981) 35 ALR 93; Fox Tucker Lawyers v Panda [2018] SASC 197; Gideon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; Harradine v District Court of SA [2012] SADC 96; House v The King (1936) 55 CLR 499; Kenny v Ritter [2009] SASC 139; Kelly v Coats (1981) 35 ALR 93; Louth v Diprose (1992) 175 CLR 621; Mahon v Air New Zealand Ltd [1984] AC 808 ; Mandeville v Better Lending Pty Ltd [2016] SADC 146; Maxcon Constructions Pty Ltd v Vadasz (No 2) [2017] SASCFC 2; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; Minister for Immigration and Multicultural Affairs, Re; Ex parte Miah (2001) 206 CLR 57; Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; Probuild Constructions (Aust) Pty Ltd v Sharle Systems Pty Ltd (2018) 92 ALJR 248; R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres Pty Ltd (1949) 78 CLR 389; Re Refugee Review Tribunal, Ex parte Aala (2000) 204 CLR 82; Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138; SS Hontestroom v SS Sagaporack [1927] AC 37; Stead v State Government Insurance Commission (1986) 161 CLR 141; SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; Tooth & Co Ltd v Parramatta City Council (1955) 97 CLR 492; Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203; Watson v Anderson (1976) 13 SASR 329; Watson Specialised Tooling Pty Ltd v Sevens [1991] 1 Qd R 85; Weinel v Judge Parsons (1994) 62 SASR 501; Wilczynski v District Court of South Australia [2016] SASC 51, considered.

ATTORNEY-GENERAL (SA) v MARMANIDIS
[2019] SASCFC 3

BLUE J:  

1. The first respondent Dr Helen Marmanidis applied in the Magistrates Court to set aside a default judgment in favour of the second respondent Samuel Germein for $2,080 plus costs.[1] A Magistrate dismissed the application on the grounds that Dr Marmanidis failed to establish an arguable case on the merits or a reasonable excuse for not having complied with the Magistrates Court Rules 2013 (SA) (the Rules).

   [1]    All dollar figures are rounded to the nearest whole dollar.

2. In what became an action for judicial review, a Judge of this Court held that the default judgment was irregular because Mr Germein had not served with the Claim a copy of an invoice for the hire car cost component of the claim as required by rule 61 and quashed the default judgment.

3. At the outset of the matter, the question was raised whether it should proceed by way of judicial review or a minor civil review pursuant to section 38 of the Magistrates Court Act 1991 (SA) (the Act). Dr Marmanidis and Mr Germein expressed a preference that the matter proceed by way of judicial review and orders were made accordingly. Although Mr Germein subsequently expressed a preference that the matter proceed by way of minor civil review, he did not oppose its proceeding by way of judicial review and at no point took any procedural point or relied in any way on the form of the proceeding as a bar to relief.

4. At trial, the Attorney-General intervened or sought permission to intervene pursuant to section 9 of the Crown Proceedings Act 1992 (SA) (the Crown Proceedings Act). The Attorney-General made submissions after closing addresses by Dr Marmanidis and Mr Germein. The Attorney-General’s principal reason for intervening was to submit that it was or would have been preferable for the matter to have proceeded by way of minor civil review rather than judicial review.

5. The Attorney-General appeals, supported by a cross-appeal by Mr Germein, against the orders made by the Judge. They contend that they were not afforded an opportunity to address relief by way of quashing the default judgment as opposed to quashing the Magistrate’s order dismissing the set aside application. They contend that the Judge erred in exercising the discretion to quash the default judgment particularly given the consequences on the legality of enforcement steps taken in reliance on the default judgment. They also contend that the Judge erred in concluding that the default judgment was irregular.

6. If the Judge was correct in concluding that the default judgment was irregular, the question arises whether the Judge ought merely to have quashed the Magistrate’s order and determined the extant set aside application pursuant to the power conferred by section 5 of the Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA) (the Auxiliary Powers Act).

7. For the reasons which follow, the Attorney-General and Mr Germein were not afforded an opportunity to address relief by way of quashing the default judgment as opposed to quashing the Magistrate’s order and, as submitted by them, this Court should determine that question on the merits. The Judge nevertheless was correct in concluding that the default judgment was irregular and should not stand. However, the Judge erred in quashing the default judgment and ought instead to have quashed the Magistrate’s order and set aside the default judgment exercising the power conferred by the Auxiliary Powers Act.

8. It should be accepted that ordinarily this Court should not entertain an action for judicial review of a decision by a Magistrate when there is available an alternative remedy by way of minor civil review. If Mr Germein had opposed the matter proceeding by way of judicial review or if summary judgment had been sought at the outset on this ground, the matter would not have proceeded by way of judicial review and Dr Marmanidis would have been required instead to proceed by way of minor civil review.

9. However, the matter proceeded to a final hearing without any procedural point being taken by Mr Germein. If the matter had proceeded to a minor civil review, the default judgment would have been set aside. No prejudice will be created by quashing the Magistrate’s order and setting aside the default judgment rather than the matter proceeding to a minor civil review because the results would be the same.

10. Accordingly, the appeal should be allowed and the order quashing the default judgment should be set aside. In lieu thereof the Magistrate’s order should be quashed and the default judgment set aside on terms as to costs thrown away.

    Background

11. On 24 July 2013 Botten Dnistriansky Kellis (BDK), solicitors acting on the instructions of RAA Insurance Limited exercising subrogated rights, filed in the Magistrates Court a minor civil claim in the name of Mr Germein seeking damages of $2,080. The Claim pleaded that the damages were caused by the negligence of Helen Marmanidis in driving her BMW motor vehicle [registration no] on 21 November 2012 and colliding with his Alfa Romeo motor vehicle. The damages claimed comprised $1,589 cost of repairs and $491 cost of hire car. Attached to the Claim was an RAA Insurance document entitled “ARNIE” (the ARNIE document) relating to Mr Germein’s claim under his insurance policy referring to a sum of $1,589 for repair. No document relating to the hire car was attached.

12. BDK requested that the Claim be served by the Court by post. The Claim bears a stamp “Service by Post 31 July 2013”. However, it was found by the Magistrate that Dr Marmanidis did not receive the Claim and there is no challenge to that finding.

13. RAA Insurance had asked the Department of Planning Transport and Infrastructure for the name and address of the insured owner of “[registration no] BMW sedan”. On 2 January 2013 the Department had written to RAA Insurance disclosing that “The insured person (registered operator) was Helen Marmanidis of, [address] North Adelaide 5006”.

14. On 27 August 2013 BDK filed in the Magistrates Court a form 18 Request to Registrar. By that form, Mr Germein requested that judgment be signed against Helen Marmanidis for $2,335 comprising the claim for $2,080 plus costs of $255. Mr Germein also requested the issue of an investigation summons against the Defendant.

15. On 27 August 2013 the Registrar entered judgment in favour of Mr Germein against Helen Marmanidis for $2,335 as requested. An investigation summons was issued but not served.

16. On 9 December 2013 a further investigation summons was issued returnable on 13 February 2014. It was served on Dr Marmanidis.

17. On 6 February 2014 Dr Marmanidis wrote to the Court on her professional letterhead which disclosed that she was a consultant psychiatrist with rooms at 77 King William Road North Adelaide. She enclosed the investigation summons and said:

    The attached Investigation Summons was given to me by a Sheriff’s Officer, (? Mr Jeff Ridley) at my rooms while I was in consultation with a patient.

    I do not know and have never heard of the person named in it and know of no reason that they would believe that I owe them any money.

18. On 13 February 2014 an order was made for the issue of a warrant for Dr Marmanidis’ arrest. On Dr Marmanidis’ part, she ought to have appeared at the hearing rather than relying on her letter of 6 February 2014. On Mr Germein’s part, given the letter from Dr Marmanidis which disclosed that she had not been served with the Claim and knew nothing of it and implicitly that she did not intend to attend at the hearing, it would have been preferable for him to have sought an adjournment for her to be given notice that he intended to seek the issue of a warrant if she did not appear on the next occasion. The warrant was issued on 5 March 2014 but was never formally executed.

19. On 16 November 2015 Mr Germein filed an application for leave to issue a warrant of sale of Dr Marmanidis’ house returnable on 2 December 2015.

20. On 30 November 2015 the application was served on Dr Marmanidis. She wrote to the Court on the same date attaching the application and saying that the person named in the application (ie Mr Germein) was unknown to her and she had advised the Court of this previously when she had returned similar correspondence to the Court.

21. On Dr Marmanidis’ part, it would have been preferable for her to have appeared at the hearing rather than relying on her letter of 30 November 2015. On Mr Germein’s part, given the small judgment debt and the inevitability that Dr Marmanidis owned personal property sufficient to meet the judgment debt, it would have been preferable for him to have sought a warrant of sale of personal property rather than the drastic step of selling Dr Marmanidis’ house which would inevitably incur costs far exceeding the judgment debt.

22. On 2 December 2015 leave was granted to issue a warrant of sale of Dr Marmanidis’ house. On 4 December 2015 a warrant of sale was issued for a total debt (including interest and costs) of $3,552.

23. On 13 April 2016 the Sheriff took possession of Dr Marmanidis’ house pursuant to the warrant of sale and arranged for a locksmith to change the locks. The Sheriff subsequently engaged a land agent to advertise the house in July for sale by auction on 29 July 2016.

24. On 28 July 2016 Dr Marmanidis filed an interlocutory application seeking setting aside of the default judgment and a stay of the warrant of sale. She did not identify the rule or rules on which she relied to set aside the default judgment. However her grounds disclosed by her supporting affidavit were apposite to invoke both rule 87 (for regular judgments) and rule 104(1)(b)(iv) (for irregular judgments).

25. Dr Marmanidis’ application was supported by an affidavit sworn on 28 July 2016 in which she denied having received the Claim and denied liability for the claim. She said amongst other things:

    2.Judgment can only be signed if the party proves that, at the same time as the action was served, a copy of any relevant evidentiary material (including repair or loss account, quotation, invoice or receipt) upon which he or she is intending to rely, was served on the other party.

    …

    11.I do not believe I am responsible for the purported debt and there is no evidence on the court file of how or why I have been identified as a party to this action.

    …

    19.The sum claimed is for damages incurred “on or about 21 November 2012” in a collision on “Tynte Street North Adelaide” with scant other information provided.

    20.The claim correctly states the registration number of a motor vehicle that I own and drove from November 1998 until June 2011 since which time I have driven a new motor vehicle.

    22.No relevant evidentiary material appears on the file in any format to substantiate the claim and not even the exact time and location of the purported collision is documented.

    …

    26.Where a party signs judgment, the registrar must fix a date, time and place for the hearing, by the court, in respect of the assessment of damages or such other order, remedy or relief as that action may require, and give at least 21 days notice in writing of the hearing to the parties, which did not occur.

1. On 28 July 2016 the Magistrate heard Dr Marmanidis’ application. The Magistrate invited Dr Marmanidis to give oral evidence clarifying her denial of liability. She gave evidence in response to questions by the Magistrate. Her evidence included the following passages:

   Q.… We know that you did not file a defence to the action, if you had filed a defence what would it have said in relation to the allegation as to the circumstances of this crash.

   A.That to the best of my knowledge I have not been involved in any motor vehicle accident since about 2007… The only details I’ve been able to find out in order for me to be able to … prove the veracity of what I say, is if I could have the time and date and exact location, is what I have asked for, I can show exactly where I was at the time of the accident. Apart from that what I can say is that I was not involved in an accident.

   …

   A.If I had more specific … information I’d be able to confirm the exact place of where I was at the time of the accident because I work very long hours. I’m curious as to what time this accident happened because without knowing the exact time of the accident is difficult for me to ascertain – to be able to defend whatever the claim is.

   Q.I understand. But your defence would have said I deny I was driving a BMW of that type on that date and was involved in an accident with the other car.

   A.That’s correct.

   Q.… Do you denying receiving a copy of the claim that was apparently served by post to the address [address at North Adelaide] on or about 31 July 2013.

   A.I do.

   Q.… You say you didn’t get the summons, or the claim and had you got the claim you would have filed a defence saying that you weren’t involved in a crash on that day.

   A.That’s correct.

2. She was asked why she did not earlier apply to set aside judgment and she said that she had been seeking details of the allegations against her and had not received a copy of the Claim until May 2016. She was not cross-examined. She was not challenged on her evidence denying that she was driving the vehicle or receiving the Claim.

3. The Magistrate offered an adjournment to Mr Germein’s solicitor to enable evidence to be adduced from Mr Germein in relation to the collision. The set aside application was adjourned to 11 October 2016.

4. The Magistrate ordered a stay of the warrant of sale on condition that Dr Marmanidis pay into court $14,769 representing the amount of the judgment debt plus interest and costs (including costs incurred by the Sheriff). Dr Marmanidis paid this sum to the Sheriff and the auction was cancelled.

5. On 5 August 2016 Mr Germein swore an affidavit in the following terms:

   1.I confirm that on the 21st day of November 2012 I was driving an Alfa Romeo motor vehicle displaying [registration no] which was travelling along Tynte Street North Adelaide in the State of South Australia.

   2.My motor vehicle was involved in a collision with a BMW motor vehicle displaying [registration no] which at the time was being driven by Helen Marmanidis.

   3.The said BMW motor vehicle reversed from a car park and collided into my Alfa Romeo motor vehicle.

   4.Following the accident scene I exchanged details with the driver of the BMW motor vehicle.

6. In light of Dr Marmanidis’ earlier complaint about lack of details, it is curious that the time of day and location on Tynte Street were not given. This had the effect of impeding Dr Marmanidis establishing an alibi at the time of the collision. The affidavit was drafted in a fashion which avoided giving any description of the driver. It also avoided identifying the content or effect of the conversation with the driver referred to in paragraph 4 or identifying what details were given by the driver to Mr Germein. It did not state that the driver identified their self as Helen Marmanidis.

7. On 10 October 2016 Dr Marmanidis swore a second affidavit. She complained that Mr Germein’s affidavit did not give the time or location on Tynte Street of the collision. She complained amongst other things that the car hire account had not been before the Court when judgment in default was signed on 27 August 2013. She reiterated her denials of receipt of the Claim and of being involved in the collision in absolute terms:

   15.I deny that I was ever served with this claim at any address and I deny having any knowledge of the nature of the claim prior to my obtaining a copy of court record on 26 April 2016.

   16.I deny that I was involved in a collision in my 1994 BMW [registration no] on 21 November 2012.

   17.November 21 in 2012 was a Wednesday which is a day when I consult at my rooms at North Adelaide all day from 8 am until 6 pm and have done for the past seven years.

   18.I deny that I have been involved in any collision in any motor vehicle since 28 April 2006 when I was involved in a collision in my BMW in the driveway of my rooms at 77 King William Street in North Adelaide.

   …

   20.My BMW, which I have owned since 1998, has to the best of my knowledge never been involved in any other collision at any time.

   21.Since June 2011 I have driven a new car but continue to own the BMW, which is a classic early model M3, which I drive only very occasionally and then only invariably on weekends to keep it running.

8. On 11 October 2016 the hearing of Dr Marmanidis’ set aside application resumed. No application was made by Mr Germein to cross-examine Dr Marmanidis. Dr Marmanidis was not informed that she could apply to cross-examine Mr Germein. Dr Marmanidis was asked whether there was anything more that she wanted to say in support of her application. She made a brief submission in the course of which she said that she still did not understand why Mr Germein was not there, referred to the affidavits and the lack of particularity from Mr Germein and said that she did not know what else to say. She was not invited to make any submissions concerning the resolution of the apparent conflict between her evidence and that of Mr Germein. She was not told that the Magistrate was contemplating accepting Mr Germein’s evidence in preference to her evidence.

   The Magistrate’s reasons

9. The Magistrate delivered ex tempore reasons for dismissing the set aside application. The Magistrate summarised the background and then identified as the first criterion to be satisfied to set aside a default judgment that there is an arguable case on the merits. The Magistrate summarised the content of Dr Marmanidis’ first affidavit insofar as she addressed the existence of a collision and summarised the content of Mr Germein’s affidavit. The Magistrate made no reference in that summary to the content of Dr Marmanidis’ second affidavit.

10. The Magistrate concluded:

    The defendant acknowledges that she works in North Adelaide and the defendant also lives occasionally in North Adelaide and at other times in the city. The accident allegedly occurred in North Adelaide involving a vehicle that is owned by the defendant. While the defendant maintains that she has no recollection of being involved in the accident, in my view her prospects of successfully defending the claim on that basis are almost impossible.

    I do not believe the defendant has an arguable defence on the merits.

    The Magistrate turned to the second criterion. The Magistrate said:

    If I am wrong about that, I would still need to be satisfied that the defendant has a reasonable excuse for failing to comply with the Rules. Now I acknowledge that the defendant says she did not receive the claim at the [North Adelaide] address when it was first served and I accept that explanation. However, the defendant knew of the proceedings when she received the investigation summons in January 2014. It is now October 2016. I appreciate the application to set aside the default judgment was lodged at the end of July 2016, but we are still talking two and a half years after the defendant became aware of the fact that there was a judgment that had been entered against her in this court.

    …

    In my view this application fails on both limbs and I am not prepared to set aside the default judgment.

    The proceeding in the Supreme Court

11. On 11 October 2016 Dr Marmanidis filed a notice of appeal to the Supreme Court against the dismissal of her set aside and stay applications. She also filed an urgent interlocutory application for an injunction to prevent the Sheriff from paying the sum of $14,769 to Mr Germein pending the hearing and determination of the appeal. At all times in the Supreme Court Dr Marmanidis was self-represented and Mr Germein was represented by solicitors or counsel instructed by RAA Insurance.

12. On 14 October 2016 Dr Marmanidis lodged a summary of argument in support of her appeal. She complained amongst other things:

    ·that the Magistrate erred “in not accepting my sworn evidence while accepting the scant unsubstantiated evidence of [Mr Germein]”;

    ·that the Magistrate erred “in not accepting as reasonable explanations on my part for why I could not file a defence for a claim that was never provided to me even when the court was aware that it had not been provided”;

    ·that “there is a claim of $490.91 for car hire for which no receipt is provided” and “the receipt for the car hire … was not in the court file”; and

    ·that “no job card is provided” and there was no explanation regarding “what the amounts claimed on each of 4 items refer to”.

13. On 14 October 2016 Dr Marmanidis’ application for an interlocutory injunction came before me in the chamber list. I informed the parties that an appeal was not competent because the action in the Magistrates Court was a minor civil action. I identified two possible alternatives: to convert the matter into an application for minor civil review under section 38 of the Act and remit it to the District Court or alternatively convert it to an application for judicial review. Both parties expressed a preference for judicial review and requested that the matter be heard as soon as possible. I made orders by consent that the appeal be converted into a summons for judicial review and the matter be listed for trial before another Justice during the week commencing 24 October 2016. The matter was subsequently listed for trial on 25 October 2016. I also granted an interlocutory injunction.

14. On 20 October 2016 I called the matter back on and identified to the parties a third alternative, namely to convert the matter into an application for minor civil review and direct that it be heard by the Supreme Court Justice on 25 October exercising the jurisdiction of a Judge of the District Court pursuant to section 5 of the Auxiliary Powers Act. I summarised the major differences between minor civil review and judicial review and identified that normally the Court would not entertain judicial review if an alternative avenue is available. Dr Marmanidis expressed a preference for the matter to remain as an application for judicial review. The solicitor for Mr Germein expressed a preference for the matter to become a minor civil review but expressed no objection its proceeding by way of judicial review in accordance with Dr Marmanidis’ preference. I subsequently made an order joining the Magistrates Court as the second defendant in the action.

15. On 25 October 2016 the action came on for trial before the Judge. The Judge received Dr Marmanidis’ affidavit filed in the action together with the Claim, Dr Marmanidis’ and Mr Germein’s affidavits filed in the Magistrates Court, the transcript of the hearings before the Magistrate and the Magistrate’s reasons for judgment. Dr Marmanidis made a closing address. She contended amongst other things that the Magistrate erred in accepting the evidence of Mr Germein in preference to her own sworn evidence in circumstances in which he had not come to court and given evidence. She contended that she was denied due process. She contended that the failure of due process included “not giving consideration to my evidence provided under oath, been made without cross-examination of my affidavit evidence, being made in the absence of any appearance by the plaintiff”. She contended that the Magistrate erred in finding that Dr Marmanidis “did not have a reasonable excuse for not complying with the Rules”. Dr Marmanidis contended that the Magistrate “did not follow correct legal processes” and her judgment “evidenced jurisdictional error in breaches of procedural fairness”.

16. Dr Marmanidis contended that “the information in the Magistrates Court file does not have the hire receipt” and “if a default judgment is entered then the court has to have all of the receipts for the judgment that is being entered for and the car hire receipt was not on the court file”.

17. Counsel for Mr Germein relied primarily on her written submissions and made brief supplementary oral submissions. She made no contention that the action should be dismissed because an alternative remedy was available under section 38 of the Act.

18. Counsel appeared for the Magistrates Court and handed up a submitting appearance. The same counsel appeared for the Attorney-General as an intervenor or applicant for permission to intervene pursuant to section 9 of the Crown Proceedings Act.

19. The Attorney-General submitted that the preferable course was for the Judge to exercise the power conferred by section 5 of the Auxiliary Powers Act and hear and resolve the matter as a minor civil review. He submitted that a minor civil review represented a remedy for Dr Marmanidis at least as effective and convenient as judicial review and arguably more so given the limitations on the judicial review jurisdiction. He invited the Court to convert the matter to a minor civil review or alternatively remit it to the District Court to be heard as a minor civil review or alternatively summarily dismiss or strike it out pursuant to rule 200C of the Supreme Court Civil Rules 2006 (SA) (the Supreme Court Rules) or alternatively refuse judicial review in the exercise of the Court’s discretion. The Attorney-General also made a brief submission that the findings made by the Magistrate, at least on the question whether Dr Marmanidis had a reasonable excuse for not complying with the Rules, were open to the Magistrate.

20. Dr Marmanidis was heard in reply, in the course of which she opposed intervention by the Attorney-General.

21. At the end of the hearing, the Judge gave permission to the parties to file affidavits and written submissions in relation to the documents which comprised the Magistrates Court record for the purpose of certiorari and reserved judgment.

22. On 9 January 2017 the Judge received further affidavits and the entire Magistrates Court record, heard further submissions from the parties and again reserved judgment.

    The reasons of the Judge

23. On 8 July 2017 the Judge delivered reasons for judgment. The Judge concluded that the default judgment was irregular because rule 61 of the Rules only entitles a party to obtain, and the Registrar to grant, default judgment for the claim if the party proves that it served with the claim a copy of any relevant evidentiary material upon which the party is intending to rely and Mr Germein did not serve a hire car account or any evidence in respect of the claim for the hire car costs.

24. The Judge rejected Dr Marmanidis’ contentions that the Magistrate’s conclusions that she did not have an arguable defence or reasonable excuse within the meaning of rule 87 of the Rules were vitiated by jurisdictional error or otherwise.

25. The Judge considered whether to refuse relief in the exercise of the discretion. The Judge considered the extent to which the grant of relief would prejudice Mr Germein. The Judge accepted that ordinarily the Court would not entertain judicial review when all appeal rights have not been exhausted but concluded that the history of the proceedings in the Supreme Court rendered it inappropriate not to entertain Dr Marmanidis’ application or to refuse her relief.

26. The Judge made an order in the nature of certiorari quashing the default judgment entered on 27 August 2013 and remitted the matter to the Magistrates Court to be dealt with according to law.

    The appeals

27. The Attorney-General filed a notice of appeal against the judgment. Mr Germein filed a notice of cross-appeal on a subset of the grounds relied on by the Attorney-General with some supplementation.

28. Dr Marmanidis filed two affidavits on the appeal. She contended amongst other things that the Judge erred in not upholding her complaints about the Magistrate’s conduct of the matter and findings on arguable defence and reasonable excuse. The Attorney-General and Mr Germein addressed these contentions on their merits without taking the procedural point that Dr Marmanidis did not file a notice of contention.

    The contentions on appeal

29. The Attorney-General and Mr Germein contend that the Judge erred in quashing the default judgment entered by the Registrar in 2013, as opposed to the Magistrate’s orders in 2016, because Dr Marmanidis did not seek such relief, the Judge did not grant an extension of time pursuant to rule 200(2) of the Supreme Court Rules and/or the Judge did not give to the other parties an opportunity to be heard on the questions of extension of time or whether the default judgment was irregularly obtained.

30. The Attorney-General and Mr Germein submit that, if this Court accepts their contention that they did not have an opportunity to be heard on the above matters, the appropriate course is for this Court to determine whether the default judgment should be quashed on the merits after affording them the opportunity to be heard rather than remitting the question to a single Judge. They particularly invite this Court to so act as part of a broader submission that as far as possible this Court should determine all issues to achieve finality and avoid any future hearings or proceedings in relation to the default judgment.

31. The Attorney-General and Mr Germein contend that the Judge erred in concluding that the default judgment was irregularly obtained. They contend that Mr Germein’s claim was for a liquidated sum within the meaning of rule 61(1)(a) of the Rules and no evidence was therefore required to be served with the Claim. They contend in the alternative that, if rule 61 requires service of evidence of repair costs, it does not require service of evidence of incidental costs such as hire car costs.

32. The Attorney-General and Mr Germein contend that the ARNIE document comprised the “relevant evidentiary material (including a repair or loss account, quotation, invoice or receipt) upon which [the plaintiff is intended] to rely” within the meaning of rule 61(2). They submit that, although it is not a repair invoice or receipt, it nevertheless comprised “evidentiary material” within the meaning of that rule.

33. The Attorney-General and Mr Germein contend that the Magistrate did not err in not considering whether the default judgment was irregularly obtained. They submit that the judgment was not irregularly obtained because Mr Germein complied with rule 61 for the reasons summarised above. Mr Germein contends that the Magistrate did not err in finding that Dr Marmanidis did not have an arguable defence when she gave sworn evidence that she was not involved in a collision and neither party was cross-examined because this finding was open to the Magistrate in those circumstances. Mr Germein submits that the Magistrate did not err in finding that Dr Marmanidis did not have a reasonable excuse for not having complied with the Rules when the Magistrate found that she had not received the Claim because this finding was open to the Magistrate having regard to Dr Marmanidis’ subsequent conduct.

34. The Attorney-General and Mr Germein contend that, if the Registrar lacked power to grant the default judgment, the Judge ought to have declined to grant certiorari quashing the default judgment in the exercise of his discretion. First quashing a judgment affects the legality of the subsequent steps taken to enforce the judgment whereas setting aside a judgment would not have that effect. Secondly Dr Marmanidis was well out of time to lodge an application for judicial review of the Registrar’s decision as opposed to the Magistrate’s decision. Thirdly alternative remedies were available of applying to set aside the judgment on the ground of irregularity or pursuing a minor civil review.

1. The Attorney-General and Mr Germein submit that, if this Court accepts their submissions about the exercise of the discretion which would leave it to Dr Marmanidis to apply to set aside the judgment on the ground of irregularity or apply for minor civil review, this Court should if possible exercise the power under the Auxiliary Powers Act to hear and determine such an application.

2. The Attorney-General contends that the Judge erred in holding that the Attorney-General did not have an automatic right of intervention under section 9(2)(b)(ii) of the Crown Proceedings Act but acknowledges that the Judge granted permission to intervene pursuant to section 9(2)(c) and does not suggest that anything in the present appeal turns on the precise basis of his intervention. Accordingly it is not necessary to consider this question.

3. Dr Marmanidis’ two affidavits referred to above were received as submissions in the appeal. Dr Marmanidis did not appear to make oral submissions.

   The Magistrates Court regime

4. Rule 47 of the Rules permits service of documents (including Claims) by personal service or amongst others by pre-paid post. Rule 52(1)(d) provides that, when a document is served by amongst others pre-paid post, it is deemed to be received four business days after the date of posting.

5. Rules 60 to 62 of the Rules provide for judgment in default of a defence being filed within 21 days after service. In accordance with the practice in other courts, they provide for two forms of judgment: judgment for the amount claimed when the claim is for a liquidated sum and judgment for damages to be assessed. However, if the claim is for damages for property damage and the plaintiff serves with it the evidence on which he or she intends to rely if the matter proceeds to an assessment of damages, judgment for the amount claimed can be entered.  

6. Rules 60 to 62 relevantly provide:

   60.

   (1)… where a party has been served with an action … and does not file a defence within 21 days of service, or any other period fixed by the Court, the other party, on proof to the Registrar of such service, may sign judgment against the party in default, by filing a Form 18.

   …

   61.

   (1)     Where a party signs judgment for a claim:

   (a)for a debt or liquidated sum; or

   (b)for the cost of repairs to, or the loss of, property and any other consequential loss;

   the party will have judgment for the claim, plus costs on the scale applicable to the claim, but the party has no entitlement to pre-judgment interest except if it is awarded by the Court on an interlocutory application.

   (2)     A party may sign judgment for a claim under paragraph (b) of Sub-rule (1) only if the party proves that, at the same time as the action was served, a copy of any relevant evidentiary material (including a repair or loss account, quotation, invoice or receipt) upon which he or she is intending to rely, was served on the other party.

   (3)     For the purposes of paragraph (b) of Sub-rule (1) the claim may also include a liquidated sum in respect of incidental expenses (including towing and storage fees in respect of the property and the reasonable cost of hire or rental of alternative property during the period the first-mentioned property underwent repairs).

   …

   62.

   (1)     Subject to Sub-rule (4), in any other case not provided for in Rule 61, where a party signs judgment the Registrar must fix a date, time and place for the hearing, by the Court, in respect of the assessment of damages or such other order, remedy or relief as the action may require, and give at least 21 days notice in writing of the hearing to the parties.

   (2)     The party who has signed judgment must serve on all other parties at least 21 days before the hearing date –

   (a)a notice in Form 19; and

   (b)a copy of any affidavit evidence to be relied upon and a written schedule of costs sought. 

   (3)     In a minor civil action, the Court may receive as evidence of the fact or quantum of injury, damage or loss an affidavit, deposed to by the party, the solicitor acting for the party, or an assessor or other expert, which annexes relevant evidentiary material. 

   (4)     In an action for damages for personal injury, where a party signs judgment the Registrar must fix a date, time and place for a directions hearing, and give at least 21 days notice in writing of the directions hearing to the parties.  The parties who have signed judgment must serve on all other parties at least 21 days before the date of the directions hearing a notice in Form 19A.

7. For ease of reference, I refer to loss of or damage to property collectively as property damage and claims for loss of or damage to property collectively as property damage claims.

8. Rule 46(2)(i) provides for default judgment to be set aside when service of a claim is ineffectual. Rule 47(2) precludes a party relying on ineffectual service. I assume without deciding that this does not apply when service is ineffectual because it was not delivered by Australia Post to the person’s address. Otherwise Dr Marmanidis would be entitled to setting aside of the default judgment under these rules.

9. Service on Dr Marmanidis was deemed to have taken place on 6 August 2013. She therefore had until 27 August 2013 to file a defence. Mr Germein’s request to sign judgment made on 27 August was premature, as was the Registrar’s entry of judgment on 27 August 2013. This appears to render the default judgment irregular. However, no party addressed this aspect and it is unnecessary to consider it further given the conclusions reached below.

10. Rule 87 empowers the Court to set aside a regular default judgment. The judgment might be in default of defence (rules 60 to 62), in default of appearance at a court hearing (rule 101) or in default of compliance with a court order (rule 83). Rule 104(1)(b)(iv) empowers the Court to set aside an irregular judgment.

11. Rules 87 and 104(1)(b)(iv) relevantly provide:

    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 an order of the Court, or any time limit fixed by these Rules or order of the Court, in respect of the action or proceeding.

    104.

    (1)     The Court may vary or set aside a judgment – …

    (b)after it is entered - …

    (iv)if it was obtained consequent upon any irregularity.

    Opportunity to be heard

12. In her summary of argument which stood as her statement of grounds and during her submissions to the Judge, Dr Marmanidis contended that, in order to obtain default judgment under the Rules, Mr Germein was required, but failed, to serve with the Claim an invoice for the cost of the hire car. Mr Germein (and the Attorney-General as intervenor) had an opportunity to be heard in relation to that issue.

13. However, Dr Marmanidis did not seek an order quashing the default judgment granted by the Registrar in 2013 as opposed to an order quashing the orders made by the Magistrate in 2016. Mr Germein (and the Attorney-General as intervenor) did not have an opportunity to be heard in relation to that question, or the time limitation for seeking to quash the default judgment, or the exercise of the discretion to quash the default judgment as opposed to the orders made by the Magistrate. This ground of appeal is established.

14. As observed above, it is therefore necessary for this Court to determine whether the default judgment was irregularly entered and if so whether it should be quashed or some other relief should be granted or relief should be refused.

    Irregularity of judgment

15. The relevant parts of rules 60 to 62 are set out at [65] above.

16. Mr Germein claimed $1,589 cost of repairs and $491 cost of hire car. No evidence of any type of the hire car cost was served with the Claim.

17. The Attorney-General and Mr Germein contend that Mr Germein’s claim was for “a liquidated sum” within the meaning of rule 61(1)(a) of the Rules because Mr Germein quantified the amount claimed for damages in his Claim and no evidence was therefore required to be served with the claim.

18. This contention is untenable. The law draws a clear distinction between liquidated claims and unliquidated claims in the context of default judgment. A liquidated claim is one where the amount to which the plaintiff is entitled has been predetermined (by or pursuant to agreement or legislation) by reference to a fixed amount, scale or formula before the matter reaches court.[2] This is reflected in the definitions in the Supreme Court Rules of a liquidated claim as “a claim for a specific amount or a claim for an amount that can be precisely calculated” and an unliquidated claim as “a claim for an amount that requires assessment by the court” (rule 229(3)). A claim for damages for negligence is a quintessential unliquidated claim because it involves the exercise of a discretion by the court and cannot be upset on appeal in the absence of error of the type articulated by the High Court in House v The King.[3]

    [2]    See for example Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138 at 142 per Knox CJ and Starke J and 145 per Issaacs and Rich JJ.

    [3] (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ. In Jaffer v Chakasa Pty Ltd [2003] SASC 123 it was held that a claim for $7,500 damages for breach of contract was an unliquidated claim within the meaning of rule 61 of the Rules.

19. Since at least the Judiciary Act 1875,[4] plaintiffs have been able to obtain default judgment for the amount claimed when the claim is for a liquidated sum but have been required to proceed to an assessment of damages when the claim is for unliquidated damages. This is the position that has always pertained and still pertains in the Supreme Court[5] and the District Court.[6]

    [4]    Supreme Court of Judicature Act 1875 (Eng & Wales) Schedule Order XIII rules 5 and 6 and Order XXIX rules 2 and 4. The Common Law Procedure Act 1852 (Eng & Wales) sections 25 to 28 had earlier provided for default judgment for the amount claimed when the claim was for a debt or liquidated sum.

    [5]    Supreme Court Civil Rules 2006 (SA) rule 229(1)(a) and (b).

    [6]    District Court Civil Rules 2006 (SA) rule 229(1)(a) and (b).

20. As observed above, rules 61 and 62 preserve the traditional dichotomy between a claim for a liquidated sum and an unliquidated sum, with one qualification. If the claim is for property damage and the plaintiff serves with the Claim the requisite evidence of the quantum of damages, the plaintiff can obtain judgment for the amount claimed. In this respect the position is equated to the position in respect of a liquidated sum but ex hypothesis it is not for a liquidated sum. The construction of rule 61 advanced by the Attorney-General and Mr Germein would undermine and subvert the trichotomy created by rules 61 and 62.

21. The Attorney-General and Mr Germein contend in the alternative that, if rule 61 requires service of evidence of repair costs, it does not require service of evidence of incidental costs such as hire car costs.

22. This contention is also untenable. Rule 61(a)(ii) refers to a claim for “the cost of repairs to, or the loss of, property and any other consequential loss”. This plainly encompasses the whole of the property damage claim: direct loss (cost of repairs when property damaged or value when property lost) and consequential loss. Subrule 61(2) requires as a precondition to the plaintiff obtaining judgment in such a case that the plaintiff has served the relevant evidence in respect of the whole of the loss encompassed by subrule 61(1)(b), ie both direct and consequential loss. Subrule 61(3) confirms (out of an abundance of caution) that consequential loss includes incidental expenses such as the hire of alternative property while the damaged property is repaired. The three provisions operate in harmony. The plaintiff is required, if he or she wishes to obtain default judgment for the amount of the claim, to serve the requisite evidence for consequential loss as much as for direct loss.

23. The Judge was correct to conclude that Mr Germein failed to satisfy the requirements of rule 61(2) in respect of the cost of the hire car and this resulted in the default judgment being irregular.

24. The Attorney-General and Mr Germein do not contend that rule 61 permits a plaintiff to serve evidence in respect of one item of damage (eg repair costs) and not another (eg towing costs). It is clear from the regime created by rules 60 to 62 that if a plaintiff does not serve evidence in respect of all damage claimed, the matter must proceed to an assessment of damages. A plaintiff cannot seek and the Registrar cannot enter judgment for a sum of money in respect of one item of damage and proceed to an assessment of damages in respect of another. Moreover the costs allowed on a judgment in the Magistrates Court depend on the amount of the judgment (being a percentage thereof). 

25. In any event, the Registrar did not enter judgment for the cost of repairs of $1,589 plus the costs allowed on that sum. The Registrar entered judgment for the (indivisible) sum of $2,080 plus costs of $255.

26. Moreover, Mr Germein did not satisfy the requirements of rule 61(2) in respect of the cost of repairs. Rule 61(2) contemplates that, when the claim is for property damage, the plaintiff will serve with the claim an account, invoice or receipt for the cost of repairs issued by the repairer if the repairs have been undertaken or a quote if the plaintiff elects not to undertake the repairs. This is apparent from the words in parenthesis in rule 61(2).

27. The ARNIE document is not an invoice, receipt, repair account or quote issued by a repairer. It appears that the repairer or intended repairer was Silvers Motor Body Repairs. An invoice issued by Silvers would have satisfied rule 61(2) but the Claim did not attach any such invoice.

28. While Mr Germein was the nominal plaintiff, RAA Insurance was the substantive plaintiff exercising subrogated rights bringing the action exclusively for its own benefit. The ARNIE document is merely an internal unilateral document created by a party to an action. It has no evidentiary status.

29. The ARNIE document does not identify what parts were replaced or proposed to be replaced, what was removed or replaced, the hourly rate of the work undertaken or what was painted.

30. It is conceivable that a document other than an invoice, receipt, repair account or quote could fall within the generic description of “any relevant evidentiary material” upon which the plaintiff intends to rely on an assessment of damages. However, to take advantage of the dispensation granted by rule 61 to a plaintiff of not having to proceed to an assessment of damages, a plaintiff is required to attach any evidentiary material upon which he or she intends to rely at an assessment if the matter proceeds to an assessment. This means at least material which is capable of proving the quantum of the claim in the amount sought.

31. The ARNIE document is incapable of proving the quantum of the claim for repairs at $1,589. First, it is merely an internal document created by the party claiming recovery. Secondly it does not identify any work done or parts supplied, nor consequentially does it identify what damage was repaired. Thirdly it is incapable of enabling any assessment whether the cost was reasonable. Indeed it does not even allow an assessment whether the damage and only the damage caused by the collision was the subject of the work, assuming that the work has been carried out.

32. It may be accepted that in minor civil claims the Court is not bound by the rules of evidence. However, the problem with the ARNIE document transcends any issue of admissibility under the rules of evidence; it is manifestly incapable of proving quantum of the claim on an assessment of damages.

33. On the hearing of the appeal, counsel for Mr Germein said that the practice in the Magistrates Court in vehicle damage claims is to call an expert assessor to give evidence about the quantum of the claim. This may be so but the assessor would no doubt be expected to produce the repairer’s invoice and express the opinion that the quantum is reasonable by reference to the assessor’s expertise and experience. That bears no comparison with producing an internal document created by the party making the claim.

34. The Attorney-General and Mr Germein do not contend that, when rule 61 provides for the entry of judgment for the amount claimed, the Registrar is to enter one judgment “for liability” and another judgment for recovery of the amount of the claim, nor do they contend that this is what the Registrar did on 27 August 2013.  When a court enters judgment in favour of a plaintiff on a money claim, there is a single indivisible judgment whereby the court orders that “the plaintiff recover from the defendant $X”. There is no “judgment on liability” and separate judgment on quantum. Of course a court having equitable jurisdiction can grant a declaration that a defendant is liable to a plaintiff for an amount to be determined, but no such declaration was or could have been granted by the Registrar in this case.

35. When a claim is for unliquidated damages, the court may enter judgment for damages to be assessed and later assess the damages. A judgment that “the plaintiff recover from the defendant damages to be assessed” is sometimes colloquially described by the shorthand term “judgment on liability” but this is not strictly accurate. It is entirely different from a declaration in the equitable jurisdiction. By contrast, when judgment is entered for a liquidated money claim, there is no assessment of damages and no second step. The concept of “judgment for liability” is meaningless in this context.

36. Moreover, the wording of the default judgment is “Amount Claimed $2080.31. Costs $ 255.00. $2335.31”. It is a single indivisible judgment for the amount claimed plus costs: there is no separate judgment “for liability” or for components of the amount claimed of $2,080.

    Power of Registrar

37. Although rule 60 refers to the plaintiff “signing” judgment, it is plain from rule 60 itself that the term “sign” is used in the colloquial sense and the plaintiff requests entry of judgment but it is the Registrar who enters judgment.

38. The Attorney-General submits that, in entering judgment, the Registrar performs a judicial act in the exercise of judicial power, being a submission that the Attorney-General made, and was upheld, in Mandeville v Better Lending Pty Ltd.[7]   The Attorney-General’s submission is manifestly correct and should be accepted.

    [7] [2016] SADC 146. In Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 262, Mason CJ, Brennan and Toohey JJ said that “default judgments are entered in exercise of judicial power by a court”.

39. However, the Attorney-General contends that, while the Registrar is required to be satisfied that the Claim was served, 21 days have elapsed since the date of service and the defendant has not filed a defence, the Registrar is not required to consider whether the requisite evidence was served with the Claim. This, it is submitted, is because the former criteria are specified by rule 60 whereas the latter criterion is specified by rule 61(2) and because the question whether rule 61(2) is satisfied will be determined by a Magistrate on a set aside application.

40. This contention is untenable. Rules 60 and 62 operating in conjunction provide that, unless the matter falls within the scope of rule 61, the Registrar is empowered to set the matter down for an assessment of damages if and only if three conditions are satisfied, namely the plaintiff proves service of the Claim on the defendant, 21 days have elapsed since service and the defendant has not filed a defence.

41. Rules 60 and 61 operating in conjunction provide that, if the claim is said to be for a liquidated sum, the Registrar is empowered to enter judgment for the amount claimed if and only if four conditions are satisfied, namely the claim is for a liquidated sum, the plaintiff proves service of the Claim on the defendant, 21 days have elapsed since service and the defendant has not filed a defence.

1. Rules 60 and 61 operating in conjunction provide that, if the claim is said to be for property damage, the Registrar is empowered to enter judgment for the amount claimed if and only if five conditions are satisfied, namely the claim is for property damage, the plaintiff proves service on the defendant of the Claim and of the requisite evidence of the damages, 21 days have elapsed since service and the defendant has not filed a defence.

2. Rules 60 and 61 in the case of both liquidated sum claims and property damage claims operate in conjunction and there is no basis to sever their operation. The mere fact that an erroneous entry of judgment can be remedied on a set aside application is no reason to construe rule 61 as not requiring (or presumably even empowering) the Registrar to consider whether the criteria are met for judgment in a fixed sum. The same argument, if valid, would justify the Registrar not considering service of the Claim or elapsed time for filing a defence under rule 61.

3. The Registrar has no power to enter judgment for the amount claimed if the claim is not for a “liquidated sum” when the plaintiff relies on rule 61(1)(a). Equally the Registrar has no power to enter judgment for the amount claimed if the plaintiff has not proved service of the requisite evidence of the property damage claim or the claim is not for property damage.

4. The Judge was correct to conclude that the Registrar lacked power to enter judgment.

   Severance

5. The Attorney-General and Mr Germein contend that, if the Registrar lacked power to grant the default judgment, the principle of severance (citing Maxcon Constructions Pty Ltd v Vadasz (No 2))[8] was applicable and the Judge ought in the exercise of the discretion to have quashed the hire cost component of the judgment of $491 without disturbing the judgment for the repair cost component of $1,589 or alternatively to have quashed only the quantum of the judgment. They make these contentions only in the alternative to their contention that the Judge should have exercised the discretion against quashing the default judgment at all, which contention should be upheld in the manner and to the extent described below. It is not therefore strictly necessary to address the severance contentions but I do so for completeness. 

   [8] [2017] SASCFC 2.

6. In relation to the first contention, in Maxcon Constructions Pty Ltd v Vadasz (No 2)[9] an adjudicator determined two discrete disputes between the parties pursuant to the Building and Construction Industry Security of Payment Act 2009 (SA). The adjudicator’s jurisdiction was limited under the Act to determining disputes arising on the face of the payment claim and payment response. It was held that the adjudicator made an error of law on the face of the record in relation to one dispute (the quantum of which was $38,999) which had no effect on his determination of the other dispute (the quantum of which was $24,750). This Court held that under the Act certiorari did not lie for error of law on the face of the record and there was no jurisdictional error. A majority expressed the opinion obiter that if the position were otherwise the determination in respect of the second dispute was unaffected by the adjudicator’s error in respect of the first dispute.

   [9] [2017] SASCFC 2.

7. In the present case, there was a single indivisible judgment entered by the Registrar for a single remedy of damages for a single cause of action of damages caused by negligence. In these circumstances the judgment cannot be partially quashed and the “bad” severed from the “good”. Moreover, for the reasons given above the Registrar had no power to enter a judgment for part of the damages claimed (eg $1,589 for cost of repairs) and set down part of the claim (eg for the cost of a hire car) for assessment of damages. In any event, for the reasons given above Mr Germein was not entitled under rule 61 to judgment in respect of the cost of repairs.

8. In relation to the second contention, as observed above, under rule 61 the Registrar does not and cannot enter two judgments, one “for liability” and the other “for quantum”. Nor did the Registrar in this case purport to do so. A single judgment was entered for $2,080 plus costs. No question of severance can arise.

   Exercise of discretion by the Judge

9. The Attorney-General and Mr Germein contend that, if the Registrar lacked power to grant the default judgment, the Judge ought to have declined to grant certiorari quashing the default judgment in the exercise of his discretion. They contend that quashing a default judgment has drastic consequences because it affects the legality of subsequent steps taken pursuant to the judgment. In this case substantial subsequent steps were taken and costs of just under $11,000 were incurred by the Sheriff in reliance on the default judgment. Before granting such a drastic remedy, it was incumbent on the Judge to consider alternative remedies with lesser consequences.

10. In order to consider this contention, it is necessary to digress to consider alternative remedies before returning to the question whether the Judge’s exercise of discretion was vitiated by error of the type articulated by the High Court in-House v The King.[10]

    [10] (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ.

    Alternative remedy: quash and fresh determination of set aside application

11. One alternative remedy potentially available to the Judge was to quash the Magistrate’s order dismissing Dr Marmanidis’ set aside application (as Dr Marmanidis sought), which would have left that application extant, and then to exercise the power conferred by section 5 of the Auxiliary Powers Act to determine that application afresh on the merits.

12. This gives rise to three questions: first was the Magistrate’s decision vitiated under judicial review principles; secondly should the set aside application have been granted or refused on the merits; and thirdly should the discretion have been exercised against quashing the Magistrate’s decision.

    Was the Magistrate’s decision vitiated

13. The Magistrate was obliged to afford procedural fairness to Dr Marmanidis.  The content of that obligation was affected by the fact that Dr Marmanidis was self-represented (giving rise to duties articulated by this Court in Kenny v Ritter[11]), the matter was in the minor civil jurisdiction and the Magistrate had exercised the discretion conferred by section 38 of the Act to permit Mr Germein to be legally represented. The Magistrate was also obliged to determine the issues raised by Dr Marmanidis’ set aside application.

    [11] [2009] SASC 139 at [17]-[23] per Gray and Layton JJ.

14. Dr Marmanidis contended in her affidavits before the Magistrate that, when a party signs judgment, the Registrar must fix a date for assessment of damages and judgment can only be signed for an amount if the party proves that a copy of any relevant evidentiary material upon which he or she is intending to rely was served on the other party with the claim and that the car hire account had not been before the Court when the Court signed judgment in default on 27 August 2013.

15. The failure of the Magistrate to address this point amounted to a failure to exercise the jurisdiction to hear and determine the set aside application[12] which was a jurisdictional error.[13] If the Magistrate had addressed the point, for the reasons given above the Magistrate should have concluded that the judgment was irregular.

    [12]   R v War Pensions Entitlement Tribunal; ex parte Bott (1933) 50 CLR 228 at 242-243 per Rich, Dixon and McTiernan JJ.

    [13]   Re Minister for Immigration and Multicultural Affairs; ex parte Miah [2001] HCA 22, (2001) 206 CLR 57 at [80]-[81] per Gaudron J.

16. Although it is not necessary to decide because the criteria for setting aside an irregular judgment are fundamentally different to the criteria for setting aside a regular judgment, the Magistrate also made jurisdictional errors insofar as she considered whether the default judgment should be set aside as a regular judgment.

17. First, in relation to the criterion that the defendant has an arguable case on the merits, the Magistrate’s decision was vitiated by a failure to afford procedural fairness to Dr Marmanidis. Dr Marmanidis gave unequivocal evidence, summarised above, that she was not the driver of the BMW when it was involved in any collision on 21 November 2012 or at any time since 2006. Before rejecting Dr Marmanidis’ evidence and preferring the evidence of Mr Germein to the extent that it may have conflicted with her evidence, it was incumbent on the Magistrate to:

    1afford to Dr Marmanidis the opportunity to apply to cross-examine Mr Germein on his affidavit;

    2ensure that it was put to her why her evidence might not be accepted to give her an opportunity to address it by further evidence;

    3ensure that it was put to her why her evidence might not be accepted to give her an opportunity to address it by submissions.

18. The need for the Magistrate to ensure procedural fairness in this manner was particularly acute in circumstances in which it is very rare for the arguable defence criterion to be determined on a set aside application on conflicting evidence of the parties. As will be seen, there were various matters that Dr Marmanidis might have put on the question if she had been afforded procedural fairness.

19. Secondly, in relation to the criterion that the defendant has a reasonable excuse for not having complied with the Rules, the relevant non-compliance was Dr Marmanidis not having filed a defence by 27 August 2013. The Magistrate accepted that Dr Marmanidis did not receive the Claim and it followed that she manifestly established that she had a reasonable excuse for not having filed a defence by 27 August 2013. In this respect, I respectfully agree with Parker J in Fox Tucker Lawyers v Panda.[14] The Magistrate asked the wrong question, namely whether Dr Marmanidis engaged in unreasonable delay in applying to set aside the default judgment after she became aware of it, which on any view was long after the entry of the default judgment. While delay is a factor that might be taken into account in the exercise of the residual discretion, it is not a failure to comply with the Rules within the meaning of subrule 87(2) when judgment is signed in default of defence.

    [14] [2018] SASC 197 at [28] - [30].

    Should the default judgment be set aside

20. At common law, a distinction is drawn between a regular default judgment and an irregular judgment. A defendant applying to set aside a regular judgment must establish an arguable defence on the merits and a reasonable excuse for the default by reason of which the default judgment was entered.[15] By contrast, an irregular judgment is tainted and a defendant is prima facie entitled to have it set aside ex debito justitiae without having to establish an arguable defence or a reasonable excuse.[16] As Bray CJ said in Watson v Anderson:[17]

    There is, of course, a great difference between a judgment by default obtained regularly and one obtained irregularly. In the latter case the defendant will normally be able to get it set aside ex debito justiciae.[18]

    [15]   Watson v Anderson (1976) 13 SASR 329 at 334-335 per Bray CJ and 341 per Walters J (with whom Mitchell J agreed).

    [16]   Watson v Anderson(1976) 13 SASR 329 at 333 per Bray CJ. See also Anlaby v Praetorius (1888) 20 QBD 764 at 769 per Fry LJ and at 771 per Lopes LJ; Hughes v Justin [1894] 1 QB 667 at 669 per Lord Esher Mr (with whom Lopes and Davey LJJ agreed); Chitty v Mason [1926] VLR 419 at 423 per Dixon AJ; Daly v Silly [1960] VR 353 at 355 per Pape J.

    [17]   (1976) 13 SASR 329.

    [18]   At 333.

21. This position is reflected in rules 87(2) and 104(2)(b)(iv) extracted at [70] above.

22. Dr Marmanidis was prima facie entitled to have the default judgment aside ex debito justitiae.

23. There is some authority that, before application to set aside a default judgment is made and perhaps before it is granted, a court has power to amend a judgment for a fixed amount to a judgment that the plaintiff recover damages to be assessed and that such a power might be exercised when a default judgment for a fixed amount has been irregularly entered but the defendant plainly has no defence on the merits.[19] I assume without deciding that the Magistrates Court has such power. If such power exists, unlike the position in respect of a regular judgment, the onus of establishing that the defendant has no defence on the merits lies on the plaintiff.

    [19]   See Gemini Property Investments v Woodards Investments [2000] SASC 210 at [16]-[18] per Debelle J.

24. As observed above, Dr Marmanidis swore on oath that she was not involved in a collision in her BMW on 21 November 2012 and had not been involved in a collision in any motor vehicle since 2006. Dr Marmanidis supported her denial by swearing that since June 2011 she had instead been driving her new Mercedes Coupe and that she had an alibi because she was working between 8 am and 6 pm on 21 November 2012.

25. Dr Marmanidis is a psychiatrist reliant on her reputation. It is exceedingly inherently unlikely that she was prepared to commit perjury for the sake of attempting to avoid liability for a very small amount of property damage, especially when she deposed to the fact that her BMW was insured.

26. On the other hand, Mr Germein’s affidavit stated only that he was involved in a collision with the BMW sometime on 21 November 2012 somewhere on Tynte Street and he exchanged details with the driver.

27. RAA Insurance obtained the name and address of the owner of the BMW [registration no] on 2 January 2013.

28. For the reasons given below, even if the only explanation for the versions given by Dr Marmanidis and Mr Germein were that one of them was not telling the truth, there was no basis on a set aside application in the absence of cross-examination or at all to determine that Dr Marmanidis was lying and hence had no defence.

29. However, there are two plausible explanations consistent with the versions given by Dr Marmanidis and Mr Germein in which Dr Marmanidis is not liable. The first is that Dr Marmanidis was not the driver of the BMW on Tynte Street on 21 November 2012, Mr Germein was given by the driver the registration number but not their name and address and that Dr Marmanidis’ name and address was obtained by RAA Insurance after the collision on 2 January 2013. This is consistent with the curious manner in which Mr Germein’s affidavit is drafted as observed above. It is also consistent with the defendant being named in the claim as “Helen Marmanidis” rather than “Dr Helen Marmanidis” as she is likely to have described herself. On this scenario Dr Marmanidis plainly has a good defence to the claim.

30. The second plausible explanation is that the Dr Marmanidis was not the driver of the BMW on Tynte Street on 21 November 2012 and the driver gave to Mr Germein the name Helen Marmanidis as the owner of the vehicle and the person who carried insurance. This is entirely feasible given the general practice of persons exchanging details of the owner of the vehicle who carries insurance. This scenario is supported by the curious wording of paragraph 4 of Mr Germein’s affidavit and the curious lack of detail contained in his affidavit. On this scenario Dr Marmanidis plainly has a good defence to the claim.

31. The remaining possibility is that one of Dr Marmanidis and Mr Germein is not telling the truth. At trial the resolution of the conflict between their evidence could only be determined by a credit assessment. Dr Marmanidis was not cross-examined on her evidence and Mr Germein gave no oral evidence and was not cross-examined on his affidavit. It is impossible for this Court, and it was impossible for the Magistrate, to resolve the conflict between their evidence if indeed their evidence could not be reconciled as explained in the previous paragraphs. All that can be said is that there are two possibilities in addition to the possibilities referred to in the previous two paragraphs, namely that Dr Marmanidis is not telling the truth and that Mr Germein is not telling the truth.

32. At trial, it may be expected that the Magistrate hearing the trial would have the benefit of various items of objective evidence to assist in determining the truth. This would include evidence as to the time of the collision, evidence of Dr Marmanidis’ patient records at the time of the collision, evidence as to the location of the collision on Tynte Street, evidence as to how Mr Germein says the collision occurred at that place, evidence as to the nature and location of damage to Mr Germein’s vehicle and whether it is consistent with a collision as described by him, evidence whether Dr Marmanidis’ vehicle suffered any damage consistent with a collision as described by Mr Germein, evidence whether Mr Germein reported the collision to the police and if so the police report and if not why not, and evidence of Mr Germein’s report to his insurer.

33. Dr Marmanidis’ evidence could not be peremptorily rejected because it is inherently unlikely that Mr Germein could have obtained her name and address and the registration number of her vehicle if he had not been involved in a collision with her vehicle driven by Dr Marmanidis.

34. First Mr Germein did not say in his affidavit that he obtained Dr Marmanidis’ name or address from the driver of the BMW.

35. Secondly RAA Insurance obtained Dr Marmanidis’ name and address from the Department of Transport. The fact that the Claim identifies Dr Marmanidis’ name and address is therefore incapable of proving that Mr Germein must have obtained it from the driver on 21 November 2012.

36. Thirdly, as observed above if Mr Germein did have the name and address of the insured owner of the BMW, this is entirely consistent with the scenario identified at [130] above in which Dr Marmanidis would not be liable.

37. The fact that Mr Germein had the registration number of the BMW is objective evidence tending to support that there was a collision between the two vehicles but it says nothing about how the collision occurred and more importantly says nothing about the identity of the driver.

38. Even ignoring the two scenarios referred to above consistent with the versions of both parties, if it be the case that either Dr Marmanidis or Mr Germein was not telling the truth, it is impossible to determine which based purely on inherent likelihood. As observed above, it is inherently unlikely that Dr Marmanidis was prepared to perjure herself and jeopardise her profession for the sake of a small monetary amount. It might be regarded as inherently unlikely that Mr Germein would have falsely described the events but in this respect the vagueness of his version in his affidavit must be taken into account. In the absence of cross-examination of both witnesses and adducing objective evidence, there is no basis on which one inherent unlikelihood can be weighed against another inherent unlikelihood and a conclusion reached at this stage that Dr Marmanidis is not telling the truth.

39. This is manifestly not a case in which it is clear that Dr Marmanidis has no defence to the claim and the irregular default judgment should be amended to judgment for damages to be assessed.

    The exercise of discretion to quash the Magistrate’s order

40. The prejudice to Mr Germein that would result from quashing the default judgment, namely affecting the legality of  the subsequent enforcement steps, does not apply to merely quashing the Magistrate’s order and determining Dr Marmanidis’ set aside application on its merits. That determination can include a condition or order that Dr Marmanidis pay costs thrown away by reason of delay in applying to set aside the judgment.

41. In addition an application for judicial review of the Registrar’s decision to grant default judgment in 2013 required an extension of time under rule 200 of the Supreme Court Rules whereas the application for judicial review of the Magistrate’s 2016 decision was made within a week of that decision.

1. A distinction is drawn between ‘proof’ sufficient to support a default judgment on the one hand and proof of quantum when contested on the other.  The purpose of r 61 is to provide sufficient information to a defendant to enable an informed decision to be made whether or not to contest the quantum claim.  The Registrar is not a judicial officer and does not exercise a judicial function, and so is not therefore required to be satisfied of proof on the balance of probabilities as would be the case at trial presided over by a Magistrate.

2. The entry of judgment for the additional sum of $490.91 for the hire car was not supported by any documentation at the time the Registrar purported to enter judgment for that amount.  Compensatory damage did not follow as a matter of course because the loss of a replacement vehicle is subject to the duty to mitigate and proof of what is reasonable in the circumstances: Clarke v Tull.[24]  In that event the proper course was for the Registrar to have referred that aspect of the claim for assessment under r 62 of the Magistrate Court (Civil) Rules.  The subject matter of this rule is the assessment of damage the proof of which is not provided for by r 61.  The entry of judgment for court fees of $134.75 was largely unaffected by this error.[25] 

   [24] [2003] QB 36, [147].

   [25]   The filing fee is $20 plus 5%; Third Schedule Costs Scale 2 to the Magistrates Court (Civil) Rules. 

3. As will become apparent, this aspect of the default judgment as an administrative as distinct from a judicial determination, was amenable to correction by bringing an application to set aside that portion of the judgment under r 104(1)(b)(iv) of the Magistrate Court (Civil) Rules.  Judicial review would however necessarily fail on discretionary grounds simply because a complete remedy was cheaply and efficiently available under r 104.

   Application to set aside judgment - delay

4. A little less than three years later, Dr Marmanidis applied to the Magistrates Court to set aside the default judgment, an application undoubtedly generated by a warrant of enforcement for the sale of her home issued by the Registrar on 4 December 2015, since her application was brought the day before the property was due to be sold pursuant to the warrant.  It might be added that by this point in time Dr Marmanidis had incurred self‑inflicted court fees and adverse legal costs of $14,768.75 in the intervening period.

5. The application to set aside was brought pursuant to r 87 of the Magistrates Court (Civil) Rules, which provides as follows:

   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 an order of the Court, or any time limit fixed by these Rules or order of the Court, in respect of the action or proceeding.

   …

6. It can be seen that both rr 87(2)(a) and (b) must be satisfied before the power to set aside arises.  The Magistrate accepted that Dr Marmanidis did not receive the claim by post, but found she ‘knew of the proceedings when she received the investigations summons in January 2014’.  The summons was purportedly served by post on 31 July 2013.

7. There was a plethora of unpersuasive material before the lower courts generated in large part by Dr Marmanidis herself, endeavouring to explain the delay in seeking to set aside judgment after receiving the investigations summons.  There are concurrent findings by both the Magistrate and the review Judge rejecting those explanations, so it is unnecessary to go into the prolix details. 

8. Having considered the material then available and taking evidence on oath from Dr Marmanidis herself, the Magistrate concluded:

   [19] However, the defendant knew of the proceedings when she received the investigation summons in January 2014. It is now October 2016. I appreciate the application to set aside the default judgment was lodged at the end of July 2016, but we are still talking two and a half years after the defendant became aware of the fact that there was a judgment that had been entered against her in this court.

   …

   [23] Had the defendant taken those steps then we would not be here today. This matter presumably would have resolved many years ago, however rather than engage with the court process and comply with the Rules, as this court requires its litigants to do, the defendant’s behaviour or actions in this matter suggest that she was ignoring the process rather than to properly engage in the process and deal with it as required of all litigants in this jurisdiction and in the other jurisdictions. Unfortunately the result of that has meant that there has been considerable delay, considerable expense and considerable angst incurred by everyone.

9. Likewise, after taking evidence from Dr Marmanidis again, the review Judge formed a similar view: Marmanidis v Germein & Anor:[26]

   [160] The terms of the investigation summons are set out above. The command made by the court is clear and unequivocal. So too the warning. The plaintiff was obliged to attend the court, and, in that forum, raise any and all concerns she had. She was not entitled to refuse to engage until such time as she was satisfied that it was appropriate to do so.

   [161] Contrary to the plaintiff’s belief, returning an investigation summons to a court registry under cover of a letter that, in essence, rejects the summons as applying to her, is not engaging in the process. Neither is engaging in written correspondence or other communication with the Registry …

   …

   [164] In my view, having regard to the affidavits of the plaintiff and to her oral evidence, it cannot be said that the Magistrate has taken into account an irrelevant consideration. Whilst the Magistrate’s reasons do not recount the plaintiff’s explanations, in my view it was unnecessary to do so. Nothing said amounts to a reasonable excuse for the purposes of rule 87(1)(b) MCCR. Most importantly, the plaintiff offers no reasonable explanation for failing to answer the investigation summons. At no time was the plaintiff impeded by her circumstances or otherwise from attending court. Even upon being advised of their intent to issue a warrant for the sale of her property she chose not to attend.  In my view the conclusion arrived at by the Magistrate was reasonably open on the material. It does not lack an “evident and intelligible justification” such that it is not “defensible in respect of the facts and law”.

   [26] [2017] SASC 103, (footnotes omitted).

   Application to set aside – arguable defence

10. There was some debate before this court as to whether Dr Marmanidis had an arguable defence as required by r 87(2)(b) of the Magistrates Court (Civil) Rules.  As to this aspect of the application to set aside, the Magistrate reasoned:

    [16] Now turning to the two criteria that must be satisfied to set aside a default judgment, the first is whether or not there is an arguable case on the merits. That is for the defendant to establish. The defendant maintains that she has no recollection of being involved in any motor vehicle accident on or about 21 November 2012 at North Adelaide and that she cannot recall being involved in any motor vehicle accident since approximately 2007. The defendant acknowledges that she is the owner of a BMW WEX-217 that says that as at the date of the alleged accident, this was not the vehicle that she regularly drove. She regularly drove another vehicle. She is still the owner of that BMW.

    [17] The plaintiff’s case is a simple one. He says he was driving along Tynte Street, North Adelaide when a vehicle reversed from a carpark into his vehicle and that he exchanged details with the driver of that vehicle after the accident and that that person provided the details of the defendant. He also describes the vehicle as being a BMW WEX-217.

    [18] The defendant acknowledges that she works in North Adelaide and the defendant also lives occasionally in North Adelaide and at other times in the city. The accident allegedly occurred in North Adelaide involving a vehicle that is owned by the defendant. Whilst the defendant maintains that she has no recollection of being involved in the accident, in my view her prospects of successfully defending the claim on that basis are almost impossible.

    [19] I do not believe the defendant has an arguable case on the merits.

11. Here again the review Judge affirmed this conclusion: Marmanidis v Germein & Anor:[27]

    [154] Before the Magistrate, in her affidavits, and before this Court the plaintiff complained that the claim lacked particularity. It made it difficult, she contended, for her to mount a case in her defence. With further particulars, she said, she would be able to prove where she was and refute the claim. The onus, however, is upon the plaintiff to establish that she has an arguable case on the merits. Nothing prevented the plaintiff from attending Court armed with her 2012 appointment records for the period on or about 21 November 2012. She did not do so. She gave no evidence, either orally or in affidavit form addressing the period subject of the claim. At no time did she give evidence without qualification that she was not involved in any accident on or around 21 November 2012 and neither was her BMW involved in any accident on or around 21 November 2012. She chose instead to complain about a want of particularity.

    [155] In the circumstances, I cannot say that the Magistrate’s conclusion that the plaintiff did not have an arguable case on the merits within the meaning of rule 87(1)(a) MCCR lacked an evident and intelligible justification such that it is not defensible.

    [27] [2017] SASC 103, [154]-[155].

12. There being concurrent findings in both courts below after taking evidence in each instance and resolving this question adversely to Dr Marmanidis on both issues, it is not open to this court on appeal to interfere with what are clear findings of fact.  This court does not enjoy the considerable advantage exercised by the courts below of seeing and hearing the evidence given: Dearman v Dearman,[28] and SS Hontestroom v SS Sagaporack.[29]Nor should an appellate court interfere with concurrent findings of fact ‘in the absence of special reasons such as plain injustice or clear error …’: Louth v Diprose.[30]  Furthermore even assuming error, those findings were not susceptible to correction on judicial review, as they were errors made within jurisdiction by a court of law as distinct from jurisdictional error: Re Refugee Review Tribunal, Ex parte Aala.[31]  For that reason alone it is not open to this court to interfere.

    [28] (1908) 7 CLR 549, 564.

    [29] [1927] AC 37, 47.

    [30] (1992) 175 CLR 621, 634.

    [31] (2000) 204 CLR 82, [163].

13. Quite apart from these considerations, the plaintiff’s denial of involvement in any accident inasmuch as she contends having no recollection of the incident, means she is unable to refute Mr Germein’s case that there was such an accident.  The inescapable fact of the matter is that Dr Marmanidis admitted having a BMW of the make and model allegedly involved in the subject collision.  The otherwise uncontested affidavit evidence of Mr Germein was that at the time of the subject accident, a person reversed from a car park in Tynte Street into his car, following which they exchanged personal particulars including the name Dr Marmanidis, her address and car registration number.  The fact that the case for Mr Germein was not put to Dr Marmanidis in cross-examination is of no practical consequence in light of her persistent bare denials and failures to join issue.  It is clear she would have maintained the blunt stance of having no recollection of the incident even if impeached upon it, so that what was in issue was ‘distinctly and unmistakably … so manifest, that it [was] not necessary to waste time in putting questions to [her] upon it: Browne v Dunn.[32] Putting the abject futility of remission aside, proceedings in the minor civil claims jurisdiction are in any event conducted in accordance with ss38(1)(a) & (b) of the Magistrates Court Act, which provide that such proceedings ‘take the form of an inquiry by the Court ….. rather than an adversarial contest between the parties’ and that the court will ‘itself elicit by inquiry from the parties and the witnesses, …. the facts necessary to decide those issues’.    This is not to deny that the rules of natural justice did not apply, but simply to observe that they were not breached in this instance: Uelese v Minister for Immigration and Border Protection.[33]                 

    [32] (1893) 6 R67, 70.

    [33] (2015) 256 CLR 203 [102], and the authorities referred to therein footnote 64.

14. It is to strain credulity beyond all reasonable limits to suppose that a complete stranger, such as Mr Germein, somehow independently obtained these esoteric particulars of the other driver which coincidentally happen to correspond with those of Dr Marmanidis, a person with whom Mr Germein had no prior association.  Circumstantially it so happens that Tynte Street, North Adelaide is in the same suburb in which Dr Marmanidis resides and even closer to the Centre in which she practices.

15. In these circumstances to remit the matter for reconsideration of whether or not there was an arguable case on the merits, amounts to nothing more than an exercise in futility.  It is authoritatively established that relief in the nature of judicial review is inevitably refused as a matter of discretion when there is no practical utility in doing so: SZBYR v Minister for Immigration and Citizenship,[34] Tooth & Co Ltd v Parramatta City Council,[35] Weinel v Judge Parsons.[36]

    [34] (2007) 81 ALJR 1190, [29], [87], [91]-[92].

    [35] (1955) 97 CLR 492, 498.

    [36] (1994) 62 SASR 501, 504-504, 505-506.

16. Even then, the refusal to set aside the default judgment does not end there.  As noted earlier, there was no proper basis for entering judgment in respect of the hire car claim.  There was sufficient material before her Honour by way of affidavit material filed by Dr Marmanidis putting in issue the measure of damages in respect of the hire car claim.  So much appears from the affidavit of Dr Marmanidis filed on 10 October 2016 in the Magistrates Court:

    6.     No explanation whatsoever is provided of why the period of the car hire is for the period of 12-20 January 2013 while the repairs to the plaintiff’s motor vehicle appear to have been dated 29 January 2013 and no explanation is provided as to what the damage was to the motor vehicle and why the repairs necessitated car hire for a period of 8 days.

    7.     The plaintiff’s affidavit states that he was travelling along Tynte Street when he was involved in a collision with a BMW registration number WEX 217 driven by Helen Marmanidis that reversed into his motor vehicle and that he exchanged details with the driver of the BMW.

    8.     Although the plaintiff does not provide any photographs or evidence of what was damaged and where his car was damaged, if the media reports are correct, the damage was to the plaintiffs bumper bar and it is difficult to understand how this could have occurred if his motor vehicle was damaged by another motor vehicle reversing into his motor vehicle.

    9.     The plaintiff has not ever provided any details of the alleged collision that would normally be provided when making a claim for a motor vehicle collision which is reported to an insurance company for a claim.

17. This material was more than sufficient to require the Magistrate to consider whether or not the judgment entered by the Registrar was regular.  Her Honour’s failure to advert to the question led her into error, because the provisions of r 104(1)(b)(iv) of the Magistrates Court (Civil) Rules were engaged.  These permitted the court to ‘vary or set aside a judgment … if it was obtained consequent upon any irregularity’.

18. Accordingly, the entry of judgment insofar as the hire car fees were concerned was irregular.  Her Honour’s failure to consider whether she was satisfied the judgment was regularly entered amounted to both an appealable, and as a jurisdictional pre-condition for exercising the power to set aside judgment on the grounds of irregularity, jurisdictional error: Plaintiff M70/2011 v Minister for Immigration and Citizenship,[37]  Gideon v Commissioner of the New South Wales Crime Commission.[38]  The circumstances amounted to a constructive failure to exercise jurisdiction: R v War Pensions Entitlement Appeal Tribunal; ex parte Bott,[39] itself a species of jurisdictional error: Minister for Immigration and Multicultural Affairs, Re; Ex parte Miah.[40]

    [37] (2011) 244 CLR 144 [57], [109].

    [38] (2008) 236 CLR 120, [43].

    [39] (1933) 50 CLR 228, 242-243.

    [40] (2001) 206 CLR 57, [80]-[81].

19. It is no answer to suppose that her Honour would nevertheless have refused to set aside judgment on the basis of irregularity, for the same reasons she gave when refusing to do so on the merits.  On that aspect of the matter her Honour reasoned:

    [19] I do not believe the defendant has an arguable case on the merits. If I am wrong about that, I would still need to be satisfied that the defendant has a reasonable excuse for failing to comply with the Rules. Now I acknowledge that the defendant says she didn’t receive the claim at the Barton Terrace address when it was first served and I accept that explanation. However, the defendant knew of the proceedings when she received the investigation summons in January 2014. It is now October 2016. I appreciate the application to set aside the default judgment was lodged at the end of July 2016, but we are still talking two and a half years after the defendant became aware of the fact that there was a judgment that had been entered against her in this court.

    [20] The Rules exist for a reason. This court deals with thousands of cases every year and unless the court processes are adhered to this court cannot run efficiently and justice cannot be served. Had the defendant engaged in the court process in or about January 2014 we would not be here today and we would not have had the horrible litany of events that has occurred since January 2014?

    [21] The investigations summons served on the defendant in January 2014 clearly stated there was a default judgment that was in effect. It gave a date for the defendant to attend at court and it indicated quite clearly that there was the ability to apply to set aside the default judgment, given it was not a final judgment.

    [22] Had the defendant taken those steps then we would not be here today. This matter presumably would have resolved many years ago, however rather than engage with the court process and comply with the Rules, as this court requires its litigants to do, the defendant’s behaviour or actions in this matter suggest that she was ignoring the process rather than to properly engage in the process and deal with it as required of all litigants in this jurisdiction and in the other jurisdictions. Unfortunately the result of that has meant that there has been considerable delay, considerable expense and considerable angst incurred by everyone.

    [23] It was not until the middle of this year, just before attempts were to be made to sell the defendant’s home that the application to set aside the default judgment was issued. The authorities say that a consideration in the exercise of my discretion under Rule 87 is to look at the delay and the prejudice that has been incurred by the plaintiff and in this case there has been significant delay and prejudice, so even if I am wrong about whether or not there is an arguable case on the merits I would not have granted the application to set aside the default judgment in any event.

20. Plainly the exercise of the power to set aside on the merits and to set aside for irregularity, involve the exercise of two quite different discretions in two quite different contexts.  Even though the explanations for delay in bringing proceedings to set aside were most unsatisfactory, a lay person is entitled to proceed on the basis that a judgment entered was obtained regularly and remained legally effective until set aside by a court exercising competent jurisdiction: Minister for Immigration and Multicultural Affairs v Bhardwaj.[41] 

    [41] (2002) 209 CLR 597, [13] per Gleeson CJ and [51]-[53] per Gaudron and Gummow JJ.

1. On the other hand as Bray CJ observed in Watson v Anderson,[42] in the case of an irregularly obtained judgment ‘the defendant will normally be able to get it set aside ex debito justitiae’.  It was by no means inevitable that her Honour would have similarly exercised the irregularity discretion; on the contrary, it is more likely than not that the proper exercise of discretion was to set aside the judgment in the monetary amount for the hire car and remit that for an assessment of damages under r 62 of the Magistrates Court (Civil) Rules.

   Proceedings in the Supreme Court

   [42] (1976) 13 SASR 329, 333.

   Pre-trial proceedings

2. Rather than exercise the far more beneficent rights of appeal to the District Court, Dr Marmanidis issued an appeal to the Supreme Court on 11 October 2016. In this she complained amongst other things, of the judicial order dismissing her application to set aside the default judgment on grounds other than irregularity. This came before another Judge of the Court who in the first instance explained there was no jurisdiction to entertain an appeal in the Supreme Court, but that it could be converted into an application for a merits review under s 38 of the Magistrates Court Act.  His Honour was prepared to remit the proceedings to the District Court, or alternatively convert it into an application for judicial review to the Supreme Court.  Upon Dr Marmanidis indicating her preference for the latter course, his Honour made an order accordingly.

3. In a later hearing, the same Judge extensively explained the limitations of judicial review as opposed to the wider rights available as conferred on merits review to the District Court, as well as the differing consequences so far as costs were concerned in respect of both procedures.  Even so, Dr Marmanidis continued to insist on her preference for judicial review.  The substance of the grounds for judicial review focused upon the failure of the Magistrate to set aside the default judgment entered by the Registrar, because ‘the claim was not served upon’ her.  Otherwise Dr Marmanidis sought a stay or removal of the warrant for the sale of her property.

   Election for judicial review

4. It was when matters came on before the review Judge that proceedings took a rather confusing course. His Honour had given permission for the Attorney-General to intervene pursuant to s 9(2)(c) of the Crown Proceedings Act 1992 (SA), rather than dealing with what was claimed to be a right of intervention pursuant to s 9(2)(b)(iii) thereof.[43]  The question whether his Honour ought to have acceded to intervention as of right is of no moment since the Attorney-General was given permission to intervene in any event.  The matter comes before the Full Court on an appeal instituted by the Attorney-General, supported by Mr Germein as second respondent and by way of notice of cross-appeal.

   [43]   Marmanidis v Germein & Anor [6], footnote 7.

5. The reviewing Judge was placed in an invidious position by the somewhat ambivalent attitude of the appellate parties. Both had consistently maintained the appropriate remedy was by means of District Court merits review rather than judicial review. Despite that stance, the appellate parties took a somewhat contradictory position before his Honour in not distinctly opposing the matter proceeding by way of judicial review. A number of options for disposition were mooted, including embarking upon a review process under s 38 of the Magistrates Court Act.  Nevertheless Dr Marmanidis continued to insist on judicial review.

6. In light of the principles informing the discretionary nature of orders for judicial review to be discussed later, the most principled and pragmatic course was to transfer the appeal to the District Court pursuant to s 24(1)(b) of the District Court Act, or to have ordered a temporary conditional stay to permit Dr Marmanidis to take proceedings for merits review in the District Court: see for instance Kelly v Coats,[44] Beck v Thornett,[45] FJ Hospital Enterprises Pty Ltd v Grimes & Rose.[46]

   [44] (1981) 35 ALR 93, 94.

   [45]   (1984) 6 ALN N209. 

   [46] (1981) 35 ALR 93.

   Jurisdictional error

7. All the same the matter proceeded as an application for judicial review.  His Honour rejected all grounds of complaint made by Dr Marmanidis.  However he concluded that the Registrar lacked the power to enter judgment ‘absent strict compliance with rule 61(2)’ of the Magistrates Court (Civil) Rules.[47]  This he considered amounted to jurisdictional error ‘outside the limits of the functions and powers conferred’, quoting the judgment of Hayne J in Re Refugee Review Tribunal; Ex parte Aala.[48]  After noting the underlying cause of action was ‘one falling within’ rule 61(1)(b) and 61(2) of the Magistrates Court (Civil) Rules,[49] his Honour concluded there was not strict compliance as required by r 60(1)(b), on the footing that:[50]

   … judgment cannot be signed in the amount of a claim if the defendant has not had notice (including the provision of any account, quotation, invoice or receipt upon which a plaintiff is intending to rely) of the basis upon which the amount has been determined and no assessment of that amount has been undertaken by the Court.

   [47]   Marmanidis v Germein & Anor, [141].

   [48] (2000) 204 CLR 82, [163].

   [49]   At [134]-[135].

   [50] At [131].

8. This conclusion conflated into one exercise two different powers conferred by r 60(1) and r 61 of the Magistrates Court (Civil) Rules.  The former pertains to the entry of judgment on liability.  The latter pertains to the entry of judgment in a specific amount after a party signs judgment for a claim.  His Honour therefore erred in misconstruing the two rules as they interrelated with each other.  Nevertheless for the reasons given above, he was correct to the extent of non-compliance so far as the claim for hire car costs was concerned.

   Notice of changed basis of review

9. Putting this matter to one side, there is a more fundamental consideration.  The focus of the application for judicial review on behalf of Dr Marmanidis was the Magistrate’s decision refusing to set aside the default judgment.  The question of the validity of the Registrar’s antecedent decision was not raised on the papers, and it was not one that was agitated during the course of the review proceedings.  This provides a sufficient basis of itself, to justify appellate intervention on procedural fairness grounds.

10. It is a fundamental aspect of the judicial function that the parties are to be afforded reasonable opportunities to be heard and to make answer to issues that arise and which might be determined adversely to them: Stead v State Government Insurance Commission,[51] Re Refugee Review Tribunal; Ex parte Aala.[52]Indeed the failure to afford procedural fairness is now recognised as another species of jurisdictional error: Probuild Constructions (Aust) Pty Ltd v Sharle Systems Pty Ltd,[53] Mahon v Air New Zealand Ltd.[54] 

    [51] (1986) 161 CLR 141, 145.

    [52] (2000) 204 CLR 82, [3], [58], [101], [131].

    [53] (2018) 92 ALJR 248, [72]-[75].

    [54] [1984] AC 808, 820.

    Extension of time to seek judicial review

11. Still further, as the application to the Supreme Court for judicial review arose more than six months after the reviewable decision of the Registrar, his Honour wrongly proceeded to make an order for Judicial Review in the nature of certiorari under r 199(2)(b) of the Supreme Court Civil Rules 2006 (SA), without granting the requisite permission to proceed with the action as required by r 200(3) and (4) thereof.  This consideration further compounds the failure to accord procedural fairness in that the parties were not heard on this issue either.

    Disposition

12. There being error in the proper construction of the Magistrates Court (Civil) Rules and a denial of procedural fairness, the appeal must succeed.  The question then becomes the appropriate manner of disposition in light of the above analysis?

13. To reiterate, the following conclusions are drawn from the above analysis:

    1liability judgment was properly entered by the Registrar pursuant to r 60(1) of the Magistrates Court (Civil) Rules;

    2judgment was properly entered by the Registrar with respect to the liquidated sum for property damage of $1,589.40, but not for the costs of the hire car of $490.91; this error was capable of correction under r 104 of the Magistrates Court (Civil) Rules;

    3the Magistrate was correct in declining to set aside the liability judgment, but incorrect in failing to set aside the unproven judgment for the hire car fees; the latter error was amenable to correction on both appellate and judicial review;

    4the review Judge erred in concluding that jurisdictional error resulted by reason of the Registrar’s entry of liability judgment and in determining to grant orders for judicial review by failing to alert the parties to the issue and by failing to afford them the opportunity to be heard upon it as well as the extension of time required;

    5although the Magistrate’s and the review Judge’s conclusions that Dr Marmanidis did not have an arguable case on the merits were otherwise susceptible to correction on appellate (but not judicial review), there are findings that should not be disturbed. 

14. It must be steadily borne in mind that the underlying proceedings involve a relatively minor claim resulting from a minor traffic accident and that such matters form a significant portion of the ‘bread and butter’ jurisdiction of the small claims jurisdiction in the Magistrates Court.  Evidence submitted to the review Judge demonstrates that for the financial year 2013-2014, 21,549 minor civil claims were lodged in the Magistrates Court, of which 11,762 became default judgments, of which 424 applications to set aside were lodged.  For the financial year 2014- 2015, there were 19,602 such claims of which 10,240 judgments were entered in default, 398 of which attracted applications set aside.  For the financial year 2015-2016, there were 17,615 such claims, of which 9,413 were entered in default, of which there were 323 applications filed to set aside the default judgment.

15. The present proceedings were significantly protracted and engaged the courts in complex legal issues, unworthy of the subject‑matter of the litigation itself.  The question therefore clearly arises as to whether in the proper exercise of discretion, judicial review ought to be refused in any event.

16. The review Judge dealt with this matter briefly in his reasons in the following way:

    Should Relief be Granted

    [176] On an application for judicial review the grant of relief is within the discretion of the Court. I have concluded that judgment may only be signed and judgment entered into the record by the Registrar if rules 60 and 61 are strictly complied with. As unsatisfactory as the conduct of the plaintiff has been between when she received the investigation summons and applied to set aside the default judgment, to deny her the relief she seeks means ignoring an unlawful act by an officer of a court. That puts the court in an invidious position. I appreciate that significant expense has been incurred, but in view of my conclusion, that can no longer simply be sheeted home to the plaintiff. Indeed, the defendant bears some responsibility. I have also considered the prejudice to the defendant. The prospect of a trial now looms. However, I do not consider the events so old that the defendant is irremediably compromised.

    [177] I accept the submission made by the Attorney-General that ordinarily this Court will not entertain an application for judicial review where all appeal rights have not been exhausted. However, that principle is not a rule of law. The history of these proceedings in this Court in particular render it in appropriate, in my view, not to entertain the plaintiff’s application or to refuse her relief.

    [178] In my view it is appropriate in this case to grant the relief sought. I would make an order in the nature of certiorari quashing the default judgment.

17. It is not readily apparent precisely what his Honour meant when observing that ‘the defendant bears some responsibility’, since the Supreme Court proceedings were taken at the insistence of Dr Marmanidis following an inordinate delay.  Putting that consideration to one side, his Honour properly accepted that ‘ordinarily, this court will not entertain an application for judicial review where all appeal rights have not been exhausted’, whilst at the same time observing ‘that principle is not a rule of law’.  The latter observation should be understood as meaning the principle is not an inviolate or absolute one, rather than as unduly qualifying the general rule.  It appears that what most influenced his Honour in deciding that judicial review was appropriate, was the ‘history of these proceedings in this court in particular’.  By that his Honour appears to reference the attitude of the appellate parties in particular by not opposing the matter proceeding by way of judicial review before him, despite their fundamental stance that it was an inappropriate course.

18. It is well settled that relief in the nature of judicial review, or indeed for prerogative relief, is routinely refused as a matter of discretion when a complete remedy lies elsewhere: Re Refugee Review Tribunal; Ex parte Aala,[55] SZBYR v Minister for Immigration and Citizenship.[56]  Some guidance for this purpose is to be found in the joint judgment in R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres Pty Ltd:[57]

    For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.

    [55] (2000) 204 CLR 82, [56].

    [56] (2007) 81 ALJR 1190.

    [57] (1949) 78 CLR 389, 400.

19. Given the tortuous course of these proceedings so far as time limits compliance is concerned, an extension of time in which to bring the application for judicial review is manifestly inappropriate.  This situation, together with the combined circumstances of this case, amount to an overwhelming case for the discretionary refusal of relief, principally for the following reasons:

    ·the underlying dispute concerns a minor civil claim for $2,335.31 with respect to a minor motor vehicle accident in 2012.  Only the entry of the default judgment with respect to a small component of the claim in the amount of $490.91 is properly amenable to judicial review;

    ·the long period of ‘self-inflicted’ delay by Dr Marmanidis,[58] in circumstances in which she ignored simple court processes resulting disproportionately in ‘considerable expense and considerable angst’ and when she proffered no reasonable explanation for the delay;

    ·proceeding by way of judicial review thwarts the legislative policy of simplicity and expedition, enhanced by abridged modes of procedure and proof in dealing with and disposing of small claims, in a ‘practical and efficient’ way: Wilczynski v District Court of South Australia;[59]

    ·the mechanism for review provided for in s 38(7) of the Magistrates Court Act is expeditious, efficient, effective and comprehensive, without the adverse costs consequences attending applications for judicial review: Tooth and Co Ltd v the Council of the City of Parramatta,[60] Weinel v Judge Parsons.[61] 

    [58]   Marmanidis v Germein & Anor (No 2) (2017) SASC 114, [13].

    [59] [2016] SASC 51, [69] and [2017] SASCFC 102, [109].

    [60] (1955) 97 CLR 492, 498.

    [61] (1994) 62 SASR 501, 504, 505-506.

    Conclusion and orders

20. In light of the above analysis, although it is open to set aside the decision of the Registrar of 27 August 2013 to the limited extent of reducing the default judgment sum of $2,470.06 by $490.91 to account for the hire car fee wrongly entered, the overwhelming discretionary factors and the relatively small sum involved, militate against that course.  Additionally, the extremely protracted course of these proceedings over a minor motor vehicle accident as long ago as 2012, calls for bringing finality into this litigation and in order to protect the parties from repeated attempts to re-agitate what has already been decided: Burrell v The Queen,[62] Clone Pty Ltd v Players Pty Ltd.[63]  The fact remains that Dr Marmanidis resolutely insisted on the matter proceeding by way of judicial review despite fully knowing the implications and limitations. 

    [62] (2008) 238 CLR 218, [16].

    [63] (2018) 92 ALJR 399, [69].

21. In light of the above reasons the appropriate orders are these:

    1.The Appeal by the Attorney-General and the cross-appeal by Mr Germein are allowed. 

    2.The order dated 25 October 2016 granting the application for judicial review and making orders in the nature of certiorari quashing the default judgment of the Registrar, is set aside.

    3.In lieu thereof order the application for judicial review be dismissed.

    4.The orders for costs made by the review Judge in favour of Dr Marmanidis on 28 July 2017 are set aside.

    5.The parties be at liberty to make submissions in writing as to the appropriate form of orders for costs, within such times as are fixed by the court.