(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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Attorney-General (SA) v Marmanidis [2019] SASCFC 3
Case
[2019] SASCFC 3
Decision Date
CaseChat Overview and Summary
The appeal concerned a default judgment entered in the Magistrates Court of South Australia. The appellant, the Attorney-General (SA) on behalf of Mr Germein, sought to uphold a default judgment obtained against the respondent, Helen Marmanidis. The dispute arose from a minor civil claim filed by Mr Germein, represented by solicitors BDK, seeking damages for negligence after a motor vehicle collision. The claim included amounts for repairs and a hire car.
The central legal issues before the court were whether the default judgment was irregularly entered and, if so, what relief should be granted. Specifically, the court had to determine if Mr Germein's claim constituted a liquidated sum for which default judgment could be entered without an assessment of damages, or if it was an unliquidated claim requiring such an assessment. The court also considered the adequacy of the evidence served with the claim, particularly concerning the hire car costs.
The court reasoned that a claim for damages in negligence is a quintessential unliquidated claim, as the amount requires assessment by the court and cannot be predetermined by a fixed amount, scale, or formula. It distinguished between liquidated and unliquidated claims, noting that while default judgment can be entered for a liquidated sum, unliquidated claims typically necessitate an assessment of damages. The court found the contention that Mr Germein's claim was liquidated to be untenable, as no evidence of the hire car cost was served with the claim, and the claim for damages itself was not a liquidated sum. The court held that the construction of the relevant rules advanced by the Attorney-General and Mr Germein would undermine the established distinction between liquidated and unliquidated claims.
The appeal was allowed, and the order quashing the default judgment was set aside. In its place, the court ordered that the default judgment be set aside on terms relating to the costs thrown away.
Orders
Orders of the court
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Background
Background to the litigation
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 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. 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. 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”. 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. 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. On 9 December 2013 a further investigation summons was issued returnable on 13 February 2014. It was served on Dr Marmanidis. 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. 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.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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 The relevant parts of rules 60 to 62 are set out at [65] above. 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. 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. 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. 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). 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.