Attorney-General (SA) v Marmanidis (No 2) - [2019] SASCFC 77

Supreme Court of South Australia
(Full Court)
ATTORNEY-GENERAL (SA) v MARMANIDIS (No 2)
[2019] SASCFC 77
Judgment of The Full Court
(The Honourable Justice Blue, The Honourable Justice Nicholson and The Honourable Auxiliary Justice Tilmouth)
1 July 2019
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - GENERAL RULE: COSTS FOLLOW EVENT - GENERAL PRINCIPLES AND EXERCISE OF DISCRETION
Applications for costs following appeal.
The Court allowed an appeal against a judgment by a single Judge in a judicial review action quashing a default judgment entered in the Magistrates Court in favour of the second respondent against the first respondent.
The second respondent seeks an order that the first respondent pay his costs of the judicial review action. The appellant and the second respondent each seek an order that the first respondent pay their costs of appeal.
Held (by the Court):
1. There should be no order as to the costs of the action in favour of the second respondent in light of the fact that, but for the exercise of the discretion whether to grant relief on judicial review, the first respondent would otherwise have partially succeeded in the action and because the second respondent requested judgment for the full amount of his claim when he was not entitled to it (at [13]).
2. Taking into account that the appellant and second respondent had the same interest on appeal and failed on appeal on several significant discrete issues, there should be an order that the first respondent pay 50 per cent of the appellant’s and second respondent’s costs of the appeal (at [22]).
3. The interlocutory order staying payment out of moneys held by the Sheriff pending the result of the judicial review action should be discharged (at [25]).
Supreme Court Act 1935 (SA) s 40, referred to.

ATTORNEY-GENERAL (SA) v MARMANIDIS (No 2)
[2019] SASCFC 77
Full Court: Blue and Nicholson JJ and Tilmouth AJ
THE COURT:

On 17 January 2019 this Court allowed an appeal against a judgment by a single Judge of this Court in a judicial review action (action 1297 of 2016) quashing a default judgment entered in the Magistrates Court in favour of the second respondent Samuel Germein against the first respondent Dr Helen Marmanidis.[1]
[1] Attorney-General (SA) v Marmanidis [2019] SASCFC 3.
Mr Germein seeks an order that Dr Marmanidis pay his costs of the judicial review action. The Attorney-General, who intervened in that action, does not seek any order in relation to the costs of that action.
The Attorney-General, who was the appellant on the appeal to this Court, and Mr Germein, who filed a cross-appeal in support of the Attorney-General’s appeal, each seek an order that Dr Marmanidis pay their costs of appeal.
Background
Mr Germein filed a Claim against Dr Marmanidis in the Magistrates Court seeking damages of $2,080 allegedly caused by the negligent driving of Dr Marmanidis when her motor vehicle collided with his motor vehicle. The damages claimed comprised $1,589 cost of repairs and…

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

Case: [2019] SASCFC 77
Decision Date: 1 July 2019

CaseChat Overview and Summary

The appeal before the Full Court of the Supreme Court of South Australia concerned the costs of a judicial review action. The original dispute involved Mr Germein seeking damages from Dr Marmanidis in the Magistrates Court for a motor vehicle collision. Mr Germein obtained default judgment for $2,080, which included costs for repairs and a hire car. Dr Marmanidis's application to set aside this judgment was dismissed by a Magistrate. She then commenced proceedings in the Supreme Court, which was converted to a judicial review action, with the Attorney-General intervening. A single judge quashed the default judgment, finding it irregular due to a lack of evidentiary material for the hire car component. The Attorney-General appealed this decision.

The Full Court was required to determine the appropriate costs orders for both the appeal and the underlying action, given its own conclusions on the substantive issues. The Court had previously found that Mr Germein was not entitled to judgment for the hire car costs and that the Magistrate had erred in not considering this irregularity. However, by majority, the Court had refused to grant judicial review, exercising its discretion to dismiss the action.

The Court reasoned that, as the judicial review action had been dismissed, the substantive issues had been resolved in favour of Dr Marmanidis to the extent that the default judgment was irregular. However, the Court's discretion to refuse judicial review meant that the default judgment, though irregular, was not formally set aside by the Full Court. Applying the general principle that costs follow the event, but considering the mixed success and the exercise of discretion, the Court ordered that Dr Marmanidis pay 50 per cent of the costs of the appeal for both the Attorney-General and Mr Germein. Each party was to bear their own costs of the underlying action.

Orders

Orders of the court

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Background

Background to the litigation

The Attorney-General, who was the appellant on the appeal to this Court, and Mr Germein, who filed a cross-appeal in support of the Attorney-General’s appeal, each seek an order that Dr Marmanidis pay their costs of appeal.Background Mr Germein filed a Claim against Dr Marmanidis in the Magistrates Court seeking damages of $2,080 allegedly caused by the negligent driving of Dr Marmanidis when her motor vehicle collided with his 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 referring to $1,589 for repairs. No document relating to the hire car was attached. On the twenty first day after service of the claim by post was deemed to have been effected upon Dr Marmanidis, Mr Germein requested that judgment in default of defence be signed for $2,080 plus costs. The Magistrates Court entered default judgment in the amount requested. Mr Germein took various steps over a prolonged period in an attempt to enforce the judgment. Ultimately Dr Marmanidis applied to set aside the default judgment. A Magistrate dismissed the application, finding that she had not demonstrated an arguable defence or a reasonable excuse for not having complied with the Magistrates Court Rules. Dr Marmanidis instituted a proceeding in the Supreme Court which was converted by consent into an action for judicial review. The Attorney-General intervened in the action. A single Judge concluded that the default judgment was irregular because Mr Germein had not served any evidentiary material in respect of the hire car component of the claimed damages; that the Registrar lacked jurisdiction to enter judgment because this precondition had not been met; and that the discretion to refuse judicial review should not be exercised.[2] The Judge quashed the default judgment and remitted the matter to the Magistrates Court to be dealt with according to law.[2] Marmanidis v Germein [2017] SASC 103. The Attorney-General appealed against the judgment. Mr Germein filed a notice of cross-appeal which largely duplicated the Attorney-General’s notice of appeal. This Court concluded that Mr Germein was not entitled to sign judgment in respect of the cost of the hire car; that the Magistrate’s failure to consider irregularity of the default judgment in respect thereof constituted jurisdictional error; that the Magistrate addressed the wrong question in considering whether Dr Marmanidis established a reasonable excuse for not having complied with the Rules; that the Magistrate ought to have found that this was established; and that the Magistrate ought to have set aside the judgment to the extent of the amount of the cost of the hire car. However, this Court concluded by majority that judicial review should be refused in the exercise of the discretion.Costs of the action In assessing the appropriate order in relation to the costs of the judicial review action, it is necessary notionally to substitute this Court’s conclusions on the resolution of the issues in the action for those of the Judge at first instance.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Now that the judicial review action has been dismissed, Mr Germein seeks an order that the monies held by the Sheriff and any interest thereon be paid to him. It is appropriate to discharge order 7 made on 14 October 2016 given the result of the judicial review action. However, it is not appropriate for this Court to make an order for payment of the monies held by the Sheriff: that is a matter for Mr Germein to take up with the Sheriff.Conclusion We make the following orders:1The first respondent is to pay 50 per cent of the costs of appeal of each of the appellant and second respondent, such costs to be adjudicated if not agreed.2Each party is to bear her and his own costs of action in the underlying action 1297 of 2016.3Order 7 made in action 1297 of 2016 on 14 October 2016 is discharged.

Ratio Decidendi

Legal Principle Established

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