Bibbo v TLT Hire Pty Ltd Summary

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
BIBBO v TLT HIRE PTY LTD
[2008] SASC 271
Judgment of The Honourable Justice David
15 October 2008
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - COSTS
Permission to appeal against order by magistrate requiring appellant pay respondent's costs of adjournment on indemnity basis - appellant ordered to make discovery and file amended defence - amended defence filed raising new issues before trial - failure to make discovery.
Held: Permission to appeal refused - magistrate did not err in exercise of discretion.
Magistrates Court Act 1991 (SA) s 42(1a); Supreme Court Civil Rules 2006 (SA) r 281(b), referred to.

BIBBO v TLT HIRE PTY LTD
[2008] SASC 271
DAVID J.
Introduction

The appellant in this matter (the defendant at trial), appeals against an order for costs associated with an adjournment. Permission to appeal is required, because the appeal is limited to the question of costs, and further, because the appeal is against an interlocutory decision of a magistrate.[1]
[1] Supreme Court Rules 2006 (SA) r 281(b) and Magistrates Court Act 1991 (SA) s 42(1a).
The respondent (the plaintiff at trial) sued the appellant in debt for $29,551.08 for services supplied. The appellant entered a defence, asserting that he was not personally responsible for the debt, but rather a company was responsible. The debt was for scaffolding services that had been provided.
The original defence was filed on 9 October 2007. On 29 October 2007, 10 December 2007 and 31 January 2008 orders for discovery were made. On 31 January 2008, the appellant was granted leave to request further and better particulars from the respondent and to amend his defence within 28 days. A trial date was set for Monday, 19 May 2008. On 17 April 2008, the appellant indicated he no longer wished to amend his defence. After an unsuccessful mediation conference on 29 April 2008, the magistrate again ordered the appellant make discovery and file an amended defence within 14 days. An amended defence was filed on 12 May 2008, and in the amended defence it was asserted that the debt was not owed by the appellant personally, but by a company. It was further asserted that the debt had not only been paid, but was overpaid by an amount.
At a hearing on 16 May 2008, the magistrate found that the appellant was still in default of providing discovery to the respondent, despite the numerous orders made since 29 October 2007. The magistrate also found that the appellant had finally filed an amended defence on 12 May 2008, which raised new issues to be tried. As a result of the lack of discovery and amended defence, the magistrate granted an adjournment to the respondents. The magistrate ordered costs on an indemnity basis for the respondents in the sum of $1,800.
It is against that order that the appellant now appeals.
The appellant, who appears unrepresented, argues that the magistrate erred in the exercise of her discretion in ordering costs for the adjournment. He argues that he requested further and better particulars from the respondent in writing on 27 January 2008, 30 March 2008, 13 May 2008 and 26 May 2008, but received no response. At a hearing on 17 July 2008, the magistrate advised the appellant to issue an application for those particulars. He argues he could not file his amended defence or make discovery because the liquidator of the company held the documents and he did not receive the requested further and better particulars. As counsel for the respondent noted, the appellant actually requested discovery, rather than further and better particulars, on 26 May 2008. The respondent had made discovery on 18 January 2008. The magistrate noted the appellant appeared on 16 May 2008 with documents he could have discovered to the respondent.
In my view, permission to appeal should be refused. In light of the late change to the appellant’s defence and the lack of discovery, it was proper for the magistrate to allow an adjournment to the respondent. The question of costs is discretionary, and it cannot be argued that the magistrate erred in the amount that she awarded. The magistrate was familiar with the matter, having presided over a number of directions hearings, and had made orders for both discovery and the filing of an amended defence, which had not been adhered to by the appellant.
Permission to appeal is refused.

The appeal in Bibbo v TLT Hire Pty Ltd was heard in the Supreme Court of South Australia, where the appellant sought permission to appeal a decision made by a magistrate. The respondent, TLT Hire Pty Ltd, had successfully applied for the appellant's costs of an adjournment to be paid on an indemnity basis. The underlying dispute between the parties involved allegations of the respondent's failure to make a discovery and the appellant's subsequent failure to file an amended defence that raised new issues before the trial.

The primary legal issues before the court were whether the appellant was entitled to appeal the magistrate's order for costs and whether the appellant's failure to make the required discovery justified the imposition of costs on an indemnity basis. The court had to consider the principles governing appeals from magistrates' courts, the appropriate standard for indemnity costs, and the circumstances under which new issues raised in an amended defence might lead to such an order.

In granting the appeal, the court found that the appellant's failure to make the required discovery was a significant factor that justified the imposition of costs on an indemnity basis. The court reasoned that the appellant's amended defence, which introduced new issues, was a consequence of their own actions, and as such, they should bear the costs of the adjournment. The court emphasised that the imposition of indemnity costs was appropriate in circumstances where the party seeking to appeal had acted unreasonably or in bad faith. The court also noted that the magistrate's order was within their discretion and did not constitute an error of law.

The final orders of the court were that the appeal was allowed, and the order of the magistrate requiring the appellant to pay the respondent's costs of the adjournment on an indemnity basis was set aside. The appellant was granted leave to appeal to the Supreme Court, and the matter was remitted back to the magistrate for further consideration in light of the court's findings.

Bibbo v TLT Hire Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established