Britten v Dente

[2025] SASC 88

SUPREME COURT OF SOUTH AUSTRALIA

(Appeal to a Single Judge)

BRITTEN & ORS v DENTE & ORS

[2025] SASC 88

Decision of the Honourable Justice B Doyle  (ex tempore)

28 May 2025

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - HEARING OF APPEAL - PROCEDURE

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PARTIES AND REPRESENTATION - PROPER OR NECESSARY PARTY AND STANDING

By originating application made on 6 September 2024, the appellants instituted a proceeding in this Court seeking, inter alia, relief against forfeiture against the first and second respondents, in respect of leased premises in Richmond.  The lessee under the relevant lease was the second appellant, CJDJ Pty Ltd (‘the company’).  The first appellant (Ms Britten) was for a time the sole director and shareholder, but is presently an undischarged bankrupt.  The third appellant (Mr Britten) is the sole shareholder of the company. 

The proceeding was listed before an Auxiliary Associate Justice on 13 September 2024.  Ms Britten was incarcerated on that day, and was unable to attend.  There was no appearance by Mr Britten, nor by any person seeking to represent the company.

The judge considered that there was no utility in adjourning the proceeding because the application failed to disclose a reasonable cause of action and unnecessarily named a number of parties to the proceeding.  The judge further concluded that the applicants’ non-attendance indicated a failure to prosecute their claim.  The judge noted that 15 minutes had passed since the hearing was to commence and dismissed the action, referring to r 145.2(3) of the Uniform Civil Rules 2020 (SA) (‘UCRs’).

On 12 February 2025, an appeal was commenced.  The appeal was listed for hearing on 6 May 2025.  On that occasion, only Ms Britten appeared.  As an undischarged bankrupt without her trustee in bankruptcy's approval, she was unable to appear in her own right, and accepted that having resigned as a director, could not seek to appear for the company. 

Over the opposition of the first and second respondents, the Court adjourned the matter until 28 May 2025, but directed that any material to be relied upon by the appellants relating to representation, the extension of time required for the institution of the appeal, leave to appeal, and the explanation for their procedural defaults, be filed by 14 May 2025. 

No material was filed in compliance with that order.  However, on 26 May 2025, two affidavits were provided to the Court in the name of Mr Britten and Ms Britten.  On the same day, the first and second respondents made an interlocutory application seeking the dismissal of the proceeding for non-compliance with the rules and the orders of the Court.

At the hearing on 28 May 2025, only Ms Britten was in attendance.  She again accepted she could not represent the company, but requested that the Court appoint her as Mr Britten’s litigation guardian.

Held:

1.the judge’s decision was interlocutory, and leave to appeal was required; 

2. the affidavits sworn by Mr and Ms Britten on 26 May 2025 were irregular and should not be received;

3. Ms Britten was unable to pursue the appeal in her own right, and had no separate legal interest in the underlying proceeding in any event;

4.Ms Britten should not be granted permission to appear for or represent any other party, nor should she be appointed Mr Britten’s litigation guardian;

5.the only appellant with a relevant interest in the proceeding (the company) is therefore unrepresented and is not in a position to prosecute the appeal or the applications for leave and an extension of time;

6.in the circumstances, there is no sufficient reason to grant a further adjournment;

7.whilst it is arguable that the judge was wrong to observe that there was no reasonable cause of action identified by the originating application, it was not obvious that the judge erred in dismissing the proceeding;

8.in all the circumstances, leave to appeal should be refused, and an extension of time within which to appeal should be refused.

Uniform Civil Rules 2020 (SA) rr 2.1, 23.7, 25.6, 31.7, 143.2, 145.2(3), 146.1, 211.5(2), 212.1(1)(a), 212.3(2), 213.1(1)(a), 213.3(a)(i), 214, 218.13(2); Corporations Act 2001 (Cth) s 206B(3); Retail and Commercial Leases Act 1995 (SA), referred to.

Winn v Stewart Bros Constructions Pty Ltd [2012] SASC 150, distinguished.

Bay Marine Pty Ltd v Clayton Country Properties Pty Ltd (No 2) (1986) 8 NSWLR 104; Checked-Out Pty Ltd v Eagle Eye Inspections Pty Ltd [2002] FCA 1002; CNM v Chief Executive, Department for Child Protection [2025] SASCA 9; Cytel Pty Ltd v Peoplebank Recruitment Pty Ltd [2006] FCA 985; Galladin Pty Ltd v Aimnorth Pty Ltd (1993) 60 SASR 145; Giancaspro v SHRM (Australia) Pty Ltd (2005) 93 SASR 32; Hubbard Association of Scientologists International v Anderson and Just [1972] VR 340; McDonald v State of South Australia [2022] SASCA 43; Miojlic v City of Onkaparinga Council [2024] SASC 152; Molnar Engineering Pty Ltd v Burns (1984) 3 FCR 68; Morros v Commonwealth Bank of Australia [2025] SASC 40; Okami SA Newton Pty Ltd v Newton SC Pty Ltd [2024] SASC 151; Pacific Air Freighters (Qld) Pty Ltd v Toller [2000] FCA 343; Provatidis v A McFarlane & Sons Pty Ltd [2021] SASC 142; Riviera Holdings Pty Ltd v Fingal Glen Pty Ltd (2013) 120 SASR 450; Scotts Head Developments Pty Ltd v Pallisar Pty Ltd (Unreported) (Unreported, Supreme Court of New South Wales Court of Appeal, Mahoney AP, Powell JA and O'Keefe CJ, 6 September 1994); Simto Resources Limited v Normandy Capital Limited [1993] FCA 305; Worldwide Enterprises Pty Ltd v Silberman (2010) 237 FCR 292; Young v ICM Agriculture Pty Ltd [2009] FCA 1065, discussed.

BRITTEN & ORS v DENTE & ORS

[2025] SASC 88

Single Judge Appeal – Civil

1. B DOYLE J (ex tempore):  By a notice of appeal filed on 12 February 2025, Cathy Jane Britten, CJDJ Pty Ltd and David John Britten appeal against a decision of an Auxiliary Associate Justice of the Court to dismiss the proceeding with no order as to costs. 

2. That decision was made on 13 September 2024 at the conclusion of a hearing at which there was no appearance for any of the three appellants, who were the applicants at first instance. 

3. The sole ground of appeal identified in the notice of appeal is that on the day of the hearing, Ms Britten (the first appellant) was incarcerated and unable to attend. 

   Procedural matters

4. It is necessary to address a number of procedural matters concerning the appeal.

5. First, the notice of appeal seeks an extension of time on the basis that the ‘incarceration matters needed to be heard’ but have settled now, and relying on unspecified ‘health issues’ and ‘DV issues’. 

6. An extension is necessary because r 214 of the Uniform Civil Rules 2020 (SA) (‘UCRs’) required the appellate proceeding to be commenced within 21 days of 13 September 2024, and therefore by 4 October 2024.  The appeal is a little over four months out of time. 

7. The primary factors relevant to whether an extension of time should be granted are the length of the delay, the reasons for it, the hardship to the applicant if the extension is not granted and the prejudice to the respondents if it were to be granted.  Where the application for an extension of time relates to the institution of an appeal it is also relevant to consider the apparent merits of the appeal, and whether the grounds are reasonably arguable.[1] 

   [1]     Provatidis v A McFarlane & Sons Pty Ltd [2021] SASC 142 at [28]-[44] (Hughes J), Morros v Commonwealth Bank of Australia [2025] SASC 40 at [24].

8. Secondly, there is a question whether the appeal requires leave.  That turns upon whether the appeal is against an interlocutory decision (order or judgment) within the meaning of r 213.1(1)(a) of the UCRs.

9. Following the allocation of this appeal to me, the respondents queried whether the appeal properly lay to a single Judge of the Court (pursuant to r 212.1(1)(a) of the UCRs) or, instead, involved an appeal against a final decision (judgment or order) of an Associate Justice, within the meaning of r 213.3(1)(a)(i), with the result that, subject to contrary order, it ought to be heard by the Court of Appeal. 

10. On 8 April 2025, the parties were informed of my preliminary view that, despite its practical effect in bringing the proceeding to an end, because the Auxiliary Associate Justice’s decision appeared to have been made pursuant to r 145.2(3) of the UCRs, and did not necessarily involve a consideration of the merits, it might not amount to a ‘final’ decision, judgment or order within the meaning of r 213.1(1)(a).  The parties were given an opportunity to make submissions on that question and whether, if the decision was final in the relevant sense, this was an appropriate case in which to order that the matter nevertheless be heard before a single Judge of the Court pursuant to r  212.3(2). 

11. No party made any further submission on that topic.  On 16 April 2025, I concluded that it was more likely that the decision was interlocutory but, to the extent necessary, I directed that the matter proceed before a single Judge of the Court.  I made that direction for reasons that included that the proposed appeal did not appear to raise any important question of principle so as to warrant consideration by the Court of Appeal. 

12. On further reflection, and no submissions to the contrary having been made, I remain of the view that the judgment under appeal is interlocutory.  It did not involve a detailed consideration of the merits.  Consistent with the current preponderance of authority,[2] it is interlocutory.

    [2]     See CNM v Chief Executive, Department for Child Protection [2025] SASCA 9 at [30] (S Doyle and Bleby JJA), and the authorities there cited.

13. Leave to appeal is granted when it is in the interests of justice to do so, and generally by focusing upon three inter-related questions: whether the decision is attended with sufficient doubt to warrant its reconsideration on appeal; whether the decision raises an issue of principle or general importance; and whether allowing the decision to stand would work a substantial injustice to the applicant.[3]   

    [3]     McDonald v State of South Australia [2022] SASCA 43 at [21] (Livesey P and Bleby JA).

14. Thirdly, the respondents contend that the appeal should in any event be dismissed for want of compliance with the rules. 

15. Despite the appellants being expressly notified of the times by which submissions and an appeal book were to be filed under the rules, there was rank non-compliance.  Instead, in the days and hours prior to the initial hearing date of the appeal on 6 May 2025, Ms Britten sent various documents by email, in dribs and drabs, to the Court and the respondents.

16. Finally, and importantly, a question of representation arises on the appeal.  Under r 25.6 of the UCRs, whilst a natural person may appear for themselves, they may not appear or be represented in an appellate proceeding by a person other than a lawyer legally entitled to practice in South Australia. 

17. In the case of natural persons, the Court may if it thinks fit give leave to a self-represented litigant to be assisted in the presentation of their case at a hearing by a person approved by the Court, but unless the Court otherwise orders, this does not permit the person assisting to address the Court.[4]

    [4]     See Giancaspro v SHRM (Australia) Pty Ltd (2005) 93 SASR 32 at [8]-[22] (Bleby J, Doyle CJ agreeing), at [75]-[80] (Gray J), Miojlic v City of Onkaparinga Council [2024] SASC 152 at [58].

18. The Court may give leave for a non-lawyer to appear for a company in an appellate proceeding on such terms as the Court may think fit if the representative is a director, has power to bind the party in the proceeding and it is in the interests of justice to give such leave.[5] 

    [5]     See, in respect of a predecessor rule, Winn v Stewart Bros Constructions Pty Ltd [2012] SASC 150 at [39] (Blue J).

19. The rationale for the requirement that a non-lawyer be authorised to represent a company only with leave was described by Blue J in Winn v Stewart Bros Constructions Pty Ltd (‘Winn’).[6]

    1.The opposite party may be disadvantaged by the time and cost of the proceeding being extended due to the company not being represented by a legally qualified advocate.[7]

    2.The public interest in the efficient and timely administration of justice may be prejudiced by the time and cost of the proceeding being extended due to the company not being represented by a legally qualified advocate.[8]

    3.The public interest in the fair administration of justice may be prejudiced by the fact that a lay advocate (unlike a legally qualified advocate) does not owe a duty to the Court and to the parties in the litigation to ensure that the Court is properly informed and not misled.[9]

    [6] [2012] SASC 150 at [38].

    [7]     Scotts Head Developments Pty Ltd v Pallisar Pty Ltd (Unreported Supreme Court of New South Wales Court of Appeal, Mahoney AP, Powell JA and O’Keefe CJ, 6 September 1994) per Mahoney AP.

    [8] Ibid per Mahoney AP; Hubbard Association of Scientologists International v Anderson and Just [1972] VR 340 at 343 per Smith, Little and Gowans JJ.

    [9]     Bay Marine Pty Ltd v Clayton Country Properties Pty Ltd (No 2) (1986) 8 NSWLR 104 at 105-106 per Kirby P; Scotts Head Developments Pty Ltd v Pallisar Pty Ltd (Unreported Supreme Court of New South Wales Court of Appeal, Mahoney AP, Powell JA and O’Keefe CJ, 6 September 1994) per Mahoney AP.

20. In a helpful distillation of the relevant factors to be considered, Blue J went on to say:[10]

    [10] [2012] SASC 150 at [39].

    The factors relevant to the exercise of the discretion are not limited and will vary from case to case.  The direction in which a factor points and the weight to be accorded to it will vary from case to case.  However, authorities identify several recurring factors which are typically relevant. Those factors in a case such as the present in which a director seeks to represent the company as advocate at trial include the following.

    1.The role of the company as plaintiff or defendant.  It may be (depending on other relevant factors) that authorisation will be more readily granted to a defendant because the defendant is not invoking the jurisdiction of the Court and in this sense is an involuntary party.[11]

    2.Whether the director is also a party in his or her own right (co-plaintiff or co-defendant).  It may be (depending on other relevant factors) that authorisation will be more readily granted if the director is co-plaintiff or co-defendant (as the case may be) with the company.[12] In some cases, this may tend to point against authorisation.

    3.The stage which the case has reached.  It may be (depending on other relevant factors) that authorisation will be more readily granted if the case is well advanced rather than at the outset.[13] In some cases, this may tend to point against authorisation.

    4.The time over which and manner in which the case has progressed from inception to when the application is made and the conduct of both parties to that point.[14]

    5.The degree to which financial considerations inhibit the company from obtaining legal representation.  In particular, if the denial of authorisation is likely to stultify the prosecution or defence of the action (as the case may be), that is a substantial factor in favour of the grant of authorisation.[15] At least where the company is a plaintiff, regard will usually be had not only to the financial resources of the company itself but also of the shareholders who stand to benefit from the litigation if successful.[16]

    6.The degree to which the time and cost of the trial will be extended due to the company being represented by a lay, self-interested, advocate (which impacts both upon the interests of the other party and the public interest as described above).[17]

    7.     The extent to which the director is to be a witness in the proceeding.[18]

    8.The importance of the lay advocate not being subject to the ethical precepts that bind a legally qualified advocate.[19]

    [11]   See for example Cytel Pty Ltd v Peoplebank Recruitment Pty Ltd [2006] FCA 985 at [10] per Bennett J.

    [12]   Young v ICM Agriculture Pty Ltd [2009] FCA 1065 at [22] and [27] per Lindgren J. See also, in the different context of a co-defendant applying to represent a co-defendant where he or she is a natural person, Galladin Pty Ltd v Aimnorth Pty Ltd [1993] SASC 3914; (1993) 60 SASR 145 at 147-148 per Perry J.

    [13]   Worldwide Enterprises Pty Ltd v Silberman (2010) 237 FCR 292 at [41] per Weinberg JA (Bongiorno JA agreeing). See also, in the different context of a co-defendant applying to represent a co-defendant where he or she is a natural person, Galladin Pty Ltd v Aimnorth Pty Ltd (1993) 60 SASR 145 at 147-148 per Perry J.

    [14]   Molnar Engineering Pty Ltd v Burns (1984) 3 FCR 68; Worldwide Enterprises Pty Ltd v Silberman (2010) 26 VR 595 at [41] per Weinberg JA (Bongiorno JA agreeing).

    [15]   Worldwide Enterprises Pty Ltd v Silberman (2010) 237 FCR 292 at [41] per Weinberg JA (Bongiorno JA agreeing).

    [16]   Simto Resources Limited v Normandy Capital Limited [1993] FCA 305 at [9] per French J; Checked-Out Pty Ltd v Eagle Eye Inspections Pty Ltd [2002] FCA 1002 at [14] per Emmett J.

    [17]   Molnar Engineering Pty Ltd v Burns (1984) 3 FCR 68 at 73-74 per Smithers J and 80-81 per Keely J; Scotts Head Developments Pty Ltd v Pallisar Pty Ltd (Unreported, Supreme Court of New South Wales Court of Appeal, Mahoney AP, Powell JA, and O'Keefe CJ, 6 September 1994) per Mahoney AP; Worldwide Enterprises Pty Ltd v Silberman (2010) 237 FCR 292 at [41] per Weinberg JA (Bongiorno JA agreeing).

    [18]   Pacific Air Freighters (Qld) Pty Ltd v Toller [2000] FCA 343; 171 ALR 519 at [7] per Drummond J; Cytel Pty Ltd v People Bank Recruitment Pty Ltd [2006] FCA 905 at [9] per Bennett J.

    [19]   Scotts Head Developments Pty Ltd v Pallisar Pty Ltd  (Unreported, Supreme Court of New South Wales Court of Appeal, Mahoney AP, Powell JA and O'Keefe CJ, 6 September 1994) per Mahoney AP; Worldwide Enterprises Pty Ltd v Silberman (2010) 237 FCR 292 at [41] per Weinberg JA (Bongiorno JA agreeing).

21. The rule and its potential implications were drawn to the attention of Mr Britten and Ms Britten before the hearing date on 6 May 2025.   

22. Prior to the hearing date, the respondents’ solicitor filed an affidavit which demonstrated that:

    ·Ms Britten, the first appellant, is an undischarged bankrupt;

    ·Ms Britten is the previous sole director and secretary of CJDJ Pty Ltd, but ceased to be so in April 2024, with the consequence that it has no appointed directors or secretary;

    ·Mr Britten is the sole shareholder of CJDJ Pty Ltd.

23. Shortly prior to the hearing date, the Court received:

    ·a court document dated 5 May 2025 and styled ‘Authorisation’, by which Mr Britten apparently authorised Ms Britten to file and serve documents on his behalf;

    ·email correspondence from Ms Britten in which she stated, among other things, that in her own capacity she is no longer able to represent herself due to an ongoing legal and domestic abuse situation involving solvency matters.  The email stated, however, that she would be attending the hearing with her husband Mr Britten to assist him with his claims;

    ·yet further email correspondence from Ms Britten sent the evening before the hearing in which she said she wished to ‘present herself as litigation guardian’ and requested leave ‘from her husband Mr Britten in her personal capacity’.

1. At the hearing on 6 May 2025, Ms Britten attended but Mr Britten did not.  Ms Britten acknowledged that as a matter of record she was an undischarged bankrupt, and did not have her trustee’s consent to pursue a claim in her own right, but she informed the Court that there was an upcoming hearing in the Federal Court on 28 May 2025 at which the discharge of her bankruptcy was to be considered.

2. Ms Britten indicated that Mr Britten had not attended because he was child-minding.  She sought to appear on his behalf, but she conveyed that alternatively, he wished her to seek an adjournment on his behalf, so that he could get legal representation.

3. Ms Britten agreed that the subject matter of the proceeding and the appeal concerned the leasehold interest of CJDJ Pty Ltd, rather than the individual parties.  Indeed, she foreshadowed seeking to be personally disjoined.

4. The position therefore was that there was no appearance for the company, the only party with any real interest in the underlying proceeding. 

5. Notwithstanding the logical force in the submissions of the first and second respondents that the company ought not be afforded an indulgence that it had not (owing to its want of representation) actually sought, I adjourned the proceeding for a period of three weeks, and required that any material to be relied upon by the appellants with respect to representation, the extension of time, leave to appeal and their procedural defaults, be filed by 14 May 2025.  I adjourned the matter for hearing today.

6. I explained to Ms Britten that that was an intended to be a hard deadline, and that it was not appropriate for documents to trickle in by email in the day or days before the hearing.  I also informed Ms Britten that whatever arrangements needed to be made so that anyone who wished to speak at the hearing would be present needed to be made promptly because I would not be accepting explanations that related to matters of convenience.

7. Because none of the material purportedly filed on behalf of the appellants suggested that any part of the proposed appeal involved the fourth to sixth respondents, I made an order dismissing the appeal as against them.

8. No affidavits were filed within the time required by my orders.

9. Ms Britten did, however, email to the Court, and attempted to file, two affidavits, each apparently made on 26 May 2025.  The affidavits were not accepted by the Registry because the content of the affidavits included requests for relief that are required to be made by interlocutory application.

10. Apart from being provided nearly two weeks late, the affidavits are unsatisfactory in a number of respects.

11. The affidavit of Ms Cathy Jane Britten, which I marked MFI-A: listed the wrong parties, in minor respects misdescribed its exhibits and, more relevantly, was not signed and witnessed other than on its final page.[20]  It contained a number of imprecise or conclusory statements of doubtful admissibility. 

    [20]   cf UCRs, r 31.7.

12. In substance, it conveyed that, on 24 March 2025, Ms Britten lodged a change of director document with ASIC.  The form appeared to nominate Mr Britten as a replacement director, but that part of the form was not fully completed.  Ms Britten said, and repeated at the hearing today, that she encountered communication difficulties with ASIC on account of her rural location.

13. The affidavit also exhibited a document purporting to be an appointment of a corporate agent, but no reference was made to this in submissions, and since it was executed by Ms Britten at a time when she lacked the capacity to manage the company’s affairs, it can be put to one side.

14. Ms Britten’s affidavit also recounted that her husband had expressed his wish that she represent him as his litigation guardian.

15. The affidavit also repeated that there was a Federal Court hearing involving Ms Britten on 28 May 2025.   

16. The affidavit of Mr David John Britten, which I marked MFI-B, was also not properly sworn or witnessed.  The affidavit spoke to his personal financial losses in connection with the cessation of the business conducted through the company.  It addressed the financial, emotional and psychological distress caused to him.  He requested that the detail of those matters be kept private and confidential.  It is not necessary for me to traverse them.  The affidavit also referred to bereavements of each of his and Ms Britten’s mother in recent times. 

17. Mr Britten’s affidavit refers to his ‘limited capacity to appear or conduct the matter personally in Court’.  He requested that Ms Britten, who he said had legal knowledge and familiarity with the proceedings, be appointed his litigation guardian.  He requested that an order to that effect be made in chambers.

18. On 26 May 2025, the first and second respondents filed an interlocutory application seeking that the appellate proceeding be dismissed or alternatively discontinued under various UCRs, relevantly including rr 143.2(1), 146.1(1) and 218.13(2).  That said, in the course of today’s hearing, the respondents’ counsel submitted, correctly in my view, that the latter rule was not available given that this is not an appeal governed by Part 8 of Chapter 18.

19. The application was supported by an affidavit sworn by the respondents’ solicitor, James Peter Forde.  After providing a brief factual overview of the underlying dispute, amongst other things, the affidavit:

    ·annexed relevant searches that tended to suggest that Ms Britten was not party to Federal Court proceedings concerning her bankruptcy;

    ·annexed and described five Magistrates Court proceedings commenced by one or more of the appellants against one or more of the respondents (as well as Mason Gray Strange, who sold some chattels that remained on the leased premises) between 5 August 2024 and 9 May 2025.  Importantly, the first of those proceedings, commenced before the Supreme Court proceeding, sought relief against forfeiture;

    ·annexed and described a number of statutory demands, PPSR registrations, workman’s liens or caveats made, issued or claimed by one or more of the appellants, during the last year;

    ·explained that Ms Britten had been extremely active in the period between the decision under appeal and the institution of the appeal, and had sent in the order of 86 emails to the respondents’ solicitors.

    Today’s hearing

20. At this morning’s hearing, Ms Britten sought to appear for herself, the company and Mr Britten.  She acknowledged, however, that she had no separate interest in the appeal so that there was nothing she could say, in her own right, that would be of relevance to the issues raised by the application for an extension of time, leave to appeal and, if leave is granted, the appeal proper.

21. In respect of the company, Ms Britten acknowledged that whether or not relevant paperwork relating to her replacement as a director had been processed by ASIC, as an undischarged bankrupt, she was not able to act as a director of the company.[21]

    [21]   Corporations Act 2001 (Cth), s 206B(3).

22. It remains the case that Ms Britten is an undischarged bankrupt. It emerged during discussion with Ms Britten that there was not in fact any hearing involving her held or scheduled in the Federal Court today.  Rather, she had an appointment in the Federal Court building with JusticeNet.  Whatever may happen in the future regarding her bankruptcy, the fact is she could not appear for the company today because she cannot bring herself within the exception set out in r 25.6(3) of the UCRs.  That is because she cannot lawfully act as a director whilst her status remains as it is.

23. The company was therefore unrepresented today.  Conceivably, evidence to establish that Mr Britten has been validly appointed as a director would have entitled him to seek permission to appear for the company under r 25.6(3).  If his appointment had been properly proved, I would then have had to consider the factors described by Blue J in Winn.  But the evidence relating to his status was inadequate and he was not, in any event, present, so the point is moot.

24. As has been noted, the affidavit material, albeit irregular in form, might be taken as purportedly notifying an informal application that Ms Britten be appointed as Mr Britten’s litigation guardian.  However, there are a number of reasons why that is not an appropriate order to make.

25. First, to the extent that Mr Britten might have been entitled to act as the company’s representative under r 25.6(3), such an appointment could not then be coupled with the appointment of a litigation guardian under r 23.7.  I doubt whether it would ever be appropriate to appoint a person who lacks legal capacity as a representative of a company on the basis that someone else, namely their litigation guardian, will then represent the company’s interests.  That would appear to circumvent the limits of r 25.6(3).  But even if that is theoretically possible, this is not an appropriate occasion on which to proceed in that way, for the reasons I will come to.

26. Secondly, even taking the material in MFI-A and MFI-B at its highest, it does not constitute evidence that would satisfy me that Mr Britten is not capable of managing his participation in a proceeding, within the meaning of ‘person under a legal incapacity’, in r 2.1.  The evidence is expressed at a high level and refers only to his ‘limited capacity’.  There is no independent medical evidence before me.  It is also of concern that according to Ms Britten steps have been taken to have Mr Britten appointed a director of the company.  Whilst the capacity to act as director, and the capacity to participate in litigation, are different things, this circumstance gives pause.

27. Thirdly, as an undischarged bankrupt, it may be doubted whether Ms Britten is an appropriate person to be appointed litigation guardian.  It is also relevant that during the period of her involvement in the proceedings, there has been substantial non-compliance with court orders.  That does not augur well on the part of a person seeking to enlarge their role in proceedings.  The respondents’ counsel submitted that Ms Britten was not an appropriate person to be appointed to represent Mr Britten or, indirectly, the company, because she had been dishonest in statements made to the Court about there being a bankruptcy hearing in the Federal Court today.  In all of the circumstances I do not consider it necessary or appropriate to make any finding about whether Ms Britten has consciously misled the Court.  It suffices to say that she has been inaccurate.  That is a factor that points against her suitability as a litigation guardian.

28. Fourthly, Mr Britten has not attended to personally confirm that he wishes Ms Britten to be his litigation guardian.  Whilst there may be good reasons for his non-attendance, his absence gives the Court further pause before taking the very significant step of appointing a litigation guardian on his behalf.  Because his affidavit is irregularly sworn and witnessed, there is a paucity of material upon which I could be satisfied that it is appropriate to appoint a litigation guardian for him, even if I were persuaded that he is under a legal incapacity.

29. The position is the same when I turn to Mr Britten’s position on his own as a party.  First, I do not accept that he has a separate interest in the proceedings.  Whilst, as Ms Britten explained, he may well have suffered financial consequences in connection with the termination of the lease, that does not give him a direct cause of action, and none is properly pleaded in the underlying proceeding.  But secondly, and in any event, I am not satisfied it is appropriate to appoint Ms Britten as his litigation guardian in respect of any separate interest he might have in the underlying proceeding.   

30. The position therefore is that the only appellant with a real interest in the proceeding, the company, is not represented before me today.  The position is unchanged from the initial hearing date. 

31. The real question then is how the Court should proceed.

32. Acknowledging some of the difficulties facing the appellants, Ms Britten stated that, for her part, she would not be opposed to an order under r 218.13(2) that the appeal be discontinued.  It was explained to her that there might be very real difficulties in reinstating the appeal if such an order were made. She nevertheless confirmed that she was not opposed to that course.  She expressed confidence that given time the appeal could be regularised, and the Court might be persuaded to reinstate the appeal.

33. The difficulty, however, is that that rule is not directly applicable to single judge appeals and, further, Ms Britten lacks the authority to consent to a discontinuance on that basis on behalf of the parties.

34. The respondents’ submission was that the appeal should be dismissed as abusive, under r 143.2, or that default judgment should be given on the appeal on the basis of non-compliance with the rules, pursuant to r 146.1.  Those rules are applicable to appellate proceedings by dint of r 211.5(2).

35. Alternatively, the respondents submitted that the Court should decline to grant an extension of time and/or leave to appeal, for reasons including the unsatisfactory delay in bringing the appeal, its non-prosecution, the overlap with other lower-court proceedings and the doubt that now surrounds whether the original proceeding was properly instituted on the company’s behalf.  The latter submission was part of an overall submission that it would be futile to allow the appeal, even if it had merit, because the company is not presently in a position to prosecute the claim for relief against forfeiture.  There must also be doubts about the company’s financial position which would loom large in any discretionary consideration of whether to grant relief against forfeiture at this late stage.

36. Before considering the appropriate disposition of the matter, I briefly summarise the underlying claim and the decision sought to be appealed.  I do so because one of the relevant considerations is whether the underlying merits of the appeal could be said to be hopeless.

    The underlying claim

37. Mr Britten, Ms Britten and CJDJ Pty Ltd instituted this proceeding by an originating application filed in this Court on 6 September 2024.  The named respondents were John and Anita Dente, the ‘Jade Discretionary Trust’, ‘Mastracorp’ and Heather and Daryl Cripps.

38. The originating application referred to relief against forfeiture and the Corporations Act 2001 (Cth). It included a claim for an immediate interim injunction.

39. The accompanying affidavit was sworn by Ms Britten.  In it she described herself as the tenant of 5 Holder Road Richmond (‘the premises’), but other material suggests, and it is now uncontroversial, that the tenant of the premises was the company, CJDJ Pty Ltd. 

40. In broad terms, she stated that she and Mr Britten purchased a business operating at the premises from Mr and Mrs Cripps.  She advanced some criticisms of the Cripps including suggested non-disclosure of gift vouchers forming part of a ‘conga lines of problems in their bookkeeping business practice and that it wasn’t as sold’.  The affidavit also contained allegations against Daryl Cripps.  I have already dismissed the appeal as concerns the Cripps, so it is not necessary to traverse the allegations, which are denied by the Cripps. 

41. The affidavit attaches a form of lease between John and Anita Dente, as trustees of the Jade Discretionary Trust, and Heather and Daryl Cripps.  It appears that the lease was extended so that its term extended to 10 November 2027. 

42. The affidavit also attaches a Deed of Assignment of Lease which contemplated the assignment by the Cripps of the lease to CJDJ Pty Ltd, with the consent of the Dentes as lessor.  The version of the document annexed to Ms Britten’s affidavit is not fully executed, but it appears to have been common ground between the applicants and the Dentes that CJDJ Pty Ltd became the lessee on the terms of the lease originally granted to the Cripps.

43. Ms Britten’s affidavit made allegations that the neighbouring property to the premises is also owned by the Dentes and she asserted that there has been electricity theft as between the two premises.  She asserted that this was aided and abetted by Mastracorp (the Dentes’ agent).  Again, that allegation, which is denied, can now be ignored in view of the dismissal of the appeal against the fourth respondent.

44. The affidavit is unclear, but it appears that the lessor (the Dentes) terminated the lease and re-entered the premises, exercising rights of distraint in respect of unpaid rent.  Ms Britten’s affidavit appears not to accept that rent was unpaid, but states that in any event relief ought to be granted.  Reference is made to difficult personal circumstances that Mr and Ms Britten experienced at the relevant time.  Ms Britten concluded by saying she wanted relief from forfeiture under legislation (likely an intended reference to the Retail and Commercial Leases Act 1995 (SA) (‘RCL Act’)) allowing her to remain in possession of the premises and an order ‘to cover legal costs and any other relief and damages deemed appropriate by the Court’.

45. On 12 September 2024, an affidavit sworn by Mr Britten earlier in August of that year was filed in the proceeding.  In it, Mr Britten described an increase in electricity activity and power bills.  He stated that a complaint was made to the Office of the Technical Regulator.  He states that he believed he and Ms Britten had paid for electricity stolen from them which would amount to around $5,000.

    The challenged decision and the merits of the appeal

46. Because the Originating Application sought interim interlocutory relief, the matter was listed for a hearing on 13 September 2024 at 11.30 am.  The Dentes were legally represented.  Mr Mastrangelo appeared for the fourth respondent, of which he is the managing director.  Mr and Mrs Cripps appeared in person.

47. The Auxiliary Associate Justice indicated that the Court had been advised that Ms Britten had been refused bail on criminal charges, was currently in the Christies Beach police cells, and so was unable to attend. 

48. Counsel for the Dentes informed the Court that it was CJDJ Pty Ltd that was the tenant, that Ms Britten was an undischarged bankrupt and that there was no explanation why Mr Britten was not present.  He requested that the matter be called outside Court.  The names of the applicants were called outside Court and there was no appearance for any applicant.

49. Counsel for the Dentes made brief submissions by reference to Ms Britten and Mr Britten’s affidavits.  He submitted there was no cause of action identified against the respondents apart from the lessor.  In respect of his clients, he submitted that:

    ·there was no claim that could be advanced by Mr or Ms Britten in their individual capacities, including arising out of any exercise of distraint rights;

    ·the only claims could be on behalf of CJDJ Pty Ltd, but it could not be represented by Ms Britten, and there was no application by Mr Britten to appear for the company;

    ·CJDJ Pty Ltd had subsequently paid outstanding rent to satisfy the distraint, with the result that it would be entitled to recover its goods back, and there was no dispute about that (from the perspective of CJDJ Pty Ltd);

    ·to the extent that CJDJ Pty Ltd was wanting relief against termination of the lease, that would only be available in limited circumstances.  The unpaid rent in this case had been $9,000.  The lease was terminated ‘in a very conventional manner … some two to three months ago’.  Delay was a factor against relief against forfeiture because the lessor must now be free to get on and re-let the premises.

50. Her Honour then gave ex tempore reasons for dismissing the proceeding, observing:

    [T]he lessor re-entered the property and terminated the terms of the lease. By these proceedings, the Applicants seek to be able to re-enter the property or reinstate the lease based upon the law of relief of forfeiture.

    It would appear that the First and Second Applicants are the directors of the Third Applicant. The First Respondent and the Second Respondent are the trustees of Third Respondent. It is not entirely clear to me why the Fourth, Fifth and Sixth Respondents have been named to the proceedings. It seems that the Fifth and Sixth Respondents sold a business to the Applicants, which the Applicants also take issue with.

    There is no appearance for any of the Applicants and the matter has been called in the court precinct. During the hearing, the Court received notification that the Second Applicant had been refused bail on criminal charges and is currently being held in the Christies Beach cells.

    Be that as it may, I still see no utility in adjourning these proceedings because the application that has been filed fails to disclose a reasonable cause of action and has unnecessarily named other parties to the proceedings.

    In addition, the failure by any of the Applicants to attend today's directions hearing indicates a failure to prosecute their claim. Having heard the submissions of counsel on behalf to the First to Third Respondent, I am satisfied that it is appropriate for the action to be dismissed with no order as to costs.

    Furthermore, the matter was listed to commence at 11.30am. The time is now 11.51am and there is still no appearance for any of the Applicants. In accordance with rule 145.2(3), I am entitled to make an order that the application be dismissed.  

1. On 8 October 2024, Ms Britten swore and filed an affidavit in the underlying proceeding which purported to be in support of an appeal.  In it she stated she was also acting with the authority of her husband.  She swore that:

   On the 13^th of September at 8 am I was unexpectedly [detained] to appear in the Magistrates court and remanded in custody for unrelated matters.  This meant he was unable to attend the Supreme Court.  I mentioned but did not authorize the attendants to message the Supreme Court but they did and this resulted in the matter not even being heard.

2. The affidavit went on to assert, without any obvious foundation, bias on the part of the judicial officer, and that the case merits review by the Supreme Court because ‘it has legal merit and creates important precedence with Landlords being accountable under the Tenancy Act for illegal work’.

3. As has been previously noted, the appeal itself was not commenced until February 2025.

4. In earlier written submissions purportedly filed on behalf of CJDJ Pty Ltd assert, it has contended, amongst other things, that:

   ·relief is sought under the RCL Act in relation to the wrongful forfeiture of its lease in respect of the premises;

   ·the forfeiture was carried out unlawfully following a prolonged period of harassment, misrepresentation and commercial interference by the lessor, its agent and legal representative;

   ·the forfeiture was based on alleged arrears of $9,357.50, which was promptly paid under protest.

5. It was further submitted that the forfeiture was not proportionate, fair, or procedurally justified under s 15 of the RCL Act, because:

   ·the lease was still being finalised;

   ·all alleged arrears were addressed under protest; and

   ·the lessor was in breach through illegal use of power, equipment damage and premises interference.

6. The submissions also invoke concepts of equitable relief and conclude by stating that the relief sought is the setting aside of the forfeiture of the lease, the reinstatement of CJDJ Pty Ltd as lessee, that the respondents be restrained from disposing of or further interfering with its goods, that the respondents be ordered to compensate for business interruption, asset loss and reputation damage, and that all future claims regarding rent or electricity consumption be subject to formal arbitration.

7. Plainly, there is no basis for the latter relief.  The real issue is simply one about relief against forfeiture of the lease.  Even in that respect, if an extension of time and leave to appeal were to be granted, and the appeal allowed, the claim for relief against forfeiture would be remitted for substantive hearing.

8. Standing alone, and on the basis of the affidavit material before the Auxiliary Associate Justice, it may be debated whether it was correct to conclude that no reasonably arguable claim for relief was identified. The purported reliance upon powers under the RCL Act in this Court may have been misguided, but the Court does have equitable and statutory jurisdiction to entertain an application for relief against forfeiture of the lease.

9. A lessee that has paid or is in a position to pay the arrears of rent, together with interest, costs and other expenses to which the lessor may have been put by the non-payment of rent, will often be granted relief against forfeiture unless there are special circumstances that would make it futile or otherwise inappropriate, including where third party rights have intervened and would be adversely affected.[22]

   [22]   Riviera Holdings Pty Ltd v Fingal Glen Pty Ltd (2013) 120 SASR 450 at [9]-[17] (Nicholson J), Okami SA Newton Pty Ltd v Newton SC Pty Ltd [2024] SASC 151 at [16]-[19] (Stanley J).

10. The respondents appear to accept that the rental arrears were belatedly paid but they contend that other defaults remained unremedied.  Whilst the delay in bringing the action and possibly other discretionary factors may well have counted against the grant of relief, further consideration of the facts would arguably have been required before the prospect of success could be discounted as unrealistic.

11. As well, the exercise of discretion under r 145.2(3) to dismiss a proceeding for want of appearance within 15 minutes of the hearing time is one that would usually be exercised sparingly where the Court has reason to think that there may be a good reason for the party’s failure to appear, and that granting an adjournment may facilitate that party to remedy the position and appear in support of their claim.

12. In the present case, however, it is not apparent that there would have been any utility in adjourning the proceeding to permit Ms Britten to appear in respect of CJDJ Pty Ltd’s claim for relief against forfeiture.  As an undischarged bankrupt and former director, she would not have been able to appear for the company.  At best she might have been a witness.  Mr Britten was also not entitled to appear for the company at that time, so there was little point adjourning the proceeding to enable him to appear and, at that time at least, there was no sufficient explanation for his non-attendance, and therefore no strong basis to conclude that adjourning the matter would result in his attendance.

13. For those reasons, whilst it is arguable that the Auxiliary Associate Justice was wrong to observe that the claim disclosed no reasonable cause of action, with the result that, for that reason alone, the proceeding should not have been summarily dismissed, in view of the non-appearance of the company, it would not necessarily follow that the decision to dismiss the action was infected by relevant error.  It suffices to say that whilst the underlying merits of the appeal are not manifestly hopeless, nor are they obviously strong.

14. This is therefore not a case where the appeal should be dismissed, or leave to appeal should be refused on the basis the decision under appeal is patently correct.

    Disposition

15. The fact remains, however, there has been non-compliance with the rules and of a kind which, in my view, enlivens the discretion to give default judgment under r 146.1.  Further, there are real obstacles to a grant of leave to appeal, and an extension of time within which to appeal. 

16. They include that:

    ·there is at least reason to doubt whether so far as the company is concerned, the appeal was properly instituted;

    ·similar relief is sought on behalf of the company in proceedings commenced in the Magistrates Court before these proceedings were instituted;

    ·as matters stand, more than eight months following the original decision, no person with the right to do so is present to prosecute the appeal on the company’s behalf, or to prosecute the application for leave to appeal or for an extension of time within which to do so;

    ·if leave, and an extension of time were to be given, the appeal heard and allowed, and the matter remitted for further hearing, there is reason to doubt that there is any person in a position to prosecute the company’s claim for relief against forfeiture;

    ·there is little or no basis to adjourn the appeal for a second time in order to allow time for the representation issues to be resolved;

    ·to the extent that those issues might be addressed in time, the delay is highly unsatisfactory given the nature of the relief sought.  The respondents would face a period of several more months before it would be known whether they must give back possession of the premises.  It seems highly unlikely that costs will be a panacea if that relief is not ultimately granted, but the premises are unable to be untenanted in the meantime.  The position might be different in a case where an appellant’s money claim has been dismissed.  In such a case, prolonging the ultimate determination of that question may cause little incremental prejudice to the respondent.  But a claim for relief against forfeiture should not only be promptly brought, it should be diligently prosecuted.

17. Even if I were to accept, on the basis of MFI-A and MFI-B, that Mr and Ms Britten have faced a number of personal difficulties in the period since September 2024, this is an unsatisfactory explanation for the failure to regularise the position of the company and diligently prosecute an appeal on its behalf. 

18. As the respondents’ solicitor’s affidavit reveals, Mr and Ms Britten have been active in Magistrates Court proceedings and have pursued other rights and remedies during the relevant period.  The appellants’ failure to regularise their participation in this appeal notwithstanding the opportunity afforded to them by the orders made on 6 May 2025 further undermines the prospect that a further adjournment would resolve these issues.

19. Weighing all the relevant considerations, in my view, the interests of justice do not warrant a grant of leave to appeal, nor, having regard to the hardship to the respondents occasioned by the delay in commencing an appeal, do they favour an extension of time within which to bring the appeal.  In any event, since leave is to be refused, an extension of time would be futile. 

20. Had I been persuaded not to decide those questions at this time, I would have concluded that the appellants had either engaged in persistent non-compliance with the rules or orders of the Court so as to prejudice the proper and expeditious conduct of the action, or had manifested an inability or unwillingness to prosecute an action with due diligence.[23] 

    [23]   UCRs, r 146.1(a) and (c).

21. As a consequence, instead of granting an adjournment, I would have stayed the action[24] and made a further order that if grounds for the lifting of the stay were not made out on an application made within a fixed period of time, the appeal would stand dismissed.[25]

    [24]   UCRs, r 146.1(3)(a).

    [25]   UCRs, r 146.1(3)(b) and (d).

22. However, the appellants carry the onus of obtaining leave to appeal and in my view, having regard to the procedural history of the matter, the respondents are entitled to have that question decided without further delay.  For the reasons given, I would refuse the application for leave to appeal and for an extension of time within which institute the appeal.  The result is that the appellate proceeding will be dismissed. 

23. For completeness, I indicate that I would reach the same conclusions whether or not I were to formally receive MFI-A and MFI-B into evidence.  In the circumstances, by reason of their various irregularities, I decline to receive them as evidence on the application.

24. I will hear the parties as to costs.