Capral Aluminium Ltd v Barker & Barker No. Scgrg-99-866 Judgment No. S410

[1999] SASC 410

CAPRAL ALUMINIUM LTD V BARKER & BARKER

[1999] SASC 410
Magistrate’s Appeal
1 MARTIN J. (Ex tempore)             The appellant appeals pursuant to leave granted on 16 July 1999 against a decision of a Magistrate refusing the appellant's application for summary judgment against the defendants. 
2 Proceedings were commenced in the Magistrates Court by summons filed on 13 April 1999 in which the appellant claimed $10 849 for goods sold by the appellant to the respondents during the period June 1998 and July 1998.  On 7 May 1999 the respondents filed a defence and counterclaim.  In essence, the respondents plead that they suffered damages of $18 120 as a consequence of a breach of contract, misleading or deceptive conduct and a breach of duty amounting to negligence. 
3 By notice dated 19 May 1999, the applicant sought further and better particulars of the defendants' counterclaim.  Solicitors for the respondents replied by letter of 11 June 1999 providing limited particulars.  They maintained that aspects of the request were oppressive and were not matters that are required to be included in the pleadings.  The observation was made that some of the information requested would be provided in discovery. 
4 On 16 June 1999 the appellant took out an application seeking that the defence and counterclaim be struck out and that summary judgment be entered in favour of the appellant.  The affidavit in support of the application asserted that the defence and counterclaim was in defence form only and did not comply with the rules.  It also said that the document did not disclose a reasonable defence and lacked sufficient particularity.  In addition, it was suggested that the response to request for particulars did not answer the requests and failed to comply with r 24 of the Magistrates Court Rules 1992 ("the Rules").  It was also said that the response made the defence and counterclaim 'more incomprehensible and inconsistent'. 
5 The application was apparently heard and refused on 23 June 1999. There is no transcript and no reasons for decision have been made available. The appellant complained that the Magistrate failed to have regard to r 24 and its relationship with r 46 of the Supreme Court Rules 1987 and to the defect in the form of the defence and counterclaim. The appellant also suggested that his Honour failed to have regard to the respondents' failure to respond properly to the request for further and better particulars.
6 The appellant sought to apply r 46.18 of the Supreme Court Rules to the respondents’ pleading. Rule 24 provides that subject to any order of the court, a short form of pleading disclosing the date, place, circumstances and cause of action upon which the action is based is sufficient. It is only if the court requires a more detailed pleading that r 24 directs that the pleading comply with the Supreme Court Rules. Rule 31 directs that a counterclaim must be filed at the same time as the defence in form 5. The respondents filed the defence and the counterclaim in form 5. By reason of the definition of the words "action" or "claim" in r 2(1) as including a defence, counterclaim or set-off, r 24(1)(a) applies to the defence and counterclaim. In the absence of an order to the contrary, therefore, it is sufficient if the defence and counterclaim is a short form pleading. In my opinion the defence and counterclaim complies with r 24. The essence of the counterclaim is clear.
7 Counsel for the appellant complained that the defence and counterclaim are so lacking in particulars that the appellant does not know the case it has to meet.  In the circumstances, the appropriate course of action for the appellant is to seek an order from the Magistrates Court for further and better particulars.  Rule 70 provides a procedure for obtaining those particulars.  It specifies that a party may request better particulars of the other party's action by notice in writing.  Rule 70(2) provides that if there is no compliance with the request within seven days of the notice, the court may order the other party to provide all or any of the requested particulars.  The appellants have not sought an order from a Magistrate that further and better particulars be provided.   If the appellants make such an application and obtain an order, should the respondents fail or refuse to comply with the order the court is empowered by r 83 to give judgment against the defaulting party. 
8 The application for summary judgment based upon the failure to properly respond for the request for particulars was premature.  It is unnecessary, therefore, for me to consider the request and response in detail.  It is sufficient to observe that the appellant may well have good grounds for complaint about the adequacy of the response.  However, this is a matter to be determined by a Magistrate should the appellant seek an order for better particulars. 
9 The appellant seeks judgment for the amount of the claim on the basis that the defence contains an admission of the claim.   The defence pleading admits both the existence of a contract for the supply of the goods for $10 849 and the delivery of the goods.  It is pleaded, however, that delivery was in breach of the contract because it was late. 
10 In Grimwade v Beresford (1974) 9 SASR 157, Walters J considered the circumstances in which an order should be made for summary judgment under Order 14 of the Supreme Court Rules 1947. In the course of that judgment his Honour said (p 161):
"In a case where it is evident that the defendant clearly has no defence to the plaintiff's claim, but he sets up a plausible counterclaim for an amount not less than the plaintiff's claim, the order should not be for leave to defend but it should be for judgment for the plaintiff on the claim, with a stay of execution until the trial of the counterclaim, or until further order. But if it appears that a bona fide counterclaim is set up arising out of the subject matter of the action and connected with the grounds of defence, unconditional leave to defend should, as a general rule, be given (Court v Sheen (1891) 7 TLR 556)."
11 In this Court counsel for the respondents has indicated that the respondents do not oppose judgment being entered for the appellant in the amount of the claim of $10 849 provided that execution of the judgment is stayed until the hearing and determination of the respondents' counterclaim.   In these circumstances it is unnecessary for me to explore the circumstances in which it would be appropriate for judgment to be entered where the defence and counterclaim arises out of the same set of circumstances as the claim.
12 It is appropriate that I add a few remarks about the procedure of seeking to appeal from an interlocutory order made in the Magistrates Court. I granted leave on 16 July 1999, but without an in-depth consideration of the relevant issues and principles. Leave was required by combination of s.40 of the Magistrates Court Act 1991 and r 96B.02 of the Supreme Court Rules. Section 40(1) of that Act provides that a party to a civil action may, in accordance with the rules of the Supreme Court, appeal against any judgment given in the action. Sub-section (2) directs that if the rules of the Supreme Court provide that an appeal from a judgment of a particular class can only be brought with the leave of that court, the right of appeal is limited accordingly. Rule 96B.02 of the Supreme Court Rules provides that unless a Magistrate has certified that the proposed appeal involves a point of law of difficulty or importance or a point of sufficient importance in the proceedings to warrant an interlocutory appeal being dealt with before final judgment in the action, any appeal against an interlocutory judgment pursuant to s.40 is subject to leave being obtained from the Supreme Court.
13 The decision of the Magistrate in this matter was an interlocutory judgment.  As the Magistrate had not provided any certification pursuant to r 96B.02, leave to appeal was required.
14 As to the circumstances in which leave should be granted, I respectfully adopt the remarks of Lander J in Nash & Nash v Lapins, (unreported judgment No.S6345 delivered 22 August 1997) in which his Honour said:
"The purpose of rule 96B.02 is to discourage appeals being brought from decisions on interlocutory matters because such appeals necessarily increase the cost to the parties of the litigation and, at the same time, interfere with the orderly disposal of the action.
Actions in the Magistrates Court are meant to be disposed of as expeditiously and with as little cost to the parties as possible.  Appeals to this court from interlocutory decisions will necessarily add to the cost of the action and prolong the litigation itself.   The rule contemplates that leave will usually only be given in relation to appeals from interlocutory decisions where this court is satisfied that there is a point of law of difficulty or of importance or the particular decision is of sufficient importance to warrant an interlocutory appeal being dealt with before final judgment in the action."
15 Upon reflection, I doubt that leave was appropriate.   However, as that issue has not been fully argued, it is unnecessary to comment further, particularly with respect to the issue of judgment as the respondent does not oppose judgment being entered in favour of the appellant. 
16 The appeal is allowed, but only to the extent that there will be an order that the appellant have judgment against the respondents in the sum of $10 849, together with costs on the summons of $570.  Execution of that judgment is stayed pending the hearing and determination of the respondents' counterclaim, or until further order of the Magistrates Court or this Court. 
17 The respondents will be expected to pursue the various processes associated with bringing the counterclaim to trial with reasonable expedition.  In my opinion, provided they do so, the stay should remain in place. 
18 The appeal against the refusal to strike out the defence and counterclaim is refused. 
19 There will be no order as to costs of the appeal.