Cosenza v Roy Morgan Interviewing Services Pty Ltd - [2019] SASC 95

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
COSENZA v ROY MORGAN INTERVIEWING SERVICES PTY LTD
[2019] SASC 95
Judgment of The Honourable Justice Parker
6 June 2019
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - DEFAULT JUDGMENT - SETTING ASIDE
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
TORTS - TRESPASS - TRESPASS TO LAND AND RIGHTS OF REAL PROPERTY - WHAT CONSTITUTES TRESPASS AND DEFENCES THERETO - DEFENCES
EMPLOYMENT LAW - RIGHTS AND LIABILITIES AS BETWEEN EMPLOYER AND THIRD PARTIES - LIABILITIES OF EMPLOYER - FOR TORTS OF EMPLOYEE
This is an appeal against an order of the Magistrates Court setting aside a default judgment.
The appellant filed a claim against the respondent in the Magistrates Court. It was alleged that two individuals, said to be an employee and agent of the respondent, entered the appellant’s residential property and thereby committed a trespass for which the respondent is vicariously liable.
As the respondent did not file a defence to the claim within time, default judgment was awarded against it. Shortly thereafter, the respondent applied to have default judgment set aside. A Magistrate granted the application and set aside default judgment. That decision is the subject of this appeal.
Held, per Parker J, dismissing the appeal:
1. The discretionary power under r 87(1) of the Magistrates Court (Civil) Rules 2013 (SA) to set aside default judgment cannot be exercised unless the requirements of r 87(2) are satisfied (at [31]).
2. A party applying to set aside default judgment bears the burden of satisfying the Court that the requirements in r 87(2) are satisfied, so that the discretion under r 87(1) is enlivened (at [33]).
3. To establish an arguable defence on the merits for the purposes of r 87(2)(a), a defendant must do more than make a bare assertion of a good defence. A defendant must present evidence of sufficient particularity to satisfy the Court that the defence is one that the defendant genuinely intends to pursue and has an arguable basis for pursuing (at [36]).
4. Hearsay evidence is generally admissible on an application to set aside default judgment (at [33], [37], [40]).
5. The documents provided to the Court by the appellant serve to overcome what would otherwise be deficiencies in the evidentiary foundation for the respondent’s application to set aside the judgment (at [38]-[43]).
6. An inquiry as to whether there is an arguable defence on the merits is not to be turned into a trial on the affidavits (at [42]).
7. The Magistrate’s discretion to set aside default judgment under r 87(1) was enlivened (at [44]).
8. In determining whether a Magistrate erred in exercising the discretion under r 87(1), the test to be applied is whether the Magistrate acted on a wrong principle, allowed extraneous or irrelevant matters to guide or affect them, mistook the facts or did not take into account some material consideration, or alternatively whether the result is unreasonable or plainly unjust (at [48]).
9. No process or outcome error has been demonstrated in relation to the Magistrate’s decision to exercise the discretion under r 87(1) (at [49]).
Supreme Court Civil Rules 2006 (SA) r 162; Magistrates Court (Civil) Rules 2013 (SA) rr 12, 87; Competition and Consumer Act 2010 (Cth); Corporations Act 2001 (Cth), referred to.
Cosenza v Origin Energy Ltd [2017] SASC 145; Fox Tucker Lawyers v Panda [2019] SASC 197; Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; Marmanidis v Germein [2017] SASC 103; Sandery v Kowalski [2016] SASC 175; Cubelic v T & D Lock Pty Ltd [2009] SASC 397; Watson v Anderson (1976) 13 SASR 329; Skorpos v Georgiadis [2013] SASC 165; Battiste v Mulvaney (Unreported, Supreme Court of South Australia, Doyle CJ, 7 November 1997, S6419); Adelaide (SA Pools & Spa) Manufacturing and Installation Pty Ltd v Westcourt General Insurance Brokers Pty Ltd [2016] SASC 60, applied.

COSENZA v ROY MORGAN INTERVIEWING SERVICES PTY LTD
[2019] SASC 95

PARKER J: This is an appeal against an order of the Magistrates Court setting aside a default judgment. For the following reasons, I dismiss the appeal.
Background
The appellant, Dean Cosenza, lives with his elderly mother in a property at Woodville South. They are joint plaintiffs in proceedings for trespass in the Magistrates Court. However, only Mr Cosenza has appealed. For present purposes, nothing turns on that fact.
The appellant alleged in the statement of claim filed in the Magistrates Court on 25 May 2018 that on or about 11 February 2017, a Mr Jay Thumar and his wife, Mrs Thumar, entered his residential property at Woodville South and thereby committed a trespass for which the respondent is vicariously liable. The alleged trespass is said to have occurred in the course of the employment of Mr Thumar by the respondent. It is also alleged in the statement of claim that Mrs Thumar was an agent of the respondent.
The appellant alleges that Mr and Mrs Thumar entered his home property despite clearly marked signs which stated: “Warning: Entry is Forbidden: Enter by Express Invitation Only: High Court Decision: Plenty v Dillon [1991] HCA 5”.
The appellant and his mother seek damages of $100,000 (in addition to the $750 filing fee) against the respondent. The claim alleged that the respondent was vicariously liable for the conduct of Mr and Mrs Thumar as its employees. The claim relied on the causes of action of trespass, misleading and deceptive conduct and breaches of the Competition and Consumer Act 2010 (Cth). On appeal, the appellant continued to press the claim for trespass but counsel conceded that the latter two causes of action are misguided.
The appellant contends that the claim was served on the registered office of the respondent by post. However, the respondent denies having received the claim by post and asserts that it was unaware of the existence of the claim until after the award of default judgment. The appellant accepts that it is arguable that service was not effective. Thus, this aspect of the matter need not be further considered.
As the respondent had not initially filed a defence to the claim, on 23 August 2018 default judgment was awarded against the respondent. The respondent asserts that it first became aware of the existence of these proceedings on 10 September 2018 when it received notice from the Magistrates Court of a hearing listed for 27 November 2018. Subsequently, on 24 September 2018 the respondent filed an interlocutory application to set aside the judgment.
On 25 October 2018 the Magistrate set aside the default judgment. The Magistrate received oral and written submissions from both parties. An affidavit sworn by the appellant on 23 October 2018 was before his Honour. That affidavit annexed correspondence between the appellant and respondent and also email communications between employees of the respondent that had been disclosed to the appellant in the discovery process. Two affidavits sworn by Mr James Yeatman, the in-house counsel for the respondent, were also before the Magistrate.
The Magistrate gave the following brief reasons for his decision:
I have regard to all the material presented, written and oral, from both parties today. The merits of this claim can only be properly tested by evidence. On the face of it I am satisfied that there may have been some difficulty or confusion in respect of service. It would not be consistent with the Administration of Justice for me to reject the application to set aside the judgment. Further, on the face of it, given the affidavit in relation to the primary proposed defence that is a prima facie defence in my view. This is not the forum for particularisation to the degree that is going to determine this matter. This is more a matter of evidence at a trial.
In those circumstances I grant the application to set aside the judgment.
On 25 October 2018, following the setting aside of the judgment, the respondent filed a defence to the claim. In essence, the respondent contends that Mr Thumar did not enter the appellant’s property, but rather remained in his car outside while the alleged trespass by Mrs Thumar occurred. The respondent further contends that at no time was Mrs Thumar its agent.
Grounds of Appeal
The appellant initially advanced the following 11 grounds of appeal:
The learned Magistrate:
1.   Erred in law and fact by setting aside the plaintiffs judgment;
2.   Erred by failing to consider the facts with sufficient justification and reasoning to allow the judgment to be set aside;
3.   Erred by finding that on the face of the affidavit and defence filed by the defendant that a prima facie defence had been raised.
4.   Erred by failing to find that the defendant did not have an arguable defence to the claim;
5.   Erred by failing to find that the defendant did not sufficiently explain its failure to file a defence and appear in the proceedings;
6.   Erred by setting aside the judgment as the Courts discretion to set aside judgment had not been enlivened pursuant to MCR 87(2).
7.   Erred by finding that the Magistrates Court was not the forum for particularisation (of any proposed arguable defence on the merits capable of defending the action with success) to the degree where the Court must be satisfied to determine the set aside of judgment application.
8.   Erred by finding that the merits of the plaintiffs claim can only be properly tested by evidence within circumstances where the plaintiff has an order for judgment of the Court;
9.   Erred by failing to find that the onus of proving the merits of any arguable defence (capable of defending the action with success) reverses to the defendant in a trespass to land claim;
10.   Erred by failing to find that the defendant failed to prove any arguable defence of merit (with sufficient particularity capable of defending the action with success) to justify the setting aside of the plaintiffs trespass to land judgment entered in its favour.
11.   Erred by finding that it would not be consistent with the Administration of Justice to reject the defendant’s application to set aside the judgment within circumstances where the defendant failed to satisfy MCR 87(2) AND the Courts discretion to set aside the plaintiffs judgment had not been enlivened.
(Emphasis in original)
Ground 5 is no longer pressed due to the concession by the appellant that it is arguable that service was not effective. The 10 grounds of appeal now advanced by the appellant, in conjunction with his submissions, raise two issues. First, whether the Magistrate’s discretion to set aside default judgment had been enlivened. Second, if the discretion was enlivened, whether his Honour erred in deciding to exercise that discretion.
The appellant’s submissions
The appellant submits that the Magistrate erred in failing to correctly apply r 87 of the Magistrates Court (Civil) Rules 2013 (SA). The Magistrate needed to be satisfied that both limbs of the test in r 87(2) were satisfied before setting aside default judgment.
The appellant concedes that the Magistrate could be satisfied that the requirement of a reasonable excuse for not filing a defence under r 87(2)(b) was made out. However, the appellant submits that the requirement of an arguable defence on the merits under r 87(2)(a) was not satisfied.
The appellant questions whether an affidavit attesting to the merits of the defence must be sworn by a person who can prove the facts of his or her own knowledge or whether an affidavit based upon information and belief will suffice. Even if the latter is sufficient, an affidavit based on information and belief must state the source of that information and belief. The defendant must swear to the existence of the relevant facts and not merely to his or her belief in the existence of a defence.
The appellant also submits that the affidavit must show that the proposed defence is fairly arguable in law and fact. The alleged defence on the merits must contain sufficient particularity to enable the court to assess its genuineness. A clear admission of liability is relevant to the assessment of the genuineness of the defence. However, the requirement to identify a good defence must not be turned into a trial on affidavits. Accordingly, it is sufficient if the court is satisfied that the defendant has a bona fide intention of defending on the merits, but a bare and unsupported claim of a defence is not sufficient. The affidavit must depose to the relevant facts that allegedly give rise to the defence upon which the party proposes to rely.
The respondent’s submissions
The respondent submits that it has a reasonable defence to the claim on the merits. There are significant disputes of fact between the appellant and respondent which should be resolved at trial.[1] Specifically, the parties are in disagreement as to whether the appellant’s property was entered by both Mr and Mrs Thumar or by Mrs Thumar alone. The respondent contends that, at the time of the relevant conduct, Mrs Thumar was entirely unknown to it and not its employee or agent. The respondent cannot be vicariously liable for the dishonest conduct of a complete stranger.[2]
[1] Cosenza v Origin Energy Ltd [2017] SASC 145 at [84], [87] (Blue J).
[2] Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161.
The respondent says, in response to the appellant’s submission as to the inadequacy of its affidavit material, that because Mr Thumar is no longer its employee it is difficult to get evidence voluntarily from either Mr or Mrs Thumar to support its application. Because direct evidence of the conduct which gives rise to this claim is confined to Mr Thumar, Mrs Thumar, the appellant and his mother, it should not be counted against the respondent that its supporting affidavits include hearsay evidence. The respondent’s supporting affidavits were sworn by in-house counsel (as opposed to an external firm of solicitors). It is open for the Court to be satisfied that the evidence of in-house counsel, who has made detailed inquiries, indicates the thinking of the respondent company.
Evidence before the Magistrate
As previously noted, the evidentiary material before the Magistrate comprised affidavits sworn by the appellant and by Mr Yeatman. Mr Yeatman’s first affidavit, dated 24 September 2018, largely includes matters which are only to relevant to the issue of the service of the claim. In his second affidavit, dated 10 October 2018, Mr Yeatman deposed to various matters relevant to the merit of the respondent’s defence, including the following:
3. The essence of the Plaintiffs’ claim is that the Defendant is liable at law for the conduct of a person who allegedly trespassed on private property at which the Plaintiffs reside. The Defendant swears to the fact that the person who allegedly trespassed on the property at which the Plaintiffs reside, was not known to the Defendant at the time, and had no legal relationship whatsoever with the Defendant.
…
6. The person who allegedly trespassed on the property, Mrs Thumar, was not an employee of the Defendant and was not even known to the Defendant at the relevant time.
This affidavit also enclosed the defence which the respondent proposed to file if given permission.
While Mr Yeatman has deposed to Mrs Thumar being unknown to the respondent at the relevant time, he has not deposed to Mr and Mrs Thumar’s conduct. As the appellant observes, neither of Mr Yeatman’s affidavits include an assertion that Mr Thumar did not enter the appellant’s property.
The appellant’s affidavit sworn on 23 October 2018 annexed correspondence between the appellant and respondent, and between employers of the respondent. Details of this correspondence is set out in the following paragraphs [22] to [29].
The appellant stated in his affidavit that on 9 October 2017 the Chief Executive of the respondent, Michele Levine, had forwarded to him and his mother a letter apologising “for the conduct of the Thumars”. He also asserted that the Chief Executive had admitted in the letter that both Mr and Mrs Thumar had entered his property.
Ms Levine’s letter of 9 October 2017 is annexed to the appellant’s affidavit. Her letter does not contain the admission contended for by the appellant. Ms Levine stated “in February 2017, a person purporting to be one of our interviewers entered your property”. Ms Levine then stated that she was sorry that this incident had occurred. At no point in the letter did Ms Levine admit that both Mr and Mrs Thumar had entered the property. Given the content of Mr Yeatman’s affidavit, it can be inferred that the reference by Ms Levine to “a person purporting to be one of our interviewers” was clearly intended to refer only to Mrs Thumar.
In an email message apparently sent on 11 February 2017 to an employee of the respondent named Sandie (apparently Ms Sandra Teagle), Mr Thumar stated that he had a bad experience when “I stuck with one person by entering his home, sign as ‘WARNING ENTRY IS FORBIDDEN’ law in action by high court.. and That guy ruined my half an hour with fighting and having video recording of all my detail and having legal action against me.” Mr Thumar went on to say that he was not aware of the effect of the sign and thought it was “like normal sign ‘SALES MAN ARE NOT ALLOWED’”. Mr Thumar was clearly asserting in this email that he had entered the property.
On 13 February 2017, the appellant sent an email to Mr Dario Trifkovic, the “Face to Face Field Director” of the respondent. He stated that Mrs Thumar had trespassed by entering onto his property and caused him and his mother much distress and harassment by banging and ringing on the door in an unreasonable manner. He chased Mrs Thumar in order to obtain her identification details. She produced identification in the name of Jay Thumar, which did not include a photograph. Shortly after she produced that identification card, her husband who had been sitting in his car, approached the appellant and said that he and his wife were employees of the respondent. Mr Thumar then produced his identification card which included a photograph. The appellant then stated “[t]hey both subsequently admitted the entry to the property and the trespass signs at the entry to the property.” The appellant does not state in the latter passage that both Mr and Mrs Thumar had entered the property. He merely says that they both admitted that the property had been entered, without specifying by whom.
In a letter to the respondent dated 4 October 2017, the appellant made statements which repeated almost verbatim his allegations in the email outlined in the preceding paragraph. The appellant went on to make further remarks in respect of vicarious liability, the Corporations Act 2001 (Cth), the Competition and Consumer Act and expected damages.
In an email message to Mr Trifkovic dated 15 February 2017, Mr Yeatman stated that the explanation provided by Mr Thumar did not ring true compared to what the appellant had asserted. Mr Yeatman asked that more information be obtained from Mr Thumar, particularly as to why his wife knocked on the door. He also asked whether Mr Thumar was in the car as asserted by the appellant. Mr eatman also asked why Mrs Thumar had use of her husband’s identity card.
Very soon after he received the email from Mr Yeatman, Mr Trifkovic replied to Mr Yeatman. Mr Trifkovic stated that Mr Thumar had told him that he was at the door of the appellant’s house with his wife when he realised that he had forgotten his book and went back to the car to obtain it. When he came back, he found the appellant yelling at his wife.

On 19 February 2017, Ms Sandra Teagle sent an email message to Mr Trifkovic in which she reported the results of enquiries made with persons that lived in the same street as the appellant, including his next-door neighbour, and other persons in nearby streets who had been contacted for the purposes of the respondent’s survey. These persons each reported that they had been approached by a female interviewer. Based on that information, on 20 February 2017, Mr Trifkovic sent an email to Mr Yeatman in which he stated “Jay was caught taking his wife to do interviews for him while he was sitting in the car.” As a result, the employment of Mr Thumar was to be terminated.
Consideration
The appellant contends, in effect, that the Magistrate’s discretion under r 87(1) to set aside the default judgment was not enlivened because the requirements of r 87(2) of the Magistrates Court (Civil) Rules were not satisfied.
The discretionary power under r 87(1) to set aside default judgment cannot be exercised unless the requirements of r 87(2) are satisfied.[3] Rule 87(2) sets out the following conditions precedent to the exercise of the discretion to set aside a default judgment:
(2)The Court must not set aside such a judgment unless the party seeking to set it aside establishes that he or she –
(a)     has an arguable case on the merits; and
(b)     has a reasonable excuse for not having complied with these Rules, or an order of the Court, or any time limit fixed by these Rules or order of the Court, in respect of the action or proceeding.
[3]    Marmanidis v Germein [2017] SASC 103 at [80] (Hinton J).
Although the reasons of the Magistrate, set out at [9] above, were brief and included no express reference to r 87, it is nevertheless clear that his Honour did turn his mind to the requirements of r 87(2). His Honour remarked on the “difficulty or confusion in respect of service” (which is relevant to r 87(2)(b)), and found that “a prima facie defence” was raised (which is relevant to r 87(2)(a)). It is plainly the case that his Honour was satisfied that the requirements for the exercise of the power were met.
The appellant is correct in submitting that the respondent bore the onus of proving that the requirements in r 87(2) were satisfied. Plainly, a party applying to set aside default judgment bears the burden of satisfying the Court that the requirements in r 87(2) are satisfied, so that the discretion under r 87(1) is enlivened. In this respect, I respectfully agree with the following remarks of Blue J in Cosenza v Origin Energy Ltd:[4]
There are three relevant differences between an application to set aside judgment pursuant to rule 87 and a trial of the action.
First at trial the plaintiff bears the ultimate onus of proof of each element of the cause of action; whereas the defendant bears the ultimate onus of proof of a defence strictly so called. On an application to set aside judgment, the defendant bears the onus of proof of negating an element of the cause of action or establishing a defence strictly so called.
Secondly at trial the plaintiff bears the onus of persuading the judge or magistrate that the plaintiff has established each element of the cause of action and the defendant bears the onus of persuading the judge or magistrate that the defendant has established a defence strictly so called. On an application to set aside judgment, the defendant’s onus is merely to establish that it has an arguable defence (by negating an element of the cause of action or establishing a defence strictly so called) rather than establishing that it will ultimately succeed on that issue.
Thirdly at trial hearsay evidence is generally inadmissible. On an interlocutory application, hearsay evidence is generally admissible.
(Footnotes omitted)
[4] [2017] SASC 145 at [31]-[34] (Blue J).
The relevant question on this appeal is whether, on the basis of the material that was before him, the Magistrate erred in finding that the power under r 87 was enlivened and in deciding to exercise that discretion.
Consideration — arguable defence on the merits (grounds 1-4 & 6-11)
Leaving aside ground 5 which is no longer pressed, the remaining grounds of appeal relate to the appellant’s principal contention that the respondent had failed to prove that it had an arguable defence to the claim on the merits. The appellant submits that the requirement of r 87(2)(a) had not been satisfied, and the Magistrate’s power to set aside default judgment had therefore not been enlivened.
To establish an arguable defence on the merits for the purposes of r 87(2)(a), a defendant must do more than make a bare assertion of a good defence.[5] A defendant must present evidence of sufficient particularity to satisfy the Court that the defence is one that the defendant genuinely intends to pursue and has an arguable basis for pursuing.[6]
[5] Sandery v Kowalski [2016] SASC 175 at [25]-[26] (Doyle J); Cubelic v T & D Lock Pty Ltd [2009] SASC 397 at [18] (Duggan J); Watson v Anderson (1976) 13 SASR 329 at 341 (Walters J).
[6] Sandery v Kowalski [2016] SASC 175 at [39] (Doyle J).
The appellant has questioned whether a court is entitled to rely on hearsay evidence when it decides whether to set aside a default judgment. Blue J held in Cosenza v Origin Energy Ltd that hearsay evidence is generally admissible on an application to set aside judgment.[7] His Honour relied upon r 12 of the Magistrates Court (Civil) Rules and exception 1 to r 162(2) of the Supreme Court Civil Rules 2006 (SA).
[7] [2017] SASC 145 at [34], [83] (Blue J).
The appellant has submitted that Mr Yeatman has failed to identify in his affidavit evidence the source of the information that leads him to believe that Mr Thumar did not enter the appellant’s property and that any trespass was committed by Mrs Thumar alone, a person who has no legal relationship with the respondent.
In other circumstances the submissions made by the appellant about the deficiency in the evidence provided by Mr Yeatman in his affidavits may be persuasive. However, for the reasons that follow, the documents annexed by the appellant to his affidavit of 23 October 2018 overcome any shortfalls in the information provided to the Court by Mr Yeatman.
While the information contained in the documents annexed to the appellant’s affidavit is clearly hearsay, the Court is entitled to act on hearsay evidence when it decides whether or not to set aside a default judgment. While the appellant has not deposed to the correctness of the contents of the documents annexed to his affidavit, he has deposed that they are true copies of documents provided to him as part of the discovery process.
The documents provided to the Court by the appellant serve to overcome what would otherwise be deficiencies in the evidentiary foundation for the application to set aside the judgment. To put the matter simply, the appellant by his own actions has remedied the deficiencies in the respondent’s case. I say that because it seems likely that the material exhibited to the appellant’s affidavit is the same material upon which Mr Yeatman relied to form his belief that the respondent had an arguable defence to the claim of trespass.
In this light, I consider that the Magistrate had proper grounds to be satisfied that the requirement in r 87(2)(a) had been met. It is apparent from the material which was before the Magistrate that there is a significant unresolved factual dispute as to whether or not Mr Thumar entered the appellant’s property. It was not necessary for the Magistrate to resolve that issue and nor is it necessary to do so on this appeal. An inquiry as to whether there is an arguable defence on the merits is not to be turned into a trial on the affidavits.[8]
[8] Skorpos v Georgiadis [2013] SASC 165 at [21] (David J); Battiste v Mulvaney (Unreported, Supreme Court of South Australia, Doyle CJ, 7 November 1997, S6419); Watson v Anderson (1976) 13 SASR 329 at 334 (Bray CJ).
The material before the Magistrate also established that the respondent had an arguable case that it was not vicariously liable for any trespass committed by Mrs Thumar on the basis that she was not its employee, it had no prior knowledge of her existence and it had not authorised her to act on its behalf.[9]
[9] Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161.
I am satisfied that, on the material before the Magistrate, his Honour had proper grounds to be satisfied that the defendant had a bona fide intention of defending the claim on the merits and was advancing a genuine defence. The condition precedent in r 87(2)(a) was therefore satisfied. Consequently, as both limbs of r 87(2) were satisfied, the Magistrate’s discretion to set aside the default judgment was enlivened.
For completeness, I also note that in the course of oral submissions, the respondent tendered an affidavit of the appellant dated 13 April 2017, which was filed in a separate Magistrates Court matter. I received this affidavit de bene esse. The appellant deposed, in near identical terms, to the matters set out in his letter and email referred to at paragraphs [25] and [26] above. As it related to a separate action, the affidavit dated 13 April 2017 was not before the Magistrate when his Honour set aside the default judgment. Thus, it provides no assistance in determining whether his Honour erred in concluding that an arguable defence had been raised. I therefore decline to admit the affidavit into evidence on the appeal. In any event, this affidavit could have no effect on the disposition of the appeal because its content is virtually identical to the correspondence which was put into evidence by the appellant.
For the preceding reasons, I dismiss the appeal on grounds 3, 4 and 6 to 11.
Consideration — exercise of the discretion under r 87(1) (grounds 1 & 2)
Grounds 1 and 2 are cast in sufficiently broad terms to raise a contention that the Magistrate erred in the exercise of the discretion under r 87(1). However, the appellant only touched upon this issue in submissions and focused primarily on whether the condition precedent in r 87(2)(a) was satisfied. Nevertheless, I will address this issue for completeness.
The test to be applied in determining whether the Magistrate erred in the exercise of his discretion was expressed by Doyle J in Adelaide (SA Pools & Spa) Manufacturing and Installation Pty Ltd v Westcourt General Insurance Brokers Pty Ltd as follows:[10]
the appellant must establish that the Master acted on a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, mistook the facts or did not take into account some material consideration. Alternatively, the appellant must establish that the result embodied in the orders made is, upon the facts, unreasonable or plainly unjust, such that it can be inferred that there has been a failure to properly exercise the relevant discretion despite the precise nature or source of the error not being identifiable.
[10] [2016] SASC 60 at [22] (Doyle J); see also Fox Tucker Lawyers v Panda [2019] SASC 197 at [46]-[47], [60] (Parker J).
I do not consider that any process or outcome error has been demonstrated in relation to his Honour’s decision to exercise the discretion under r 87(1). It is in the interests of justice that the respondent be granted an opportunity to defend the claim on its merits.
I therefore dismiss the appeal on grounds 1 and 2.
Conclusion
I dismiss the appeal on all grounds.
As I intimated at the conclusion of the appeal hearing, because counsel and solicitor for the respondent had travelled from Melbourne and so as to avoid exposing the respondent to unnecessary expense, I am publishing my reasons administratively rather than in open court.
I invite the respondent to make submissions as to costs within seven days of publication of these reasons and I allow the appellant a further seven days to respond.