Djukanovic v Jarbouh - [2019] SADC 43

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
DJUKANOVIC v JARBOUH & ANOR
[2019] SADC 43
Judgment of His Honour Judge Barrett
5 April 2019
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA
The Review is from the judgment of a magistrate in a fencing dispute between neighbours. Before the hearing of the Review concluded the appellant filed a Notice of Discontinuance which attached a memorandum challenging the judgment appealed from. Consideration of the effect of the Notice of Discontinuance.
Held: Leave to Discontinue should be granted to the applicant on the condition that the proceedings may not be reinstituted.
District Court Civil Rules 2006 (SA) ss 107 & 108; District Court Act 1991 (SA) s 42E(3), referred to.
Heimann v The Commonwealth of Australia [1940] 58 WN (NSW) 2, considered.

DJUKANOVIC v JARBOUH & ANOR
[2019] SADC 43
Judgment under Review

The judgment under review was delivered by her Honour, then-Special Magistrate, PA Eldridge on the 27^th of June 2013. The detailed judgment traced the lengthy history of what is essentially a fencing dispute between neighbours at Athelstone. There were two main components to her Honour’s judgment. The first related to the cost of a retaining wall erected along the boundary. Her Honour apportioned the cost of that wall: 70% to the Appellant/ Plaintiff and 30% to the Respondents/ Defendants. The second component related to the cost of a colour-bond fence also erected along the boundary. Her Honour apportioned the costs of that fence equally between the plaintiff and the defendants. Her Honour listed the matter for directions on a later date for the making of consequential orders.
Before the date fixed for the directions hearing the appellant filed her application for a review. She did so on the 22^nd of July 2013. By the time of her Honour’s judgment there had already been a lengthy history of the action going back to 2010. Before that there had plainly been expert reports devoted to the building works. There had apparently been a degree of hostility between the parties since the defendants moved in next door to the plaintiff in about 2001.
Her Honour recorded the difficulties in conducting the trial due to the hostility between the parties. By the time of the hearing before her Honour the plaintiff had filed numerous volumes of documents and affidavits by her. The appellant’s application for review was itself 77 pages long.
Review hearings in 2014
7^th of March 2014
The hearing began with my attempting to have the appellant focus on her application. Those attempts were not successful, when the appellant’s mother suggested from the body of the court a way of resolving the dispute. I invited her to enlarge on her suggestions. I adjourned the hearing to see if the parties could resolve the dispute in the ways suggested by the appellant’s mother. I adjourned the hearing to 9.00am on the 11^th of April 2014.
11^th of April 2014
When the hearing resumed it was plain that no resolution had occurred and none was likely. I proceeded to hear the appellant’s submissions. Her submissions lasted all day and had not been completed. The day was spent preventing verbal outbreaks of hostility between the parties and attempting, largely unsuccessfully, to have the appellant focus on the matters in issue. I adjourned the matter at 4.30pm to resume on the 8^th of September 2014.
8^th of September 2014
The appellant made submissions until 1.00pm. After lunch the respondent asked to be excused. He said he had a heart problem and was not feeling well. I excused him. The appellant continued her submissions until 4.30pm. She had not finished her submissions. I adjourned the hearing to the 27^th of March 2015.
27^th of March 2015
Shortly before the 27^th of March the appellant contacted the court and indicated that she was unable to attend on the 27^th of March. I administratively adjourned the matter to a date to be fixed. Nothing was heard from either party.
Letter from the court to the appellant
On the 28^th of July 2016 the registry wrote to the appellant seeking to know her availability to list the hearing to continue the review. There was no reply.
Review hearings in 2019
On the 25^th of January 2019 a letter was sent to both parties advising that I would shortly be retiring and I wished to list the matter on the 1^st of February 2019 to determine the timetable for the conclusion of the matter.
The day before the 1^st of February the respondent contacted the court saying that he had just received the letter of the 25^th of January and would be unable to attend on the 1^st of February. There was no reply from the appellant.
On the 1^st of February 2019 a letter was sent to both parties acknowledging the short notice for the Directions Hearing and indicating that the hearing of the review would resume at 2.15pm on the 8^th of March 2019. The letter concluded:-
This appeal must be concluded as soon as possible. The judge hearing the appeal is due to retire in late March this year. Accordingly the appeal is set down for final hearing on Friday the 8^th of March at 2.15pm. If the appellant does not appear on that day the appeal will either be struck out on that date or it will be determined on the basis of the submissions already made by the appellant (M/S Djukanovic) and any submissions the defendant (Mr Jarbouh) wishes to make on the 8^th of March.
Notice of Discontinuance
On the 22^nd of February 2019 the appellant filed a Notice of Discontinuance. Attached to the notice was a four-page handwritten letter from the appellant. The contents of the letter were very discursive but they tend to indicate that, notwithstanding the filing of the Notice of Discontinuance, the appellant does not accept the judgment under review.
8^th of March 2019
The court convened on the 8^th of March. The defendant attended. There was no appearance by the appellant or anyone on her behalf. I noted the Notice of Discontinuance and told the respondent that I would deliver to the parties an account of the proceedings. On reflection it would have been preferable to indicate I would publish a judgment on the effect of the Notice of Discontinuance.
Discontinuance
Discontinuance is governed by rule 107 of the Supreme Court Civil Rules 2006 and the District Court Civil Rules 2006. The rule provides as follows:-
107—Discontinuance of action etc
(1)A plaintiff may discontinue an action by filing a notice of discontinuance.
(2)A party may discontinue a claim or defence by—
(a) filing a notice of discontinuance identifying a claim or defence previously asserted by the party that the party now seeks to abandon; or
(b) making an appropriate amendment to the party's pleadings.
(3)If the Court has ordered that the action proceed to trial, a plaintiff may only discontinue the action or a claim in the action with the Court's permission or the written consent of all other parties.
(4)Unless the parties agree or the Court orders to the contrary, the party against whom the action, or a claim or defence in the action, is discontinued is entitled to costs arising from the action, or the claim or defence (as the case may require) up to the time of receiving notice of the discontinuance.
As the matter proceeded to trial in the sense that the review was underway, the plaintiff may only discontinue the action with the court’s permission or the written consent of all parties. In the absence of the latter I must exercise the discretion to grant leave to discontinue, to grant leave on conditions or refuse leave.
Rule 108 provides that discontinuance is not generally a bar to future action. There are exceptions to the general rule. Rule 108 provides:-
108—Discontinuance not generally bar to future action
Subject to the following exceptions, a party who discontinues an action or a claim is not prevented from bringing a further action based on the same or substantially the same claim.
Exceptions—
1 If a party to the later action is entitled to costs in relation to the earlier action, the Court may, on the application of that party, stay an action based on the same or substantially the same claim until the costs have been paid.
2 The Court may, on application by the defendant made within 21 calendar days of service on the defendant of the notice of discontinuance, order that the discontinuance of an action or a claim is to have the same effect as a final judgment against the party discontinuing.
Leave to discontinue – Rule 107
I propose giving leave to the appellant to discontinue her application. I propose doing so pursuant to rule 107. I do so on two bases as follows:-
1The appellant seeks to discontinue.
2The appellant has not replied three times to the invitation by the court to proceed with the review. The first time was when she did not reply to the letter of the registry on the 28^th of July 2016 seeking to know her availability to resume the review. The second time was when she did not reply to the letter from the court on the 25^th of January 2019 seeking to arrange a timetable for the conclusion of the review. The third time was her non-attendance on the 8^th of March 2019 when the matter was set down for resumption. Of course on the 22^nd of February 2019 the appellant filed a Notice of Discontinuance.
There remains the question of what, if any, terms or conditions should be fixed to the leave to discontinue. The term commonly fixed is an order for costs in favour of the respondent. Because both parties were unrepresented in these proceedings it is not appropriate to make an order for costs.
Of greater importance is the prospect of these proceedings being reinstated. The effect of discontinuance of the application is that the judgment of the lower court is in force. Subject to the making of orders consequential upon the judgment, the judgment is enforceable.
The appellant makes reasonably clear in the four-page handwritten memorandum attached to her Notice of Discontinuance that she maintains her opposition to the orders of the lower court and has no intention of abiding by them.
In my view it would be unjust in the circumstances to permit the appellant to reinstate her application for review. My reasons for forming that view are twofold.
1The appellant’s response to the court’s invitations to resume the hearing amounts, when seen in its full context, to an abuse of process. The appellant failed twice to respond to the court’s attempts to resume the hearing and when a date was fixed for its resumption she filed a Notice of Discontinuance. Moreover the notice was accompanied by an attached memorandum which indicated her rejection of the lower courts orders and an unwillingness to comply with their terms.
2On the basis of the very lengthy verbal submissions I have heard from the appellant, extending over two and a half days, I was not persuaded that there were grounds for overturning the lower court’s judgment. The judgment appealed from must be given due weight and should not be departed from except for cogent reasons (s 42E(e), District Court Act 1991 (SA)). The appellant’s lengthy submissions were discursive, hard to follow and punctuated by hostility to the respondents. In the letter of the 1^st of February 2019 sent by the court to the parties, the appellant was told that if she did not appear on the day set for the resumed hearing the appeal would either be struck out or it would be determined on the basis of submissions already made by her and any submissions the respondent wished to make.
There is authority for the proposition that leave to discontinue may be granted upon the condition that no further proceedings may be brought on the same subject. In Heimann v The Commonwealth of Australia [1940] 58 WN (NSW) 2, Bavin J imposed such a condition. The facts of that case were slightly different from those in the present case inasmuch as the plaintiff was there asking for leave to discontinue and the court granted the leave upon an undertaking by counsel for the plaintiff that no further proceedings would be instigated. In this case a Notice of Discontinuance has already been filed. Nevertheless the principle applies. In imposing the condition in this case I adopt the reasoning of Bavin J who said:-[1]
it appears to me that it would be trifling with the administration of justice to leave the defendant any further exposed to litigation based upon the claims which are the subject matter of the present action.
[1] Page 5.
Leave to discontinue – Rule 108
Rule 108 provides that subject to exceptions a party who discontinues an action is not prevented from bringing a further action based on the same or substantially the same claims. The second exception referred to in the rule is that the court may make an order that discontinuance of an action is to have the same effect as a final judgment against the party discontinuing. That alternative exception suggests that such an order is made only upon application by the defendant made within 21 days of service of the Notice of Discontinuance upon him. That has not occurred in this case. The defendant was unrepresented. He appeared in court on the 8^th of March and I had not adverted terms of rule 108 and did not tell him of its contents. I indicate for reasons that I have already given that on the basis of the submissions I had already heard from the appellant I would have been willing to make an order that the discontinuance have the same effect as a final judgment against the appellant. However I do not do so because in my view the order I have already made pursuant to rule 107 disposes of the matter.
Orders
1Leave is granted to the appellant to discontinue the application for review. I impose on that leave the condition that the appellant be not permitted to reinstate her review of the lower court’s judgment in this matter.
2I remit the matter to the Magistrates Court for the making of orders consequent upon the judgment.