Eschenberg v Ellerton - [2004] SASC 327

Supreme Court of South Australia
(Magistrates Appeals: Civil)
ESCHENBERG v ELLERTON
Judgment of The Honourable Justice White (ex tempore)
6 October 2004
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - ORDERS GENERALLY
Plaintiff sought order that defendant deliver up personal property belonging to him, or pay damages in compensation - Defendant failed to attend Court on three occasions, and failed to file a Defence - Prior to fourth occasion before the Court, defendant's solicitor faxed a written statement of defendant's intention to file a Defence - Defendant appeared, without solicitor, on Directions Hearing - Magistrate entered judgment against defendant - Unclear whether judgment was entered in default of Defence being filed, or following a hearing. In either event, judgment irregular - In addition judgment provided for alternative remedies and was thus uncertain - Appeal allowed - Refusal of Magistrates Court to list for hearing an application to set aside the judgment held inappropriate - Defendant incurred Supreme Court appeal filing fee as a result - Order refunding Supreme Court filing fee.
Magistrates Court Act 1991, s 3, s 31, s 40; Magistrates Civil Rules Rule 2, Rule 60, Rule 62, Rule 87, Rule 104, referred to.

ESCHENBERG v ELLERTON
[2004] SASC 327
Magistrates Appeal (ex tempore)

WHITE J: This is an appeal pursuant to s 40 of the Magistrates Court Act 1991.
On 3 August 2004 a Magistrate entered judgment in favour of the respondent (who was the plaintiff in the proceedings before him and who I will continue to call the plaintiff) as follows:
“Judgment for the plaintiff and order that the goods identified in the claim herein be returned to the plaintiff 7 days after today’s date. In the alternative there is to be a financial judgment in the sum of $3073.85 together with filing fees of $140 and costs of attendance today of $40 together with costs for attendance on 6 July and 8 June each of $40 and interest of $51.25 making a total of $3385.10.
The defendant’s grounds of appeal allege errors by the Magistrate in entering the judgment. They also allege errors by the Magistrate subsequently in refusing to accept an application by the defendant to have that judgment set aside.
Background Circumstances
Until 20 August 2003 the plaintiff had been a boarder on the defendant’s property. His Particulars of Claim, filed on 5 April 2004 allege that after he left the property on 20 August 2003, he had not been able to recover certain equipment and other property which he had left there. An Annexure to the Particulars of Claim listed some 36 items, and against each item a dollar figure was shown. I understand those figures to be the value claimed by the plaintiff for each item. The total value was $3073.85.
The plaintiff sought an order that the defendant deliver up to the plaintiff the property set out in the Annexure in good order and condition. Alternatively, the plaintiff…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Eschenberg v Ellerton

Details

AGLC: Eschenberg v Ellerton [2004] SASC 327
Case: [2004] SASC 327
Decision Date: 6 October 2004

CaseChat Overview and Summary

The case of Eschenberg v Ellerton involved a dispute between the plaintiff, Eschenberg, and the defendant, Ellerton, regarding the return of personal property or compensation for its value. The matter was heard in the Magistrates Court of South Australia. Eschenberg sought an order for Ellerton to deliver the specified personal property or pay damages in the amount of $3073.85 for the property withheld. Ellerton, who had been a boarder on Eschenberg’s property, failed to respond to the summons served on her and did not file a defence or counterclaim despite multiple opportunities to do so. The court had to determine whether the Magistrate correctly entered judgment against Ellerton, and if so, whether the judgment was regular and certain.

The court considered whether the Magistrate's entry of judgment was lawful. It noted that the plaintiff could have applied for judgment without a hearing, but had not done so. Instead, the Magistrate entered a judgment that appeared to be either in default or after a hearing without proper evidence. The judgment was also uncertain as it provided for alternative remedies. The court held that the judgment was irregular because it was unclear how it was entered and it was uncertain in its provisions. Additionally, the court found that the Magistrate's refusal to list an application to set aside the judgment was inappropriate, leading to Ellerton incurring costs in appealing to the Supreme Court.

The court allowed the appeal and ordered a refund of the Supreme Court filing fee paid by Ellerton. The court found that the Magistrate's actions in entering and refusing to set aside the judgment were erroneous. The irregularity in the judgment and the inappropriate refusal to list the application for setting it aside warranted the refund of the appeal costs. This decision underscores the importance of procedural correctness in the Magistrates Court and the necessity for clear and certain judgments.

Orders

Orders of the court

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Background

Background to the litigation

The defendant’s grounds of appeal allege errors by the Magistrate in entering the judgment. They also allege errors by the Magistrate subsequently in refusing to accept an application by the defendant to have that judgment set aside.Background Circumstances Until 20 August 2003 the plaintiff had been a boarder on the defendant’s property. His Particulars of Claim, filed on 5 April 2004 allege that after he left the property on 20 August 2003, he had not been able to recover certain equipment and other property which he had left there. An Annexure to the Particulars of Claim listed some 36 items, and against each item a dollar figure was shown. I understand those figures to be the value claimed by the plaintiff for each item. The total value was $3073.85. The plaintiff sought an order that the defendant deliver up to the plaintiff the property set out in the Annexure in good order and condition. Alternatively, the plaintiff sought the sum of $3073.85 as damages for the property withheld. The summons was served on the defendant on 6 April 2004. The defendant has not entered any defence or counterclaim but has, from time to time since April 2004, communicated with the Magistrates Court. I record a brief chronology of relevant events in the Magistrates Court. It has to be said that this chronology reveals considerable delay by the defendant in responding to the claim. The defendant did not appear when the matter was first called on in the Magistrates Court at Victor Harbor on 4 May 2004. She was then engaged before the Magistrates Court at Christies Beach. She caused a note to be sent to the Victor Harbor Court explaining her absence. The defendant did not attend at the next listed hearing date, namely 8 June 2004. Her absence on that occasion is unexplained. On that occasion, on the application of the plaintiff, the Court issued an injunction restraining the defendant until final judgment or resolution of the claim from disposing of the items listed in the Annexure to the Particulars of Claim. In issuing the injunction the Magistrate said: “I am not expressing a finally concluded view on the merits of the plaintiff’s claim but I am satisfied on the balance that there is a legitimate concern that unless restrained the defendant may dispose of the property the subject of the plaintiff’s claim… ” A certificate of the Court record showing the outcome of that day’s attendance was served on the defendant by post on 10 June 2004. The matter was adjourned to 6 July 2004. The defendant did not attend the hearing on 6 July 2004. Instead, she sent a statutory declaration sworn that same day explaining that she was taking a child to a dental appointment. In the same statutory declaration the defendant set out matters which indicated that she may have a defence to a substantial portion of the plaintiff’s claim, and the basis for a counterclaim. A Magistrate adjourned the matter to 3 August 2004 “for a Directions Hearing”. The court records that the Magistrate on that day (Mr Sprod SM) said: “As the defendant has not filed a defence to this claim the plaintiff may consider an application to the Court to sign judgment. See documents annexed to the defendant’s statutory declaration that suggest that she may wish to pursue a counterclaim or set-off. Registrar to advise defendant that if she does not enter a defence or make an application to pursue a counterclaim within 21 days then the plaintiff is entitled to seek judgment and consequential orders for the return of the property.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In all these circumstances, but particularly bearing in mind the shortness of the time, the explanation for the delay and the absence of relevant prejudice to the plaintiff, I grant the extension of time which is sought by the defendant the institution of the appeal. That extension is granted to 20 August 2004.The Judgment The way in which the Magistrate proceeded on 3 August 2004 is not altogether clear. By reason of the defendant’s failure to file a defence, the plaintiff could have signed judgment against her pursuant to Rule 60 of the Magistrates Court Civil Rules, which I shall call simply “the Rules”. It seems that this is what Mr Sprod SM may have contemplated when the matter was before him on 6 July 2004. However, if the plaintiff wished to proceed in that way, he had, by virtue of Rule 60(1), to sign judgment by filing a Form 18. The plaintiff has not filed a Form 18 and there does not seem to be any other indication that the plaintiff has signed judgment. If the plaintiff had signed judgment, in the circumstances of this claim, Rule 62 would have governed the situation. The Magistrates Court Registrar would then have been required to fix a date, time and place for the hearing by the court, of the claims made by the plaintiff, and in particular to hear evidence as to the value of the items, so as to be able to make an assessment of damages. It would have been necessary I think to hear evidence establishing that the items were still in the possession of the defendant, before making an order that the defendant return those items. Rule 62(2) requires that: “A party who has signed judgment must serve on all other parties, at least 21 days before the date of the hearing, a notice in Form 19, and a copy of any affidavit evidence to be relied upon together with some other information.” None of that appears to have occurred in this case. The alternative is that on 3 August 2004, the Magistrate entered judgment for the plaintiff against the defendant after a hearing. It does not seem that this is a realistic explanation for what occurred on 3 August 2004. It does not seem that the Magistrate was provided with any evidence on 3 August 2004, which would have warranted the entry of a judgment by the court. Absent the consent of the parties, it would, in any event, have been inappropriate to proceed with the hearing on 3 August 2004, because the matter had been adjourned to that day for a Directions Hearing only. Neither party had been put on notice of the need to be present at that time with evidence which he or she wished to adduce, or to be ready to make submissions which would be appropriate if there was to be a final hearing. There are other indications that the Magistrate did not proceed with in effect a trial of 3 August 2004. They include the statement in the reasons that he did not consider himself to be in a position “to deny the plaintiff the opportunity to enter judgment; and the absence of any detailed reasons referring to evidence, or on which findings of fact were made.”

Ratio Decidendi

Legal Principle Established

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