Frankos v Hocking No. Scgrg-00-229

FRANKOS v HOCKING
[2000] SASC 227

Full Court: Doyle CJ, Olsson and Wicks JJ

1................ DOYLE CJ....... I agree with Olsson J. I would refuse the application for an extension of time within which to seek leave to appeal to the Full Court. I agree with the proposed reasons of Olsson J.

2................ OLSSON J....... This is an application for leave to appeal, following a refusal of Gray J to grant leave to appeal against the interlocutory decision of a magistrate refusing to set aside a default judgment for damages to be assessed which had been entered as long ago as 16 October 1997. The application has been considered in private pursuant to the SCR by a Full Court constituted of the Chief Justice, myself and Wicks J.

Reasons for decision published by Gray J on 18 May 2000 fully traverse the history of the matter.
In brief, the respondent prosecuted a claim for damages for personal injuries sustained on 15 March 1993, when she fell down stairs in premises leased by her from the applicant.
At the time when the proceedings were issued (13 March 1996) personal service could not be effected on the applicant, who was in Greece for a protracted period of time. An order for substituted service was made on 2 April 1997. This required service of the documents on the local property manager for the applicant and also the writing of a letter by the solicitors for the respondent direct, by airmail, to the applicant at a specified address in Greece. Those directions were duly complied with.
The material on file indicates that there does not seem to be the slightest doubt that the applicant received all of this material in Greece. Her agent forwarded on the documentation served on him. He subsequently received letters from the applicant forbidding him to have anything to do with correspondence received from the respondent’s solicitors. The first such letter was dated 10 May 1997. There can be no doubt that the applicant was well aware of the proceedings months before the default judgment was entered. She did nothing in relation to them.
Damages were assessed on 9 March 1998. Steps have, in more recent times, been taken to enforce the judgment by execution against the applicant’s South Australian real property.
On 11 February 2000 the applicant, by her solicitor, applied to set aside the interlocutory judgment. Orders were made for filing requisite affidavits and the matter was set for special argument on 25 February 2000. However, the solicitor’s instructions were terminated by the applicant prior to that date.
When the matter came on (on 25 February 2000), the applicant’s father was permitted to argue the matter on her behalf. For reasons which he expressed at some length (and which are on file) the magistrate (Mr Hiskey SM) refused the application. In essence, having, quite accurately, concluded that the relevant judgment had been obtained regularly, he pointed out that there had been insufficient explanation for the failure to file a defence or to put forward what might be an arguable ground of defence, as required by MCR 87. He was, undoubtedly, correct in so concluding.
It is not entirely clear as to what procedural step occurred thereafter. It appears from a memorandum on the Magistrates Court file, that the plaintiff had filed an application for an absconding debtor’s warrant against the applicant. At the same time as the application to set aside the judgment was refused the absconding debtor’s warrant application was set down for hearing on 3 March 2000.
The matter came on before Mr Hiskey SM on 3 March 2000, together with an application by the Sheriff for directions as to the execution of a warrant for the sale of the applicant’s property.
At that time the magistrate made the following order:-
“1     Order made as follows
1...... Application for absconding debtor’s warrant adjourned to 17.3.00 at 11.30 am for special argument.
2.     Order that pursuant to S20(1) of the MCA that the defendant and Bisilia Frankos be summonsed to attend court on 17.3.00 to give evidence as to the property the subject matter of the warrant for sale herein. The summons to be served by post to the address of Mr Doman in the case of the defendant and in the case of Basilia Frankos that summons to be posted to her at 71A Semaphore Road, Semaphore.
3...... If the defendant intends to seek leave to make an application for leave to bring a second application to set aside judgment that application for leave and material in support of that application and in support of application itself to be filed and served within 7 days and to be set to be argued on 17.3.00 as a preliminary issue prior to considering the absconding debtor’s warrant application and the application of the Sheriff for directions as to execution of the warrant of sale.
4.     Application of the Sheriff adjourned to 17.3.00 at 11.30 am.
5...... Court to notify parties of this order.
GF Hiskey, SM 3.3.00”
A memorandum on the file indicates that Mr Hiskey SM foreshadowed that there might be what he described as a second application to set aside the judgment, because his order of refusal “was an order made on a day when the defendant did not attend but her fat(h)er did and he was very emotional and may not have done the case justice”. It was noted that the applications would go to Mr Cannon SSM.
On 16 March 2000 the applicant filed two separate applications. One was to stay the execution for the warrant for sale. The other was expressed in these terms:-
“I refuse to accept the second application of the order dated 3-3-2000, because I decided to lodge down an Appeal after my first application to set aside the judgment was refused by His Honour the Magistrate on 25-2-2000.”
All of these outstanding matters came before Mr Cannon SSM on 17 March 2000. He then purported to amend one of the applicant’s applications of 16 March 2000 to constitute what he described as a second application to set aside the judgment. It is to be inferred that this was the application last recited above. He said that he felt that there might be some arguable issue as to contributory negligence and adjourned the matter to 23 May 2000 to enable the applicant to file an appropriate affidavit.
The proceedings are said to have again come before Mr Cannon SSM on that date. At that time he dismissed the “second application”, there being no appearance by or on behalf of the applicant, despite the fact that, as he put it, “they have failed to attend today, knowing the need to do so and have failed to put in the material that I ordered them to put in”. The “they” was a reference to the applicant and her parents.
In the meantime, on 14 March 2000, the applicant filed an application in this Court for extension of time in which to seek leave to appeal against the order of 25 February 2000 refusing to set aside the default judgment. This was adjourned on various occasions. It was ultimately argued before Gray J on 17 May 2000, the applicant being represented by her mother. Gray J gave judgment the following day, refusing leave.
His refusal was based on the fact that the applicant had failed, at that point, to demonstrate an arguable defence and, in any event, then had a second application pending before Mr Cannon SSM to set aside the relevant judgment. By this time there was a considerable history of the appellant having retained and discharged solicitors and, as a concession, being represented by other family members.
The present application, itself, has not been initiated within time. It was, in a sense, overtaken by the later application before Mr Cannon SSM. The failure to attend before him is indicative of the cavalier manner in which the applicant has approached time requirements at all stages.
An affidavit has now been filed in support of the present application. It has been sworn by Basilia Frankos, who has a power of attorney from the applicant. This is a long, somewhat rambling, document, which is said to have been prepared by the deponent herself. In large measure it seeks to traverse certain of the history described above. It gives a somewhat specious excuse for the failure to appear before Mr Cannon SSM and points out that, by virtue of the orders made by him on 23 May 2000, the second application to set aside the judgment cannot be pursued.
At this late stage it seeks to assert that no effective service of the original documents occurred, because the property agent had no authority to accept them; and she and her daughter did not appreciate that proceedings were being taken against her. This is impossible to reconcile with the earlier documentation on file which leads to a clear contrary inference.
As to the merits the affidavit is expressed in these terms:-
“2.11I believe that the facts of the alleged claim need to be fully examined. The plaintiff (respondent) says that she was injured in 1993. At that time my husband and I were living right along side her in the adjoining flat and we were in daily contact with her and she never mentioned anything about a fall or injury during the period of March 1993 when she supposedly fell and August 1993 when she left the property. We parted company on bad terms as there was a dispute about a workshop operation which she continued to conduct in the premises right up until the time that she left. During that time I never got to hear of her being in hospital. I never saw her in plaster. I never saw her using crutches. It would have been impossible for her to keep using her flat if she were on crutches. The respondent was in the premises from 1987 to August 1993. She even made (unauthorised) alterations to the premises including the stairs where she put in a door so she must have been totally familiar with the premises. Even after the date when the alleged accident was said to have occurred she wanted to stay ”

This appears to fall far short of establishing a positive arguable defence on the merits. At best it seems to express a desire to put the respondent to proof of the basis of her claim.

The applicant has simply not demonstrated any basis for either an extension of time or for impugning the decision of Gray J.
She really seeks to complain of the order made by Mr Cannon SSM on 23 May 2000, which was the consequence of her own default.
Her proper remedy, if she can, ultimately, satisfy MCR 78, is to seek leave to appeal from that decision.
The extension of time sought must be refused. It follows that the application for leave fails.

27.............. WICKS J......................... I agree an extension of time should be refused for the reasons given by Olsson J.

[2000] SASC 227

7 July 2000