Goldthorpe v Hittmann - [2019] SADC 132

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
GOLDTHORPE v HITTMANN
[2019] SADC 132
Judgment of His Honour Judge Tilmouth
6 September 2019
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES
Application to review a judgment of a Magistrate declining to set aside a judgment entered in default of appearance, dismissed on the merits. No appealable error is demonstrated.
Magistrates Court (Civil) Rules 2013 (SA) r 63(4), r 87, r 101; Magistrates Court Act 1991 (SA) s 38(6); District Court (Civil) Rules 2006 (SA) r 6; Pulteney Grammar School v Equal Opportunity Tribunal (2007) 250 LSJS 309; Harradine v District Court of South Australia (2012) 280 LSJS 572; Singer v Berghouse (No 2) (1994) 181 CLR 201; Attorney-General (SA) v Marmanidis [2019] SASCFC 3, referred to.

GOLDTHORPE v HITTMANN
[2019] SADC 132
The proceedings

The proceedings now before the Court comprise of an application for the review of a decision made on 20 February 2019, by a Magistrate sitting in the Minor Civil jurisdiction of the Adelaide Magistrates Court.
By this decision, the Magistrate dismissed an application by Ms Goldthorpe to set aside a judgment entered in default of her appearance for trial. In order to assess the merits of the application for review, it is first necessary to log the course of events in the Magistrates Court.
The proceedings in the Magistrates Court
By originating proceedings filed on 21 March 2017, Mr and Mrs Hittmann,[1] claimed monies due and owing pursuant to building work undertaken by them for Ms Goldthorpe. She filed a Defence on 18 April 2017, which in effect claimed variously that the workmanship was ‘unfinished’, ‘wrong’, and for damages on account of ‘extra expenses’ incurred.
[1] Trading as Peter Hittmann Kitchens and Home Maintenance ABN 84 682 147 162.
It is unnecessary to go into finer detail on workmanship issues, except to point out that a court appointed expert largely found little fault with the workmanship. Voluminous materials and photographs submitted by Ms Goldthorpe inconclusively suggest otherwise. Nevertheless, there was sufficient material before the Magistrates Court to indicate that she had a reasonably arguable case on the merits to defend the claim.
The history of the proceedings was somewhat protracted. Mediation failed to resolve the dispute. A directions hearing set for 4 July 2017 was vacated at the request of Ms Goldthorpe, with the consent of the Hittmanns. An on-site mediation on 17 October 2017 was abandoned when Ms Goldthorpe refused to allow the them to participate in it. A further directions hearing listed for 24 November 2017 was vacated, after Ms Goldthorpe contacted the court stating she could not attend on that date.
At all events, the matter was listed for trial before the Magistrate on 21 March 2018. Ms Goldthorpe did not appear at the time set for trial. Nor did she contact the court requesting an adjournment or explain that she could not attend. It was on that date that her Honour made the order in default of appearance, entering default judgment in these terms:
Judgment for the plaintiff $7307.04 plus $140 filing fee, solicitor fee of $385.35 plus the costs of attendance of Mr and Mrs Hittmann of today and 11 August 2017 of $50 for each person, that is $100 for each attendance for 2 attendances being $200.
The power to enter judgment in default of appearance at trial is conferred by r 101 of the Magistrates Court (Civil) Rules 2013 (SA), in these terms:
101.Where a party fails to attend within 15 minutes of the time fixed for an interlocutory application, a directions hearing, settlement conference, pretrial directions hearing, any other hearing appointed by the court, or trial, the Court may give judgment or make an order against, and in the absence of, that party, without hearing any evidence.
An application to set aside judgment
An application to set aside the judgment, supported by a long handwritten affidavit filed by Ms Goldthorpe on 14 September 2018, claimed:
… reasons were sent in plenty of time before next hearing … included, letter, doctor’s medical certificate … all sent to AM Court all registered mail, confirmed by receiving Australia Post confirmation card.
This affidavit further attested:
I have been extremely ill since last year and which has got much worse since early this year and been constantly at my doctor, ongoing specialist referrals appointments.
The balance of the affidavit recited complaints about workmanship.
The application came before her Honour on 25 September 2018. As Ms Goldthorpe did not appear, the court record shows it was dismissed ‘in default of appearance’. Ms Goldthorpe was ordered to pay costs of attendance to the Hittmanns of $100.
The second application to set aside
A second application of 14 November 2018, was filed by Ms Goldthorpe to set aside the judgment. In materials submitted in support, she claimed not to have received the notice of hearing until the very date of the hearing. In the supporting affidavit of 14 November 2018, Ms Goldthorpe dealt mostly with the merits of the underlying claim, but ended with this statement:
I was in hospital several weeks back, two procedures – one unfortunately not worked I had a Specialist appointment yesterday (booked a month ago for me). I could not make it. I cannot leave ‘the bathroom’ for too long.
On 21 November 2018, leave to file the second application was granted by the Magistrate in Chambers, pursuant to r 63(4) of the Magistrates Court (Civil) Rules. In so ordering, her Honour accepted that a notice of hearing posted by the court on 18 September 2018, ‘was late and was not provided to the defendant with sufficient time for her to attend’. The Magistrate set the application for hearing on 22 January 2019 and ‘warned’ Ms Goldthorpe:
… she is required to file evidence as to why she did not attend for trial on 21 March 2018 including copies of any supporting documents such as medical reports to demonstrate she had a reasonable excuse for non-attendance on that day.
The court registry was directed to ‘notify parties of these orders’.
On 22 January, her Honour adjourned the application to 20 February 2019 at the request of Ms Goldthorpe, once again issuing her with the same warning, in the same terms as before. The parties were sent a letter by the Registrar on 23 November 2018, notifying them of the revised date and advising them that if ‘you fail to attend within 15 minutes of the appointed time the action may be determined in your absence’. A copy of this order was attached, which contained the same warning as before to Ms Goldthorpe.
In a second affidavit filed 29 January 2019, Ms Goldthorpe wrote that she has ‘been extremely ill’ and of ‘referrals to and including different (2016) and specialists from 2017 (early 2017) and ongoing’. This affidavit annexed an undated letter under the hand of Dr S McLaughlin certifying Ms Goldthorpe ‘suffers from agoraphobia and claustrophobia’, had a history of panic attacks on air flights, and otherwise supporting an application for an aisle seat to the front of an aircraft, if she flew. A second letter written by Dr McLaughlin of 4 February 2019 detailed a number of conditions suffered by Ms Goldthorpe including ‘severe stress and anxiety’, and ‘hypertension’, amongst others. It expressed the opinion, ‘she did not attend court on the 21^st of March 2018 due to her ongoing medical issues, especially her bowel issues’.
A third letter from a Dr J Martin of the Lyell McEwin Gastroenterology Hospital Clinic dated 9 February 2019, confirmed that her:
… gastrointestinal condition is a chronic and ongoing one which can significantly interfere with your ability to go for long periods away from a toilet and there is the potential for it to interfere with your attendance at your upcoming court case.
The second application to set aside duly came before her Honour for hearing on 20 February 2019, when it was dismissed due to Ms Goldthorpe’s non-appearance.
The Magistrates reasons
The power to set aside default judgments derives from r 87 of the Magistrates Court (Civil) Rules in the following terms:
87.     (1)     The Court may set aside or vary a judgment (not being a final 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.
It is clear that both limbs of r 87(2)(a) and (b) must be satisfied before the power to set aside is triggered: Attorney-General (SA) v Marmanidis.[2] In the course of her ex tempore reasons of 20 February 2019, the Magistrate did not assess the former, one expects because there was sufficient material on the file to suggest Ms Goldthorpe satisfied the ‘arguable case on the merits’ limb of the rule. The application to set aside failed solely on the basis of the second limb. The Magistrate considered she ‘failed to meet the test provided’ therein, that the discretion vested in the court under r 87 was thereby ‘not enlivened’ and as such was accordingly dismissed.[3]
[2] [2019] SASCFC 3, [157], [186].
[3] Peter Hittmann t/as Peter Hittmann Kitchens & Home v Goldthorpe 20/02/2019, AMCCI-17-990, [22].
Her Honour carefully weighed the materials submitted in support of the application. She considered the first report of Dr McLaughlin finding that it ‘did not provide a reasonable excuse for why she did not attend at the trial’, and that the second of 4 February 2019 ‘provided no analysis or information of what medical conditions the defendant may have suffered in March 2018 and whether they affected her ability to attend the trial.[4] As to the third letter from Dr Martin, her Honour observed that it ‘… provides no evidence that the defendant was unable to attend the half-day trial on 21 March 2018’.[5]
[4] Ibid [12].
[5] Ibid [13].
In resolving to dismiss the application to set aside, the Magistrate considered the letter sent to the court by Ms Goldthorpe of 20 February 2018 bluntly stating ‘Not able to attend Court’, indicated in itself that ‘notwithstanding her health at the date of trial, she had no intention of attending’, and that her ‘approach to the claim appears to be one of delay, designed to avoid any order that she pay the plaintiff for the work he carried out at her home in 2016’.[6]
[6] Ibid [18] and [21].
Her Honour had before her no material, accounts or invoices quantifying the claim, apart from the particulars of the claim itself, which stated the balance due pursuant to tax invoices of $4,572, recovery costs of $2,303.79 and interest of $431.25 from 14 November 2016 to 8 March 2017, pursuant to the ‘Contract Terms and Conditions’. These were to sums amounting to the default judgment sum originally entered by her Honour of $7,307.04, on 21 March 2018.
The application for review
The District Court constituted of a single Judge, may on the application of a party dissatisfied with a judgment given in a minor civil action, review the matter: Harradine v District Court of South Australia.[7] This right of review is conferred by s 38(6) of the Magistrates Court Act 1991 (SA).
[7] (2012) 280 LSJS 572; [2012] SASC 96.
The application for review itself dated 13 May 2019 complains that Ms Goldthorpe did ‘NOT even had received Hearing Date - Until after already heard’. The balance of the grounds of review largely relate to the merits of the work undertaken. During the course of the hearing in the District Court, she repeated that ‘it’s been an ongoing thing … with the medical issues’, but she proffered little more as to the reasons for her non-attendance on 20 February 2019.[8]
[8] T3.14-.21, 23 August 2019.
Rule 6 DCR 279A of the District Court (Civil) Rules 2006 (SA) provides that such reviews must be commenced within 21 days of the date of judgment. The notice of review herein was filed on 13 May 2019, that is nearly three months after the review decision of 20 February 2019. Under r 6R 117(2)(b) of the District Court (Civil) Rules, the court retains the power to extend the time for taking any step in a proceeding, including an application for review. This unresolved issue is put to one side for the present.
The review process itself requires this Court reconsider the decision and determine whether or not the applicant can demonstrate the existence of legal or factual error vitiating the judgment under review: Pulteney Grammar School v Equal Opportunity Tribunal,[9] Harradine v District Court of South Australia.[10] Appellate constraint is required in disturbing evaluative determinations of the kind presently under review: Singer v Berghouse (No 2).[11]
[9] (2007) 250 LSJS 309; [2007] SASC 308, [7].
[10] (2012) 280 LSJS 572; [2012] SASC 96; BC201204222 [53(5)].
[11] (1994) 181 CLR 201, 212.
In this particular instance it was certainly open to her Honour to refuse the application to set aside given the fraught history of the proceedings, particularly the paucity of reasons for several non-attendances. The exercise of the power to set aside under MCCRM 87 for the purposes of this case, involved making a deliberative or evaluative judgment as a matter of law as distinct from the exercise of discretion, as to whether Ms Goldthorpe had ‘a reasonable excuse’ for her failure to comply with the rules of court concerning trial attendance. Her Honour weighed the material before her carefully and came to a considered view in refusing the application. No error of fact or law is evident and no other proper basis to rescind the judgment under review is apparent.
That being the position, the application for review fails and the judgment of the Magistrate entered on 20 February 2019 is therefore affirmed pursuant to s 38(7)(d)(i) of the Magistrates Court Act. This conclusion renders it unnecessary to consider the question of an extension of time in which to institute the review, as it was bound to fail irrespective of the cogency of any reasons for filing the application for review out of time.
In accordance with usual practice, there will be no order as to costs of the review.