Kolo v Brdar No. Scciv-01-1563

KOLO v BRDAR
[2001] SASC 436
Magistrates Appeal

PRIOR J: This is an appeal from a decision of a magistrate sitting in the civil jurisdiction of the Magistrates Court. The magistrate held that an offer to consent to judgment, filed in August 2000, could be accepted by the defendant notwithstanding the matter had proceeded to trial and appeal.
A trial occurred in February 2001. The plaintiff was then successful. The judgment in the plaintiff’s favour was set aside by a judge of this Court in May. The judge ordered a retrial. No retrial has occurred. The defendant purported to accept the plaintiff’s August 2000 offer on 6 September 2001.
In this appeal it is said that the magistrate should have found that the offer to consent to judgment was only open for acceptance at any time before the judgment entered by the magistrate. The order made in this Court setting aside that judgment and ordering a retrial did not revive the offer.
Rule 55 of the Magistrates Court (Civil) Rules 1992 (MCR) provides:
“(1)At any time before final judgment, a party may file and serve on any other party an offer to consent to judgment.
(2) The offer may be made subject to specified conditions.
(3)An offer may relate to liability, quantum, matters in issue in the action or any order, remedy or relief sought.
(4)A party may file and serve a notice of withdrawal or variation of an offer which has not been accepted.
(5) A party may file and serve an acceptance of an offer.
(6)A party may request the Registrar to enter judgment in the terms of an accepted offer and the Registrar must enter it accordingly.”
In his reasons for decision the magistrate referred to final judgment being defined in (b) of r 2 as a judgment at the conclusion of a contested hearing. The magistrate said that r 55 was different from the rules in this Court and the District Court. Those rules with respect to offers to consent to judgment set a time within which such an offer can be accepted. The difference may be acknowledged. However, I doubt that it affords any assistance to the proper construction of MCR r 55.
The magistrate was of the view that final judgment in r 55 must mean a judgment disposing of an action after all opportunities of appeal have been exhausted. In His Honour’s view, the judgment entered by the magistrate was a disposal of the claim conditional upon there being no successful appeal. The judgment having been set aside, the plaintiff’s claim remained in existence.
In the magistrate’s view, the offer by the plaintiff to accept less than the full claim was still capable of acceptance by the defendant after the first judgment, if not before the judgment was set aside, certainly thereafter. The parties had been placed in the same position as they were before the hearing by the magistrate once the judgment was set aside by this Court.
In this appeal, the appellant maintains that the defendant’s right to accept the offer to consent ceased upon judgment being entered by the magistrate. The appeal could not revive the offer. In the Notice of Appeal, reliance is placed upon principles said to be “espoused in MCR r 3(1)(a) and r 3(1)(b)”. They provide:
“3(1)(a)In interpreting, applying and enforcing observance of these rules, the Court and Registrar must in all things promote the expeditious, economical and just conduct and resolution of an action or proceeding.
(b)These rules are not intended to defeat the proper action brought in good faith of any party and are to be interpreted accordingly.”
In the outline of argument, reference is also made to s 14A and s 22 of the Acts Interpretation Act 1915.
Counsel for the respondent submitted that the magistrate was correct. The offer was inoperative until the appeal was allowed. It did not lapse. It was revived by this Court’s order[1].
[1] cf Bright v Low (1940) SC 280
Final judgment is defined in MCR r 2 to mean “any judgment,
(a)made with the consent of the parties;
(b)given at the conclusion of a contested hearing;
(c)made in the terms of the acceptance of either an order to consent to judgment or a payment of a sum of money to the Registrar; or
(d)a summary judgment.”
MCR r 55(5) has to be read with the qualification apparent in MCR r 55(1). Thus a party can only file and serve an acceptance of an offer “at any time before final judgment”, final judgment there referring to the judgment given by a magistrate at the conclusion of a contested hearing.
If sub rule (5) is read with the temporal phrase of sub rule (1) also applying to it, consistency is created and absurdity avoided. It permits a fresh offer to be filed after an appeal sets aside a final judgment in the sense identified in (b) of the definition of final judgment. With a successful appeal from the final judgment, there is room for a fresh offer. There is no revival of something that has expired.
In my view the magistrate erred in giving a meaning to final judgment in r 55 which added to the exhaustive definition of final judgment in r 2. That exhaustive definition does not speak of a judgment “disposing of an action after all opportunities of appeal have been exhausted”. It speaks of any judgment given at the conclusion of a contested hearing and some others. A different meaning besides those identified in the definition was neither open nor warranted. To say that a claim remains in existence does not assist in the proper construction of r 55 and the proper use of the temporal phrase at the beginning of sub rule (1).
The magistrate’s decision must be set aside. It remains for the matter to proceed in accordance with the earlier order of this Court. That does not prevent either party invoking the r 55 procedure afresh before another final judgment arises on the claim. This is a case where there may be more than one final judgment within (b) of the definition of final judgment.
The Magistrates Court (Civil) Rules do not baulk at the concept of more than one final judgment. The magistrate’s decision at the conclusion of the contested hearing answered (b) in the definition of final judgment. The definition refers to any judgment answering the descriptions in par (a) to par (d). Thus both the first decision and the decision at the conclusion of the rehearing are both final judgments for the purpose of r 55. That rule can be construed to permit each part of the rule to have effect with respect to both final judgments. In the event of appeal, a second offer to consent to judgment may be made after the first final judgment is set aside.
The appeal is allowed. The decision of the magistrate set aside. Absent any fresh offer to consent to judgment being made and accepted, the matter is to proceed to hearing.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1. cf Bright v Low (1940) SC 280

[2001] SASC 436

11 December 2001