Lauro v Minter Ellison - [2021] SASCA 150

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
LAURO v MINTER ELLISON
[2021] SASCA 150
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Parker and the Honourable Justice David)
23 December 2021
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - DEFAULT JUDGMENT - GENERALLY
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - TAXATION AND OTHER FORMS OF ASSESSMENT - APPEAL, REVIEW OR REFERENCE
This is an application for permission to appeal against a decision of a single Judge of this Court dismissing an application for an extension of time to appeal against the order of Chivell DCJ (the trial judge) and dismissing an appeal against the order of Durrant DCJ.
In 2013, the respondent issued a claim for work done and services provided in respect of a number of disputes. The trial commenced in 2015 but was adjourned a number of times due to the appellant’s health condition. After special arrangements were proposed for the appellant to attend trial, the trial was fixed to resume on 17 September 2018. On 17 September 2018, the appellant’s son attended and made an application to adjourn the trial. Judge Chivell confirmed that the trial would resume on 18 September 2018. The appellant did not attend on 18 September 2018 and Chivell DCJ entered default judgment in favour of the respondent. The appellant subsequently applied to set aside the default judgment.
On 7 April 2020, Durrant DCJ dismissed that application (the second judge), finding that the default judgment was regularly obtained and that the applicant had not established a reasonably arguable defence. The applicant was granted permission to appeal against Durrant DCJ’s orders by a single Judge of this Court (the Supreme Court Judge), but his appeal was ultimately dismissed. The applicant now seeks permission to appeal to the Court of Appeal.
Held per Parker AJA (Lovell JA and David AJA agreeing), refusing an extension of time and permission to appeal:
1.The evidence of Dr Giordano concerning the applicant’s medical condition was simply part of the background material about the applicant’s health. The omission of any reference to that evidence did not amount to an error.
2.It is not clear that the reference to “a full and independent review” in the applicant’s defence constituted a request for adjudication under the Legal Practitioners Act 1981 (SA). Nevertheless, given that the proceedings concerned allegations of professional negligence and breaches of professional standards, along with a counterclaim, there would be no utility in referring the disputed costs claim for adjudication.
3.Schedule 3 of the Legal Practitioners Act 1981 (SA) does not operate to preclude the District Court from entering a default judgment for a liquidated sum claimed by way of costs.
4.The entry of the default judgment was a final judgment even though it did not determine the costs that were recoverable by the respondent under the terms of its retainer and nor did it preclude the applicant from seeking adjudication of the costs claimed by the respondent under Schedule 3 of the LPA.
5.The Supreme Court Judge’s analysis of the legal principles relevant to the entry of default judgments was plainly correct.
6.It is not reasonably arguable that the Supreme Court Judge erred in concluding that the Court was not required to warn the applicant that a default judgment may be entered if he failed to attend.
7.Leaving aside the fact that the respondent did in fact inform the Court of the applicant’s status as a protected person, it cannot be said that this alleged failure renders the default judgment irregular where the applicant has not alleged any prejudice as a result of the alleged failure and where the Court was aware of the issue and retained a discretion as to whether to appoint a litigation guardian.
8.As the matter was decided by default judgment, the argument that the respondent’s lawyers should not have been permitted to conduct the case as they were required as witnesses remains an academic point that has no influence on the outcome of the proceedings such that permission to appeal should not be granted.
9.The limited dispensation from the pre-trial procedural requirements has not previously been the subject of complaint, is not the subject of submissions and did not cause the applicant any prejudice.
10.The respondent’s contention that claims for breach of contract are not capable of giving rise to a liquidated debt does not establish that the default judgment was irregular.
11.It is not apparent how the applicant’s human rights or rights under the Disability Discrimination Act 1992 (Cth) were breached.
12.The application for permission to appeal is misdirected to the extent that it asserts that the Supreme Court Judge erred in the exercise of a discretion. The real issue is whether the Supreme Court Judge failed to identify a process error or an outcome error in the exercise of the second judge’s discretion.
13.Proposed grounds of appeal 6(f), 6(h), 8, 9, 10 and 14(b) concern a decision that the Supreme Court Judge was not called upon to make and rely on criteria that are not relevant. Accordingly, the grounds are not reasonably arguable.
14.The matters referred to by the second judge were either uncontested questions of fact or findings of fact he made after hearing evidence from the applicant. Each of the matters considered by the second judge were clearly relevant to the exercise of his Honour’s discretion and thus there was no process error. There was also no outcome error.
15.The Supreme Court Judge did not err in declining to grant an extension of time of more than 18 months to appeal against the decision of the trial Judge. As the proposed grounds of appeal are not reasonably arguable, no extension of time should be granted.

Australian Human Rights Commission Act 1986 (Cth) sch 2; Australian Solicitors’ Conduct Rules 2015 (SA) r 27; Disability Discrimination Act 1992 (Cth) s 5, s 6; District Court Civil Rules 2006 (SA) r 78(1), r 78(3), r 78(4), r 228, r 234(1), r 234(2), r 234(4); Legal Practitioners Act 1981 (SA) sch 3; Racial Discrimination Act 1975 (Cth); Sex Discrimination Act 1984 (Cth), referred to.
House v The King (1936) 55 CLR 499; Mandeville v Better Lending Pty Ltd [2021] SASCA 28; Watson v Anderson (1976) 13 SASR 329, applied.
TBO Investments v Mohun-Smith [2016] 1 WLR 2919; Yang v Finder Earth Pty Ltd [2019] VSCA 22, distinguished.
Atwood v Chichester (1878) 3 QBD 722; Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246; CBFC Ltd v Charitopoulos [2009] SASC 30; Hall v Nominal Defendant (1966) 117 CLR 423; Hardel Pty Ltd v Burrell & Family Pty Ltd (2009) 103 SASR 408; Kedem v Johnson Lawyers Legal Practice Pty Ltd (2014) 121 SASR 118; King William Law Chambers and Williamson & Co v Mobitel (International) Pty Ltd (1981) 29 SASR 316; Kowalski v RJ Cole and Partners (2015) 122 SASR 320; Lauro v Minter Ellison [2020] SASC 137; Lauro v Minter Ellison Lawyers [2019] SASC 23; Lauro v The Marble House Australia [2013] SASC 17; Licul v Corney (1976) 180 CLR 213; Minter Ellison A Firm v Lauro [2020] SADC 41 Vacuum Oil Pty Ltd v Stockdale (1942) 42 SR (NSW) 239; von Doussas Legal Pty Ltd v Nasr (2009) 105 SASR 46, discussed.
Aistrope & Aistrope v South Australian Housing Trust [2015] SASC 202; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Chapman v Rogers [1984] 1 Qd R 542; Idameneo (No 123) Pty Ltd v Thomas Martin Suszko [2015] SASC 29; Jeffrey v Associated National Insurance Co Ltd [1984] 1 Qd R 238; Matthews v Whites Hill (SA) Pty Ltd & Anor [2019] SASC 78; Northey v Bega Valley Shire Council [2012] NSWCA 28; Papagiorgos v Complete Credit Acquisitions Pty Ltd [2019] SASC 44; Pham v Gall [2020] NSWCA 116; PPG Development Pty Ltd v Capitanio [2016] SASC 169; Sandery v Kowalski & Anor [2016] SASC 175; Yamaji v Westpac Banking Corp (No 1) (1993) 42 FCR 431, considered.

LAURO v MINTER ELLISON
[2021] SASCA 150
Court of Appeal – Civil: Lovell JA, Parker and David AJJA

LOVELL JA: I agree with the reasons of Parker AJA and the orders he proposes.
PARKER AJA: The applicant seeks permission to appeal against the orders made by Bleby J (as he then was) on 30 July 2020. Those orders:
1Dismissed the application for an extension of time to appeal against the orders made by Judge Chivell on 18 September 2018. Those orders included the entry of judgment by default for the respondent in the sum of $173,633.61 (inclusive of interest) and the dismissal of the set off and counterclaim by the applicant.
2Dismissed the appeal against the orders of Judge Durrant made on 7 April 2020 dismissing the application to set aside the default judgment entered by Judge Chivell on 18 September 2018.
3Required the applicant to pay the respondent’s costs, limited to its disbursements in the form of counsel fees, in the sum of $9,500.
The application for permission to appeal and proposed grounds of appeal
The applicant has advanced 14 grounds of appeal extending over five pages. Many of those grounds of appeal include numerous sub grounds. For example, ground 6 comprises 13 subparagraphs with some of those subparagraphs being further divided. Similarly, the application for permission to appeal ostensibly advances three grounds but actually includes 26 sub grounds. The applicant has lodged written submissions dated 4 September 2020, 13 May 2021 and 21 May 2021. That material extends over a total of 28 pages.
A significant number of the grounds, and more so the submissions, refer to matters that occurred during the course of the proceedings conducted in the District Court over some five years. Some of the various matters referred to allegedly occurred on multiple occasions yet in most instances the date has not been identified. That has required substantial work by the Court to identify the matters being referred to. Thus, for example, it was necessary to search transcript of multiple hearings and many affidavits; the applicant’s son alone having filed 24 affidavits, some of substantial length with multiple exhibits. These matters have caused much unnecessary work and have unavoidably delayed the consideration of the application for permission to appeal.
A number of the grounds pursued on this appeal (the second appeal) were not advanced in the appeal considered by Bleby J (the first appeal). However, as those new grounds do not rely on facts that were not before the District Court, I have considered those grounds in the interests of justice.
Background
Before referring to the proposed grounds of appeal and the application for permission to appeal, it is necessary to state the background.
On 28 June 2013 the respondent, the law firm Minter Ellison, instituted proceedings in the District Court seeking to recover the sum of $132,090.09, together with interest, in respect of work done and services provided pursuant to the terms of engagement contained in a letter dated 31 May 2011. The amount claimed by the respondents was the subject of a series of invoices issued to the applicant and his wife in 2011 and 2012. Although the applicant’s wife was named as second defendant, the action against her was later discontinued. While some amounts had been paid, the respondent claimed that it had suffered a loss of $132,090.09. The work done and services provided by the respondent were in the course of it acting for the applicant in three proceedings in the Magistrates Court, one matter in the District Court and another in the Supreme Court. The defendants in those actions had been engaged by the applicant in relation to home building work.
The applicant pleaded in his defence dated 6 December 2013, amongst other matters, that the respondent had acted contrary to instructions, had been negligent, had acted contrary to the retainer and failed to provide itemised accounts for each of the listed matters. Those allegations lacked supporting particulars. The applicant also denied that the District Court was the appropriate forum and pleaded in relation to the latter contention that a formal review should be undertaken of all invoices and the matter should be dealt with by the Legal Practitioners Conduct Board. The applicant also referred to his ill health which allegedly prevented him from attending to legal matters at that time.
The applicant also made a counterclaim against the respondents and pleaded that he had a set off for a like or equal amount to any sum found due and owing to the respondent. In essence, the basis for the set off was an allegation that the respondent had been negligent and rendered excessive and/or unreasonable charges. Once again, this pleading lacked particulars. The respondent denied that the applicant was entitled to set off any amount owed and also denied that he was entitled to any damages by way of counterclaim.
The trial commenced in the District Court on 12 February 2015 before Judge Chivell. However, the proceedings were adjourned very soon after their commencement due to the ill health of the applicant. The subsequent history of the action has been set out in considerable detail in the judgment of Judge Durrant in Minter Ellison A Firm v Lauro.[1] That summary was adopted by Bleby J in the judgment that is the subject of the present application and in which he dismissed appeals by the applicant from the orders made by Judge Chivell and Judge Durrant.[2]
[1] [2020] SADC 41 at [7]-[13].
[2] [2020] SASC 137 at [6].
The applicant has challenged the accuracy of the summary by Judge Durrant and contends that Bleby J erred by relying upon that summary. I have considered that issue at [24] to [27] below. After the adjournment of the trial on 12 February 2015, the matter was further adjourned on a number of occasions until ultimately Judge Chivell refused on 17 September 2018 to grant another adjournment and directed that the trial was to resume the following day. The applicant did not appear on 18 September 2018 but his son, Eric Lauro, did attend. Following the departure of Eric Lauro who said that he was suffering dental pain and feeling unwell, Judge Chivell entered summary judgment for the respondent in the sum of $173,633.61, inclusive of interest. Judge Chivell also ordered that the set off and counterclaim by the applicant be dismissed and awarded the respondent its costs of the action.
An application to set aside the default judgment came before Judge Durrant in Minter Ellison A Firm v Lauro.[3] His Honour found that the default judgment was regularly obtained and that the applicant had not established a reasonably arguable defence. Having heard evidence from the applicant, his Honour also found that he had no reasonable excuse for his non-attendance at the trial. For those reasons, his Honour dismissed the application to set aside the judgment. His Honour also noted that whether or not the judgment had been regular or irregular, he would have declined to exercise his discretion to set it aside.
[3] [2020] SADC 41.
Subsequently, Bleby J dismissed an application for an extension of time to appeal against the order of Judge Chivell made on 18 September 2018 to enter a default judgment. Bleby J granted permission to appeal against the order of Judge Durrant refusing to set aside the default judgment but dismissed that appeal.
The proposed grounds of appeal
The proposed grounds of appeal raise the following broad topics.
The applicant contends in grounds 1 to 4 that Bleby J erred in law and in fact by not granting an extension of time to appeal against the orders of Judge Chivell made on 18 September 2018.
The applicant alleges in ground 5 that Bleby J erred in law and fact by not finding that the default judgment entered by Judge Chivell was irregular because the legal fees in dispute had not been taxed under the Legal Practitioners Act 1981 (SA) (the LPA) or under the inherent jurisdiction of this Court.
The applicant raises a further 13 contentions in ground 6, some of which include additional sub contentions, which are also said to demonstrate the irregularity of the default judgment.
The applicant alleges in ground 7 that Bleby J erred by not setting aside the default judgment on the basis that it was irregularly entered because the loss claimed by the respondent was based on a breach of contract and was not capable of giving rise to a liquidated debt.
In grounds 8, 9 and 10, the applicant contends that Bleby J erred by upholding the finding of Judge Chivell that he had no intention of attending the trial and in that respect Bleby J wrongly exercised his discretion to dismiss the appeal. Bleby J should have found that the applicant had a reasonable excuse for not attending the trial based upon the evidence and was prevented from participating by his medical condition. The discretion of Bleby J is alleged to have miscarried as his Honour failed to consider the facts which established that the applicant had a reasonable excuse for his non-attendance on 18 September 2018.
In grounds 11 and 12, the applicant contends that Bleby J erred in law and fact by finding that he did not have an arguable case.
The applicant contends in ground 13 that Bleby J erred in law and fact by failing to properly consider the matter and find that at the time the default judgment was applied for and entered he was unduly disadvantaged and prejudiced in circumstances where the District Court and the respondent had failed to discharge their duties towards him. The duties relied upon by the applicant are the duty of a practitioner acting against an unrepresented party to inform the Court of weaknesses in its own case and the breach of the human rights identified by the England and Wales Court of Appeal in TBO Investments v Mohun-Smith.[4]
[4] [2016] 1 WLR 2919.
The applicant contends in ground 14 that, having regard to the principles in House v The King,[5] the exercise by Bleby J of his discretion miscarried due to his Honour’s failure to find that the default judgment was irregular, his failure to order the taxation of the disputed legal fees, his erroneous view of the relevant facts, in particular the error with respect to the applicant’s alleged intention not to appear at trial, and his failure to take into account material considerations, in particular the arguable issues that arose from the pleadings and affidavit material.
[5] (1936) 55 CLR 499 at 505.
The application for permission to appeal
The applicant requires permission to appeal as both the order of Judge Chivell entering summary judgment and the order of Judge Durrant dismissing the application to set aside summary judgment were interlocutory. Thus, the orders of Bleby J dismissing appeals against those decisions were also interlocutory. Accordingly, permission to appeal is required and the applicant does not contend otherwise. However, it is necessary to refer to issues arising from the judgment of the Court of Appeal in Mandeville v Better Lending Pty Ltd & Anor[6] in so far as that judgment refers to the decision of Bleby J in the first appeal. I have referred to that issue at [40] to [47] below.
[6] [2021] SASCA 28.
The many matters advanced by the applicant in support of his application for permission to appeal may be summarised as follows:
1.The primary basis for the application for permission to appeal is that:
a.Although the default judgment is interlocutory, it has effect as if it were a final judgment even though the matter in dispute between the applicant and the respondent has not been decided on the merits.
b.The orders that are the subject of the application for permission to appeal are clearly wrong, or alternatively, are attended with sufficient doubt so as to warrant them being reconsidered on appeal.
c.A substantial and irreversible injustice will be occasioned to the applicant if the orders and related default judgment in the sum of $173,633.61 (arising from disputed legal fees that have never been taxed and have not been considered on the merits) are allowed to stand.
d.A substantial and irreversible injustice will also be occasioned to the applicant’s family because of a charging order granted by Judge Durrant on 30 January 2020 to the respondent against land registered in the name of the applicant in circumstances where the respondent knew but failed to inform the Court that the land comprises the family home of the applicant where he resides and in which family members have a major direct interest by reason of their having maintained and financed and improved the property and the property is subject to construction litigation.
2.Permission to appeal is also sought on the basis that:
a.The appeal raises serious questions of general importance as to proper professional practice and as to the assistance expected to be given by legal practitioners to the Court in relation to actions for recovery of legal fees and the obligations incumbent upon practitioners in dealing with unrepresented litigants.
b.The appeal also raises serious questions concerning:
i.      The jurisdiction of the District Court to grant a judgment for costs where a default judgment is entered for a claim for legal fees arising from a retainer where the terms of the retainer have not been judicially determined and where the quantum of the proper costs of the retainer has not been agreed or taxed;
ii.     The proper practice as to whether fair warning should be provided to an unrepresented party where it is intended to apply for a default judgment in default of attendance;
iii.     The proper practice as to the giving of notice of a default judgment once entered;
iv.     The jurisdiction of the District and Supreme Court to order the taxation of legal fees in any event; and
v.     Procedural irregularity in the form of delay by solicitors to take steps in a proceeding involving a default judgment.
c.The applicant also contends that if permission to appeal is not granted he will suffer insurmountable injustice in circumstances where:
i.      The default judgment was irregular and ought to have been set aside on that basis;
ii.     The default judgment should have been set aside in any event as the applicant had a bona fide defence on the merits and also a reasonable excuse for not attending Court based on medical grounds;
iii.     The approach indicated by King CJ in King William Law Chambers and Williamson & Co v Mobitel (International) Pty Ltd[7] should have been followed.
iv.     The respondent failed to draw the attention of the District Court to King William Law Chambers and other relevant authorities.
v.     The decisions of Judge Chivell and Judge Durrant, as upheld by Bleby J, were contrary to the decisions of this Court in Kedem v Johnson Lawyers Legal Practice Pty Ltd[8] and Kowalski v RJ Cole and Partners[9] concerning the respective roles of this Court and the trial Court in an action for recovery of solicitor’s fees.
d.In all the circumstances, the entry of a default judgment and the refusal to grant permission to appeal would be contrary to justice.
3.The applicant also observes that Bleby J had deemed it appropriate to grant leave to appeal from the District Court in respect of the default judgment. The implicit suggestion seems to be that this supports the grant of permission for the further appeal.
[7] (1981) 29 SASR 316 at 320.
[8] (2014) 121 SASR 118 at [32]-[33] (Kourakis CJ).
[9] (2015) 122 SASR 320 at [23]-[27] (Gray and Sulan JJ).
Alleged errors in the summary by Judge Durrant

The applicant complains that Bleby J erred by adopting in its entirety the summary of the history of the proceedings included by Judge Durrant in his judgment. The applicant complains that there are a number of errors in Judge Durrant’s summary. The first such error is said to be that Judge Durrant wrongly referred to the applicant having filed his defence, set off and counterclaim on 15 June 2014 when it was actually filed on 2 August 2013. The applicant has submitted that Judge Durrant has wrongly and unfairly implied that the applicant was guilty of delay. I find that as neither Judge Durrant nor Bleby J relied upon this particular delay in upholding the finding of Judge Chivell that the applicant had no intention of attending the trial, any error made by Judge Durrant was of no consequence.
In any event, the applicant has referred in his submissions to an incorrect date for the defence, set off and counterclaim. It is not apparent from where the appellant has derived the date of 2 August 2013. The document is dated 6 December 2013, but it was not filed in the Higher Courts Registry, and nor was the filing fee paid, until 15 January 2014. The transcripts for the first and second directions hearings conducted on 8 November 2013 (which the applicant did not attend) and 20 December 2013 (which the applicant’s son, Eric Lauro, attended) make it quite clear that an unsealed copy of the defence, set off and counterclaim had been provided to the respondent at some time prior to the first directions hearing but the document had not yet been filed in the Registry. The transcript for the directions hearing conducted on 29 January 2014 confirms that the document had been filed prior to that hearing. The transcript is entirely consistent with the document having been filed and the fee paid on 15 January 2014.
The applicant has also complained that Judge Durrant failed to refer in his summary to the evidence given by Dr Giordano on 17 March 2015 concerning the applicant’s medical condition. At that time, Judge Chivell had accepted the evidence of Dr Giordano that the applicant was unfit to participate in the trial and adjourned the matter. Further adjournments based on medical reports followed until 2018. However, the decision made by Judge Chivell on 17 September 2018 that the trial should re-commence was made on several grounds. First, his Honour was concerned that the part heard trial needed to be concluded in the interests of justice. Secondly, his Honour considered that the Court was capable of making appropriate special arrangements to allow persons with serious medical conditions to participate in proceedings and referred to several examples. Thirdly, the Court had proposed what it considered to be reasonable and compassionate special arrangements to deal with his medical conditions so that the trial could resume. If the applicant did not consider the arrangements proposed by the Court to be suitable, he should propose alternatives. It was the conclusion by Judge Chivell that the applicant had failed to respond to that requirement which led his Honour to find that the applicant was unwilling to deal with the Court in a constructive way and to direct that the trial should resume on 18 September 2018.
It is apparent that the evidence of Dr Giordano had been accepted and acted upon by Judge Chivell for more than three years as had a series of more recent medical reports. In these circumstances, and as the basis for the decision that the trial should resume was his Honour’s conclusion that the applicant was unwilling to deal with the Court in a constructive way, the evidence of Dr Giordano was simply part of the background material about the applicant’s health. I do not consider it to be reasonably arguable that the omission by Judge Durrant of any reference to that evidence caused his Honour or Bleby J to err.
The alleged irregularity of the default judgment – right to adjudication of costs
The applicant contends that the default judgment was irregular on two broad grounds. First, the applicant contends that the default judgment should not have been entered in the absence of the claim for payment of legal fees being adjudicated in accordance with the LPA or under the inherent jurisdiction of this Court. Secondly, the applicant contends on a multiplicity of other grounds that the default judgment was irregular and should not have been entered. Those two broad issues must be considered separately.
At [36] to [74] Bleby J conducted a detailed examination of the power of the District Court to enter a default judgment for a liquidated sum in an action for the recovery of costs where the disputed costs had not been adjudicated, whether under the LPA or in the inherent jurisdiction of this Court. In conducting that review Bleby J examined at [44] the authorities that are the subject of the complaint by the applicant that the respondent had failed to draw these cases to the attention of Judge Chivell and the further complaint that Judge Durrant erred in his consideration of these cases.
Bleby J referred to the decision of Gray and Sulan JJ in Kowalski v RJ Cole & Partners which summarised the effect of the decision of King CJ (with Mohr and Matheson JJ agreeing) in King William Law Chambers that the role of this Court is confined to the proper quantification of fees payable for legal work and the question of liability is to be determined by the court in which the proceeding had been brought.[10] His Honour also noted that,[11] consistently with those findings, David Bleby J (with Gray and Layton JJ agreeing) had held in von Doussas Legal Pty Ltd v Nasr that the LPA does not confer on this Court the exclusive jurisdiction to determine disputes about costs.[12]
[10] Lauro v Minter Ellison [2020] SASC 137 at [48].
[11] Ibid at [54].
[12] (2009) 105 SASR 46 at [71].
Importantly, Bleby J[13] found that the jurisdiction of this Court to determine the quantum of a costs claim only arises once an application for adjudication is made under cl 37(1) of Schedule 3 to the LPA.[14] His Honour found that no such application had been made in this case.[15] His Honour also noted that if an application had been made, the recovery proceedings commenced by the respondent would have been stayed by force of cl 44(b) of Schedule 3 until the adjudication was completed.[16]
[13] i.e. the Hon Justice Christopher Bleby as distinct from the Hon Justice David Bleby.
[14] Lauro v Minter Ellison [2020] SASC 137 at [63]-[64] and [68].
[15] Ibid at [69].
[16] Ibid at [65].
I do not consider it to be arguable that Bleby J erred in his analysis of the respective powers of this Court and other courts in relation to the determination of disputes about legal fees. However, there is one matter that requires further comment.
Bleby J also noted that cl 43 of Schedule 3 to the LPA empowered the District Court to order the respondent to apply to have the costs adjudicated by this Court and to adjourn the proceedings until the adjudication was completed.[17] Bleby J did not take that point any further. However, the applicant refers to the fact that the District Court did not order that the disputed legal fees be adjudicated and contends that this failure occurred even though he had pleaded for “a full and independent review” of the respondent’s costs claim at paragraph [12.8] of his amended set off and counterclaim dated 6 December 2013. That is not an accurate description of what was pleaded at paragraph [12.8].
[17] Ibid at [67].
The applicant pleaded at [12.8] of his defence, set off and counterclaim that the respondent was acting “defamatorily” against him and members of his family. The supporting particulars alleged that the respondent had caused details of the dispute between the parties to be published in a Supreme Court judgment delivered in February 2013 in the “Marble House matter”. That was clearly a reference to the decision of Stanley J in Lauro v The Marble House Australia & Ors published on 15 February 2013.[18] The particulars further alleged that the issue of the proceedings in the matter which was the subject of the present appeal was also defamatory notwithstanding that the applicant “has not refused to pay fees after a full and independent review”.
[18] [2013] SASC 17.
It is by no means clear that the reference to “a full and independent review” in the particulars to paragraph [12.8] of the defence, set off and counterclaim actually constituted a request for adjudication under the LPA. In any event, the applicant denied in his defence that the respondent was entitled to payment of the sums for which it had sued in its statement of claim and advanced a set off or counterclaim for an equal or greater sum. Counsel for the respondent submitted at a directions hearing on 8 November 2013, at which the applicant was not represented, that taxation under s 42 (as it then stood) of the LPA was not appropriate as the applicant had made allegations of negligence in his defence of the action. Although the applicant’s son, Eric Lauro, deposed in his first affidavit dated 27 September 2013, and again in his 19^th affidavit of 18 December 2017, that the fees charged by the respondent were untaxed and not justified, that matter was not resolved. The applicant also referred to the invoices not having been taxed in his affidavit of 23 October 2019, filed in support of his application to set aside the default judgment.
Given that the proceedings on foot in the District Court involved allegations by the applicant that services had been performed negligently by the respondent, contrary to instructions or without instructions, contrary to the terms of the retainer and in breach of professional standards, and the applicant also pleaded a set off and counterclaim, I do not consider that there would have been any utility in referring the disputed costs claim for adjudication in this Court. That may have been appropriate if the other issues between the parties had been resolved and there remained a residual issue as to the quantum of costs claimed by the respondent.
A further question is whether Schedule 3 of the LPA operated to preclude the District Court from entering a default judgment for a liquidated sum claimed by way of costs. Bleby J dealt with that issue at [70] to [74] of his judgment. His Honour observed that a default judgment is not concerned with the merits of a claim. Thus, Judge Chivell did not determine the costs that were recoverable by the respondent from the applicant and nor did Judge Chivell determine the merits of the set off and counterclaim. His Honour had simply entered judgment following a procedural default.
Bleby J found at [73] that by entering a default judgment Judge Chivell was not purporting to exercise the jurisdiction of this Court to assess the quantum of the respondent’s entitlement to costs. Judge Chivell was exercising the powers conferred upon the District Court by rr 228, 234(1) and 234(2) of the District Court Civil Rules 2006 (SA) (the Former Rules) as they stood at the relevant time. Those powers were interlocutory in nature and did not finally dispose of the rights of the parties. The availability of those powers was not affected by the jurisdiction conferred on this Court by Schedule 3 of the LPA. As the amount claimed by the respondents was for a liquidated sum, Judge Chivell could enter a default judgment for that amount. If the respondent had claimed an unliquidated amount, it would have been necessary to enter a default judgment with the amount to be assessed.[19]
[19] Ibid at [72]-[74].
I consider the analysis of Bleby J on this issue to be clearly correct. I would refuse permission to appeal on those grounds which contend that the default judgment should not have been entered without the claim for payment of legal fees having been adjudicated under the LPA or under the inherent jurisdiction of this Court.
The later judgment in Mandeville v Better Lending Pty Ltd & Anor
In his further written submissions dated 21 May 2021 the applicant has referred to the decision of the Court of Appeal published on 3 May 2021 in Mandeville v Better Lending Pty Ltd & Anor.[20] The applicant relies on that authority in support of his submission that Bleby J erred by affirming the decision of Judge Chivell to enter default judgment in circumstances where his claim is an “unliquidated claim” within the meaning of r 229(3) of the Former Rules on the basis that it was, and remains, “an amount that requires assessment by the Court” as reaffirmed in Mandeville.
[20] [2021] SASCA 28.
Further to that submission, the applicant contends that Mandeville has confirmed that Judge Chivell should have warned him before entering default judgment that he was entitled to apply for adjudication by this Court. The basis for that submission is that Mandeville reaffirms that a default judgment is interlocutory in nature as it does not, as a matter of law, finally dispose of the rights of the parties and does not affect the exclusive jurisdiction of the Supreme Court in relation to costs.
Bleby J examined the authorities in some detail before concluding that the order made by Judge Durrant dismissing the application to set aside the default judgment was interlocutory rather than final and therefore permission to appeal was required. His Honour referred to the decision of the High Court in Hall v Nominal Defendant.[21] In that case it was held that an order which does not conclude the rights of the parties inter se, as distinct from the fate of a particular application, is interlocutory. Thus, in accordance with the decision in Atwood v Chichester[22] that an order dismissing an application to set aside a default judgment does not preclude a further application, a default judgment is interlocutory in nature. Bleby J noted that this test was adopted by the High Court in Licul v Corney[23] and restated by the High Court in Carr v Finance Corporation of Australia Ltd (No 1).[24] In the latter case, Gibbs CJ held that, when determining whether a judgment is interlocutory, it is necessary to have regard to the legal rather than the practical effect of the judgment. Thus, in a case where the possibility of a second application to set aside a default judgment is merely theoretical because it is doomed to fail, the judgment is nevertheless interlocutory because there is an entitlement to make a further application.[25]
[21] (1966) 117 CLR 423.
[22] (1878) 3 QBD 722.
[23] (1976) 180 CLR 213.
[24] (1981) 147 CLR 246.
[25] Ibid at 248.
Bleby J also referred to the discussion by Kourakis J (as he then was) in Hardel Pty Ltd v Burrell & Family Pty Ltd where his Honour indicated that a final order was an exercise of judicial power that finally settled the controversy which is the subject matter of an action and thereby precluded any further application for another or different orders with respect to the matter.[26] Kourakis J also indicated that the question whether a further application can be brought for the purpose of determining whether an order is final or interlocutory conflates cause and effect. [27] Bleby J ultimately concluded that he was bound by the decision of the High Court in Carr that a refusal to set aside a default judgment was an interlocutory decision. Thus, permission to appeal was required.
[26] (2009) 103 SASR 408.
[27] Ibid at [24].
For present purposes, the relevant issue in Mandeville was whether a default judgment entered for the sum due under a loan agreement operated by way of res judicata, issue estoppel or Anshun estoppel to preclude further claims under a second loan agreement. In the course of its analysis, the Court of Appeal referred to the judgment of Bleby J that is the subject of the present appeal. The Court noted that Bleby J had held that when Judge Chivell had entered default judgment he was not purporting to exercise jurisdiction to assess the quantum of the respondent’s entitlement to costs. Rather, he was exercising the power conferred by the Former Rules that enabled the Court to control its own processes. In that light, Bleby J had observed that Judge Chivell, by entering a default judgment, had not determined the costs that were recoverable by the respondent under the terms of its retainer. Judge Chivell had also not determined the merits of the set off and counterclaim. Judgment had been entered for a liquidated sum following a procedural default. The default judgment did not purport to be an adjudication of the bill of costs. That matter was reserved for the exclusive jurisdiction of this Court under Schedule 3 of the LPA. The Court of Appeal then commented:[28]
In reaching that conclusion, Bleby J further made the comment that a default judgment was interlocutory in nature because it did not as a matter of law finally dispose of the rights of the parties. That comment conflated two concepts. It is the case that the default judgment did not determine the costs that were recoverable by the firm under the terms of the retainer. For that reason, Bleby J held that the default judgment did not cut across the exclusive jurisdiction of the Supreme Court.
[28] Ibid at [52].
After referring to the judgment of Gibbs CJ in Carr and of Kourakis J (as he then was) in Hardel the Court of Appeal then made a further observation about the judgment that is the subject of the present appeal:[29]
The fact that the judgment in Lauro, being a default judgment of liability for a liquidated sum on account of work done, did not determine the costs that were recoverable by the firm under the terms of the retainer, does not mean that the default judgment was not a final judgment. The question is always, rather, what has been finally determined such as to merge into a judgment.
[29] Ibid at [55].
The following principles are apparent from the judgment of the Court of Appeal in Mandeville and the High Court authorities referred to in that judgment. The relevant orders made by Judge Chivell, Judge Durrant and Bleby J were interlocutory in nature. Nevertheless, the entry of the default judgment by Judge Chivell was a final judgment although it did not determine the costs that were recoverable by the respondent under the terms of its retainer and nor did it preclude the applicant from seeking adjudication of the costs claimed by the respondent under Schedule 3 of the LPA.
I do not consider that the applicant’s submission that the decision of the Court of Appeal in Mandeville reveals error in the decision of Bleby J to affirm the decision of Judge Chivell to enter default judgment is reasonably arguable.
Failure to warn and to advise of the default judgment
At the proposed ground 6(g) the applicant contends that the respondent acted in bad faith by failing to warn him of its intention to apply for default judgment if he did not attend at Court. He also complains at ground 6(i) that the Court failed to inform him of entry of the default judgment and at 6(j) that the Court failed to order the respondent to notify him of the default judgment. The applicant further complains at ground 6(k) that the respondent acted in bad faith by not notifying him of the default judgment when it received a notice of appeal that did not refer to the default judgment.
Bleby J referred to the alleged irregularity arising from the failure to warn the applicant that a default judgment would be issued if he was not present in Court at paragraphs [75] to [85]. Bleby J rejected a contention that the decision of White J in CBFC Ltd v Charitopoulos & Ors stands for the principle that a failure to warn renders a default judgment irregular and liable to be set aside.[30] His Honour also rejected the contention that there is an established practice to provide a warning before entering a default judgment and that a failure to do so would render the judgment irregular. His Honour found that such a proposition would be contrary to r 234(2) of the Former Rules. His Honour also found that whether the applicant had a reasonable excuse for his absence would be relevant to an application to set aside a default judgment that had otherwise been regularly obtained.
[30] [2009] SASC 30 at [14].

I consider the analysis by Bleby J of the legal principles relevant to the entry of default judgments to be plainly correct. Thus, I do not consider that there is any basis to grant permission to appeal in relation to the alleged errors of law relating to this aspect of the matter. I therefore turn to the alleged errors of fact and the contention that Judge Durrant erred in the exercise of the discretion to refuse to set aside the default judgment.
On 17 September 2018, being the day prior to the entry of the default judgment, Judge Chivell delivered a comprehensive ex tempore ruling. His Honour recounted at considerable length the history of the proceedings and outlined the medical evidence relating to the various illnesses suffered by the applicant. His Honour also set out the arrangements that he proposed to enable the applicant to give evidence. The special arrangements were that the Court would sit only during the afternoons, the applicant could elect to present his evidence-in-chief by affidavit, he could conduct the proceedings and/or give evidence by video link from his home if he felt more comfortable with that and, if on any occasion he had to attend Court, he could be accompanied by medical personnel if so advised.
Judge Chivell observed that the applicant had been asked to propose alternative arrangements if he did not agree with his Honour that the proposed arrangements were reasonable and compassionate. However, he had declined to do so and, through his son Eric Lauro, had simply repeated what were described by Judge Chivell as “all of the same argumentative and unhelpful arguments” previously presented. For this reason, Judge Chivell concluded that the applicant was wilfully avoiding the continued hearing of the matter. The trial had commenced three years and seven months previously. Mr Mitchell had given evidence for the respondent but he was still to be cross-examined while the applicant allegedly pursued other treatment options for his medical conditions.
Judge Chivell described this state of affairs as grossly unfair to the respondent. It was entitled to have its claim considered by the Court. The applicant was also entitled to have his set off and counterclaim determined by the Court. Judge Chivell stated that the time had come where delays based on speculation that the applicant might receive some further treatment at some future time, and taking into account his refusal to even countenance the idea of special arrangements whereby he could give evidence in comfort other than in a courtroom and at a time to suit himself, meant that further delay would not be permitted. Accordingly, his Honour concluded that it was unfair and contrary to the proper administration of justice to stay the action further. His Honour refused the application for a stay and adjourned the matter to the next day.
The applicant did not attend on the next day. Eric Lauro did attend although he was not a party. After counsel for the respondent indicated that he was about to make an application, Eric Lauro indicated that he required dental treatment, was in pain and would leave the Court. As Bleby J noted at [81] of the appeal judgment, Eric Lauro was aware of the application when he left the Court but departed without listening to its content.
The applicant has referred to the fact that on 18 September 2018 he had appealed to this Court against the orders made by Judge Chivell the previous day. This appeal challenged all of the orders made by Judge Chivell on a multiplicity of grounds. Of present relevance is the contention that Judge Chivell erred by not excusing the applicant from attendance until such time as he was assessed by his own medical practitioners as being fit to attend Court and by refusing to vacate the trial date and to adjourn the action until further order. There was no recognition in the notice of appeal that summary judgment had been entered in favour of the respondent.
On 23 January 2019 Hinton J dismissed the appeal commenced by the applicant on 18 September 2018 against the orders made by Judge Chivell. His Honour did not publish reasons at that time. However, his reasons were explained in his judgment dealing with the question of costs published on 28 February 2019.[31]
[31] Lauro v Minter Ellison Lawyers [2019] SASC 23.
Hinton J stated that his primary reason for dismissing the appeal, and also the subsequent interlocutory application seeking that the hearing of the appeal be adjourned, was that the substantive proceedings to which those applications related had been concluded by the award of summary judgment in favour of the respondent without any appeal having been instituted. On that basis, his Honour considered the interlocutory application and the notice of appeal to be futile and ordered that they be dismissed.
I do not consider it to be reasonably arguable that Bleby J erred in concluding that the Court was not required to warn the applicant that a default judgment may be entered if he failed to attend. I also do not consider it to be reasonably arguable that Bleby J erred in concluding that the respondent was not under any duty to warn him that it may apply for a default judgment if he failed to attend for the continuation of the trial. I would refuse permission to appeal on these grounds.
Other grounds upon which the regularity of the default judgment impugned
The applicant seeks to impugn the regularity of the default judgment on several grounds in addition to those to which I have already referred.
Appointment of a litigation guardian
The applicant has referred at ground 6(c) to the alleged failure of the respondent to inform the District Court adequately pursuant to r 78(3) of the Former Rules of his legal disability and status as a “protected person” in separate District Court proceedings. Rule 78(3) of the Former Rules required a party who became aware that another party was a protected person and was not represented by a litigation guardian as required by that rule to inform the Court of that fact.
Rule 78(1) of the Former Rules stated that “as a general rule” a person under a disability may only take or defend proceedings through a litigation guardian. However, the rule expressly noted that the Court may permit a protected person to act personally in bringing or taking any step in proceedings. Rule 78(4) provided that a judgment or proceeding of the Court was not invalid because a party was not represented by a litigation guardian as required by that rule, but the Court may set aside a judgment or proceeding if satisfied that the party has been substantially prejudiced through the lack of such representation.
While the applicant’s counsel has filed extensive written submissions extending over 28 pages, he has not advanced any submission as to how the alleged failure of the respondent to inform the Court of the applicant’s status as a protected person in other proceedings has caused him prejudice in this matter. Although extensive submissions have been advanced in relation to the applicant’s medical condition and his alleged inability to attend at Court, my understanding of the brief reference in the submissions supporting ground 6(c) is that the complaint relating to his alleged legal disability is advanced as a separate issue.
In any event, on 29 January 2014, and also on 14 January 2016, the respondent applied for appointment of a litigation guardian to conduct the proceedings on behalf of the applicant. In the first instance, the proposed guardian was the applicant’s son and in the second, the Public Trustee. The first application was based on the medical evidence relied on by the applicant in support of his contention that the trial should be adjourned. Those applications were not granted.
I further note that on 31 March 2016 Judge Chivell refused an alternative proposal by the applicant that Mr Andrew Garrett be appointed as his litigation guardian. That was refused as Mr Garrett had been declared by this Court to be a vexatious litigant and that declaration remained in force. That refusal was not challenged. While the applicant unsuccessfully applied for his son to act as a Mackenzie friend,[32] he did not propose the appointment of an alternative litigation guardian to Mr Garrett.
[32] [2014] SADC 126 at [95]-[97].
Ground 6(c) does not complain that the Court failed to appoint a litigation guardian but rather that the respondent failed to inform the Court that such an appointment had been made in other proceedings where it had been accepted that he should be accorded the status of a “protected person”. Given that the applicant does not appear to allege that the suggested failure to comply with r 78(3) caused him any prejudice, and as the Court was aware of the issue because of the unsuccessful applications by the respondent for the appointment of a litigation guardian and was also aware of the relevant medical evidence, combined with the fact that the Court has a discretion whether or not such an appointment ought to be made, I do not consider that ground 6(c) supports the contention that the default judgment was irregular.
Complaint that lawyers should not have acted
The applicant complains in ground 6(d) of the fact that the respondent’s lawyers conducted the case even though he had given notice that they were required as witnesses and had made repeated requests for them to be restrained from further conducting the case. The respondent is a law firm and its own members and employees acted in its defence. I understand that the counsel engaged by the respondent was as a member or employee of that firm although he may possibly have had some prior involvement in his former capacity as a barrister.
Bleby J noted at [30] to [32] that a complaint had been advanced at considerable length in written submissions that the respondent should not have acted on its own behalf. Objection was also taken to counsel. However, these complaints were not a ground of appeal. Instead, counsel for the applicant asserted that the complaints were a “relevant background circumstance”. His Honour held that the accusations of impropriety made against solicitors and counsel were not relevant if they did not amount to a ground of appeal.
Nevertheless, Bleby J noted that the submissions made by the applicant concerning the solicitors amounted to no more than references to general observations in the authorities as to the undesirability of solicitors acting for themselves. However, those observations did not suggest that it would be improper for a solicitor to act for themself or that it would vitiate the regularity of a subsequent judgment.[33]
[33] Ibid at [33].
It is not entirely clear whether ground 6(d) also extends to Mr Coppola, the in-house counsel for the respondent. In any event, Bleby J noted that Mr Coppola had been briefed by the respondent to act for the applicant in 2011 but the applicant had not suggested any basis to infer that there was a threat of disclosure of confidential information or that any such disclosure would be to his disadvantage. For these reasons, Bleby J did not further entertain the allegations of impropriety on the part of either solicitor or counsel.
The allegation now advanced in ground 6(d) is expressed differently to that considered by Bleby J. The present allegation is that the applicant had given notice that the respondent’s lawyers were required as witnesses and made repeated requests that they should not continue to act. Of course, because the respondent firm was the plaintiff seeking to recover fees for work it had performed in its legal practice, and also acting as solicitor on its own behalf, the present complaint and that considered by Bleby J are, in a sense, effectively two sides of the same coin.
Examination of the transcript of proceedings and of the affidavits filed by the applicant’s son, Eric Lauro, reveals that on a number of occasions complaints were made that persons associated with the respondent were required as witnesses in the proceedings and should not be involved in the conduct of the proceedings on its behalf. The first such complaint appears to have been made at [15.1.4.5] and [27.5] of the 11^th affidavit filed by Eric Lauro on 28 January 2016 (FDN 46) which sought an order “in the event that the trial proceeds, Grant Mitchell, Gary Coppola, Nadia Blake, Samuel Hurburgh, Daniel Hillary and other solicitors (to be confirmed upon release of my father’s files to my father) of Minter Ellison … be noted as witnesses and prevented from having further active role in progressing the trial” or “… not sit in the courtroom until their cross-examinations”. Similar complaints were made in several subsequent affidavits.
The proposed order 5 in the interlocutory application filed on behalf of the defendant on 17 September 2018 (FDN 71) sought an order that Grant Mitchell, Samuel Hurburgh and Gary Coppola be immediately restrained from having the care and conduct of the action for and on behalf of the respondent. That application was supported by [9] of Eric Lauro’s 23^rd affidavit dated 17 September 2018 (FDN 72) where he alleged that the three named practitioners continued to have care and conduct of the matter “despite repeat notice that they would be called as witnesses”.
In his ruling of 17 September 2018, Judge Chivell declined to make that order. His Honour noted that Mr Mitchell and Mr Hurburgh were simply participating as instructing solicitors and there was no evidence that could possibly justify the making of the orders sought on behalf of the applicant. I also note that Mr Coppola had stated in submissions that he had not been asked to give evidence and there was no evidence that he could give. The debt that was the subject of the proceedings had been incurred before he joined Minter Ellison. Judge Chivell apparently accepted that submission.
Eric Lauro has, in his 24^th affidavit dated 18 September 2018 (FDN 74), alleged that his father had been charged for some work performed by Mr Coppola on the instructions of the respondent. The relevant entry in the invoice exhibited to this affidavit relates to work done in 2011. The nature and effect of the entry suggests that it relates to work performed by Mr Coppola as a barrister before he joined Minter Ellison as in house counsel. In any event, this is not one of the unpaid invoices referred to in the statement of claim. For the reasons that follow, it is unnecessary to consider further the factual issues and I turn to the relevant legal principles.
The difficulties that may arise when a lawyer acts in proceedings where he or she may be required to appear as a witness have been discussed by Professor GE Dal Pont in Lawyers’ Professional Responsibility.[34] The authorities referred to by Professor Dal Pont make clear that a practitioner must not act as counsel in proceedings where they will be required as a witness. There is also some authority that an instructing solicitor should not continue to act if they are to be required as a witness.[35]
[34] (Lawbook Co, 7^th ed, 2021) at [17.45].
[35] Jeffrey v Associated National Insurance Co Ltd [1984] 1 Qd R 238 at 245 (Thomas J); Chapman v Rogers [1984] 1 Qd R 542 at 545 (Campbell CJ); Yamaji v Westpac Banking Corp (No 1) (1993) 42 FCR 431 at 432 (Drummond J).
On the other hand, Ipp J has suggested in an extra-judicial article entitled Lawyers’ Duties to the Court that it is undesirable for a lawyer to appear as a witness in a case where they are the instructing solicitor but in Australia such a conflict has been held insufficient to justify an injunction restraining the lawyer from continuing to act.[36]
[36] (1998) 114 LQR 63 at 92.
Further guidance on this issue is provided by r 27 of the Australian Solicitors’ Conduct Rules 2015 (SA).[37] Rule 27.1 states that where it is known or becomes apparent that a solicitor will be required to give evidence material to the determination of contested issues before the court, they may not appear as an advocate in the hearing. However, r 27.2 permits a solicitor or an associate of the solicitor or a firm of which they are a member to continue to act where the solicitor is to be a witness unless doing so would prejudice the administration of justice.
[37] The Law Society of South Australia, Australian Solicitors’ Conduct Rules (at 1 July 2015).
While the ground now advanced by the applicant was unsuccessfully pursued before Bleby J, but for the reasons that follow, I would have been inclined to grant permission to appeal on this ground on the basis that it was reasonably arguable. However, because the matter was decided by a default judgment, it remains an academic point that had no influence on the outcome of the proceedings. I would therefore not grant permission to appeal on this ground.
Dispensation from interlocutory steps
The applicant complains at ground 6(e) that the District Court listed the matter for trial after dispensing with all the usual interlocutory steps. He contends that this caused him significant prejudice as he was self-represented, suffered from an ongoing serious medical condition and his first language is not English. This ground of appeal was not advanced before Judge Durrant or Bleby J. It is also not referred to in the applicant’s written submissions.
This complaint was raised at [7.5] of the interlocutory application considered by Judge Chivell in his ex tempore ruling of 17 September 2018. His Honour noted that most of the interlocutory formalities had been dispensed with by Judge Slattery when he set the matter down for trial. His Honour commented that this was “no doubt because it is usual to do so in cases involving unrepresented defendants to prevent them from being overwhelmed by documentation which is of limited value in such cases”.
On 21 July 2014 Judge Slattery had relieved the applicant of the obligation to make disclosure. On 13 January 2015 Judge Slattery ordered as follows:
1.   I extend the time for the plaintiff to file its defence to counterclaim from 8 August 2014 until 16 October 2014 inclusive.
2.   I extend the time for the plaintiff to make disclosure to the defendant from 6 September 2014 to 16 October 2014.
3.   I extend the time for the plaintiff to file its trial book until close of busines on 20 January.
4.   I waive the requirement for the parties to prepare, sign and file a certificate of readiness.
At the time these orders were made, the trial had been listed to commence on 12 February 2015. While disclosure was made to the applicant by the respondent on 16 October 2014, the applicant did not inspect the documents prior to trial and has apparently not done so thereafter.
The basis for the applicant’s contention that he was prejudiced by the orders made by the District Court dispensing with compliance with pre-trial interlocutory requirements is not apparent. The respondent was required to provide disclosure and did so some four months before the trial commenced. While that was almost six weeks later than the original order required, the applicant (or his son) did not object to the extension of time or complain of prejudice at the hearing on 13 January 2015. It was the applicant, and not the respondent, that was relieved from the obligation to make disclosure. The only other pre-trial matter dispensed with was the certificate of readiness and, apparently, the requirement to provide a list of witnesses.
I am not persuaded that the limited dispensation from pre-trial procedural requirements caused the applicant any prejudice. The fact that this matter has not previously been the subject of complaint, and is not the subject of submissions, supports that conclusion. I agree with the observation by Judge Chivell that the apparent intention was to assist an unrepresented applicant. I reject the contention that this matter could assist in establishing that the default judgment was irregular.
Contracted loss could not give rise to liquidated debt

The applicant complains at ground 7 that Bleby J erred, in law and in fact, by not setting aside the default judgment in circumstances where it was irregularly entered because the loss claimed by the respondent was based on a breach of contract (i.e. the disputed retainer agreements) and such claims are not capable of giving rise to a liquidated debt in accordance with the principles stated by the Victorian Court of Appeal in Yang v Finder Earth Pty Ltd.[38]
[38] [2019] VSCA 22.
The issue in Yang was that it had been alleged in the pleadings that the plaintiff had suffered loss or damage from a breach of contract. The plaintiff was not suing to recover a debt, as is the position in the present case. The rules in force in Victoria permitted entry of a default judgment for the amount claimed as a debt. However, if damages were claimed, a default judgment must be entered on the basis that damages were still to be assessed. The Court of Appeal held that the default judgment had been entered irregularly for a liquidated sum as the plaintiff had pleaded for the recovery of damages and not for the recovery of a debt. However, I consider that the decision in Yang is plainly distinguishable on the basis that the respondent has sued to recover a liquidated sum, being the amounts set out in the invoices referred to at [5] in its statement of claim. I do not accept that this contention could establish, or could assist in establishing, that the default judgment was irregular.
Alleged breach of human rights
The applicant has contended at ground 13 that the failure to set aside the default judgment did not recognise that he was unduly disadvantaged and prejudiced. That alleged error was aggravated by the failure of the District Court and the respondent to discharge their duties towards him as an unrepresented party thereby causing a miscarriage of justice and a violation of his human rights.
On the question of human rights, the applicant has sought to draw support from the decision of the Court of Appeal for England and Wales in Mohun-Smith v TBO Investments Ltd. The issues in Mohun-Smith were that the solicitors for the defendant company had ceased to act 18 days before the date fixed for trial in an action for professional negligence involving a substantial claim for damages. One of the two company directors took over the conduct of the case. On the day fixed for trial the defendant applied by letter for an adjournment. Attached to this letter was a letter from the other director indicating that his colleague was the only feasible representative of the company. However, a doctor had certified that he was unfit to work for a week due to stress. Despite this letter, the Judge entered judgment for the plaintiffs and assessed damages.
The defendant applied 18 days later to set aside the judgment. When this application was heard, the defendant supplied additional information about the director including a more detailed explanation from his doctor regarding his fitness to work at the relevant time. However, the Judge refused the application and held that the defendant had not had a good reason for not attending at the trial, that the medical certificate was insufficient and that there had been a failure to act promptly once the Court had entered judgment.
Lord Dyson MR (with Macur and Lindblom LJJ agreeing) held that when considering an application to set aside a default judgment a court should not, in general, adopt too rigorous an approach to the question of whether a good reason had been shown for non-attendance. The court should have regard to the need to give effect to the overriding objective of dealing with cases justly and to the party’s right to a fair trial under Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which was particularly important where the party had a reasonable prospect of success at the trial. Since an appellate court should be slow to interfere with a lower court’s decision made following a fact sensitive evaluation of all the circumstances, a decision on whether an applicant had shown good reason for non-attendance would only be struck down for reasons analogous to those which justified interfering with the lower court’s exercise of discretion. As it was clear from the medical evidence that the director was suffering from stress and unfit to attend the trial, the claim was for a substantial sum, the defendant had a defence which had a reasonable prospect of success and a refusal to set aside the default judgment was likely to have serious consequences for the defendant, the Judge had adopted too rigorous an approach and had erred by holding that the defendant did not have a good reason for not attending at trial. The Judge could also not reasonably have concluded that the defendant had failed to make the application promptly.
The Convention for the Protection of Human Rights and Fundamental Freedoms is more commonly known as the European Convention on Human Rights. As the latter title suggests, Australia is not a signatory to this Convention and it certainly has no operation as part of Australian domestic law. Thus, to the extent to which the Court of Appeal relied upon the convention, the case is plainly distinguishable.
I make two further observations. First, the decision in Mohun-Smith is readily distinguishable on its facts. The circumstances that had resulted in the entry of a default judgment were similar to those addressed by Judge Chivell on 12 February 2015 when his Honour granted an adjournment due to the applicant’s ill health very soon after the trial commenced. His Honour thereafter granted multiple adjournments due to the illness of the applicant over a period of three and a half years. Clearly, the approach taken by Judge Chivell was fundamentally different to that taken at first instance in Mohun-Smith, but not inconsistent with that required by the England and Wales Court of Appeal. I do not consider that Mohun-Smith provides any support to the applicant.
The second observation I make concerning Mohun-Smith is that Bray CJ clearly stated in Watson v Anderson the principles that are to be applied in this State when determining an application to set aside a regularly entered default judgment.[39] Bray CJ stated that is necessary to consider the reasons for the default, any undue delay in applying to have the judgment set side, the prejudice to the parties and the merits of the proposed defence.[40] In the latter respect, Bray CJ stated that the defendant’s affidavit must show a bona fide intention to defend the matter and also that the defence has some prospects of success. His Honour also cautioned that an application to set aside a default judgment is not to be conducted as a trial on the affidavits. Once again, I do not consider that Mohun-Smith assists the applicant’s case. That is because Judge Durrant approached the matter consistently with the principles stated by Bray CJ in Watson v Anderson, being the relevant South Australian authority.
[39] (1976) 13 SASR 329.
[40] Ibid at 333-334 (Bray CJ).
At another point in his submissions the applicant has referred to a failure to recognise his rights under the International Covenant on Civil and Political Rights. That Covenant has been adopted as Schedule 2 to the Australian Human Rights Commission Act 1986 (Cth). The Covenant declares a series of fundamental human rights, such as the right to liberty, to equal treatment before the courts, the presumption of innocence in criminal proceedings, freedom of conscience and religion, freedom of association, freedom from discrimination on grounds of race, sex, religion, national or social origin and so forth. These rights operate in Australia to the extent that they have been adopted into domestic law by various Commonwealth statutes, e.g. the Racial Discrimination Act 1975 (Cth), the Sex Discrimination Act 1984 (Cth), the Disability Discrimination Act 1992 (Cth) and so forth. It is not apparent how the applicant’s rights under such legislation are said to have been breached. In particular, I do not consider that there has been any direct or indirect discrimination within the meaning of ss 5 or 6 of the Disability Discrimination Act and nor is the decision making of the Court an activity that is subject to Part 2 of that Act.
The medical evidence
In grounds 6(f), 6(h), 8, 9, 10 and 14(b), the applicant contends that Bleby J erred by upholding the finding of Judge Chivell that he had no intention of attending the trial and wrongly exercised his discretion to dismiss the appeal when he should have found that the applicant had a reasonable excuse for failing to attend based upon all the medical evidence and the alternative arrangements proposed on his behalf by his son.
While a number of medical reports were provided to the District Court in 2016 and 2017, it is only necessary to refer to the reports attached to the further submissions of the applicant dated 21 May 2021 and the evidence given by Dr Mario Giordano on 17 March 2015. Dr Giordano is a general practitioner who had treated the applicant for some time and had received reports from a cardiologist, Dr Enzo De Angelis, and previously from Dr Julie Bradley and others about his condition.
Dr Giordano stated that the applicant suffered from early morning hypertension and had a history of coronary artery disease. He had suffered a heart attack in 2008 when participating in court proceedings. That was followed by bypass surgery. The surgery was complicated by a post-operative pulmonary embolism.
If progress was being made with controlling the applicant’s blood pressure with the assistance of medication prescribed by Dr De Angelis, Dr Giordano considered that he could attend court. Dr Giordano agreed that it would be advantageous if the applicant was only required to attend court in the afternoon. He expressed the opinion that in the absence of any major changes in the applicant’s condition he should be able to attend court in April 2016.
Dr Giordano also explained that if the applicant’s systolic blood pressure was about 120 or 130, which “spiked” to about 160 or 170 for a brief period due to the stress of court proceedings, he did not think that would be a problem. However, if his blood pressure was about 180 or 190 and it then “spiked” to 200 or 210 that would be a serious issue. That might result in a further myocardial infarction or a stroke or something similar.
The applicant relies on the following reports that were annexed to his submissions of 21 May 2021:
·Report of Dr Mark Fisher, general practitioner, dated 12 December 2017 stating that the applicant is being treated for hypertension by Dr De Angelis and it is not yet under control. He had been examined that day and had very high blood pressure. Dr Fisher recommended that “further legal proceedings and related aspects be suspended for the next six months”.
·Report of Dr Enzo De Angelis, cardiologist, dated 5 March 2018. Dr De Angelis reported that he had been treating the applicant since August 2013. The applicant had an ongoing issue with fluctuating high blood pressure with readings in excess of 180/100mmHg “which had been diligently documented on home blood pressure recordings”. Dr De Angelis added:
He remains concerned with regards to risk of court attendance. This is with some basis in that he in fact did have a collapse during a court attendance resulting in admission to the Royal Adelaide Hospital and then subsequent coronary artery bypass surgery. It is my opinion that with his untreated hypertension in addition to the stress of surgery, there is some future chance of cardiovascular event precipitated by such although I think it is difficult to quantify this risk.
·Dr De Angelis indicated that he did not agree with the suggestion in the report from Dr Ardill dated 7 August 2017 that the applicant suffered from “white coat syndrome”. Dr De Angelis concluded with the request that a decision regarding court attendance by the applicant be deferred until his treatment and progress were reviewed on 28 May 2018.
·Report from Dr Mark Fisher dated 5 June 2018. Dr Fisher reported that, on the recommendation of his cardiologist, the applicant was considering undertaking renal artery denervation which was likely to be performed interstate. Until this procedure is performed, he will remail unfit to participate in any aspect of legal matters, including a court appearance.
·Report from Dr De Angelis dated 11 July 2018. Dr De Angelis stated that the applicant continues to have labile hypertension with blood pressure readings on his home device at times of greater than 200/100mmHg. He was currently pursuing other treatment options and should not attend court until his blood pressure had been stabilised.
·Report from Dr Mark Fisher dated 25 July 2018. Dr Fisher stated that the applicant’s blood pressure was not stabilised. He had organised a referral to another cardiologist (apparently, someone other than Dr De Angelis) for further assessment including consideration of renal artery surgery to be performed interstate. In the meantime, the applicant was still not fit to attend any form of court proceedings.
·Dr Fisher reported on 12 September 2018 that he had examined the applicant that day and found him to be suffering from hypertension. He was unfit to appear in court from 12 September 2018 to 30 November 2018.
On 14 October 2016, 7 February 2017 and 15 February 2017, the respondent sought verbal advice from Dr Justin Ardill, a cardiologist, as to whether the applicant was able to give evidence in a trial and whether there were any measures that could be taken to minimise or alleviate any risk to him while giving evidence. Dr Ardill was provided with reports of medical practitioners who had examined the applicant, including several of the reports referred to above, and also the notes of Dr De Angelis, Dr Giordano and those of a psychologist, Dr Deborah Lawton.
On 27 July 2017 the respondent sought an expert report from Dr Ardill in accordance with the relevant provisions of the Former Rules. Dr Ardill’s first report was dated 7 August 2017. Dr Ardill provided a second report dated 29 May 2018. Both reports responded to a series of questions asked by the respondent. Dr Ardill did not examine the applicant but based his opinion on an analysis of the reports provided by other medical practitioners.
In his first report, Dr Ardill accepted that the applicant would find the longstanding legal proceedings to be very stressful. It was very likely that his blood pressure would increase during a court appearance and that he would experience chest pain. However, Dr Ardill observed that “on the assumption that his bypass grafts remain widely patent, I do not feel this chest pain would be likely to culminate in damage (myocardial infarction). I would estimate the risk of myocardial infarction during a court appearance to be low (well below 10%).”
Dr Ardill also stated that he considered the risk of very high blood pressure during a court appearance to be low, but it would be reasonable to see if the hypertension specialists who knew the applicant well could give an estimate of the exact risk. Dr Ardill estimated the risk to be well below 10 per cent.
While Dr Ardill accepted that it was very likely that the applicant would experience high blood pressure during court attendance, he estimated that this posed a low risk of permanent damage. Dr Ardill did not consider that permitting the applicant regular breaks would substantially change his risk of experiencing chest pain or fluctuations in blood pressure. In theory, limiting the time of his court appearances could be beneficial but he thought it likely that any court attendance may induce chest pain and spikes in his blood pressure. If he were able to give evidence by way of written questions, the acute stress of attending court would be avoided.
Dr Ardill concluded his first report with the observation that he was unaware whether the applicant “has had any provocative testing on his heart since his angiogram in 2013. Performing a stress echocardiogram or nuclear study could be considered as a guide to ongoing patency of his bypass grafts”. He made that observation in response to a question as to whether there were any other measures that could be taken to reduce risk to the applicant. Dr Ardill also stated that he did not consider it necessary for him to examine the applicant in person as the reports he had been provided showed multiple assessments by experienced clinicians.
Dr Ardill’s second report dated 29 May 2018 comprised answers to nine questions asked of him by the respondent in the context of the Court wishing to explore steps that could be taken to minimise any adverse cardiac event or injury to the applicant. Dr Ardill stated that if the applicant was permitted to conduct legal proceedings in a setting less stressful than a court this would minimise the risk of an adverse cardiac event or injury. It was likely that his home would be the least stressful environment. It would be useful if his local doctor was able to attend to monitor his stress levels and keep a watch on his heart rate and blood pressure. Monitoring of his heart rate and ECG would provide additional safety that would require attendance by a suitably trained medical officer.
Dr Ardill agreed that the engagement of a lawyer to cross-examine witnesses and make submissions, with the applicant being present outside Court to provide instructions as necessary, would be useful to minimise the stress levels and prevent possible spikes in blood pressure and recurrence of chest pain. If the applicant was to give evidence in writing that would also have the same effect. While the adoption of shorter court sessions would be beneficial in theory, Dr Ardill noted that the applicant had experienced chest pain with just the prospect of legal proceedings.
While Dr Ardill considered that it would be possible to monitor the applicant’s cardiac status during court hearings, this may add to his stress levels and result in increased blood pressure and a risk of chest pain. A trained medical officer would need to be present until the cessation of the hearing with blood pressure limits set in advance. If the applicant experienced chest pain or markedly elevated blood pressure he would need to be transferred to a hospital for assessment. The attendance of a medical practitioner or a paramedic at court would not remove the need for the applicant to be urgently transferred to the Royal Adelaide Hospital for assessment should he experience chest pain or markedly elevated blood pressure.
Dr Ardill advised that prescription of a short acting anxiolytic (akin to Valium) could be considered prior to court hearings to assist with stress management. That would need to be prescribed by the applicant’s regular medical practitioners and with his consent.
Whether the applicant failed to respond to the proposals for conducting the trial
I have previously noted at [10] and [26] that Judge Chivell held in a ruling delivered on 17 September 2018 that the applicant had declined to indicate what arrangements might be made at the resumption of the trial as an alternative for those proposed by the Court.
Judge Durrant considered this issue in the course of determining whether the applicant had a reasonable excuse for his failure to attend upon the resumption of the trial. He found that the applicant had not raised any medical concerns with Judge Chivell and nor had he presented any alternative arrangements. There was no submission to Judge Durrant that the proposed arrangements were other than compassionate and reasonable.
While noting that a judge of the District Court had no jurisdiction to review or consider a collateral challenge to the findings of another judge of that Court, Judge Durrant found that the arrangements proposed by Judge Chivell were reasonable and compassionate. He observed that the applicant could have engaged lawyers to attend before Judge Chivell and had done so for the purposes of the application to set aside the default judgment where he had engaged solicitors and counsel had been briefed. The applicant had attended Court for the hearing of that application and had been cross-examined. He had not sought any special arrangements and other than allowing him a short break on a couple of occasions, no special arrangements were required to facilitate the taking of his evidence.

Judge Durrant also made a finding that the applicant had been untruthful by stating in an affidavit that he had not been to Court since February 2015. However, Bleby J found that Judge Durrant had erred in that respect. Bleby J found that the relevant paragraph in the applicant’s affidavit had stated that he had not attended Court because of his health problems on various specified dates between 2013 and 2018. He had not stated that he had not attended Court at all. The applicant had failed to mention that he had attended the Supreme Court in February 2017. While the conclusion reached by Judge Durrant was not correct, Bleby J found that there had been “a sin of omission” by the applicant in the sense that he had omitted his attendance at this Court in February 2017. Bleby J concluded that the statement was misleading but not strictly untruthful. The error by Judge Durrant did not vitiate his conclusion.[41]
[41] [2020] SASC 137 at [138].
After hearing the applicant give evidence, Judge Durrant made the following findings:[42]
[42] Minter Ellison A Firm v Lauro [2020] SADC 41 at [75]-[76].
[75]I carefully assessed Mr Lauro when he gave evidence. He was a poor listener. He was unresponsive and rude to Counsel. He was argumentative. He was evasive when asked questions which were capable of a straight answer. He tried to deflect or change the subject when his examination got to a point where he may have had to give an answer that might be contrary to his interest. One example related to the evidence he gave concerning his attendance at trial quoted above. Another concerned his evidence about his knowledge of the default judgment obtained against Mr Eric Lauro in the Magistrates Court. He did not directly answer the questions put. He deflected, saying he was not ‘an Australian lawyer, I don’t know about’. He was uncooperative, particularly when asked about the arrangements proposed by Chivell DCJ to enable attendance at trial.
[76]Having regard to the matters detailed above, I have concluded and found several matters arising from the cross-examination of Mr Lauro, namely:
•      Mr Lauro could have engaged lawyers to attend at the resumed trial;
•      Mr Lauro had been untruthful in his affidavit concerning his ability to attend before this court;
•      Mr Lauro intended to repeat the same assertions about his health in support of this application to set aside judgment, as had been put to Chivell DCJ; and,
•      irrespective of the reasonable and compassionate arrangements proposed, Mr Lauro had no intention of attending at the resumed trial; and
•      no special or other arrangements to allow for his attendance before me were required.
I find, having regard to all of the matters detailed in these reasons, that Mr Lauro had no reasonable excuse for his non-attendance on 18 September 2018.
After referring to the findings of Judge Durrant, Bleby J observed that the applicant had not challenged the ruling made by Judge Chivell on 17 September 2018. However, in the present application for permission to appeal, the applicant contends in ground 6(f)(iii), contrary to the finding by Judge Durrant, and also the summary adopted by Bleby J, that he had objected to the medical findings and the proposed trial arrangements made by Judge Chivell and that had occurred in the written submissions filed on 8 August 2018. That contention was advanced in support of the proposed grounds 6(f) and 6(h) which refer to the alleged irregularity of the default judgment. The applicant also advances much the same proposition in grounds 8, 9, 10 and 14(b) in support of his contention that he had a reasonable excuse for not attending at the resumption of the trial on 18 September 2018.
The alternative arrangements advanced on behalf of the applicant by his son, Eric Lauro, were that the trial date be vacated so as to afford the applicant the opportunity to access new medical treatment interstate, that an answering expert report to that of Dr Ardill be produced by the applicant by January 2019 and that the Court draw up a timetable to progress the matter. Annexed to these submissions were the report of Dr De Angelis dated 11 July 2018 and that of Dr Fisher dated 25 July 2018. The proposed timetable for a further directions hearing was requested so that the applicant could amend his defence, set off and counterclaim, obtain disclosure and further disclosure from the respondent of all civil action files in which he was involved, have further dealings with the respondent’s interstate based executive managers and also deal with professional disciplinary bodies.
These various matters were considered by Judge Chivell in his ruling. After taking those matters into account his Honour concluded that the applicant had declined to indicate what other arrangements could be made if he did not consider those proposed by the Court were compassionate and reasonable. On that basis his Honour concluded that the applicant was wilfully avoiding the continued hearing of the matter. After hearing the applicant give evidence specifically addressing that point, Judge Durrant came to the same conclusion.
The applicant alleges in ground 8 that Bleby J erred by upholding the District Court finding that he had no intention of attending the trial and failing to find that he had a reasonable excuse, based on medical evidence, for not attending.
The applicant contends in ground 9 that the discretion of Bleby J miscarried by upholding the finding of the District Court that he had no intention to cooperate. He submits that Bleby J should have found on the evidence available to the Court that he was prevented from participating in the Court process due to his genuine medical unfitness and also that he had proposed alternative arrangements to give certainty to the Court process, including the appointment of “an impartial court expert” and the drawing up of a Court timetable.
The applicant also alleges in ground 10 that the discretion of Bleby J miscarried as his Honour failed to consider the facts referred to in support of grounds 8 and 9 which established that he had a reasonable excuse for his failure to attend at Court on 18 September 2018.
Bleby J was not called upon to decide the matters now referred to by the applicant in grounds 8, 9 and 10. Bleby J expressly stated that the first notice of appeal did not challenge the ruling made by Judge Chivell on 17 September 2018 to refuse the application to adjourn the trial. His Honour was clearly correct as there was nothing in the first appeal that in any way challenged the refusal of the adjournment. Grounds 1 to 4 of the first notice of appeal referred specifically to the orders made by Judge Chivell on 18 September 2018, being the entry of summary judgment for the sum claimed by the respondent. However, the applicant was not granted an extension of time to pursue those grounds. Bleby J did note that the ruling made on 17 September 2018 was relevant to the issues raised in the appeal.[43]
[43] Ibid at [7].
In the context of considering the applicant’s complaint in ground 3 (and apparently also ground 5[44]) of the first appeal that he had not been warned that a default judgment may be entered if he failed to attend when the trial resumed, Bleby J referred to the medical certificate signed by Dr Mark Fisher on 12 September 2018. That certificate advised that the applicant would be unable to appear in Court due to hypertension from 12 September 2018 to 30 November 2018. However, Bleby J found that this certificate and other evidence relating to the applicant’s health was not relevant. The relevant issue was that Judge Chivell had proposed arrangements to accommodate the applicant. However, he had rejected those arrangements and declined to indicate alternative arrangements.[45]
[44] Ibid at [29].
[45] Ibid at [75]-[84].
It is also necessary to refer to the matters considered by Bleby J in relation to ground 9. Ground 9 complained that Judge Durrant failed to have proper regard to an affidavit sworn by Dr Angela Moran on 29 January 2020. There is a reference to her affidavit in ground 8(b)(ii) of the second appeal. Dr Moran deposed that she had examined the applicant after he gave evidence before Judge Durrant on 9 December 2019 and then again in January 2020. She considered that the applicant was likely to have had a “mini stroke” in December 2019 and should he be subjected to further cross-examination there was a “high risk of further ischemic attack, which could be far more severe than the mini stroke he suffered on 10 December 2019”.
Bleby J observed that the affidavit of Dr Moran was relevant to the fitness of the applicant to continue being cross‑examined at the hearing before Judge Durrant of his application to set aside the default judgment. On this question Judge Durrant had recorded that, upon being informed that the applicant was unwell, counsel for the respondent did not continue the cross-examination. Judge Durrant also noted that he had told the applicant that if he felt distressed or uncomfortable while giving evidence, he could take a break. The applicant had taken breaks in addition to the usual breaks on a couple of occasions.
Bleby J held that ground 9 of the first appeal was misconceived. Upon the respondent’s counsel electing not to continue cross-examination of the applicant, that was the end of the matter. Thus, the affidavit of Dr Moran had no bearing on the matters to be considered in relation to the application to set aside the default judgment.[46] I also observe that her affidavit dealt with the applicant’s health as it stood some 15 months after entry of the default judgment.
[46] Ibid at [129]-[131].
Bleby J referred to the finding by Judge Chivell that the applicant had no intention of dealing with the Court in a constructive way so that the action might proceed[47] and to the conclusion by Judge Durrant that “irrespective of the reasonable and compassionate arrangements proposed” by Judge Chivell the applicant “had no intention of attending at the resumed trial”.[48] The first of those references related to the complaint by the applicant in ground 3 (and apparently also ground 5) of the first appeal that he had not been warned that a default judgment may be entered if he failed to attend for trial. The second reference occurred in the course of the discussion by Bleby J of the applicant’s complaint in ground 10 of the first appeal that Judge Durrant had erred in finding that he had been untruthful about a Supreme Court attendance. As noted at [114] Bleby J found that the error made by Judge Durrant was not capable of vitiating his Honour’s conclusion that the applicant had no intention of attending at the resumed trial regardless of the arrangements that were made in response to his health issues. Bleby J observed that this finding had been made in light of the necessary acceptance by Judge Durrant of the conclusions of Judge Chivell as to the applicant’s intentions. Bleby J once again noted that the first appeal had not challenged the ruling made by Judge Chivell on 17 September 2018.
[47] Ibid at [80].
[48] Ibid at [138].
While it was not a ground of appeal before Bleby J, the applicant now seeks to argue in grounds 6(f), 6(h), 8, 9, 10 and 14(b) that his Honour should have found that Judge Chivell erred by requiring the trial to resume notwithstanding the medical evidence that he was unfit to attend and should also have found that he had in fact responded to the Court with alternative arrangements to those it had suggested. I consider these issues to be the central question in this application.
In each instance, with the exception of grounds 6(f) and 6(h), the applicant contends that the discretion of Bleby J miscarried as his Honour was mistaken as to the relevant facts. The contention in relation to grounds 6(f) and 6(h) is that Bleby J erred in law and fact by having insufficient regard, or no regard, to the medical evidence and the proposed alternative arrangements and had wrongly relied upon the reports of Dr Ardill.
Ground 14(b) contends that due to the allegedly mistaken view of the facts by Bleby J and the alleged failure to take into account material considerations, his Honour’s discretion miscarried in the sense identified by the High Court in House v The King.[49] Contentions to that effect were advanced in the applicant’s written submissions dated 4 September 2020. His submissions dated 21 May 2021 did not touch upon this issue.
[49] (1936) 55 CLR 499 at 505.
In considering the appeal against the refusal by Judge Durrant to set aside the default judgment, Bleby J considered whether the exercise by Judge Durrant of his discretion involved an error in the House v The King sense. However, in considering that issue, Bleby J was not exercising a judicial discretion but determining for the purposes of an appeal by way of rehearing whether the reasons of Judge Durrant revealed a process error or an outcome error (to adopt the terminology now used to summarise the categories of error identified by the High Court in House v The King).
Thus, the notice of application for permission to appeal is misdirected to the extent that it asserts that Bleby J erred in the exercise of a discretion. The real issue is whether Bleby J failed to identify a process error or an outcome error by Judge Durrant in the exercise of his discretion and, if so, whether any such error, required that the appeal be upheld. The decision of Judge Chivell is relevant in the sense that Judge Durrant was called upon to decide whether to exercise a discretionary power to set aside the default judgment having regard to the information before Judge Chivell and the further evidence and submissions put before Judge Durrant.
I have set out in detail at [95] to [110] the medical evidence relied upon by the applicant, including the oral evidence given by Dr Giordano in 2015, and also the two reports by Dr Ardill that the respondent relied upon. I have also referred at [117] to the arrangements proposed on behalf of the applicant by his son. At [134] I have set out the findings of fact made by Judge Durrant after the applicant gave oral evidence before his Honour.
Judge Durrant found that regardless of the arrangements proposed by Judge Chivell, the applicant had no intention of attending at the resumed trial. His Honour made that finding after hearing oral evidence from the applicant on an occasion where he was represented by counsel. That finding of fact has not been challenged in the notice of appeal notwithstanding that the notice descends into an extraordinary amount of detail about other issues.
The finding of fact made by Judge Durrant, based on specific oral evidence, coincided precisely with the conclusion that had been reached some 18 months previously by Judge Chivell. That unchallenged finding by Judge Durrant has the effect of rendering irrelevant the medical reports and also the proposals advanced on behalf of the applicant by his son. That is because the evidence established that the applicant did not intend to attend the resumed trial regardless of the arrangements that were made.
In that context, it must be borne in mind that Judge Chivell’s decision was not based upon a rejection of the medical evidence relied upon by the applicant, or a preference for the reports of Dr Ardill. To the contrary, his Honour’s decision was based upon a conclusion that, in the interests of justice and the proper administration of the courts, after more than three years the time had been reached where the trial must resume with appropriate arrangements being made to accommodate the applicant’s special needs. His Honour was not committed to the arrangements he had proposed but was prepared to engage with the applicant to develop an alternative. As I have observed at [123], Bleby J found that grounds 5 and 6 of the appeal before him were not about the applicant’s state of health or the suitability of the arrangements proposed by the Court but whether the default judgment had been regularly obtained.
Thus, the proposed grounds 6(f), 6(h), 8, 9, 10 and 14(b) concern a decision that Bleby J was not called upon to make and rely on criteria that are not relevant, i.e. whether his Honour erred in the exercise of a discretion in deciding the appeal from Judge Durrant. Accordingly, I consider that the proposed grounds 6(f), 6(h), 8, 9, 10 and 14(b) are not reasonably arguable.
Whether arguable case
The applicant contends in ground 11 that Bleby J erred in law and fact by making a finding that he did not have an arguable case. He contends that his Honour should have found that he did have an arguable case based on all the evidence before the Court including his defence, set off and counterclaim and the supporting affidavit sworn by his solicitor, Rino Marrone, on 4 September 2019.
The applicant further contends in ground 12 that Bleby J erred in law and fact by failing to independently and carefully consider Mr Marrone’s affidavit rather than accept the findings of Judge Durrant based upon the contrary affidavit evidence of Mr Mitchell filed on behalf of the respondent dated 27 November 2019. The applicant refers to the fact that Mr Mitchell had not been cross‑examined about the matters referred to in his affidavit. As the affidavits of Mr Marrone and Mr Mitchell expressed differing views and opinions that indicated that there were triable issues and thus an arguable case.
The applicant submits that whether or not a defendant has a bone fide defence or an arguable case is a matter of judicial discretion which cannot be fettered by rigid rules.[50] It is not necessary to demonstrate the probability of a successful defence or the fact that the defendant’s case may appear weak will seldom be a bar to setting aside a default judgment.[51]
[50] Watson v Anderson (1976) 13 SASR 329.
[51] Evans v Bartlam [1937] AC 473 at 489.
Bleby J considered at some length whether Judge Durrant had correctly exercised the discretion to refuse to set aside the default judgment.[52] His Honour referred to the observations of Jordon CJ in Vacuum Oil Pty Ltd v Stockdale that:[53]
In every such case the Court has an inherent and unfettered, though judicial, discretion, in the exercise of which it will, however, necessarily consider (a) whether any useful purpose would be served by setting aside the judgment, and (b) how it came about that the applicant found himself bound by a judgment regularly obtained …
[52] Lauro v Minter Ellison [2020] SASC 137 at [86]-[92].
[53] (1942) 42 SR (NSW) 239 at 243.
Bleby J also referred to the observations of Bray CJ in Watson v Anderson which had made clear the discretionary nature of the power to set aside a default judgment and the fact that demonstrating an arguable defence to an aspect of a claim may not suffice to persuade the Court to set aside a default judgment if there was no reasonable explanation for the failure to appear.[54] Bleby J also noted that the exercise of the discretion ultimately turns upon the requirements of justice and that is not limited to the availability of an arguable defence.[55] In other words, is it unjust to decline to set aside the default judgment? As Jordan CJ (with Davidson and Roper JJ agreeing) commented in Vacuum Oil:[56]
The question is whether, upon the material that has been placed before us, there is a real likelihood that it would be unjust to the defendant, to allow the judgment to stand. If so, it should be set aside on such terms as it will minimise the possibility of injustice to the plaintiff. If not, we should not interfere.
[54] (1976) 13 SASR 329 at 335.
[55] Northey v Bega Valley Shire Council [2012] NSWCA 28 at [16] (Barrett JA), quoted in Pham v Gall [2020] NSWCA 116 at [102] (Payne JA).
[56] (1942) 42 SR (NSW) 239 at 243-244.
After referring to those authorities, Bleby J summarised the position as being whether Judge Durrant had erred in the manner referred to in House v The King.[57]
[57] (1936) 55 CLR 499 at 505.

I consider that Bleby J clearly identified the relevant legal principles. The question is whether his Honour erred in failing to identify a House v The King error in the reasons of Judge Durrant. The affidavit filed by Mr Marrone and also the responding affidavit of Mr Mitchell, were very lengthy. Mr Marrone made a series of criticisms of the manner in which the respondent had conducted the legal proceedings on behalf of the applicant. However, Bleby J noted that Mr Mitchell provided a comprehensive response to those various criticisms. In particular, Mr Mitchell had pointed out that the various litigation conducted by or on behalf of the applicant was well advanced before the respondent became involved. Mr Mitchell had also referred to the applicant’s “extraordinarily adversarial approach to the litigation which manifested itself in his refusal to negotiate on a commercial basis, and extensive interlocutory proceedings and extraordinarily detailed instructions”. Mr Mitchell also pointed to the fact that the criticisms made by Mr Marrone were based on information that was fundamentally incomplete given that neither he nor the applicant had inspected the files held by the respondent.
Bleby J found that although Judge Durrant had treated the affidavit of Mr Marrone in a cursory fashion, he had correctly concluded that the affidavit did not provide any real assistance in identifying a reasonable defence to the respondent’s claim. Bleby J also held that while it would ordinarily have been preferable to provide a more detailed explanation for his conclusion, due to the failure of Mr Marrone to inspect the relevant files, his Honour was not satisfied that Judge Durrant erred. There was no miscarriage of justice.
Notwithstanding that conclusion, Bleby J went on to consider whether the applicant had established a good defence to the respondent’s claim for unpaid fees in relation to what he described as the Marciano matter. It was established during submissions that there was a basis for a defence to the claim insofar as it related to the sum of about $7,000. However, Judge Durrant did not reduce the default judgment by that amount. Bleby J found the relevant question to be whether Judge Durrant had erred in the exercise of his discretion to not set aside the default judgment or reduce it by that amount.
Judge Durrant stated the following reasons for exercising his discretion to refuse to set aside the default judgment:[58]
[58] Minter Ellison A Firm v Lauro [2020] SADC 41 at [95]-[97].
•this matter commenced in June 2013;
•the proposed Defence, Counterclaim and Set-Off would likely require significant particularisation and amendment, likely following or being followed by the obtaining of expert evidence in relation to costs and the separate assertions of loss, damage and set-off;
•disclosure may likely be required in relation to the counterclaim and set off;
•the files of Minter Ellison relating to the matters in which they had been engaged have been available for inspection but as at 27 November 2019, neither Mr Lauro nor his solicitor had attended at their offices to inspect;^[59]
[59] Affidavit of Grant Mitchell, 27 November 2019 at [4.2].
•Mr Lauro did not take responsibility for informing himself whether orders were made by the trial judge on 18 September 2018 and what the nature of those orders were;
•Mr Lauro did not make himself aware of judgment being entered against him until January 2019;^[60]
[60] Lauro v Minter Ellison [2019] SASC 23 at [15].
•Mr Lauro said he assumed that Chivell DCJ would, in consequence upon his non-attendance, adjourn the trial, yet he took no steps to contact the court or Minter Ellison to obtain the expected adjourned date and rather asserted that the Registry of this court and Minter Ellison had an obligation to inform him of what had occurred;
•Mr Lauro took nearly a year to bring his application to set aside judgment and first consulted his solicitors on 31 January 2019 about doing so;^[61]
[61] Affidavit of Mr Marrone, 3 September 2019 at [14].
•the trial judge had concluded that Mr Lauro had wilfully delayed the conduct of the matter and had not been prepared to countenance the reasonable and compassionate arrangements put in place to enable his participation;
•the trial judge had concluded that Mr Lauro had no intention of dealing with the Court in a constructive way, so that this action might proceed;
•Mr Eric Lauro, who was fully authorised to appear on behalf of his father, had known exactly what would happen if Mr Lauro did not turn up at trial;
•Mr Lauro had direct knowledge of what would happen in the event of his non‑attendance;
•Mr Lauro, when giving evidence before me, was unhelpful, evasive and uncooperative;
•this case has already been set for trial twice; and
•the trial judge had found, in respect of the various interlocutory applications made, this case had taken up Court time in great disproportion to the issues ventilated.
Having considered those matters in consideration of my discretion, I would not consider that the setting aside of judgment and the continuation of this litigation is in the interests of the public and the proper administration of justice.[62]
I exercise my discretion to set aside the judgment by declining to do so.
(Footnotes in original)
[62] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; See also: Idameneo (No 123) Pty Ltd v Thomas Martin Suszko [2015] SASC 29; PPG Development Pty Ltd v Capitanio [2016] SASC 169; Aistrope & Aistrope v South Australian Housing Trust [2015] SASC 202; Sandery v Kowalski & Anor [2016] SASC 175; Matthews v Whites Hill (SA) Pty Ltd & Anor [2019] SASC 78; and Papagiorgos v Complete Credit Acquisitions Pty Ltd [2019] SASC 44.
The question is whether Bleby J erred in failing to identify any House v The King error by Judge Durrant in the exercise of his discretion to refuse to set aside the default judgment. The matters referred to by Judge Durrant were either uncontested questions of fact or findings of fact that he had made after hearing evidence from the applicant. Those findings have not been challenged by the application in his application for permission to appeal. Each of the matters considered by Judge Durrant was clearly relevant to the exercise of his Honour’s discretion. Thus, there was no process error by Judge Durrant and Bleby J did not err by failing to identify any such error. Although I think it very unlikely, while some judges might possibly have made a different decision on the same facts, there was no basis to suggest that Judge Durrant’s decision resulted in an outcome error. Accordingly, Bleby J did not err by failing to identify such an error. I do not consider the proposed grounds of appeal are reasonably arguable to the extent that they contend that Bleby J erred in failing to find that Judge Durrant wrongly exercised his discretion by failing to set aside the default judgment.
Refusal to grant an extension of time
The decision by Judge Chivell to enter default judgment was made on 18 September 2018 but the applicant did not lodge an appeal against that decision until 28 April 2020. That appeal was included in the same notice of appeal as the appeal against the order made by Judge Durrant on 7 April 2020 dismissing the applicant’s application to set aside the orders made by Judge Chivell. After referring to the usual matters taken into consideration when determining whether an extension of time within which to appeal should be granted, Bleby J observed that the grounds of the proposed appeal against the decision of Judge Chivell were largely duplicated by the appeal against the decision of Judge Durrant. For that reason, and as the grounds had little merit, Bleby J refused to grant an extension of time to appeal against the decision of Judge Chivell. The appeal against the decision of Judge Durrant had been lodged within time.
The applicant contends that Bleby J erred in law and in fact by not granting an extension of time to appeal against the orders of Judge Chivell and should have granted an extension of time in the interests of justice. He further contends that Bleby J erred in law and fact by not having proper regard to the reasons for the delay during the period between the entry of default judgment on 18 September 2018 and the applicant becoming aware of that fact on about 23 January 2019 and the further period between the latter date and the filing of his application to set aside the default judgment on 4 September 2019. The applicant contends that Bleby J should have found that any delay was not material or prejudicial to the respondent and that the respondent had contributed to the delay through its inaction by failing to discharge the duties it owed to the applicant who was unrepresented up until January 2019. I understand that to be a reference to the applicant’s contention that the respondent was under a duty to inform him that the default judgment had been entered. The applicant further contends that the District Court had contributed to the delay by its failure to notify him of the default judgment and by not ordering that the respondent do so. In that respect, the applicant contends that the Court breached the duties it owed to him as an unrepresented party. He also contends that Bleby J should have made allowance for the fact that delay had been caused by his solicitors.
The applicant also contends that Bleby J erred by adopting the incomplete and inaccurate procedural history complied by Judge Durrant to consider whether or not to grant an extension of time and by failing to consider the whole of the evidence before the Court concerning the issue of delay. He additionally contends that Bleby J erred by only having regard to the alleged prejudice caused to the respondent and not properly considering the actual prejudice suffered by the applicant and the interests of justice. He also submits that delay is not a sufficient basis to refuse an extension of time when it has not caused prejudice and the fact that the other party has incurred costs will not constitute sufficient prejudice.
A further reason advanced by the applicant in support of his application for an extension of time is that Bleby J erred in law and fact in finding that the proposed grounds of appeal had “little merit” because the applicant has been advised by senior practitioners that his arguable case has sufficient merit to require an extension of time and that the default judgment be set aside.
I do not consider it reasonably arguable that Bleby J erred in declining to grant an extension of time of more than 18 months to appeal against the appeal of Judge Chivell. First, the complaints made against the decision of Judge Chivell are essentially replicated in the attacks made upon the decisions of Judge Durrant and Bleby J. In saying that, I recognise that the nature of the appeals differed. An appeal against the decision of Judge Chivell would be an appeal by way of rehearing whereas Judge Durrant was exercising a discretion to set aside the default judgment and Bleby J was required to consider whether Judge Durrant had erred in the exercise of his discretion. Secondly, and more significantly, I am not persuaded that any of the proposed grounds of appeal against the decision of Bleby J are reasonably arguable. I would therefore refuse an extension of time to appeal against the decision of Judge Chivell.
Conclusion
For the preceding reasons I do not consider that the grounds of appeal advanced by the applicant are reasonably arguable and I would refuse permission to appeal against the decision of Bleby J. I would also refuse an extension of time to appeal against the decision of Judge Chivell.
DAVID AJA: I agree that permission to appeal should be refused for the reasons given by Parker AJA. I agree the application for an extension of time to appeal the decision of Judge Chivell should also be refused for the reasons given by Parker AJA.