Lauro v Minter Ellison

Link copied
Case Copied 80 min read

SUPREME COURT OF SOUTH AUSTRALIA

(Appeals to a Single Judge: Civil)

LAURO v MINTER ELLISON

[2020] SASC 137

Judgment of The Honourable Justice Bleby

30 July 2020

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - GENERALLY

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - TAXATION AND OTHER FORMS OF ASSESSMENT - APPEAL, REVIEW OR REFERENCE - JURISDICTION

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - DEFAULT JUDGMENT - GENERALLY

Appeal from an order by Chivell DCJ entering default judgment and an order by Durrant DCJ dismissing the appellant’s application to set aside default judgment.

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 on occasion 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.

A preliminary issue arose as to whether the judgment of Durrant DCJ was final or interlocutory. If final, then any appeal lay to the Full Court, rather than to a single judge.

Held, dismissing the application for an extension of time to appeal against the order of Chivell DCJ, granting permission to appeal against the order of Durrant DCJ, and dismissing the appeal:

1. The decision of Durrant DCJ dismissing the application to set aside the default judgment entered by Chivell DCJ was interlocutory.  The appeal lies to a single judge of this Court, by permission.

2. The application for an extension of time to appeal against the decision of Chivell DCJ is dismissed.

3. The Supreme Court’s jurisdiction to adjudicate the costs payable is only invoked on application under Schedule 3, Part 7 of the Legal Practitioners Act 1981 (SA).

4. The regime in Schedule 3, Part 7 of the Legal Practitioners Act 1981 (SA) did not prevent the District Court from entering a default judgment for a liquidated sum. By entering default judgment, Chivell DCJ was not purporting to exercise jurisdiction to assess the quantum of the respondent’s entitlement to costs. He was exercising a power that exists under rule 228 of the District Court Civil Rules 2006 (SA), as well as rule 234(2) in respect of the Defence and rule 234(1) in respect of the Counter Claim. These rules exist in furtherance of the Court’s power to control its own processes.

5. There is no established practice to warn before default judgment is entered. A failure to do so…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Lauro v Minter Ellison and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2020] SASC 137
Decision Date

CaseChat Overview and Summary

In the case of Lauro v Minter Ellison, the appellant sought an appeal against two judgments made in the District Court of South Australia. The first judgment was entered by Chivell DCJ and the second by Durrant DCJ. The primary issue was whether the District Court had jurisdiction to enter a default judgment for a liquidated sum of costs without an assessment by the Supreme Court or agreement by the parties. The appellant argued that the District Court lacked the authority to determine the quantum of costs when such determinations typically fall under the jurisdiction of the Supreme Court.

The court had to decide if the District Court erred in entering a default judgment without proper jurisdiction over the quantum of the costs claim. The court also needed to determine whether the District Court's failure to consider relevant medical evidence and the absence of proper warning to the appellant constituted errors that warranted an appeal. Additionally, the court examined whether the subsequent judgment by Durrant DCJ was correct in affirming the earlier judgment by Chivell DCJ.

The court found that the grounds for appeal against Chivell DCJ were largely duplicated in the appeal against Durrant DCJ and lacked merit. The court was not prepared to extend the time to appeal against the decision of Chivell DCJ. Regarding the appeal against Durrant DCJ, the court determined that while the District Court had jurisdiction to define the terms of the retainer, the quantum of the costs claim should have been assessed in the Supreme Court. The court found that Durrant DCJ erred in not applying the relevant authorities and in affirming the earlier judgment. However, due to the circumstances and the lack of merit in the grounds, the court refused to grant permission for the appeal.

The court declined to grant permission to appeal against both judgments, concluding that the appellant's application was not well-founded. The appeal was dismissed, and the orders of the District Court were upheld.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As to the merits of the proposed appeal, the grounds are largely duplicated (in substance) in the appeal against the judgment of Durrant DCJ. In the context of the other circumstances identified above, the application has little to recommend it. These factors would be sufficient for me to refuse permission. Further, for the reasons which appear below, the grounds have little merit. I am not prepared to grant an extension of time to appeal against the decision of Chivell DCJ.The appeal against the judgment of Durrant DCJ The grounds of appeal against the judgment of Durrant DCJ commence with Ground 5. Grounds 1 to 4 concern the default judgment entered by Chivell DCJ. For reasons which I shall explain in context, I am prepared to have some regard to these first four paragraphs when considering the subsequent grounds that do not require an extension of time. They complain that his Honour erred by:3.1Entering judgment against the appellant for a liquidated amount where that sum had neither been agreed nor assessed by taxation in the Supreme Court and was in dispute by the applicant and where the jurisdiction to assess the quantum of any proper entitlement to costs pursuant to the terms of any retainer lay with the Supreme Court and not the District Court.3.2Entering judgment against the unrepresented appellant for a liquidated amount when the respondent though counsel appearing on its behalf and in the absence of the appellant did not inform the learned judge of the relevant authorities referred to below to guide his consideration as to his jurisdiction to make the orders sought and which held that the jurisdiction of the District Court was limited to defining the terms of the retainer and the quantum of the claimed costs stood to be determined in the jurisdiction of the Supreme Court there [sic].3.3Entering judgment against the appellant in his absence and in the absence of an express warning to the appellant in the circumstances that had by then arisen that without further attendance by or on his behalf the learned judge would enter judgment for the amount sought by the respondent notwithstanding that prior to the respondent’s application for judgment that quantum of the claim for costs had not been agreed by the parties nor had it been determined by the Supreme Court.3.4Failing to give proper weight to the medical evidence provided to the court by the appellant through the appellant’s son Mr Eric Lauro as to the appellant’s precarious health and associated high risks to his well-being based on the extent of his disability and in that context having undue regard to dated suggestions as to the appellant’s fitness made by a medical practitioner retained by the respondent who had never treated or examined the appellant and insufficient regard to alternative arrangements suggested on behalf of the appellant. Grounds 5 and 6 then complain that Durrant DCJ erred by:3.5.Finding that the judgment taken out before Judge Chivell on 18 September 2018 was regularly obtained.3.6.Failing to apply the authorities to the effect that the District Court’s jurisdiction was limited to determine issues of liability in respect of any retainer and that the quantum of claim for costs, other than the costs associated with an action in that court (such as for example, here, Action No DCCIV 1810 of 2013), stood to be determined on taxation or adjudication in the Supreme Court in the exercise of the Supreme Court’s jurisdiction, except in cases where the costs had been agreed by the parties or had been previously determined.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.