Lauro v Minter Ellison - [2020] SASC 137

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 does not render the judgment irregular. The appellant was warned that the matter was to proceed, notwithstanding his intention not to deal with the Court constructively.
6. While Durrant DCJ’s treatment of Mr Marrone’s affidavit was cursory, his conclusion to the effect that it did not provide any real assistance in identifying a reasonable defence to the claim was correct. The failure to explain that conclusion in detail did not constitute error. In any event, no miscarriage of justice occurred.
7. There was a basis for a defence to the claim insofar as it concerned the ‘Marciano matter’, in relation to a sum of at least $7,000.
8. The statement by Durrant DCJ as to the delay prior to filing the application to set aside the default judgment was not ‘unduly critical’ of the time taken. This complaint does not articulate error of the sort contemplated by House v The King.
9. The complaint that Durrant DCJ failed to have proper regard to the affidavit sworn by Dr Angela Moran on 29 January 2020 is misconceived. The affidavit had no bearing on the matters to be considered on the application to set aside the default judgment.
10. The first sentence of Durrant DCJ’s statement as to his Honour’s finding that the appellant had been untruthful in an affidavit about a Supreme Court attendance was not accurate. However, the paragraph in the affidavit was misleading. In any event, there was no miscarriage of justice. The error was not capable of vitiating the conclusion that ‘irrespective of the reasonable and compassionate arrangements proposed, Mr Lauro had no intention of attending at the resumed trial’.
11. The appellant has not shown that Durrant DCJ’s regard to matters that informed his Honour’s exercise of the discretion was erroneous in the sense described in House v The King.
Building Work Contractors Act 1995 (SA); District Court Civil Rules 2006 (SA) r 228, 230, 234; Judiciary Act 1903 (Cth) s 35; Legal Practitioners Act 1981 (SA) s 41, 42, 43, sch 3, pt 7; Legal Practitioners (Miscellaneous) Amendment Act 2013 (SA) sch 2, cl 9; Magistrates Court Act 1991 (SA); Misrepresentation Act 1972 (SA); Supreme Court Civil Rules 2006 (SA) r 288; Trade Practices Act 1974 (Cth), referred to.
CBFC Ltd v Charitopoulos & Ors [2009] SASC 30; Cooling v Steel (1971) 2 SASR 249; Hall v Nominal Defendant (1966) 117 CLR 423; Hardel Pty Ltd v Burrell & Family Pty Ltd (2009) 103 SASR 408; House v The King (1936) 55 CLR 499; Kedem v Johnson Lawyers Legal Practice Pty Ltd (2014) 121 SASR 118; King William Law Chambers v Mobitel (International) Pty Ltd (1981) 29 SASR 316; Kowalski v Cole [2017] SASCFC 23; Kowalski v RJ Cole & Partners (2015) 122 SASR 320; Licul v Corney (1976) 180 CLR 213; Minter Ellison A Firm v Lauro [2020] SADC 41; Moloney v Adams (t/as Tri-Meridian Corporate and Commercial Law) (2016) 126 SASR 350; Pham v Gall [2020] NSWCA 116; Vacuum Oil Pty Ltd v Stockdale (1942) 42 SR (NSW) 239; von Doussas Legal Pty Ltd v Nasr [2008] SASC 206; von Doussas Legal Pty Ltd v Nasr (2009) 105 SASR 46; Watson v Anderson (1976) 13 SASR 329; Woolf v Snipe and Others (1933) 48 CLR 677, discussed.
Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 ; Bell Lawyers Pty Ltd v Pentelow (2019) 93 ALJR 1007; Cameron v Cole (1944) 68 CLR 571; Carindale Country Club Estate Pty Ltd v Astill (1993) 115 ALR 112; Collins v State of South Australia [2000] SASC 62; Evans v Bartlam [1937] AC 473; Graziano v Graziano [2008] SASC 142; L Oppenheim & Co v Haneef [1922] 1 AC 482; Nasr v Vihervaara [2005] SASC 83; Northey v Bega Valley Shire Council [2012] NSWCA 28; Samantha Lee Cook T/As Kissmyblackarts v Groove is in the Park Pty Ltd [2010] SASC 289; Union Bank of Australia v Harrison, Jones & Devlin Ltd (1910) 11 CLR 492, considered.

LAURO v MINTER ELLISON
[2020] SASC 137
Appeal to a Single Judge: Civil

BLEBY J: On 28 June 2013, Minter Ellison, the respondent in this appeal, filed a Summons and a Statement of Claim, naming the appellant and Silvana Lauro as defendants. The Statement of Claim sought judgment in the amount of $132,090.09, together with interest, for work done and services provided in respect of a number of disputes. The respondent filed a Second Summons on 28 January 2014, naming the appellant only as defendant.
On 18 September 2018, Chivell DCJ entered judgment by default for the respondent in the sum of $173,633.61, inclusive of interest. His Honour also ordered that the Set Off and Counter Claim by the appellant be dismissed and awarded the respondent its costs of the action.
By a document entitled ‘Notice of Appeal to the Supreme Court and Associated Application for Permission to Appeal’ and dated 28 April 2020, the appellant seeks permission to appeal against the orders made by Chivell DCJ.
By the same document, the appellant appeals against an order made by Durrant DCJ on 7 April 2020, dismissing the appellant’s application to set aside the orders made by Chivell DCJ on 18 September 2018. Contrary to a concession offered by the respondent,[1] if that order is interlocutory, permission to appeal is also required.[2] For the reasons which appear below, the order of Durrant DCJ is interlocutory.
[1] Outline of Submissions of the Respondent at [1.2].
[2] Supreme Court Civil Rules 2006 (SA), rule 288(1)(a)(ii). This is different from the position under the previous rule 281 and, then, rule 288: Graziano v Graziano [2008] SASC 142 at [9]-[10] (Bleby J); Samantha Lee Cook T/As Kissmyblackarts v Groove is in the Park Pty Ltd [2010] SASC 289 at [26]‑[28] (Anderson J).
The appellant further seeks an extension of time to appeal against the orders of Chivell DCJ, ‘[t]o any extent that may be necessary’. The Notice of Appeal having been filed over 19 months after Chivell DCJ’s orders, that qualifier was optimistic to say the least. A considerable extension of time would be necessary.
The procedural history of this action was set out at length by both Chivell DCJ and Durrant DCJ. Rather than attempting a third narrative, I set out the history as recounted by Durrant DCJ:[3]
[3]    Minter Ellison A Firm v Lauro [2020] SADC 41 at [7]-[14].
Procedural history of this action
A history of this action and relevant findings are set out in ex tempore interlocutory reasons for ruling of the trial judge as follows:
•      the Claim was issued on 28 June 2013;
•      a Defence, Set Off and Counterclaim was filed on 15 June 2014;
•      a Defence to the Counterclaim was filed on 16 October 2014;
•Mr Lauro appeared in person at the trial on 12 February 2015 and Minter Ellison proved the amounts claimed and unpaid;
•at 11:25am on 12 February 2015, Mr Lauro unsuccessfully applied to stay the trial on procedural grounds and then announced he was unwell and, if not granted an adjournment, would suffer a collapse;
•the trial was adjourned to 13 February 2015, for Mr Lauro to provide a medical certificate;
•on 13 February 2015, a medical certificate indicated Mr Lauro had been referred to a cardiologist and the trial was further adjourned to allow his GP to give evidence;
•the trial was adjourned on a number of further occasions until 31 March 2016, when an application to appoint Mr Andrew Garrett as litigation guardian for Mr Lauro was refused; and, Mr Lauro then applied for his son, Mr Eric Lauro, to appear as his McKenzie friend;
•further adjournments were ordered on 19 May 2016, 18 August 2016 and 13 October 2016;
•on 24 November 2016, disclosure of the records of Dr D’Angelis, Dr Giordano, the Royal Adelaide Hospital and a Psychologist were ordered for presentation to a Cardiologist engaged by Minter Ellison to opine as to Mr Lauro’s medical condition:
•further adjournments were ordered on 25 January 2017, 1 March 2017 and 29 March 2017 and on 24 May 2017 the trial was adjourned sine die for discussions to take place between the parties;
•on 6 June 2018, the trial judge proposed special arrangements to cater for Mr Lauro’s concerns about his health: the Court would sit afternoons only; Mr Lauro would give evidence in-chief by affidavit; Mr Lauro could conduct the proceedings and/or give evidence by video link from his home; and, on any occasion Mr Lauro had to attend Court, he could be accompanied by medical personnel; and
•the trial was fixed to resume on 17 September 2018, and Mr Lauro was invited to raise any objections to the arrangements proposed (or suggest any alternatives) by 8 August 2018.
Mr Lauro did not raise any objection or suggest any alternatives to the special arrangements proposed on 6 June 2018. On 17 September 2018, an application was made by Mr Eric Lauro to adjourn the resumed trial because:
•      his father continued to be medically unfit;
•he (Mr Eric Lauro) had been suffering from pressure due to onerous Court commitments;
•      the use of the Lauro family home for trial was intrusive;
•      he had not been provided with transcripts;
•      his father’s medical condition prevented him from making his own submissions;
•other treatment options for his father were being explored by other cardiologists; and
•      his father was suffering from oncological and endocrinal complications.
In dismissing that application, the trial judge said:
I have concluded from all that has transpired in this litigation so far that Mr Natale Lauro has no intention of dealing with the Court in a constructive way so that this action might proceed. The Court has on many occasions been able to make arrangements for people with severe disabilities and/or medical conditions; for example, people dying of mesothelioma giving evidence at home, people attending Court on a hospital barouche with nursing attendants, people giving evidence from their hospital bed or from inside their nursing home. The Court can conduct litigation involving people who reside in virtually any country on earth. All that is required is internet access.
I consider that the proposed arrangements for Mr Lauro to conduct his case and give evidence if he chooses are reasonable and compassionate but I emphasise that Mr Natale Lauro has been asked to indicate what other arrangements could be made if he does not share that view of the proposed arrangements. He declines to do so. He, through his son, simply repeats all of the same argumentative and unhelpful arguments which have taken place prior to this date.
It is this last-mentioned feature which leaves me to conclude that he is wilfully avoiding the continued hearing of this matter. It is now 3 years and 7 months since the trial began and Mr Lauro says he is still pursuing other treatment options and so that leaves the fact that Mr Mitchell has given evidence and is still yet to be cross‑examined.
In my view, this is grossly unfair to the plaintiff. It is entitled to have its claim considered by the Court. All of Mr Lauro’s allegations and allegations against some of the Minter Ellison members does not change that fact. Litigants are entitled to their day in Court. That applies to Mr Lauro too. His Set Off and Counterclaim are also before the Court and should be considered. The plaintiff is entitled to resolve on these causes of actions as well.
The High Court has made the point on several occasions, initially in Aon v ANU, that it is not just the question of the parties whose interests are at stake when considering applications for adjournments which unduly delay litigation; the public at large has an interest in an efficient administration of justice. This case has been set for trial now twice and has taken up time in the Court list in great disproportion to the issues which have been ventilated in the various interlocutory applications. In my view, the time has come where delays based on speculation that Mr Lauro might receive some further treatment, at some future time, taking into account Mr Lauro’s refusal to even countenance the idea of making special arrangements whereby he could give evidence in comfort somewhere else than in a Court room, and at times to suit himself, means that further delays must not be permitted.
The trial judge confirmed the trial would resume the following day, 18 September 2018. Mr Lauro did not attend. Mr Eric Lauro was present in Court and applied for orders:
•      granting leave to file his 24^th affidavit;
•      to excuse the non-attendance of his father due to his medical condition;
•      that the trial judge disqualify himself;
•      that he be granted permission to intervene in the action;
•that members of Minter Ellison and counsel appearing for Minter Ellison be restrained from acting;
•for third party disclosure of documents concerning the credit management of the claim; and
•      that the trial be vacated, stayed or adjourned until further order.
Mr Eric Lauro told the trial judge that a Supreme Court appeal from his refusal of the application the previous day had been filed.
The trial judge declined to hear argument in respect of matters the subject of his ruling the previous day. The trial judge dismissed the application for third party disclosure as too late. He also refused to disqualify himself.
The transcript then records the following exchange:
Mr Coppola:       Mr Mitchell is here and ready to be cross-examined by Mr Natale Lauro.
His Honour:       Yes, well he is obviously not here. So, do you have an application?
Mr Coppola:        I do, can I take your Honour to the terms of –
Mr E Lauro:I’m sorry to interrupt, your Honour might not believe this but I hope Mr Coppola will be able to confirm what I am about to say. I have said yesterday that I was due to undergo a dental procedure, that dental procedure was scheduled for 2:15pm. I have skipped it, I feel unwell, I am in pain, I might very well, I wouldn’t attend medical care now.
His Honour:        Alright.
Mr E Lauro:And I reserve the right to seek damages in other actions against Minter Ellison, because that procedure has now been delayed for a number of months or otherwise cost me twice as much.
His Honour:        That’s up to you.
Mr E Lauro:So, I am leaving both because of my pain. I wanted to ask at the outset as well, I presume these hearings are being recorded.
Entry of Judgment
After Mr Eric Lauro exited, Mr Coppola resumed his application for judgment. He referred to r 234(2) of the District Court Civil Rules. That rule allows, in circumstances where an action is called on for trial and the defendant does not attend, the Court can enter judgment for the plaintiff in default of the defendant’s attendance.
(Footnotes omitted)
The orders of Chivell DCJ from which permission to appeal is sought are those of 18 September 2018, rather than the ruling on 17 September 2018. However, this earlier ruling is relevant to issues raised on these appeals.
Preliminary issue: Interlocutory or final?
A preliminary issue arose as to whether the judgment of Durrant DCJ dismissing the application to set aside the default judgment was final or interlocutory. The respondent submitted that it finally disposed of the action and determined the rights of the parties, subject to any appeal. It submits that accordingly, the order was final and any appeal lay to the Full Court, rather than to a single Judge.
When the appeal came on for hearing, I requested that the parties provide written submissions on this question and adjourned the hearing. Both parties provided further submissions. When the hearing resumed, I indicated my view that the order of Durrant DCJ was interlocutory. My reasons follow.
In Hall v Nominal Defendant[4] (Hall), Taylor J undertook a historical case analysis of the question, noting a number of cases that had decided whether particular orders should be considered final or interlocutory:[5]
So an order made in the course of an action or suit which does not conclude the rights of the parties inter se, although it may, of course, conclude the fate of the particular application in which it is made, is interlocutory only. On this basis an order staying proceedings against one of several defendants on the ground that they are scandalous, vexatious and an abuse of the process of the Court has been treated as interlocutory: Hind v Marquis of Hartington.[6] The same view was taken of an order striking out a plaintiff’s statement of claim on the ground that it disclosed no reasonable cause of action: Jones v Insole[7] and of an order dismissing an action as frivolous and vexatious in In re Page.[8] In Manley Estates Ltd. v Benedek[9] there were successive applications to extend time under a provision similar to that in question here, whilst Atwood v Chichester[10] shows that an order dismissing an application to set aside a default judgment did not constitute a bar to a subsequent application of the same character.
(Footnotes in original; emphasis added)
[4] (1966) 117 CLR 423 (Barwick CJ, Taylor, Windeyer and Owen JJ).
[5] Hall v Nominal Defendant (1966) 117 CLR 423 at 440 (Taylor J).
[6] (1890) 6 TLR 267.
[7] (1891) 64 LT 703.
[8] [1910] 1 Ch 489.
[9] [1941] 1 All ER 248.
[10] (1878) 3 QBD 722.

In the same case, Windeyer J said:[11]
In most cases the test that seems to be most satisfactory, and the one that accords most nearly with what has been said on the subject in this Court, is it seems to me to look at the consequences of the order itself and to ask does it finally determine the rights of the parties in a principal cause pending between them. It is never enough to ask simply does the order finally determine the actual application or matter out of which it arises; because, subject to the possibility of an appeal, every order does that, unless it be an order that is expressly declared to be subject to variation.
[11] Hall v Nominal Defendant (1966) 117 CLR 423 at 443 (Windeyer J).
This test was adopted in Licul v Corney[12] (Licul), and re-stated in Carr v Finance Corporation of Australia Ltd (No 1)[13] (Carr). Carr concerned the nature of an order of the Supreme Court of New South Wales refusing to set aside a default judgment; whether the order was final or interlocutory governed whether an appeal to the High Court lay of right under s 35 of the Judiciary Act 1903 (Cth) as then in force. In elucidating the application of this test, Gibbs CJ said:[14]
An order refusing to set aside a default judgment does not as a matter of law finally dispose of the rights of the parties, for it is open to the disappointed defendant to apply again to have the judgment set aside: Hall v Nominal Defendant. In practice, in some cases a second application of that kind might be successful, for example, when the first application had been dismissed on a technicality. In other cases, however, the second application would be doomed to failure because the issues of substance which it raised would have been decided adversely to the defendant in the first application. The appellants here submit that their right to make a further application is purely theoretical, since any such application must necessarily fail, and urge that in these circumstances the judgment should be regarded as a final one.
In my opinion the test in Licul v Corney requires the Court to have regard to the legal rather than the practical effect of the judgment. If this were not so, the question whether a judgment is final or interlocutory would be even more uncertain than it is at present. In some cases it would be necessary for the Court, for the purpose of determining the practical effect of an order refusing to set aside a default judgment, to embark on a detailed inquiry as to the facts of the matter and the course of the proceedings already taken – an inquiry quite inappropriate when the only issue is whether a right of appeal exists.
(Footnotes omitted)
[12] (1976) 180 CLR 213 at 225 (Gibbs J, Mason J agreeing).
[13] (1981) 147 CLR 246 at 248 (Gibbs CJ).
[14] Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 at 248 (Gibbs CJ).
In Hardel Pty Ltd v Burrell & Family Pty Ltd[15] (Hardel), Kourakis J, as he then was, discussed Hall, Licul and Carr, noting that ‘the interrelationship between the underlying dispute or matter…and the action which is instituted to resolve it is of considerable importance’.[16] His Honour observed that a final order determines the underlying matter, or some part of it, whereas an interlocutory order determines an aspect of forensic procedure in accordance with which the matter will be adjudicated.[17] He necessarily adopted the test as stated in Carr, but proposed a reformulation of the discussion which provides helpful context:[18]
In my respectful opinion there is much utility in the reformulation of the interlocutory/final dichotomy by reference to the concept of procedural or adjectival orders on the one hand, and orders determining substantive rights and obligations on the other. Disputed questions of law may arise between persons about the scope and extent of those rights and obligations, as may factual disputes about the circumstances which attract them. Rights carry with them a co-relative right to enforcement or remedial orders if those obligations are breached. It is the function of courts to adjudicate those controversies. As Kitto J observed in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd:
[J]udicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons.
A final order is generally one that creates the “new charter” to which Kitto J referred. It is the very essence of the exercise of judicial power that it finally settles the controversy which is the subject matter of the action, and thereby precludes any further application for another or different orders with respect to that matter; to ask whether a further application can be brought for the purpose of determining whether an order is final or interlocutory conflates cause and effect.
Conversely, decisions on whether the court’s jurisdiction to adjudicate a controversy has properly been invoked, and on whether its procedures for determining that controversy have been complied with, are generally adjectival and therefore interlocutory. Speaking loosely it might be said that parties have a right to the correct and proper application of the procedural rules of the court to the litigation they conduct within it. Indeed, if the proper procedure is not applied, the parties can generally seek leave to appeal procedural orders. However, parties do not have “rights” against the judicial tribunals that determine their controversies in the same sense that they have rights against each other under the substantive law.
(Footnotes omitted; emphasis added)
[15] (2009) 103 SASR 408.
[16] Hardel Pty Ltd v Burrell & Family Pty Ltd (2009) 103 SASR 408 at [24] (Kourakis J).
[17] Hardel Pty Ltd v Burrell & Family Pty Ltd (2009) 103 SASR 408 at [24] (Kourakis J).
[18] Hardel Pty Ltd v Burrell & Family Pty Ltd (2009) 103 SASR 408 at [34]-[36] (Kourakis J).
In summary, the Court must have regard to the legal, rather than practical effect of the order.[19]
[19] Hardel Pty Ltd v Burrell & Family Pty Ltd (2009) 103 SASR 408 at [29]-[30] (Kourakis J).
In any event, Carr governs this matter, having been concerned with a refusal to set aside a default judgment. Undeterred, the respondent submitted that it did not follow from Carr that all judgments refusing to set aside a default judgment would be interlocutory in nature. It submitted that had rule 230 of the District Court Civil Rules 2006 (SA) prescribed, for example, that only one application to set aside a default judgment was permissible, refusal of that application would finally determine the rights of the parties. It offered an alternative way of considering the issue, to the effect that the judgment creates an issue estoppel that binds the parties.
This submission fails as a matter of accepted principle. The respondent’s hypothesis as to rule 230 being so limited would not overcome the reformulation offered by Kourakis J in Hardel. The ‘finality’ would still only be a practical finality by operation of the rules, rather than a final settling of the controversy the subject matter of the action. Expressing it as a question of issue estoppel takes it no further: that is precisely what Gibbs CJ had in contemplation in the passage cited from Carr, above. That the second application may be doomed to failure by an issue estoppel arising in respect of the matters raised in the first application does not mean that the controversy the subject matter of the action has been settled.
In support of its argument, the respondent pointed to a statement by Barwick CJ in Hall:[20]
Therefore, whether by reason of the construction of s. 65A based upon its obvious purpose or by reason of the estoppels arising from a refusal of an application to extend the time for commencement of an action, in my opinion, no right exists in the applicant to make a second application to extend the time or any power in the court or a judge to grant it. In my opinion, the order dismissing the application is a final order. It finally determines the matter in dispute between the applicant and the nominal defendant, namely, whether the applicant should, by the operation under the Act and an order extending the time for commencement of the action, have a right of action against the nominal defendant.
[20] Hall v Nominal Defendant (1966) 117 CLR 423 at 430 (Barwick CJ).
Chief Justice Barwick dissented in Hall. This statement, and the related observations in the preceding paragraph of the judgment, concern the practical outcome, rather than the legal effect of the order in the sense articulated by Gibbs CJ and more recently reformulated by Kourakis J. This approach was not adopted by the majority in Hall; neither has it been adopted by the subsequent authorities.
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. For the reasons I have given above, permission to appeal is also required.
The application for an extension of time to appeal from the order of Chivell DCJ
The grounds for the extension of time to appeal from the order of Chivell DCJ entering default judgment are set out in paragraph 5 of the Notice of Appeal:
5.1.The respondent did not notify the appellant of the judgment entered by his Honour Judge Chivell J [sic] on 18 September 2018.
5.2.The appellant learned of the judgment on 23 January 2019, following a related Supreme Court hearing.
5.3.The hearing on 23 January 2019, related to a Notice of Appeal that the Appellant had caused to be filed on 18 September 2019 [sic], before the District Court default judgment being appealed against, was entered on the same day.
5.4.The appellant assumed that, following provision and service of his notice of appeal to the District Court and the respondent and neither party notifying the appellant, no judgment followed the District Court hearing on 18 September 2019 [sic].
5.5.The appellant has proceeded throughout on the basis that the proper procedure to be followed was to seek to set aside the judgment of his Honour Judge Chivell on 18 September 2019 [sic].
5.6.The judgment entered on 18 September 2018 was the subject of the decision handed down by his Honour Judge Durrant J [sic] on 7 April 2020.
5.7.Whilst the appellant’s primary contention is that the proper procedure to have been followed in the circumstances of the case was for the appellant to apply to set aside the judgment of His Honour Judge Chivell, as was done, should a question arise as to the appropriate procedure to be adopted in all the circumstances of the case, then to any extent that may be necessary the appellant seeks an extension of time within with to appeal the decision of His Honour Judge Chivell.
The respondent opposes the application for an extension of time. It observes that the appellant offers no reason for the delay after 23 January 2019. Rather, the grounds indicate that the appellant had made a deliberate decision to apply to set aside the judgment of Chivell DCJ, rather than to appeal. Moreover, the respondent submits that the appeal can have no merit beyond the grounds of appeal against Durrant DCJ’s decision.
The grounds of appeal against the judgment of Durrant DCJ appear largely to encompass those raised in the appeal against the decision of Chivell DCJ. Moreover, Ground 5.7 in support of the application for an extension of time appears to indicate that this appeal is only brought in case the appeal against the decision of Durrant DCJ is procedurally incompetent.
Generally speaking, when considering an application for an extension of time within which to appeal, a court is required to consider the length of the delay, the reasons for the delay, whether there is an arguable case on the appeal and the degree of prejudice to the defendant.[21] The respondent identifies prejudice in that if an extension of time is granted, it would face defending an appeal against a decision in respect of which it has already had to defend a lengthy application to set aside.
[21] Collins v State of South Australia [2000] SASC 62 at [3] (Wicks J).
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.
These two grounds complain of the finding that the judgment of Chivell DCJ was regular. Ground 6 reflects Grounds 1 and 2 to that end. Ground 5, however, does not particularise otherwise why it was an error to hold that the judgment was regularly obtained.
When the matter was argued before Durrant DCJ, the appellant had submitted that there were two other grounds for finding the judgment to have been irregular. The first was that the appellant had been given no warning at the resumed trial that judgment would be entered in default of his appearance. The second was that counsel for Minter Ellison at the trial had previously advised the appellant and that his appearance was therefore improper.[22]
[22] Minter Ellison A Firm v Laruo [2020] SADC 41 at [28]-[29] (Durrant DCJ).
The first of these other two grounds is reflected in Ground 3. The second receives no separate articulation in the Notice of Appeal. If Ground 5 is intended to represent these other grounds, it is unsatisfactory. It seems clear, especially from paragraph 5.7 of the Notice of Appeal, that the proposed appeal against the judgment of Chivell DCJ was effectively a ‘backup’ to the appeal against the decision of Durrant DCJ. On that basis, I am prepared to offer Ground 5 a generous reading such that it might be said to incorporate the matter raised by Ground 3, namely, that the appellant had been given no warning at the resumed trial that judgment would be entered in default of his appearance.
The appellant’s written submissions devoted considerable space to the assertion that the judgment was irregular on account of Minter Ellison acting on its own behalf and Mr Coppola of counsel appearing for Minter Ellison. This is notwithstanding that these complaints are not articulated on the Notice of Appeal. When I asked counsel what ground of appeal those submissions support, his answer was:[23]
It may not be a ground in itself as opposed to the relevant background circumstance. I don’t know that I can refer you Honour to any case which says that a judgment should be set aside because a practitioner is acting for himself or a partner.
[23] T 14.18-22.
After I reiterated my concern that this did not appear to be a ground of appeal, counsel reiterated that it was:[24]
… a relevant background circumstance that explains what happened here was inappropriate and shouldn’t have happened the way it did but it’s not the subject of a specific ground of appeal …
[24] T 16.1-4.
Counsel did not elucidate further as to what was meant by a ‘relevant background circumstance’. The written submissions accusing Minter Ellison and Mr Coppola of impropriety[25] did not do so. I do not understand the relevance of the accusations if they do not amount to a ground of appeal. Absent an explanation, I reject the submission that they constitute a ‘relevant background circumstance’.
[25] Written Submissions of Appellant at [18]-[25].
In any event, the submissions with respect to Minter Ellison did not rise any higher than general observations in the authorities as to the undesirability of solicitors acting for themselves.[26] That observation does not mean that to do so would be improper or would vitiate the regularity of a subsequent judgment.
[26] Bell Lawyers Pty Ltd v Pentelow (2019) 93 ALJR 1007 at [18] (Kiefel CJ, Bell, Keane and Gordon JJ), 1028, [92] (Edelman J).
With respect to Mr Coppola having acted as counsel for Minter Ellison, the expressed concern was that Mr Coppola had at one stage been briefed by Minter Ellison to act for the appellant, in 2011. The appellant did not suggest or identify a basis for inferring that there was some threat of disclosure of information given in confidence to Mr Coppola and that any such disclosure would be to the appellant’s disadvantage.[27]
[27] Carindale Country Club Estate Pty Ltd v Astill (1993) 115 ALR 112 at 118-119 (Drummond J); Nasr v Vihervaara [2005] SASC 83 at [17]-[18] (Doyle CJ).
For these reasons, I do not entertain further the allegations of impropriety on the parts of solicitor and counsel.
Irregularity: Jurisdiction of the District Court to give default judgment for a liquidated sum in an action for the recovery of costs
The applicable provisions

The appellant submits that Durrant DCJ erred in finding that s 41 and Schedule 3 of the Legal Practitioners Act 1981 (SA) (the LPA) applied in relation to the adjudication and recovery of legal costs.[28] This asserted error does not form a separate ground of appeal. However, it is necessary to determine in order to answer the complaint about the jurisdiction of the District Court to enter a default judgment for a liquidated sum in an action for the recovery of costs.
[28] Minter Ellison A Firm v Lauro [2020] SADC 41 at [30] (Durrant DCJ).
Schedule 3 of the LPA commenced on 1 July 2014. The appellant submits that this action having commenced before that date, the former ss 41 and 42 applied. In Kowalski v RJ Cole & Partners,[29] Bampton J held that s 42 only applied where ‘a person to whom or for whom legal services have been provided accepts they are liable to pay the legal costs’.[30] Consequently, the appellant submits that until the issue of any liability for costs was determined, there was no basis for any taxation of the disputed costs claim.
[29] (2015) 122 SASR 320.
[30] Kowalski v RJ Cole & Partners (2015) 122 SASR 320 at [73] (Bampton J).
Ultimately, the appellant’s argument is that while the District Court had jurisdiction to determine the nature of the retainer, it did not have jurisdiction to determine the quantum of any costs for which he was liable. That was required to be determined by the Supreme Court. [31]
[31] Written Submissions of Appellant at [12].
Schedule 3 of the LPA was enacted by the Legal Practitioners (Miscellaneous) Amendment Act 2013 (SA). Schedule 2, clause 9 provides:
9—Costs
(1) Subject to this clause, Schedule 3 of the principal Act (as inserted by this Act) applies to a matter if the client first instructs the law practice in the matter on or after the commencement of that Schedule and Part 3 Division 8 of the principal Act as in force immediately before the relevant day continues to apply to a matter if the client first instructed the law practice in the matter before the commencement of Schedule 3.
(2) …
(3) If Part 3 Division 8 of the principal Act as in force immediately before the commencement of Schedule 3 of the principal Act (as inserted by this Act) applies to a matter by virtue of subclause (1) or (2), the Division will cease to apply to the matter on the first anniversary of that commencement and Schedule 3 of the principal Act (as inserted by this Act) will then apply to the matter.
By force of subclause (3), Schedule 3 applied to this matter from 1 July 2015. The relevant provisions of Schedule 3, Part 7 of the LPA are as follows:
37—Application by clients or third party payers for adjudication of costs
(1)     The Supreme Court may—
(a)on the application of a client for an adjudication of the whole or any part of legal costs; or
(b)     …
adjudicate and settle the bill for those costs.
…
(4)     An application by a client or third party payer for an adjudication of costs under this clause must be made within 6 months after—
(a)the bill was given or the request for payment was made to the client or third party payer; or
(b)the costs were paid if neither a bill was given nor a request was made.
…
39—Application for adjudication of costs by law practice giving bill
(1)     A law practice that has given a bill in accordance with Part 6 may apply to the Supreme Court for an adjudication of the whole or any part of the legal costs to which the bill relates.
(2)     If any legal costs have been paid without a bill, the law practice may nevertheless apply for an adjudication.
(3)     An application for an adjudication of costs may be made even if the legal costs have been wholly or partly paid.
(4)     An application may not be made under this clause unless at least 30 days have passed since—
(a)     the bill was given or the request for payment was made; or
(b)the costs were paid if neither a bill was given nor a request was made; or
(c)an application has been made under this Part by another person in respect of the legal costs.
…
41—Power of Supreme Court on application for adjudication
…
(3)     If an application for adjudication of legal costs has been made in accordance with this Part, the Supreme Court may—
(a)restrain a person claiming to be entitled to the costs from commencing an action for recovery of the costs; or
(b)     stay any proceedings for recovery of the costs.
(4)     The Supreme Court may, on adjudication of a bill under this Part—
(a)     order the refund of any amount overpaid; or
(b)if the proceedings have been instituted by the person seeking recovery of the costs—order payment of legal costs in accordance with the adjudicated bill.
…
43—Court may order plaintiff to apply for adjudication
Any court in which proceedings for the recovery of legal costs have been instituted may order the plaintiff to apply to have the legal costs adjudicated in accordance with this Part, and may adjourn the proceedings until the adjudication has been completed.
44—Consequences of application
If an application for an adjudication of costs is made in accordance with this Part—
(a)a party to the adjudication cannot be required to pay money into court on account of the legal costs the subject of the application; and
(b)any proceedings to recover the legal costs that may have been commenced by the law practice are stayed until the adjudication has been completed; and
(c)the law practice must not commence any proceedings to recover the legal costs until the adjudication has been completed.
…
47—Adjudication of costs by reference to costs agreement
(1)     The Supreme Court must adjudicate the amount of any disputed costs that are subject to a costs agreement by reference to the provisions of the costs agreement if—
(a)a relevant provision of the costs agreement specifies the amount, or a rate or other means for calculating the amount, of the costs; and
(b)     the agreement has not been set aside under clause 30,
unless the Court is satisfied—
(c)that the agreement does not comply in a material respect with any applicable disclosure requirements of Part 3; or
(d)that Part 5 precludes the law practice concerned from recovering the amount of the costs; or
(e)     that the parties otherwise agree.
(2)     The Supreme Court is not required to initiate an examination of the matters referred to in subclause (1)(c) and (d).
By comparison, the relevant subsections of s 42 of the LPA, as in force prior to 1 July 2014, provided:
42—Costs
(1)     On the application—
(a)     of a person claiming to be entitled to legal costs; or
(b)     of a person who is liable to pay, or who has paid, any legal costs,
the Supreme Court may tax and settle the bill for those costs.
…
(2)     Where an application has been made under subsection (1), the Supreme Court may—
(a) restrain a person claiming to be entitled to the costs from commencing an action for recovery of the costs; or
(b)     stay any proceedings for recovery of the costs.
(3)     The Court may, on taxation of a bill of costs under this section—
(a)      order the refund of any amount overpaid; or
(b) where the proceedings have been instituted by the person seeking recovery of the costs—order payment of legal costs in accordance with the taxed bill.
…
(5)           Any court in which proceedings for the recovery of legal costs have been instituted may order the plaintiff to apply to have the legal costs taxed in accordance with this section, and may adjourn the proceedings until the taxation has been completed.
This comparison between the provisions applicable to this matter prior to, and after, 1 July 2015 is important to keep in mind during the following discussion of authorities as to the Supreme Court’s jurisdiction. I will return to the application of Schedule 3, Part 7 to this matter later in these reasons.
Jurisdiction of the Supreme Court to determine a dispute as to costs
The appellant points to several authorities that concern the ‘bifurcated jurisdiction’ in claims when a solicitor is seeking to recover costs. In the Notice of Appeal, the appellant refers to King William Law Chambers v Mobitel (International) Pty Ltd[32] (King William Law Chambers), as establishing the general principle that the trial court first determines whether the defendant is liable under a retainer. The quantum of the practitioner’s entitlement to fees under the retainer must then be determined by the Supreme Court.[33]
[32] (1981) 29 SASR 316.
[33] Notice of Appeal at [4.3.3]; Written Submissions of Appellant at [42]-[44].
The appellant also relied on von Doussas Legal Pty Ltd v Nasr[34] (Nasr), Cavallaro v FNE Lawyers,[35] Kedem v Johnson Lawyers Legal Practice Pty Ltd[36] (Kedem), and Kowalski v RJ Cole & Partners.[37]
[34] (2009) 105 SASR 46 (Bleby, Gray and Layton JJ).
[35] [2012] SASC 189 (Judge Lunn).
[36] (2014) 121 SASR 118 (Kourakis CJ).
[37] (2015) 122 SASR 320 (Gray, Sulan and Bampton JJ); Notice of Appeal at [4.3.4]-[4.3.6].
The appellant submits that these authorities were not brought to Chivell DCJ’s attention on 18 September 2018[38] and that Durrant DCJ erred in law in his consideration of them.[39]
[38] T 3.13-15; Notice of Appeal at [4.3.3]-[4.3.4].
[39] Written Submissions of Appellant at [14]; Notice of Appeal at [4.3.5]-[4.3.6].
The Supreme Court has an inherent jurisdiction in relation to costs.[40] This jurisdiction was explained by Dixon J in Woolf v Snipe and Others:[41]
The superior Courts of law and equity possess a jurisdiction to ascertain, by taxation, moderation, or fixation, the costs, charges, and disbursements claimed by an attorney or solicitor from his client, and that jurisdiction is derived from three sources and falls under three corresponding heads.
First, a jurisdiction exists founded upon the relation to the Court of attorneys and solicitors considered as its officers. This jurisdiction, commonly called the general jurisdiction of the Court, enables it to regulate the charges made for work done by attorneys and solicitors of the Court in that capacity, and to prevent exorbitant demands. That such a jurisdiction was exercised by the Court of Chancery was never doubted…
Second, when a contested claim for costs comes before the Court it has jurisdiction to determine by taxation or analogous proceeding the amount of costs. (See In re Park; Cole v. Park; In re Foss, Bilbrough, Plaskitt & Foss; Jones & Son v. Whitehouse)
Third, there is a statutory jurisdiction…
(Footnotes omitted)
[40] Kowalski v Cole [2017] SASCFC 23 at [24]-[25].
[41] (1933) 48 CLR 677 at 678-679.
The question in this matter is whether the Supreme Court’s jurisdiction to determine quantum in a claim for costs is such as to exclude the jurisdiction of the District Court to enter a default judgment for a liquidated sum in an action for the recovery of costs.
In Kowalski v RJ Cole & Partners, Gray and Sulan JJ, in discussing King William Law Chambers, said:[42]
The role of this Court was held to be confined to the proper quantification of the fees payable for legal work. The quantification of fees payable is undertaken on the premise that the solicitor has been retained to perform the work. The question of liability is to be addressed by the Court in which the proceeding has been brought.
[42] Kowalski v RJ Cole & Partners (2015) 122 SASR 320 at [23] (Gray and Sulan JJ), see also [24]-[27] (Gray and Sulan JJ).
In the single Judge appeal in Nasr,[43] White J observed that King CJ in King William Law Chambers had drawn a distinction between issues of liability and quantification.[44] Justice White then said:[45]
[Chief Justice King] suggested, however, that once the Local Court had determined that the defendant is “liable” under a contract of retainer it could adopt the procedure outlined earlier of offering the defendant an adjournment for a reasonable time to enable it to seek a taxation of costs. In the same vein, King CJ later referred to the determination by the Local Court “of the issue of liability”. As it happened in KWLC, the only issue raised as to liability was the issue of the existence of the retainer. That explains the focus in the reasons of King CJ on that issue. I do not see, however, any indication in those reasons that the issues of liability to which King CJ referred were confined to issues about the existence of a retainer.
(Footnotes omitted)
[43] [2008] SASC 206.
[44] von Doussas Legal Pty Ltd v Nasr [2008] SASC 206 at [18] (White J).
[45] von Doussas Legal Pty Ltd v Nasr [2008] SASC 206 at [18] (White J).
In Nasr, a law firm, von Doussas, appealed from a judgment by a magistrate in an action for non-payment of legal fees. Upon the parties’ agreement that the quantum of the claim was $8,393.73, the magistrate entered judgment in the sum of $6,393.73, being the sum agreed less the sum of $2,000 ‘paid into Court’.[46] On appeal to a single judge of this Court, von Doussas challenged the jurisdiction of the Magistrates Court, submitting that it had jurisdiction to determine an issue as to the existence of a retainer, but that the Supreme Court had exclusive jurisdiction to hear and determine the remaining issues.[47]
[46] von Doussas Legal Pty Ltd v Nasr [2008] SASC 206 at [10]-[11] (White J).
[47] von Doussas Legal Pty Ltd v Nasr [2008] SASC 206 at [13] (White J).
Nasr was governed by the LPA as then in force, specifically ss 41, 42 and 43. As to whether this Court has exclusive jurisdiction, White J said:[48]
The language of s 42(1) does not suggest however that the power to determine disputes in these circumstances is exclusive of the jurisdiction of other courts. Further, s 41(1) specifically contemplates that a practitioner may bring an independent action for the recovery of legal costs. It does not specify that such an independent action may be brought only in the Supreme Court. In my opinion, the terms of s 41(1) are inconsistent with this Court having an exclusive jurisdiction to determine disputes about the liability for costs.
Acceptance of the submission of von Doussas could produce very inconvenient results. It would involve the prospect of one court determining the existence of a retainer but being unable to determine the content of the terms of the retainer. Resolution of those issues in different courts may involve two separate courts hearing and determining disputes based on substantially the same evidence. That is another reason to reject the submission of von Doussas.
(Footnote omitted)
[48] von Doussas Legal Pty Ltd v Nasr [2008] SASC 206 at [19]-[20] (White J).
Justice White held that the Magistrates Court had jurisdiction to hear issues concerning liability. While it did not have jurisdiction to assess the amount of the entitlement, it did not purport to do so. It ultimately entered judgment for an amount that was agreed by the parties.[49]
[49] von Doussas Legal Pty Ltd v Nasr [2008] SASC 206 at [22] (White J).
von Doussas appealed to the Full Court. The firm complained that White J erred in law in finding that the magistrate had jurisdiction to determine ‘the terms upon which von Doussas was retained by Mr Nasr’.[50] Justice Bleby found that it was not necessary to deal with that ground of appeal. There was no continuing or new retainer, therefore, Mr Nasr’s liability under a retainer did not arise. However, his Honour understood von Doussas’ argument to be that the magistrate had no jurisdiction to enter judgment for the amount he did. [51]
[50] von Doussas Legal Pty Ltd v Nasr (2009) 105 SASR 46 at [39] (Bleby J).
[51] von Doussas Legal Pty Ltd v Nasr (2009) 105 SASR 46 at [60]-[61] (Bleby J).
His Honour held that there was nothing in the LPA, or in any relevant decision, which provides that this Court has exclusive jurisdiction to resolve disputes about legal costs. He concluded:[52]
I agree with the single judge that s 42 provides a convenient and, I would add, a flexible means of resolving disputes both as to liability and quantum in such cases, with the principal role of this Court being, on taxation, to determine the amount of the costs where a retainer exists.
[52] von Doussas Legal Pty Ltd v Nasr (2009) 105 SASR 46 at [71] (Bleby J).
The appellant submits that Durrant DCJ misinterpreted this observation. He highlights the final section of the above passage relating to the principal role of the Supreme Court.[53] However, the Full Court in Nasr having held that the magistrate had acted properly in entering judgment for the amount that they did,[54] counsel for the appellant in this matter accepted that the District Court has jurisdiction to make an order in cases where quantum is agreed.[55]
[53] Notice of Appeal at [4.3.5].
[54] von Doussas Legal Pty Ltd v Nasr (2009) 105 SASR 46 at [73] (Bleby J, Gray and Layton JJ agreeing).
[55] T 6.24-7.1.
That being so, the appellant submitted that the District Court has no jurisdiction to enter judgment for legal fees and disbursements as a liquidated sum where quantum has not been agreed.[56] Rather, quantum can only be determined either by the parties reaching agreement or by the Supreme Court exercising its jurisdiction to adjudicate costs.[57]
[56] Written Submissions of Appellant at [16].
[57] Written Submissions of Appellant at [47].
The Notice of Appeal also refers to specific paragraphs of Kedem,[58] in its development of this ground. Kedem concerned an appeal to a single judge of this Court from a District Court decision on review of a minor civil action proceeding in the Magistrates Court.[59] Johnson Lawyers brought initial proceedings in the Magistrates Court for their legal fees.[60] Mr Kedem did not appear at trial and default judgment was entered against him. He then applied to set aside the default judgment, asserting that he had never been notified about the matter, nor served with any documents.[61] That application was dismissed.
[58] Kedem v Johnson Lawyers Legal Practice Pty Ltd (2014) 121 SASR 118 at [32]-[33] (Kourakis CJ); Notice of Appeal at [4.3.6].
[59] Kedem v Johnson Lawyers Legal Practice Pty Ltd (2014) 121 SASR 118 at [2] (Kourakis CJ).
[60] Kedem v Johnson Lawyers Legal Practice Pty Ltd (2014) 121 SASR 118 at [5] (Kourakis CJ).
[61] Kedem v Johnson Lawyers Legal Practice Pty Ltd (2014) 121 SASR 118 at [8]-[9] (Kourakis CJ).
Mr Kedem then instituted a Minor Civil Action Review in the District Court against this dismissal.[62] Judge Bampton, as she then was, determined the issue of liability and then adjourned the proceedings to allow either party to apply to the Supreme Court for taxation of costs.[63] Mr Kedem also appealed against a decision made by a Supreme Court Master in relation to taxation of costs.[64]
[62] Kedem v Johnson Lawyers Legal Practice Pty Ltd (2014) 121 SASR 118 at [10], [11] (Kourakis CJ).
[63] Kedem v Johnson Lawyers Legal Practice Pty Ltd (2014) 121 SASR 118 at [14] (Kourakis CJ).
[64] Kedem v Johnson Lawyers Legal Practice Pty Ltd (2014) 121 SASR 118 at [2] (Kourakis CJ).
Chief Justice Kourakis said in that case:[65]
In King William Law Chambers v Mobitel (International) Pty Ltd (KWLC), this Court observed that the parties to a dispute over legal fees must have recourse to two courts in order to resolve the whole of the dispute between them. The role of the Supreme Court pursuant to s 42(1) of the LPA is confined to the proper quantification of the fees payable for legal work on the premise that the solicitor has been retained to perform the work. All other questions are to be determined by the court in which the action has been brought. In this case it was for the District Court, under s 38(7)(d) of the MCA, to resolve the issues of liability.
(Footnote omitted)
[65] Kedem v Johnson Lawyers Legal Practice Pty Ltd (2014) 121 SASR 118 at [32] (Kourakis CJ).
His Honour then quoted White J in Nasr rejecting the proposition that all issues arising in an action to recover costs were within the exclusive jurisdiction of the Supreme Court.[66]
[66] Kedem v Johnson Lawyers Legal Practice Pty Ltd (2014) 121 SASR 118 at [33] (Kourakis CJ), quoting von Doussas Legal Pty Ltd v Nasr [2008] SASC 206 at [17]-[19] (White J).

The appellant, relying on King William Law Chambers, submits that once liability is determined, the District Court should give the defendant an adjournment in order to seek taxation in the Supreme Court.[67] In King William Law Chambers, King CJ had said:[68]
The Local Court, having determined that the defendant is liable under a contract of retainer, should give the defendant an opportunity of taking an adjournment for a reasonable time to enable him to seek a taxation of the bill pursuant to s. 17 of the Legal Practitioners Act or Order 65, Rule 19 of the Supreme Court Rules. If the defendant does not take the adjournment or does not apply for taxation within the period of the adjournment, the Local Court would be entitled to treat that, on the principles discussed by Stirling L.J. in In re Park, as an acceptance on his part of the correctness of the bill and as sufficient evidence that it is a reasonable and proper bill. The Local Court would enter judgment accordingly.
(Footnote omitted)
[67] Written Submissions of Appellant at [43]-[44].
[68] King William Law Chambers v Mobitel (International) Pty Ltd (1981) 29 SASR 316 at 319-320; See also von Doussas Legal Pty Ltd v Nasr (2009) 105 SASR 46 at 58, [58] (Bleby J).
In Cavallaro v FNE Lawyers,[69] Magistrates Court proceedings were adjourned for taxation to occur in this Court, following the magistrate’s finding that Mr Cavallaro was liable to pay legal fees.[70] Judge Lunn cited the Full Court decision in Nasr, and said:[71]
By virtue of the relevant legislation, recovery of lawyers’ costs from clients can require separate proceedings in two different courts. It is for the Magistrates Court to determine the retainer and the contractual liability of the client to the lawyer and it is for this Court to determine the proper quantum of the costs which are payable.[72] I am not sitting on appeal against the findings of Mr Millard SM…
It is necessary to ascertain the precise boundaries of the jurisdictions of this Court and of the Magistrates Court in this matter. At [81] of his reasons Mr Millard found that the retainer agreement “entitles the bill to be drawn on the Supreme Court Scale”. I do not consider that it was within his jurisdiction to determine this. The appropriate scale is only relevant to the quantification of the costs. Issues of quantification are for the Supreme Court and not the Magistrates Court. Therefore, I do not consider myself bound by Mr Millard’s determination on the point. I determine it afresh as a matter to be decided as part of the preliminary question in this action.
(Footnote in original)
[69] [2012] SASC 189 (Judge Lunn).
[70] Cavallaro v FNE Lawyers [2012] SASC 189 at [6] (Judge Lunn).
[71] Cavallaro v FNE Lawyers [2012] SASC 189 at [9]-[10] (Judge Lunn).
[72] von Doussas Legal Pty Ltd v Nasr (2009) 105 SASR 46 at 58-60.
However, the jurisdiction of the Supreme Court is only invoked once an application is made for adjudication. In Moloney v Adams (t/as Tri-Meridian Corporate and Commercial Law),[73] Stanley J held that once the Court’s jurisdiction had been invoked by application under s 42 of the LPA, the Court had available any of the powers conferred pursuant to that section. His Honour said:[74]
The appellant’s application to this Court invokes the Court’s jurisdiction pursuant to s 42. Once the application invoked the Court’s jurisdiction the Court has available the panoply of powers conferred pursuant to the section. They include the powers conferred by s 42(7).
The appellant’s right to seek and obtain a remedy pursuant to s 42(7) was preserved by the terms of clause 6.3. It is important to recognise that the remedy provided by s 42(7) can only be granted by the Supreme Court. The relief for which s 42(7) provides could not have been granted in the District Court action. This is a further reason to construe clause 6.3 broadly so as to include the preservation of the right to seek relief pursuant to that subsection. …
In any event, the terms of paragraph 5 of the application, which seeks an adjudication of the costs in issue on the Supreme Court scale, implicitly invokes the Court’s jurisdiction pursuant to s 42(7) because the only basis upon which that can occur is if the costs agreement made pursuant to s 42(6) is rescinded.
[73] (2016) 126 SASR 350.
[74] Moloney v Adams (t/as Tri-Meridian Corporate and Commercial Law) (2016) 126 SASR 350 at [43]‑[45] (Stanley J).
The terms of Schedule 3, Part 7 of the LPA similarly make it clear that this Court’s jurisdiction to adjudicate the costs payable is only invoked on application. Clause 37(1) of Schedule 3 provides that the Supreme Court may, on application of a client for an adjudication of legal costs, adjudicate and settle the bill for those costs.[75] It is the equivalent provision to s 42(1) of the LPA as in force prior to 1 July 2014 (or, relevantly, 1 July 2015).
[75] Legal Practitioners Act 1981 (SA) sch 3, cl 37(1).
Schedule 3, Part 7 empowers the Supreme Court, once an application has been made, to restrain a person claiming to be entitled to costs from commencing an action for recovery of those costs or to stay proceedings for any such recovery.[76] Further, if an application had been made to this Court, then the proceedings brought by Minter Ellison to recover costs would have been stayed by clause 44.[77] That clause also provides that if an application has been made, the law practice must not commence any proceedings to recover legal costs until the adjudication has been completed.[78]
[76] Legal Practitioners Act 1981 (SA) sch 3, cl 41(3)(a),(b).
[77] Legal Practitioners Act 1981 (SA) sch 3, cl 44(b).
[78] Legal Practitioners Act 1981 (SA) sch 3, cl 44(c).
These limitations on proceedings in other courts only come into effect if an application for adjudication of legal costs is made in accordance with Schedule 3, Part 7.
Further, pursuant to clause 43, the District Court had power to order Minter Ellison to apply to have the costs adjudicated by the Supreme Court and to adjourn the proceedings until the adjudication was completed.
As I observed above, the appellant submits that Durrant DCJ misinterpreted the statement of Bleby J in Nasr to the effect that the principal role of this Court is, on taxation, to determine the amount of costs where a retainer exists.[79] However, the key words in that statement are ‘on taxation’. Consistently with this statement, the jurisdiction of this Court is only invoked once an application for adjudication (or taxation) is made under Schedule 3, Part 7.
[79] Notice of Appeal at [4.3.5]; von Doussas Legal Pty Ltd v Nasr (2009) 105 SASR 46 at [71] (Bleby J).
In this matter, no application had been brought under Schedule 3, Part 7 for the Supreme Court to adjudicate the quantum of costs.
Default judgment
The appellant having failed to participate in the trial further, and no application for adjudication of costs having been made, the question then is whether the regime in Schedule 3, Part 7 prevented the District Court from entering a default judgment for a liquidated sum. Judge Chivell entered default judgment for $173,633.61 including interest, dismissed the appellant’s Set Off and Counter Claim and awarded Minter Ellison its costs of the action.[80]
[80] Transcript 18 September 2018, T 65.12-21.
Default judgment is not concerned with the merits of the claim.[81] Judge Chivell did not determine the costs that were recoverable by Minter Ellison from the appellant under the terms of the retainer. Neither did his Honour determine the merits of the Set Off and Counter Claim. His Honour entered judgment following a procedural default.
[81] L Oppenheim & Co v Haneef [1922] 1 AC 482; Evans v Bartlam [1937] AC 473, at 480 (Lord Atkin).
As I have observed, counsel for the appellant accepted that the District Court has jurisdiction to make an order in cases where quantum is agreed. In such cases, the matter is not determined on its merits. In the situation of a default judgment, the defendant has failed in some material way to contest the claim. A default judgment is interlocutory in nature precisely because it does not, as a matter of law, finally dispose of the rights of the parties. The default judgment entered by Chivell DCJ did not purport to be an adjudication of the bills of costs such as is reserved to the exclusive jurisdiction of the Supreme Court on an application under Part 7 of Schedule 3.
The point is illustrated by the terms of Ground 1 of the Notice of Appeal itself. This complains that ‘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’. By entering default judgment, Chivell DCJ was not purporting to exercise any such jurisdiction. 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. That power exists as a means to the end of avoiding abuse of those processes and avoiding injustice.[82] The jurisdiction conferred on the Supreme Court by Schedule 3, Part 7 of the LPA does not purport to abrogate this power. Clear words of abrogation would be required to achieve such a consequence.[83]
[82] Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 at [44] (French CJ); Union Bank of Australia v Harrison, Jones & Devlin Ltd (1910) 11 CLR 492 at 504 (Griffith CJ).
[83] Cameron v Cole (1944) 68 CLR 571 at 589 (Rich J); Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 at [42] (French CJ).
As the claim was for a liquidated sum, Chivell DCJ was entitled to enter default judgment for that sum. If the claim had been for an unliquidated amount, then default judgment would have been entered with the amount to be assessed.[84]
[84] See Watson Specialised Tooling Pty Ltd v Stevens [1991] 1 Qd R 85 at 93-94 (Lee J).
Irregularity: Failure to warn
The appellant submits to the effect that on 18 September 2018, when Mr Eric Lauro announced his intention to leave the trial, counsel for the plaintiff should have informed the Court in Eric Lauro’s presence that if he did depart, Minter Ellison would seek a default judgment. He submitted that a judgment obtained where that process was not followed should be set aside.[85] In support of this proposition, he relied on CBFC Ltd v Charitopoulos & Ors[86] (Charitopoulos) where White J recorded that such a process had been followed in that matter.
[85] Written Submissions of Appellant at [32], [38].
[86] [2009] SASC 30 at [14] (White J).
Charitopoulos does not stand for the proposition that a failure to so warn renders the default judgment irregular and liable to be set aside. However, counsel also relied on the general observations of Wells J in Cooling v Steel[87] to the effect that the Court should ensure that a defendant (in that case, in a summary criminal proceeding) is apprised of their rights and duties at all times and ‘be vigilant to keep the proceedings free of error or misunderstanding’.[88]
[87] (1971) 2 SASR 249.
[88] Cooling v Steel (1971) 2 SASR 249 at 251 (Wells J).
The essence of the appellant’s submission is that there is an established practice to warn before default judgment is entered, and that a failure to do so renders the judgment irregular. I do not accept this. Such a broad proposition would be contrary to the terms of rule 234(2) of the District Court Civil Rules 2006 (SA).
In circumstances such as those presenting in Charitopoulos, to warn an unrepresented defendant of the consequences of leaving after they had announced such an intention, was appropriate. That does not mean that a failure to do so would have rendered the judgment irregular. Warned or not, departure by a defendant mid-trial would constitute a ‘procedural irregularity that seriously prejudices the proper and expeditious conduct of the action’.[89] That would enliven the power in rule 228 for the other party to enter a default judgment with the Court’s permission. Whether the defendant had a reasonable excuse for the sudden departure would be relevant to a subsequent application to set aside the default judgment that had otherwise been regularly obtained.
[89] District Court Civil Rules 2006 (SA) r 228(1).
In any event, the circumstances of Eric Lauro’s departure from the trial are not comparable with those in Charitopoulos. Neither is it accurate to characterise that which transpired as unfair. It amounts to an attempt to cast blame for a sequence of events that was very much the appellant’s responsibility.
First, Chivell DCJ had on the previous day found that the appellant had no intention of dealing with the Court in a constructive way so that the action might proceed. The Court had also concluded that the appellant’s actions had been grossly unfair to the respondent, and that the respondent was entitled to have its claim considered by the Court. Judge Chivell made it clear, in refusing the application to adjourn the resumed trial, that the matter was to proceed. Contrary to the very premise of the appellant’s argument in this Court, the appellant was warned that the matter was to proceed, notwithstanding his intention not to deal with the Court constructively.
Following that ruling, the matter was adjourned to the next day. The appellant did not attend. Eric Lauro attended. He was not a party. In the absence of the appellant, counsel for the respondent indicated that he had an application. It was at that point that Eric Lauro announced that he felt unwell, that he was in pain and that he was leaving. He left when on notice of the existence of an application, but without listening to its content.
In any event, Eric Lauro had attended on the previous day. On 18 September 2018, he informed Chivell DCJ that a Supreme Court appeal from the refusal of the application to adjourn had been filed. That can only have been possible if the appellant was aware of the refusal of the application.
On appeal, the appellant submitted that there was evidence showing that he was unfit to attend Court in September 2018. He relied, in particular, on a medical certificate signed by a Dr Mark Fisher on 12 September 2018. This announced that the appellant was suffering from hypertension and would be unable to appear in Court from 12 September 2018 to 30 November 2018 inclusive.[90]
[90] Twenty-Third Affidavit of Eric Lauro, Exhibit EL23-1 (AB Vol 1, 74).
This certificate and the other evidence going to the question of the appellant’s health are beside the point for the purposes of this ground. The application to adjourn the resumed trial was refused on 17 September 2018 for the reasons set out above. Those reasons identified that arrangements to accommodate the appellant had been proposed. The appellant had rejected them and declined to indicate what other arrangements might be made. The present appeal is not from that decision.
The judgment was regularly obtained. Grounds 5 and 6 are not established.
Setting aside a regularly obtained judgment
In considering whether to set aside the default judgment (on the premise that it was obtained regularly), Durrant DCJ found that the appellant had no reasonable excuse for his non-attendance. He held that the application to set aside the regular judgment must therefore fail. However, he considered whether the appellant had a reasonably arguable defence in any event.
The appellant has not challenged this approach to the question of when a regular judgment may be set aside. Given that Durrant DCJ answered both questions in the negative, it would likely have made little difference how his Honour approached the question.
As to when a regularly obtained judgment may be set aside, I make the following short observations.
Rule 230 of the District Court Civil Rules 2006 (SA) simply provides that the Court may, on conditions it considers just, set aside or vary a default judgment. Whether to do so is in the discretion of the Court. The matters that inform the discretion are well understood. In Vacuum Oil Pty Ltd v Stockdale,[91] Jordan CJ observed:
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…
[91] (1942) 42 SR (NSW) 239 at 243 (Jordan CJ).
These matters continue to inform the discretion.[92] In Watson v Anderson, Bray CJ said of the application to set aside default judgment in that case:[93]
As I have said, the learned Judge, in my view, might well have been entitled if he saw fit, to exercise his discretion against the appellant simply on the ground of the lack of any reasonable explanation for his failure to appear. In addition, he was entitled to look to see if the appellant had any bona fide intention of defending, and if there was any possibility of his doing so with success, and if there was a reasonably clear and bona fide case of merits, by which I mean legal merits.
[92] Pham v Gall [2020] NSWCA 116 at [43], [56] (Leeming JA), [95] (Payne JA).
[93] (1976) 13 SASR 329 at 335.
Chief Justice Bray’s observation highlights the discretionary nature of the power. The fact that an applicant might show an arguable defence to some aspect of the claim might not be sufficient to cause the Court to exercise the discretion in their favour if there is no reasonable explanation for the failure to appear. Ultimately, the discretion looks to the requirements of justice, which are not limited to the availability of an arguable defence:[94]
The central question is whether it is unjust to let the perfected order stand. The matter was put thus by Jordan CJ (Davidson and Roper J concurring) in Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR NSW 239 at 243-4:
“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.”
[94] 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).
The question for this Court is whether, in exercising the discretion to the end that he did, Durrant DCJ erred in a manner described in House v The King.[95] That is to say, even if, as I will come to, the appellant had shown that he had a reasonably arguable defence to some aspect of the claim, that does not mean that the discretion necessarily miscarried.
[95] (1936) 55 CLR 499 at 505.
Ground 7
Ground 7 complains that Durrant DCJ erred by failing to have proper regard to the comprehensive material in support of the application to set aside the judgment of Chivell DCJ. That material was contained in the affidavits sworn by the appellant[96] and Mr Rino Marrone, the appellant’s solicitor. The appellant must demonstrate an error of a kind described in House v The King[97] in his Honour’s consideration of this material.
[96] Affidavit of Natale Lauro in Support of Application to Set Aside Default Judgment, 23 October 2019.
[97] (1936) 55 CLR 499 at 505.
Judge Durrant referred to Mr Marrone’s affidavit setting out the basis of his opinion that the appellant had a defence to the various claims.[98] He noted Mr Marrone’s expressed opinion that ‘Minter Ellison failed to take a holistic approach to the matters Mr Lauro entrusted to their professional care’.[99] He noted the opinion that some costs would be taxed off on adjudication and that the magnitude of the fees was neither reasonable nor proper. He also noted the evidence of the appellant, by way of affidavit, to the effect of disputing ‘significant anomalies’ in the invoices due as set out in the Defence.[100]
[98] Affidavit of Rino Michael Marrone in Support of Application to Set Aside Default Judgment, 3 September 2019.
[99] Affidavit of Rino Michael Marrone in Support of Application to Set Aside Default Judgment, 3 September 2019 at [36] (AB Vol 1, 185).
[100] Minter Ellison A Firm v Lauro [2020] SADC 41 at [80]-[81].

Judge Durrant then said:[101]
This Court is entitled to take judicial notice of the myriad ways in which litigation can be conducted and proceed: the path is rarely smooth. Consequently, I have had regard to the affidavit of the experienced solicitor but have not given it significant weight in my assessment of whether Mr Lauro has a reasonably arguable defence because the opinions expressed are necessarily speculative and based on assumptions as to how the matters might have proceeded and that Mr Lauro would have provided meaningful and prompt instructions, and taken a commercial approach to litigation. In respect of one matter in which Minter Ellison were engaged, Mr Gumpl SM assessed the approach of Mr Lauro to litigation as follows:
Vindictiveness and revenge, rather than any true cause, fuelled this case. The plaintiff’s [Mr Lauro’s] unshakeable belief in the virtue of his various grievances is matched only by the dearth of evidence in support of this litigation.
(Footnote omitted)
[101] Minter Ellison A Firm v Lauro [2020] SADC 41 at [82].
His Honour did not address the affidavit of the appellant further. I have read the affidavit and do not find it of assistance in determining whether a reasonable defence to any of the claims is raised (other than the ‘Marciano matter’, which I discuss below).[102] The affidavit lays out the appellant’s complaints in detail, but does not otherwise assist. On the appeal, counsel did not rely on his Honour’s failure to address this affidavit, other than with respect to the Marciano matter.
[102] Affidavit of Natale Lauro in Support of Application to Set Aside Default Judgment, 23 October 2019 at [137]-[143], [245]-[264] (AB Vol 2, 478, 490-492).
Given his conclusions as to the speculative nature of the opinions offered by Mr Marrone, Durrant DCJ identified the most significant document for his consideration as being the Defence, Set Off and Counter claim. His Honour described this document as ‘elliptical and obscure in relation to the remedies sought’.[103] He concluded that the document did not set out a reasonably arguable defence and that it would require amendment before permission to file it could be considered. He held that the document set out a series of complaints about Minter Ellison’s conduct and the invoices presented, rather than admitting what was payable, what was not payable and why.
[103] Minter Ellison A Firm v Lauro [2020] SADC 41 at [88].
This conclusion is not challenged in the Notice of Appeal. Counsel on appeal accepted that it was poorly drafted (it not having been settled by a legal practitioner).
When applying to set aside a default judgment, it has long been accepted that the general position is that the applicant should file an affidavit showing prima facie that they have a good defence on the merits.[104] It is fair to say that the reasons of Durrant DCJ pay little express regard to the affidavit of Mr Marrone and instead focus on the terms of the Defence, Set Off and Counter Claim.
[104] Vacuum Oil Pty Co Ltd v Stockdale (1942) 42 SR (NSW) 239 at 243 (Jordan CJ); Watson v Anderson [1976] 13 SASR 329 at 334 (Bray CJ).
As I have noted above, the reason for this course was that his Honour found the opinions of Mr Marrone to be necessarily speculative. This was the subject of complaint in submissions.
In considering this characterisation of Mr Marrone’s opinions, it is necessary to consider one other matter noted by his Honour when he came to consider the discretion more generally. This is that the files of Minter Ellison had always been available for inspection, but neither the appellant nor his solicitor had attended at the offices of Minter Ellison to inspect them.[105]
[105] Minter Ellison A Firm v Lauro [2020] SADC 41 at [95]; See Sixth Affidavit of Grant Mitchell, 27 November 2019 at [4.2], Exhibit GM1 (AB Vol 2, 593, 616).
I note in passing that the appellant complains of this observation, on the basis that the application before Durrant DCJ was not a hearing of the negligence claims that had essentially been set out in the Defence, Set Off and Counter Claim.[106] This criticism misses the point. The issue joined was whether Mr Marrone had a sufficient basis on which to make his criticisms of Minter Ellison’s conduct such as to demonstrate the existence of a reasonably arguable defence.
[106] Written Submissions of Appellant at [121].
Mr Marrone’s criticisms were answered by an affidavit of Grant Mitchell. Mr Mitchell was the partner who had the overall conduct of the matters in respect of which the appellant had engaged Minter Ellison.[107] Mr Mitchell identified that neither Mr Marrone nor the appellant had attended the offices of Minter Ellison to inspect the files relating to the matters in question.[108]
[107] Sixth Affidavit of Grant Mitchell, 27 November 2019 (AB Vol 2, 592, 825).
[108] Sixth Affidavit of Grant Mitchell, 27 November 2019 at [4.2] (AB Vol 2, 593).
In order to explain the nature of the criticisms offered by Mr Marrone and then Mr Mitchell’s answer to those criticisms, is it useful to set out some key paragraphs from each affidavit.
Both affidavits are long and detailed. The nature of the contest is illustrated by the following paragraphs. Mr Marrone offered a high-level conclusory criticism of Minter Ellison’s conduct towards the beginning of his affidavit:[109]
Based on the detail set out in this affidavit and the material supplied to me I consider that when Minter Ellison first took over management of all the litigious files on behalf of Mr Lauro on or about 1 June 2011 if not sooner on some files, Minter Ellison failed to take a holistic approach to the matters Mr Lauro entrusted to their professional care. I am instructed thereafter they incurred professional fees including disbursements relating to the various matters for an amount higher than the amount of $299,306.40 based on evidence given on behalf of Minter Ellison by Grant Mitchell. Based on my assessment of the documents supplied to me, Minter Ellison failed to act in the best interests of their client in various respects set out in detail in this affidavit. Based on my experience, I would expect on any adjudication of the costs claimed by Minter Ellison there would be justification to expect substantial amounts of the claimed professional fees to be taxed off. Based on the considerations set out in this affidavit I consider that there are solid grounds to suggest that the magnitude of the fees claimed in this action by Minter Ellison were neither reasonable nor proper. I therefore consider that there are good prospects to expect on taxation there will be a significant reduction of the legal fees claimed in this action by Minter Ellison as well as set-off losses due to their failings as addressed in this affidavit. For reasons set out in detail in this affidavit there is good reason to suggest that Minter Ellison did not undertake the professional work in accord with established procedures having regard to the applicable statutory provisions and authorities regulating litigation over domestic building works. Based on the material I have seen, Minter Ellison did not undertake any or any proper assessment as to a cost-efficient method of resolving Mr Lauro’s various matters then in various stages of gestation and proceeded without proper assessment of the merits of the matters entrusted to them and their cost-effective disposition. Minter Ellison proceeded with what had been undertaken by Mr Lauro’s previous solicitors without proper review and assessment as to their justifiable basis. Minter Ellison failed to give proper focus to the major claim involving the dispute with the builder over the substandard building work at Stradbroke Road, Rostrevor which had been undertaken without compliance with the building development plans and the building specifications and in breach of the applicable statutory warranties laid down in section 32 of the Building Work Contractors Act 1995.
[109] Affidavit of Rino Michael Marrone, 3 September 2019 at [36] (AB Vol 1, 185-186).
In response, Mr Mitchell deposed as follows:[110]
[110] Sixth Affidavit of Grant Mitchell, 27 November 2019 at [6] (AB Vol 2, 594-595).
I note at the outset some of the criticisms made by Mr Marrone in paragraph 36 of his affidavit relating to Minter Ellison’s management of litigious files on behalf of Mr Lauro. I believe I address most of those criticisms in the affidavit below. However there is a general criticism to the effect that ‘Minter Ellison did not undertake any or any proper assessment as to a cost-efficient method of resolving Mr Lauro’s various matters then in various stages of gestation and proceeded without proper assessment of the merits of the matters entrusted to them and their cost-effective disposition … Minter Ellison failed to give proper focus to the major claim involving the dispute with the builder over the sub-standard building work at Stradbroke Road, Rostrevor …’. In relation to that criticism I would make the following points by way of introduction:-
when Minter Ellison assumed the conduct of the matters on behalf of Mr Lauro, ‘various stages of gestation’ is a benign description for the advanced stage of these proceedings. In particular:-
(a)the ‘Marble House’ proceedings had already been on foot for over five years and there had already been three days of evidence at trial. The trial was to recommence on 14 June 2011. It eventually recommenced with further evidence taken in November 2011, December 2011 and on 10 April 2012 (six further days altogether);
(b) the ‘Leo Homes’ was listed for trial to commence in 4 October 2011 for 19 days;
(c)the ‘Marciano’ matter was listed for trial in the Supreme Court to commence on 18 July 2011;
(d)the ‘Battista’ matters were in the Magistrates Court but were the subject of a Supreme Court Appeal (instituted by Mr Lauro and his family) in the sittings for July 2011;
(e) the ‘Natural Stone’ matter was listed for trial to commence on 29 August 2011.
I am surprised that Mr Marrone can form a view that Minter Ellison that [sic] there was a ‘lack of focus’ on ‘the major claim involving the dispute with the builder over the sub‑standard building work at Stradbroke Road, Rostrevor’ when he has not inspected the relevant file.
a substantial portion of the costs were incurred because of Mr Lauro’s approach to these matters. As will be seen below, he did not take what might be described as a commercial approach to either the conduct of the resolution of the matters.
I have read and considered the affidavits of the legal practitioners. It is fair to say that Mr Mitchell addresses comprehensively the criticisms made by Mr Marrone. For the reasons which appear below, I see no utility in setting out every criticism and every answer.
The Marble House proceeding
By way of example, however, counsel referred to what was described as the ‘Marble House’ proceeding. This comprised various claims of breach of contract, misleading and unconscionable conduct under the Trade Practices Act 1974 (Cth) and misrepresentation under the Misrepresentation Act 1972 (SA). It related to a supply of a granite benchtop and marble tiles. The matter eventually became the subject of an appeal in this Court.[111]
[111] Lauro v The Marble House of Australia Pty Ltd [2013] SASC 186.
Mr Marrone expressed the view that this claim could be described as a dispute relating to domestic building work, performed pursuant to a domestic building contract to which the Building Work Contractors Act 1995 (SA) applied. He opined that this matter should have been conducted as a minor civil action under the Magistrates Court Act 1991 (SA), if confined to what he saw as the ‘core issues’.[112]
[112] Affidavit of Rino Michael Marrone, 3 September 2019 at [65]-[66] (AB Vol 1, 195).
He observed that the invoices Minter Ellison rendered exceeded $95,000. He said that this seemed ‘difficult to justify’, as this was essentially a minor civil action, which failed entirely due to inadequacy of proof.[113] He also observed that in a letter dated mid-October 2011, Minter Ellison had said that it would not be a in position to comment on the merits of the claim. The trial was scheduled to recommence on 28 November 2011. Minter Ellison had taken over management of the action from about 1 June 2011.[114]
[113] Affidavit of Rino Michael Marrone, 3 September 2019 at [70] (AB Vol 1, 196).
[114] Affidavit of Rino Michael Marrone, 3 September 2019 at [76] (AB Vol 1, 197).
He then observed:[115]
So far as I can presently see from the comprehensive correspondence shown to me together with the invoices relating to this matter, Minter Ellison did not advise Mr Lauro on the prospective advantages or disadvantages in pursuing the claim at trial and the risk that Mr Lauro faced in doing so.
[115] Affidavit of Rino Michael Marrone, 3 September 2019 at [79] (AB Vol 1, 197).
The affidavit goes on to explain why, in Mr Marrone’s view, there was a genuine dispute as to whether Minter Ellison had properly considered the merits or lack thereof in continuing with the claim.
Mr Mitchell’s response to these criticisms was comprehensive. For example, he explained that by the time that Minter Ellison had assumed conduct of the matter in June 2011, the time to commence proceedings for breach of statutory warranty under the Building Work Contractors Act 1995 (SA) had expired and could not be extended.[116] He deposed to ‘Mr Lauro’s extraordinarily adversarial approach to the litigation which manifested itself in his refusal to negotiate on a commercial basis, in extensive interlocutory proceedings and extraordinarily detailed instructions’.[117]
[116] Sixth Affidavit of Grant Mitchell, 27 November 2019 at [24.3] (AB Vol 2, 598).
[117] Sixth Affidavit of Grant Mitchell, 27 November 2019 at [25.1] (AB Vol 2, 599).
The fees included the institution of an appeal to the Supreme Court and an initial interlocutory argument in respect of that appeal.[118] Further, Mr Mitchell gave evidence as to advice that was given and letters of advice. With respect to having said that they were not in a position to advise fully about the merits of the action, Mr Mitchell explained that they did not receive the transcript of the first three days of the hearing until March 2012 and could not do so without that transcript.[119] When Minter Ellison were engaged, the trial had already been heard for the three days.[120]
[118] Sixth Affidavit of Grant Mitchell, 27 November 2019 at [25.4] (AB Vol 2, 599).
[119] Sixth Affidavit of Grant Mitchell, 27 November 2019 at [28]-[33] (AB Vol 2, 600-601).
[120] Sixth Affidavit of Grant Mitchell, 27 November 2019 at [24.6] (AB Vol 2, 599).
There are further criticisms by Mr Marrone and further answers by Mr Mitchell in respect of the Marble House proceeding. The same pattern repeats in respect of each of the other claims.
The appellant observed that the respondent had not sought to cross-examine Mr Marrone. However, there was no need to do so. Mr Mitchell answered the criticisms by reference to his own knowledge and, importantly, knowledge of the files that Mr Marrone had not inspected. By answering the criticisms in this manner and pointing to the fact that Mr Marrone’s criticisms were founded on information that was, through no fault of Minter Ellison, fundamentally incomplete, Minter Ellison exposed the inadequate factual foundations for Mr Marrone’s opinions.
It is in this sense that I understand the observation by Durrant DCJ to the effect that the opinions expressed by Mr Marrone were necessarily speculative.[121] Mr Mitchell’s affidavit goes considerably further and explains the unreality of several assumptions drawn by Mr Marrone in all of the circumstances, and in particular, the appellant’s approach to litigation, notwithstanding advice that was given.
[121] Minter Ellison A Firm v Lauro [2020] SADC 41 at [82].
While the judge’s treatment of Mr Marrone’s affidavit was cursory, his conclusion to the effect that it did not provide any real assistance in identifying a reasonable defence to the claim is correct.
In the ordinary course, it would have been preferable to explain that conclusion in greater detail. Given that Mr Marrone did not inspect the files at all, however, I am not satisfied that the failure to do so constituted error. In any event, no miscarriage of justice occurred. The submissions of the appellant in this Court focused very much on the affidavit evidence of Mr Marrone. Other than with respect to the Marciano matter, those submissions did not engage with the answers given to the criticisms in the Sixth Affidavit of Mr Mitchell. This affidavit established that for the most part, the foundations for the assertion of a reasonable defence were critically lacking.
Subject to my consideration of Durrant DCJ’s treatment of the Marciano matter, below, Ground 7 is not established.
The Marciano matter
With respect to the Marciano matter, Durrant DCJ observed:[122]
One aspect of the claim was conceded by Minter Ellison, in argument, as sufficient to found a defence. In the event judgment was set aside, Minter Ellison accepted that a real dispute would arise as to whether the firm had agreed or not to cap the fees payable by Mr Lauro for the conduct of a mediation. The sum the subject of that dispute is modest: perhaps a few thousand dollars.
[122] Minter Ellison A Firm v Lauro [2020] SADC 41 at [89].
The appellant complained in his written submissions that the characterisation of the amount in dispute as ‘perhaps a few thousand dollars’ was in error. The sum was $20,554, which with interest would take the sum to as much as $25,000. In oral submissions, counsel of the appellant acknowledged that the claim was in fact for $18,554.
Counsel for the respondent submitted that the amount actually in dispute was approximately $7,000. This was the difference between the $18,554 which Minter Ellison had said that they were entitled to charge and the costs incurred up to the time of mediation, which the appellant said Minter Ellison had agreed to confine themselves. Those costs were approximately $11,000. Counsel for the appellant did not contradict this submission in reply.
There was, then, a basis for a defence to the claim at least insofar as it related to about $7,000. That much was acknowledged by the judge. The amount properly in dispute was not clearly settled on the hearing of the appeal. However, the material question is whether his Honour erred in exercising his discretion not to set aside the default judgment or reduce it by the disputed amount. This question arises in the circumstances of his Honour’s conclusion that the appellant had no reasonable excuse for his non-attendance on 18 September 2018. I address the exercise of the discretion below.
Ground 8
Ground 8 complains that Durrant DCJ erred in being unduly critical of the appellant in all the circumstances of the case, due to the time that his legal representatives had taken to file the application to set aside the default judgment. In support of this complaint, the written submissions of the appellant direct attention to the ninth dot point at paragraph 95 of Durrant DCJ’s written reasons.[123]
[123] Written Submissions of Appellant at [122].
This dot point identifies one of several matters that Durrant DCJ brought to bear as relevant considerations to which he had had regard in relation to the exercise of his discretion on the question of whether to set aside the regularly obtained judgment.[124] However, it is not a criticism by Durrant DCJ as to the delay prior to filing the application to set aside the default judgment. It is an observation as to Chivell DCJ’s criticism of the appellant in delaying the trial.
[124] I set these out below when considering his Honour’s exercise of the discretion.
I apprehend that this complaint is, rather, intended to refer to the eighth dot point at paragraph 95 of Durrant DCJ’s written reasons. This dot point reads:
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.
(Footnote omitted)

The appellant points out that Mr Marrone had notified Minter Ellison of the proposed application after he was instructed.[125] However, the application was still not filed until 4 September 2019. As the appellant submits, it would be expected that the preparation of such an application would take time. That does not explain the length of time it did take; neither was an explanation provided. The statement by his Honour was not ‘unduly critical’ of the time taken. It was factually correct and if anything, restrained. It was relevant to the exercise of the discretion, which is the context in which it was deployed. In any event, I am not satisfied that this complaint articulates error of the sort contemplated by House v The King.[126] Ground 8 is not established.
[125] Written Submissions of Appellant at [122].
[126] (1936) 55 CLR 499 at 505.
Ground 9
Ground 9 complains that Durrant DCJ failed to have proper regard to the affidavit sworn by Dr Angela Moran on 29 January 2020. This affidavit is directed to the state of the appellant’s medical health as at that date. Dr Moran opined that she was of the view that the appellant was medically unfit to be further cross‑examined.[127] The general effect of Dr Moran’s affidavit was that she examined the appellant after he gave evidence before Durrant DCJ on 9 December 2019 and then subsequently in January 2020. She expressed the view that it was likely that the appellant had had a ‘mini-stroke’[128] in December and that should he be subject 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’.[129]
[127] Affidavit of Dr Angela Jane Moran, 29 January 2020 at [13] (AB Vol 2, 909).
[128] Affidavit of Dr Angela Jane Moran, 29 January 2020 at [32] (AB Vol 2, 911).
[129] Affidavit of Dr Angela Jane Moran, 29 January 2020 at [40] (AB Vol 2, 912).
Dr Moran’s affidavit was relevant to whether the appellant was fit to continue being cross-examined at the hearing of the application to set aside default judgment. As to this, Durrant DCJ recorded:[130]
I granted leave to cross-examine Mr Lauro on his affidavit in support of this application. Mr Lauro told me his medical advisers were concerned about his blood pressure. I told Mr Lauro that if he felt distressed or uncomfortable during his evidence, he could take a break. A break was taken, beyond those ordinarily allowed, on a couple of occasions.
Unfortunately, cross-examination did not complete in the time allocated and I fixed a convenient date for Mr Harms to finish. At the resumption, counsel for Mr Lauro had been instructed that Mr Lauro was unwell and unable to attend. Rather than delay, Mr Harms did not press to cross-examine further.
(Footnote omitted)
[130] Minter Ellison A Firm v Lauro [2020] SADC 41 at [48]-[49].
This ground is misconceived. On the appellant’s inability to attend, counsel elected not to press cross-examination. That was the end of the matter. It had no bearing on the matters to be considered on the application to set aside the default judgment.
Ground 10
Ground 10 complains that Durrant DCJ erred in finding that the appellant had been untruthful about a Supreme Court attendance. This appears to relate to an observation he made when considering whether the appellant had a reasonable excuse not to attend on 18 September 2018. His Honour said:[131]
Mr Lauro had been untruthful when he deposed in his supporting affidavit that he had not been to Court since February 2015.[132] Mr Lauro admitted in cross-examination that five days after he said he had been unable to appear before the trial judge (in January 2017), he had attended in person in the Supreme Court (in February 2017). Mr Lauro said in cross examination that he had been able to attend the Supreme Court on that occasion because he had been ‘trialling new medications’.[133] No mention of that attendance, or the trial of new medication had been made in any of the twenty-four affidavits of Mr Eric Lauro filed in this matter dealing with his father’s medical condition.
(Footnotes in original; emphasis in original)
[131] Minter Ellison A Firm v Lauro [2020] SADC 41 at [74].
[132] Affidavit of Natale Lauro, 23 October 2019 at [499].
[133] T 70.8-73.28.
The complaint appears to focus on the Supreme Court attendance having been the subject of the Twenty-Second Affidavit of Eric Lauro. This affidavit had exhibited submissions objecting to the resumption of the trial before Chivell DCJ. Those submissions had complained of an apparently earlier statement by Chivell DCJ that the appellant was able to prosecute an appeal in the Supreme Court over a period of more than a year. His Honour had therefore failed to see why the appellant would be unable to participate in the District Court proceedings, especially if special measures were taken.[134] Judge Chivell’s ruling on 17 September 2018 referred to the paragraph in Eric Lauro’s affidavit identifying this earlier statement by him, observing that if the appellant had been able to be represented in the Supreme Court proceedings, ‘one wonders why he is not legally represented here’.[135]
[134] Twenty-Second Affidavit of Eric Lauro, 12 September 2018, Exhibit EL22-1 at [6.5.3] (AB Vol 1, 47).
[135] Ruling of His Honour Judge Chivell (ex‑tempore), 17 September 2018 at [26].
All of this is beside the point. The observation made by Durrant DCJ was that the appellant had been untruthful when he deposed, in his (much later) affidavit of 23 October 2019 in support of the application to set aside the default judgment, that he had not been to court since February 2015.
However, the relevant paragraph of the appellant’s affidavit says that because of his health problems, he did not attend court hearings on various, specified days between 2013 and 2018.[136] That paragraph does not say that he had not attended court at all. The first sentence of his Honour’s statement is, therefore, not accurate.
[136] Affidavit of Natale Lauro, 23 October 2019 at [499] (AB Vol 2, 518).
There was a sin of omission in the sense that in listing all the dates that he was unable to attend court for health reasons, which included 25 January 2017 and 1 March 2017, the appellant did not identify that he had attended at the Supreme Court in February 2017. The point of Durrant DCJ’s observation appears to have been that in none of the affidavits filed had there ever been a reference to trialling new medications that had allowed the appellant to attend court or that he had done so in February 2017.
The question being considered by Durrant DCJ in this paragraph went to whether the appellant had a reasonable excuse for his non-attendance on 18 September 2018. The matter identified at paragraph 74 of Durrant DCJ’s reasons was one of a number going to his conclusion that the appellant had no reasonable excuse for non-attendance on that date. While Durrant DCJ’s description was not correct insofar as the appellant had not referred to the Supreme Court proceedings at all, I do not consider that there was any miscarriage of justice.
The paragraph in the appellant’s affidavit was misleading, if not strictly untruthful. It tended to communicate that he had been unable to attend at court throughout that period on account of his poor health. The error by his Honour was not capable of vitiating the conclusion that ‘irrespective of the reasonable and compassionate arrangements proposed, Mr Lauro had no intention of attending at the resumed trial’.[137] That finding was made against a background of his Honour’s necessary acceptance of the conclusions of Chivell DCJ on 17 September 2018 as to the appellant’s intentions. As I have already observed, this appeal does not challenge the ruling of 17 September 2018.
[137] Minter Ellison A Firm v Lauro [2020] SADC 41 at [76].
Exercise of the discretion
The appellant made extensive written submissions directed to the proposition that the exercise of the discretion by Durrant DCJ miscarried in any event. The matters to which his Honour gave consideration were as follows:[138]
[138] 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;^[139]
[139] 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;^[140]
[140] 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;^[141]
[141] 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.[142]
I exercise my discretion to set aside the judgment by declining to do so.
(Footnotes in original)
[142] 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 appellant made various criticisms of this list in arguing that the exercise of the discretion had miscarried. However, of these criticisms, the only one that finds its way expressly into the Notice of Appeal is that in the eighth dot point, which is the subject of Ground 8, above. Certain other criticisms made in this context[143] are fairly considered within Ground 7, and I have done so.
[143] Written Submissions of Appellant at [119]-[121].
Other submissions with respect to the exercise of the discretion go well beyond the Notice of Appeal. For example, the appellant submitted in writing that Durrant DCJ took into account an irrelevant consideration, in that ‘it was not relevant for Mr Lauro to have applied for an adjudication of costs when Minter Ellison’s entitlement was in dispute’.[144] There was no application to amend the Notice of Appeal to include a ground to such (or any other) effect.
[144] Written Submissions of Appellant at [117].
Judge Durrant’s consideration of the discretion at the end of his judgment occurred against the background of his having recognised that a reasonable defence was available in respect of a small sum of money in respect of the costs of the Marciano litigation. Notwithstanding that finding, for the reasons that he set out at paragraph 95, he declined to exercise the discretion to set aside the judgment. Insofar as certain of the matters that informed his exercise of the discretion are challenged on a relatively generous reading of the Notice of Appeal, I have addressed them. The appellant has not shown that his Honour’s regard to any of these considerations was erroneous in the sense described in House v The King.[145]
[145] (1936) 55 CLR 499 at 505.
Conclusion
I dismiss the application for an extension of time to appeal against the order of Chivell DCJ entering a default judgment. With respect to the appeal against the order of Durrant DCJ refusing to set aside the default judgment, I grant permission to appeal. I dismiss the appeal.