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…
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- Case
- [2020] SASC 137
- Decision Date
CaseChat Overview and Summary
The court had to decide if the District Court erred in entering a default judgment without proper jurisdiction over the quantum of the costs claim. The court also needed to determine whether the District Court's failure to consider relevant medical evidence and the absence of proper warning to the appellant constituted errors that warranted an appeal. Additionally, the court examined whether the subsequent judgment by Durrant DCJ was correct in affirming the earlier judgment by Chivell DCJ.
The court found that the grounds for appeal against Chivell DCJ were largely duplicated in the appeal against Durrant DCJ and lacked merit. The court was not prepared to extend the time to appeal against the decision of Chivell DCJ. Regarding the appeal against Durrant DCJ, the court determined that while the District Court had jurisdiction to define the terms of the retainer, the quantum of the costs claim should have been assessed in the Supreme Court. The court found that Durrant DCJ erred in not applying the relevant authorities and in affirming the earlier judgment. However, due to the circumstances and the lack of merit in the grounds, the court refused to grant permission for the appeal.
The court declined to grant permission to appeal against both judgments, concluding that the appellant's application was not well-founded. The appeal was dismissed, and the orders of the District Court were upheld.
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