Lauro v Minter Ellison Lawyers - [2017] SASC 197

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
LAURO v MINTER ELLISON LAWYERS
[2017] SASC 197
Judgment of The Honourable Justice Hinton
22 December 2017
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS - ACTIONS TO REVIEW OR SET ASIDE JUDGMENT OR ORDER - WHERE JUDGMENT OR ORDER MADE IRREGULARLY, ILLEGALLY OR AGAINST GOOD FAITH
Appeal against the order of a Magistrate dismissing an application to set aside a default judgment.
On 25 August 2014 the appellant advised the Registry that he was unable to attend his trial due to commence that day. The matter was adjourned until 26 August 2014. The appellant failed to attend on that day. Consequently default judgment was awarded in favour of the respondent. The appellant applied for the default judgment to be set aside. On 15 September 2014 the Magistrate dismissed the application.
The appellant appeals that order. He contends that the default judgment should not have been awarded as he was unable to attend due to being incapacitated by illness and that he had an arguable defence.
Held: The appeal is dismissed. It was open to the Magistrate to conclude that the appellant did not have a reasonable excuse for his non-attendance. The discretion to set aside a default judgment contained in MCCR 87(1) has not been enlivened.
Supreme Court Civil Rules 2006 (SA) r 281; Magistrates Court (Civil) Rules 1992 (SA) r 2, r 87, referred to.
Marmanidis v Germain [2017] SASC 103, applied.
Sandery v Kowalski [2016] SASC 175; Cubelic v T & D Lock Pty Ltd [2009] SASC 397; Watson v Anderson (1976) 13 SASR 329; Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531, considered.

LAURO v MINTER ELLISON LAWYERS
[2017] SASC 197
Magistrates Appeals: Civil
HINTON J.
Introduction

This is an appeal against the order of a Magistrate refusing an application to set aside a default judgment.
On 28 June 2013 the respondent, Minter Ellison Lawyers, instituted proceedings in the civil division of the Magistrates Court against Mr Eric Lauro, the appellant, for unpaid legal fees. Ultimately the action was listed for trial to commence on Monday 25 August 2014. That did not occur. Rather, the trial was adjourned to the following day, after the Court received a facsimile from the appellant on the morning of 25 August 2014 advising that he was unable to attend for medical reasons. By email dated 25 August 2014 the registry advised the appellant:
We have received your fax of 25 August 2014. His Honour has adjourned the matter to Tuesday 26 August 2014 to meet your convenience. Please note that His Honour has indicated that if you fail to attend on 26 August 2014 the matter will not be further adjourned on any basis.
The action was called on the following morning at 10.00am. The appellant was not in attendance. The respondent applied for judgment in default. That application was granted. The Magistrate ordered:
1.Defence struck out.
2.Judgment in default for the amount of the claim namely $12,526.06
3.His Honour allows costs in the sum of $4,117.00.
4.… not presently relevant ...
In addition the respondent was awarded interest in the sum of $625.
By application dated 2 September 2014 the appellant sought amongst other things an order setting aside the default judgment. That application was heard on 15 September 2014. It was unsuccessful. The Magistrate said:
[2]Mr Lauro complains that on Monday 25 and Tuesday 26 August this year he was unable to come to Court because he was suffering from gastroenteritis. The evidence he has put before the court is firstly a prescription provided to him by a locum doctor on Thursday 21st. Secondly he has provided a medical sickness certificate by Dr Kin Lau to indicate he had a medical condition on 24 August and finally a medical certificate from Dr Giordano dated 30 August 2014.
[3]I accept on the basis of that evidence that Mr Lauro did report symptoms of vomiting diarrhoea and abdominal pain to Dr Giordano and possibly also to Dr Lau and to Dr Perrotta. However the prescription provided by Dr Perrotta on 21^st August was not filled.
[4]Mr Lauro’s explanation for that was that he already had similar medications in the house. If that is true then that indicates an improper use of antibiotics. The instruction from the medical professional upon prescribing antibiotics is that the full course must be used.
[5]In any event, on 22nd August Mr Lauro contacted the Court seeking to have the matter adjourned on the basis that he wished to appeal against decisions earlier made by me. It would have been in his interest at that time to indicate that he had a serious medical condition and might be unable to come to Court in any event but he did not do so.
[6]Mr Mitchell has now put before me communications between his firm and Mr Lauro on 21 August in the afternoon. In his response to the query ‘do you intend to attend court on Monday’, Mr Lauro referred to previous correspondence, affidavits and submissions in Court and said he would not be present. He continued by observing that Mr Mitchell’s pretence of not knowing his intention was an insult to his intelligence. I take that to mean that because Mr Lauro had advised Minters that he intend [sic] to appeal my orders, he was not going to come to Court irrespective of any other consideration. That, it seems to me is the clear interpretation of the communication.
[7]I am doubtful that Mr Lauro did in fact suffer symptoms of gastroenteritis on 21 August but had he suffered those symptoms, it was in his interest to advise the Court on the Friday and to fill the prescription that was provided to him by the locum.
[8]I am satisfied that Mr Lauro had no intention to attend the hearing in any event. Any illness Mr Lauro might have had did not bear on his failure to attend court. He simply refused the [sic] attend Court because he knew that the Court would not grant a further adjournment.
[9]The conclusion to draw from Mr Lauro’s communication to Mr Mitchell is that it was his intention all along not to attend the hearing and to make application to set aside any default judgment that might be entered against him in due course.
[10]I am fortified in coming to these conclusions by the fact that there has been a previous adjournment of the trial. The matter was originally listed for trial on 3 July and that trial date was vacated on Mr Lauro’s application. Mr Lauro has also made applications that a number of other Magistrates in this Court disqualify themselves from hearing his matter.
[11]Based on all of these matters, I am not satisfied that Mr Lauro had a genuine reason for not attending Court on either day. He was given the opportunity to attend on Tuesday, in person, and give reasons at that time as to why he couldn’t conduct his defence. Had Mr Laura attended Court ill on the Tuesday, the matter would have no doubt been adjourned. He decided not to do that.
[12]The medical certificate from Dr Giordano confirms that Mr Lauro was well enough to go and see Dr Giordano on the Monday. Had he been taking antibiotics from Thursday, which he had in his house as he now says, I can’t imagine his symptoms would have been worse on the Tuesday morning.
[13]This brings me to the second matter. On an application to set aside a judgment in default there is an onus on the defendant to satisfy the court he does have a reasonable defence.
[14]Mr Lauro’s defence throughout this has relied upon a somewhat strained interpretation of a letter written in late 2011. I am not satisfied that Mr Lauro has a defence to the present claim. In all the circumstances his application is dismissed.
[15]There are to be no further applications to set aside judgment without leave of a Magistrate. The defendant is to pay the plaintiff’s costs of today’s attendance, fixed in the sum of $180.
As mentioned, the appellant now appeals against the dismissal of his application. He contends that the Magistrate erred in not setting aside the default judgment in two respects: first, he contends that in the wake of the evidence of his ill-health it was unreasonable and unjust for the Magistrate to determine that he did not have a reasonable explanation for his non-attendance on 26 August 2014. Second, the Magistrate was wrong to conclude that the defence as filed and served did not disclose an arguable defence.
The appeal was instituted one day out of time. Accordingly, the appellant also applies for an extension of time in which to appeal.[1]
[1] Supreme Court Civil Rules 2006 (SA) r 281(1).
I would grant the appellant an extension of time in which to appeal and dismiss the appeal. My reasons follow.
The background to the obtaining of the default judgment and the refusal to set aside such judgment
It is necessary to an understanding of the parties’ arguments and the Magistrates’ reasons that greater detail be provided as to the circumstances surrounding the adjournment of the trial, the obtaining of the default judgment, and the unsuccessful application to set that default judgment aside.
The respondent’s claim is in short form. It includes the following:
1.The plaintiff, Minter Ellison a firm (‘Minter Ellison’) is and was at all material times carrying on business as a law firm.
2.On or around 31 May 2011, Natale Lauro and Silvana Lauro agreed to Minter Ellison’s ‘Terms of Engagement’, contained in the letter dated 31 May 2011, which recorded the terms of the retainer between Minter Ellison and the Lauros.
3.Pursuant to the Terms of Engagement Minter Ellison agreed to act on behalf of Natale Lauro, Silvana Lauro and the defendant [Eric Lauro] in a dispute against Vincenzo Battista (‘Battista’).
4.By way of email dated 16 November 2011, the defendant agreed to accept responsibility for invoices in relation to Battista from 16 November 2011.
Thereafter the claim identified invoices issued by the respondent for work done in the period November 2011 to December 2012 that remained unpaid and alleged that in refusing to pay the listed invoices the appellant had breach the terms of engagement with the consequence that the appellant had suffered loss in the sum of $12,526.06.
In his defence the appellant admitted paragraphs one and three of the claim. As to paragraph two, he pleaded that the only person who agreed to the respondent’s terms of engagement was his father, Mr Natale Lauro. The appellant pleaded that he did not know and could not admit or otherwise plead to the alleged non-payment of invoices since all invoice payments were made by his father and various invoices were disputed. The defence made plain in paragraph five that the appellant denied each and every allegation made in the claim not otherwise mentioned in the defence. Importantly, this meant the appellant denied paragraph four of the claim, thus refuting the allegation that he had accepted responsibility for invoices in relation to the Battista matter from 16 November 2011.
As mentioned the trial was listed to commence on Monday 25 August 2014 but was adjourned after the Court received the facsimile from the appellant already mentioned. That facsimile stated:
I am writing to advise that, in addition to other proper reasons already known by both the Court and the Plaintiff law firm, I will also be unable to attend Court today due to the fact that I have been medically indisposed since 21 August 2014 and that, last night, I was medically examined at home and diagnosed with viral gastroenteritis that has plagued other family members of late.
Accompanying the facsimile was a medical certificate signed by a Dr Lau dated 24 August 2014. The certificate indicated that Dr Lau had examined the appellant on 24 August 2014, considered that the appellant was suffering from a “medical condition”, and formed the opinion that the appellant would be unfit for work on 24 and 25 August 2014, but able to resume his duties on 26 August 2014.
The court file suggests the order adjourning the trial was made in open court by the Magistrate on the morning of 25 August 2014. Counsel for the respondent was in attendance. The appellant was advised by the registry by email of the same date that the trial had been adjourned to the following day. I have set out the material terms of that email above.
On 26 August 2014, shortly after 9.00am, the appellant sent a second facsimile to the registry marked for the attention of the presiding Magistrate identified by name. The appellant informed the Court:
… I am writing to advise that, following initial medical examinations by locum doctors over the weekend (which doctors do not have ongoing care of the same patients), yesterday I was examined by my General Practitioner (who does not practise on weekends) and he has seen fit to extend my medical unfitness due to the viral nature of my condition. Annexed at page 2 of this facsimile is a copy of the fresh certification.
I remain under medical observation and will therefore be unable to appear in person in Court to confirm that I am in no position to conduct any defence, which I am also prevented from doing due to the procedural irregularities and conflict of interests in this mater, maladministration and unavailability of my witness till late October 2014 as set out in my recent Affidavits.
I am also being severely prejudiced by the Court’s gross delay in providing the reasons for decision given on 12 August 2014, which included Orders to leave the matter listed for trial on 25 August 2014 and that I have indicated I want to appeal. The Court has squandered 14 days out of the 21 days available to appeal.
In consequence of all proper reasons, I again request that, no further denial of justice and/or judicial abuse occur and that:
·The trial be vacated and that this matter be relisted for directions not prior to Monday, 20 October 2014 (but not between Wednesday, 23 to Friday, 24 October 2014 due to interstate commitments);
·…
[(emphasis in original)]
Also faxed was a copy of a medical certificate issued on 25 August 2014 certifying the appellant as unable to work from 25 August 2014 to 27 August 2014.
The matter was called on in open court at 10.00am. Counsel for the plaintiff, Mr Mitchell, was present. The appellant did not attend. Mr Mitchell applied for judgment in default. The following interchange then occurred:
HIS HONOUR:    Well, I need to give that application some consideration. I will do some brief reasons.
MR MITCHELL:         Can I make some brief submissions in relation to that.
HIS HONOUR:    Yes, certainly.
MR MITCHELL: I have to hand an email that I received from Mr Lauro on Friday, 22 August, which indicated that he wasn’t – he had no intention of coming to court on Monday, yesterday for the trial in any event. So, that was before he was sick presumably he has – I sent him an email that day, asking whether he intended to come to court, if he did, I was going to prepare the matter for hearing, if he wasn’t intending to come, then I wasn’t going to prepare it for hearing and he wrote back to me saying that he wasn’t going to be present Monday, so, in my submission, that shows that irrespective of Mr Lauro’s illness, he had no intention of coming to court for his previously stated reasons.
HIS HONOUR:    I was concerned that the illness arose so conveniently and I felt that if he was able to go and see the doctor to go and get a medical certificate, he could attend court on this important matter and tell me exactly what the problem was because the medical certificate doesn’t necessarily accept that he is not able to come to court. For whatever reason, a doctor seemed fit to give him a certificate but one doesn’t know on what basis that was provided and what Mr Lauro said to the doctor, but I am a little concerned as I say that he conveniently got sick right at the last minute. So, that was why I gave him the opportunity to come to court because if he has I (sic) genuine illness and couldn’t focus and properly conduct his defence, then, of course, the matter would have been adjourned. But that is not what happened.
MR MITCHELL: No sir.
HIS HONOUR:    So, I don’t necessarily accept that he is ill. And then, your communications with him Friday would seem to rather support that. Anyway, I don’t make the final decision about whether he is ill or not, but he was told that he had to attend and he has decided not to. Alright. In those circumstances and for the reasons I have given, I will strike out Mr Lauro’s defence. There will be judgment in default for the amount of the claim. …
Thus default judgment was granted because of the appellant’s failure to attend on 26 August 2014 in the light of the warning issued in the email sent to the appellant by the registry on 25 August 2014. No mention is made in the transcript of the facsimile and accompanying medical certificate sent to the registry by the appellant earlier that morning.
The appellant filed his application to set aside the default judgment on 2 September 2014. In support he swore an affidavit on the same day. That affidavit tells of him first consulting a doctor on 21 August 2014 and being prescribed a course of antibiotics. He subsequently called out a locum on Sunday 24 August 2014, Dr Lau, when his condition deteriorated. Dr Lau issued the medical certificate to which reference has already been made. The appellant deposed that Dr Lau’s intention in issuing a certificate for, in effect, one working day, was so that the appellant could consult his own doctor. This the appellant did on 25 August 2014 resulting in the issue of the second medical certificate to which reference has been made.
In response to the submission made by Mr Mitchell that the appellant never intended to appear to conduct his trial on 26 August 2014 in any event, the appellant deposed to being committed to defending the action, that he had a valid defence, that he required further discovery, and that witnesses necessary to his defence were not available until some time in October. The references to further discovery and the availability of his witnesses related to complaints previously made by the appellant with the listing of the trial. Hence his affidavit refers to his illness as being “[c]oincidental to trial unreadiness caused by, among other things, procedural omissions by the Plaintiff and my reasons for unavailability (as disclosed at the hearings of 9 May 2014[2] and 12 August 2014[3])...”.
[2] On 9 May 2014 the Magistrate dismissed an application that he recuse himself for bias.
[3] On 12 August 2014 the Magistrate dismissed an application to vacate the trial. The reasons note that a previous trial date of 3 July 2014 had been vacated on the application of the appellant. The grounds for the application include inadequate discovery, bias, time to obtain legal advice, a foreshadowed counterclaim seeking damages in an amount exceeding the jurisdictional limits of the court, and prohibitive work commitments in the week of 25 August 2014.
In his affidavit the appellant conceded that he told Mr Mitchell on 22 August 2014 that he would not be attending court on the Monday. He states that he never provided his reason for making that claim to Mr Mitchell. He states that his reason was his illness, which had commenced the day before, and which was the reason he then provided to the Court on the Monday and Tuesday.

For the purposes of his application the appellant obtained a more fulsome medical certificate from Dr Giordano. That certificate stated that the appellant first presented at Dr Giordano’s rooms with gastroenteritis on 25 August 2014. The doctor states that the appellant’s illness was possibly viral and possibly contagious. He confirms that the appellant was “unfit to attend work and legal matters for period 25/8/2014 to 27/8/2014”.
As to the merits of his defence the appellant deposed that neither he nor his father ever agreed to the variation of the retainer initially entered into by his father with the respondent. No new retainer was ever signed and supposed conditions precedent were never met. Rather the respondent has assumed the ongoing application of pre-existing arrangements.
The appellant’s application to set aside the default judgment was heard on 15 September 2014. Mr Mitchell appeared for the respondent. He indicated that the application was opposed. The appellant relied upon his affidavit of 2 September 2014. Much of the appellant’s submissions were taken up by an application that the Magistrate recuse himself for apprehended bias. That application was refused. In the course of submissions the Magistrate said to the appellant:
… this action has been on foot now since, … June 2013, more than twelve months, I still haven’t managed to get you to attend a trial. The matter has been adjourned a couple of times already, and then when the matter was listed in August, you didn’t attend on the Monday, I gave you the opportunity to attend, I explained that if you weren’t fit to conduct your defence I would hear you in person on that, and despite the fact that you are able to go to a doctor, you weren’t able to come to court. I reasoned that if you could go and see a doctor, sit and wait for the length of time that doctors typically keep people, then you could easily come to court and be heard promptly by me.
The appellant then pointed out that at no time did he attend at doctors’ rooms. Rather, as his facsimiles to the Court made clear, doctors had come to his home. The Magistrate then said:
I see no reason to set aside the judgment. You had this opportunity to come and tell me why you couldn’t conduct your defence but you declined to do so. I am told by Mr Mitchell and I accept what he says because he says he has got a document there that you told him on the Friday without assigning any reason at all that you were not going to come on the Monday. Now, if indeed you had genuine symptoms of gastroenteritis, there was no way you could know at that stage that it wouldn’t clear up by the Sunday or the Monday. So, from my point of view that unqualified suggestion that you weren’t going to come to court evinces very, very clearly an intention not to come to trial.
Mr Mitchell then stated that he had the relevant communications of 22 August 2014 in his possession and was happy to provide them to the Court. The appellant opposed the tender of the documents on the grounds that they were not accompanied by an affidavit. During submissions the appellant time and again was concerned to argue that the Magistrate was biased. The Magistrate put to the appellant:
Let me be frank with you, because this might help. Apart from an unfilled prescription and the brief medical reports, sorry medical certificates, do you have any evidence at all that you were in fact ill. You see, it is not difficult to go to the doctors and complain that you have symptoms. Two things that concern me. One is that you get a script, a prescription on the Thursday which is not filled and the second thing is that you apparently tell Minter Ellison on the Friday that you are not going to come to trial come what may. … Do you want to clarify exactly what was said because if you do, then you will need to allow Mr Mitchell to hand me the communication. My understanding is that you had assigned no reason for not coming on the Monday and it said that you weren’t going to come. Now, I don’t understand how you could be confident on the Friday that your symptoms wouldn’t clear up by the Monday. Those are my two concerns.
The Magistrate invited the appellant to address his concerns. In the course of doing so the Magistrate also offered the appellant the opportunity of a short adjournment in order that he might obtain affidavits from the treating doctors who attended upon him. The appellant did not request any adjournment but relied upon the content of the medical certificates, and, in particular, that of Dr Giordano. The Magistrate then proceeded to commence giving ex tempore reasons. He was interrupted by the appellant. The Magistrate returned to the communications between the appellant and Mr Mitchell on 22 August 2014. The appellant remained opposed to Mr Mitchell handing the documents to the Court. Consequently, Mr Mitchell entered the witness box, was sworn, and the documents were proved. They were then received as exhibit P1. The appellant had the opportunity of cross-examining Mr Mitchell on the content of the communications. In doing so he was concerned to point out that at no stage had he provided Mr Mitchell with a reason for his non-attendance.
In his submissions Mr Mitchell pointed out that the contention that the appellant never proffered a reason for his non-attendance in his email of 22 August and that his actual reason for not attending was illness, was undermined by the content of the email itself. Mr Mitchell referred to the second sentence of the email where it said, “I will not be present on Monday and your pretence of not knowing is an insult to your intelligence and being unduly damaging to me”. Mr Mitchell pointed out that he had no way of knowing that the appellant was sick.
The Magistrate then put to the appellant that the reason that he did not come to court appeared to be as the appellant had previously explained, namely, that he wanted an adjournment because he was not satisfied that discovery had been made and he had work commitments to attend to. Having regard to the email chain, the Magistrate considered that the clear inference was that the appellant did not intend to attend. The appellant then made a number of further submissions before the Magistrate completed his ex tempore reasons.
Exhibit P1 commenced with an email sent by the appellant to the Supreme Court Civil Registry on 21 August 2014 at 4.57pm. That email advises the Court that the appellant wishes to appeal against orders and decisions made by the presiding Magistrate on 12 August 2014. It requests certain assistance from the registry including by what means the Supreme Court may notify the Magistrates Court to stay proceedings and vacate the trial in the latter court. The following day at 6.55am the registry responded to the appellant and endeavoured to assist him. Later that day at 4.50pm the appellant sent an email to the Magistrates Court Registry and to Mr Mitchell. The Registrar of the Magistrates Court was also copied in on that email. In it the appellant advised the Court that an appeal against the decisions and orders made by the Magistrate would be pursued and filed within the applicable time. In the light of that professed intent, the appellant renewed his request that the trial on Monday 25 August 2014 be vacated. He indicated that the basis for that outcome had been known to the Court since at least May 2014. In that email the appellant also took the opportunity to comment on the delay he was experiencing in obtaining reasons for a ruling by the Court on 12 August 2014.
Having been copied into the 4.50pm email Mr Mitchell then emailed the appellant asking him, “can you please let me know whether you intend to attend at court on Monday?” He added that if the appellant was going to attend, he would prepare the matter for hearing, but if his intention was not to do so then Mr Mitchell would not set about preparation. At 5.12pm the appellant responded. He wrote:
Refer to previous correspondence, affidavits and submissions in court. I will not be present on Monday and your pretence of not knowing is an insult to your intelligence and unduly damaging to me. Any costs associated with this type of tactic your firm can bear. Forced communications after hours are also a nuisance that you have been repeatedly asked to stop.
Regards
E Lauro
Setting aside a default judgment
The grounds of appeal target the application by the Magistrate of rule 87 of the Magistrates Court (Civil) Rules 1992 (MCCR). It is convenient to deal with the legal principles applicable to rule 87 before turning to consider the arguments advanced in support of the grounds of appeal.
Rule 87 MCCR provides:
(1)The Court may set aside or vary a judgment (not being a final judgment). [4]
(2)The Court must not set aside such a judgment unless the party seeking to set it aside establishes that he or she –
(a)     has an arguable case on the merits; and
(b)     has a reasonable excuse for not having complied with these Rules, or an order of the Court, or any time limit fixed by these Rules or order of the Court, in respect of the action or proceeding.
(3)When setting aside a judgment the Court may order –
(a)     payment to the other party of costs thrown away;
(b)     payment or security under Rule 81.
[4]     A final judgment is defined in rule 2(1) MCCR as meaning any judgment –
In Marmanidis v Germein I said:[5]
[5] [2017] SASC 103 at [80]-[84].
It is clear that the exercise of the discretionary power vested in the Magistrates Court by rule 87(1) MCCR is conditioned by rule 87(2) MCCR. That is, the discretion vested by rule 87(1) cannot be exercised unless and until the party seeking to have the non-final judgment set aside establishes that it has both an arguable case on the merits, and, a reasonable excuse for not having complied with the rules, or an order of the Court, or any time limit fixed by the rules or order of the Court, in respect of the action or proceeding. It may also be said that rule 87(2)(a) and (b) are in the nature of jurisdictional facts in that the discretion vested by rule 87(1) MCCR is not enlivened unless and until the Magistrate forms the opinion that the applicant has an arguable case and a reasonable excuse for non-compliance with the rules and orders of the Court and any time limits set by the Court. …
…
That an evaluative judgment needs be made with respect to the criteria contained in rule 87(2)(a) and (b) does not alter the nature of those criteria as being in the nature of jurisdictional facts.
As to rule 87(2)(a), in Saunders v Esanda Finance Corporation Ltd Lander J said:
It is not possible on an application of this kind, to resolve disputed questions of fact, primarily when those answers will depend upon the credibility of the parties (Watson v Anderson (1976) 13 SASR 329 at 334).
The appellant is not called upon to establish that his defence will be made out, but merely that he has an arguable case. To that end, the appellant must establish that upon the facts, as the appellant alleges them to be, the appellant has an arguable defence. The appellant must go further than assert that he has a defence, he must bring forward sufficient information and material to show that he is bona fide and intends to defend the action and that there “is some possibility of his doing so with success” (Grimshaw v Dunbar [1953] 1 QB 408 at 416).
As to rule 87(2)(b), a reasonable excuse is one which in all circumstances the ordinary person would consider warrants forgiveness for non-compliance. Here it is necessarily the case that the ordinary person will appreciate the high premium that the community places upon compliance with rules of courts and orders of courts in order that justice be administered effectively and efficiently. That appreciation reflects an understanding of the importance to the functioning of the community of the effective and efficient exercise of judicial power to quell controversies arising in the community. With this understanding, the community, no less than the courts, expects litigants to discharge the obligations placed upon them by the law and the courts.
If both of rule 87(2)(a) and (b) are satisfied the discretion vested by rule 87(1) is, as I have said, enlivened. As to the exercise of that discretion, in Saunders v Esanda Finance Corporation Ltd Lander J said:
In the circumstances where both of the matters referred to in the rule have been made out, and the delay in the application explained, and no real prejudice established, it would be appropriate to exercise the Court's discretion in favour of the appellant.
“The fundamental duty of the court is to do justice between the parties. It is, in turn, fundamental to that duty that the parties should each be allowed a proper opportunity to put their cases upon the merits of the matter. Any limitation upon that opportunity will generally be justified only by the necessity to avoid prejudice to the interests of some other party, occasioned by misconduct, in the case of the party upon whom the limitation is sought to be imposed.” (Davies v Pagett [1986] FCA 106; (1987) 70 ALR 793)
[(footnotes omitted)]
I remain of this view.[6]
[6] See also, Sandery v Kowalski [2016] SASC 175; Cubelic v T & D Lock PtyLtd [2009] SASC 397; Watson v Anderson (1976) 13 SASR 329.
I note that the arguments advanced by the appellant assert that the conclusions arrived at by the Magistrate in relation to rules 87(2)(a) and (b) were not open on the evidence. In such circumstances, this Court, being in as good a position as the Magistrate, is to conduct an independent review of the evidence and draw its own inferences and conclusions and give effect to the same if it arrives at a conclusion different to that of the Magistrate.[7]
[7] Fox v Percy (2003) 214 CLR 118 at [25] (Gleeson CJ, Gummow and Kirby JJ); Warren v Coombes (1979) 142 CLR 531 at 551 (Gibbs ACJ, Jacobs and Murphy JJ).
Submissions on appeal
The appellant argued that it was not open to the Magistrate to conclude that neither limb of MCCR 87 had been made out.
As to the requirement that the appellant must establish that he has an arguable case on the merits, counsel for the appellant, took me to a letter written by Minter Ellison dated 9 November 2011 and addressed to Mr N Lauro, the appellant’s father. This letter constitutes the first step in the process whereby the appellant allegedly became contractually responsible for the legal costs subject of the claim. The letter purports to set out the terms on which Minter Ellison was prepared to continue to act for Mr N Lauro. The penultimate paragraph reads as follows:
Finally, we note that in the Battista matter there are claims for Silvana and Eric Lauro as well as for you. Going forward, we propose to charge the work primarily to Eric’s file. We seek agreement from you and Eric that we can invoice Eric for the work carried out on that file and he will be responsible for the fees in relation to that file. In that case, we propose that the existing terms of retainer on the Battista matter be agreed by Eric. If you and he agree, we will forward a retainer letter to him to that effect.
After this letter was received, communications by telephone and email took place between Mr Mitchell and the appellant. Those communications culminated in an email forwarded to Mr Mitchell by the appellant on 16 November 2011. The email contains six items, the sixth states:
6. The only issue which I agree was not properly discussed with you as of yet is charging me for Battista. Frankly, I do not see why since mine is only one of three claims against Battista, but for the sake of making you happy, we agree to that too. It is however possible to please have all other matters captured under separate retainers? I think this is common practice and would better show we do meet your terms. We are of course happy to leave things as they are as long as we are not unfairly subjected to no representation in all our matters, and there is recognition we’ve always met your terms in all but two matters because of the concurrent five–figure bills. We have invested significantly in your firm to even remotely contemplate having to go through the same process we did after Townsends left us.
The question that arises on the claim and from the defence is whether or not the letter of 9 November 2011, and in particular the penultimate paragraph, is agreed to by Mr Lauro in the email of 16 November 2011. That question, the appellant contends, could not be answered by the decision maker confining themselves to the two documents. The email of 16 November 2011 makes plain that there had been other communications that have occurred between the time of its sending and 9 November 2011. If the ultimate question is, “was there a contract?”, then, counsel submitted, the communications interposed between the offer contained in Minter Ellison’s letter and the purported acceptance are critical to determining the content of the contract.
Counsel also pointed to the content of the purported acceptance. He submitted that arguably it was ambiguous. He contended that while a tentative view could be formed on the basis of the 9 November letter and the 16 November email, no final view as to the offer, acceptance and terms of the contract could be arrived at without the other communications interposed between letter and email being adduced and understood. In short, what, if anything, was accepted?
Counsel then turned his attention to the second limb of rule 87 MCCR and whether or not the appellant had a reasonable excuse for his failure to attend court on 26 August 2014. Here he relied upon the diagnoses and medical certificates of the doctors. Counsel submitted that if a person is unfit to manage their affairs because they have viral and potentially contagious gastroenteritis then they have a reasonable excuse for not attending court. He added that the excuse remains whatever the background to the matter might be. The history of the appellant’s illness stemmed back to 21 August. At that time his family were first afflicted and he began to feel unwell. It was reasonable that he did not notify the Court at that time of his being unwell because, as may be expected, he decided to see whether or not his condition improved. It was said that it is the appointment on Monday, 25 August 2014 that is most important. It is at that time that he is told by his doctor that he was possibly contagious. In those circumstances it was reasonable that he did not attend court.
Counsel then attacked the Magistrate’s reasoning. Focusing upon paragraph [11], he submitted that it amounted, in effect, to reasoning that notwithstanding that there is medical evidence indicating that the appellant was suffering from a medical condition and was unfit to attend court to conduct his defence, he should be prohibited from doing so in the future because he would not have come to court in any event. The argument was that rule 87 does not permit such analysis. Once a reasonable excuse is made out the criteria is satisfied. Counsel attacked the Magistrate’s reasons as requiring attendance antecedent to establishing any reasonable excuse where the rule did not so require. In this regard he referred to the reference in the reasons to the fact that had Mr Lauro attended with his medical certificates he would in all likelihood have been granted his adjournment.
Counsel added that it should not be overlooked that the appellant was unrepresented and had made constant efforts to communicate with the Court as to why he was not able to attend. It was not a case where he had simply gone quiet. He added that if the appellant was to be disbelieved as to the reason for his non-attendance then that should have been made plain to him so that he could answer the allegation.
The respondent submitted that the conclusions reached by the Magistrate were open. The appellant having no intention to attend, as is evidenced from his email exchange with Mr Mitchell, the happenstance of his illness could not provide a reasonable excuse. As to whether or not the appellant had an arguable defence, counsel for the respondent pointed to evidence suggesting that he had conducted himself in a manner consistent with acceptance of the retainer referred to in the letter of 16 November 2011. He argued that there was then evidence of a contract and evidence of performance or at least part-performance that could not be disputed. In those circumstances an argument to the contrary was untenable. Counsel submitted that the argument that the terms of the contract were unknown to the appellant was not raised by the defence.
Consideration

I commence, as the Magistrate did, with a consideration of the appellant’s excuse for not attending Court on 26 August 2014. In doing so I accept that what transpired must be seen through the prism of the appellant being unrepresented. What is also plain is that the Magistrate had managed the matter for some time and, in doing so, had become familiar with the appellant, as indeed had the appellant with the Magistrate. In this regard the Magistrate had a knowledge of the history of the matter that no doubt informed his approach to the application to set aside the default judgment.
In paragraph [3] of his reasons the Magistrate accepts that the appellant did report symptoms of vomiting, diarrhoea and abdominal pain to the doctors he consulted. In the remainder of that paragraph and in the following paragraph the Magistrate appears to doubt that such report was genuine. He made as much plain in the course of hearing the application. That is not to doubt the doctors who provided the appellant with medical certificates. Rather, I understand the Magistrate to have considered the diagnosis as based on the appellant’s report of his symptoms. Hence the Magistrate’s interest in the fact that the appellant did not fill the script written for him on the Thursday – if the appellant was genuine in his report of suffering from gastroenteritis he would have done so. When the appellant then said that he resorted to what was left from a previous prescription, the Magistrate’s response was to again express doubt because it is commonly known that a course of antibiotics prescribed ordinarily comes with the instruction to complete the entire course.
However, the Magistrate expresses no concluded view as to whether the appellant suffered from gastroenteritis at the material time.
The 4.50pm email of 22 August 2014 sent to the Court and referred to in paragraph [5] of the Magistrate’s reasons forms the backdrop to the email sent a short time later to Mr Mitchell. In it the appellant requests that the trial be vacated ostensibly for the reasons he had advanced repeatedly since 9 May 2014[8] but now extending to include a professed intention to appeal the Magistrate’s refusal on 12 August 2014 to vacate the trial. The Magistrate notes that “it would have been in his interest at that time to indicate that he had a serious medical condition and might be unable to come to Court in any event”. With the benefit of hindsight that may be so, but equally, as counsel for the appellant submitted, it would not have been unreasonable to hope that his condition would settle in time to attend court on Monday.
[8] I understand those reasons as including inadequate discovery, bias on the part of the Magistrate, non-availability of witnesses and work commitments.
In paragraph [6] the Magistrate turns to P1. In P1 the appellant makes plain not only an intention not to attend his trial on the following Monday come what may, but that his reasons for not attending are the long held complaints he has harboured and made known to the respondent about having to proceed to trial. In my view the appellant’s submission on 15 September 2014 in which he suggested that he did not provide a reason to Mr Mitchell for his intended non-attendance and that his reason held at the time of the email of 22 August 2014 was his illness cannot be accepted. Such conclusion provides reason to doubt the truthfulness of the appellant. In my view the Magistrate’s construction of the appellant’s email to Mr Mitchell of 22 August 2014 was not only open, but correct.
In arriving at this conclusion I bear in mind that the appellant advised Mr Mitchell, in effect, not to prepare for trial. Such preparation and the attendant cost was unnecessary. He was not coming. More than that, bearing in mind the notice he had given Mr Mitchell of his intention not to attend, he would resist any suggestion that he be liable for the costs of such preparation when he had advised Mr Mitchell that it was unnecessary that they be incurred. When he sent the email to Mr Mitchell he could not have known that his condition would worsen.
In the light of the finding contained in paragraph [6], I think it was open to the Magistrate to conclude, as he did in paragraphs [8] and [9], that any illness suffered by the appellant did not bear on his decision not to attend. Such illness was, in a sense, mere happenstance. I see nothing wrong with the Magistrate having regard to the history of the progress of the matter in arriving at his ultimate conclusion as he did in paragraph [10].
I have given anxious consideration to the question whether, it being possible that the appellant was contagious, he had a reasonable excuse for not attending Court on 26 August 2014. If that was his excuse, it was undoubtedly reasonable. In the end I have concluded that it was open to the Magistrate to conclude that that was not his excuse. I reject the submission that it is sufficient for the purposes of rule 87(2)(b) MCCR to point to an excuse that is reasonable. In my view the rule focuses upon the conduct of the litigant in prosecuting his or her claim. The relevant excuse is that actually harboured by the litigant. It is an excuse for non-attendance where, but for the excuse, the litigant would have attended. Consequently, once the Magistrate was satisfied that the appellant never intended to attend court in any event, he did not have a reasonable excuse for his non-attendance.
In my view it was open to the Magistrate to conclude that the appellant did not have a reasonable excuse for his non-attendance at trial on 26 August 2014. So concluding the discretion contained in rule 87(1) MCCR was not enlivened and the application was rightly dismissed. No need arises to consider the appellant’s contentions in relation to rule 87(2)(a). Nonetheless, as the matter was argued I indicate that in my view it was not open to the Magistrate to be satisfied that the appellant did not have an arguable case on the merits. I accept the appellant’s submission that the defence puts in issue the question of what were the terms of any contract between the appellant and the respondent. I assume the letter to which the Magistrate refers in paragraph [14] of his reasons is the letter of 9 November 2011. If acceptance of the terms of the contract is said to be located in the email of 16 November 2011, that email purports to refer to an email of 14 November 2011 and other communications. It is not clear then that in paragraph 6 of the email the appellant is referring to the penultimate paragraph of the letter of 9 November 2011. On the limited information before me, I consider that there is an arguable case as to the terms of any contract.
Conclusion
I would dismiss the appeal.

(a)     made with the consent of the parties;
(b)    given at the conclusion of a contested hearing;
(c)     made in the terms of the acceptance of either an offer to consent to judgment or a payment of a sum of money to the Registrar; or
(d)    a summary judgment.