Lewis v MP (NT) Pty Ltd - [2023] SADC 137

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
LEWIS v MP (NT) PTY LTD
[2023] SADC 137
Judgment of his Honour Auxiliary Judge Chivell
19 October 2023
PROFESSIONS AND TRADES - LAWYERS - DUTIES AND LIABILITIES - DUTIES TO COURT
Order made by Magistrate that respondent "take all steps reasonable" to remove a charging order from the title to the applicant's property within 21 days - respondent's solicitors filed necessary documents within time - requisitions made by Land Services SA - application refiled on last day - whether Magistrate's order complied with - whether order made by Magistrate closing the case should be set aside.
Order: Application for review dismissed.
Australian Securities Commission v Fairlie (1993) 11 ACLC 669; Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; Morley v Statewide Tobacco Services Ltd (No 1) [1993] VR 423; Peco Arts Inc v Hazlitt Gallery Ltd [1983] 3 All ER 193; the Europa (1863) 2 New Rep 194, considered.

LEWIS v MP (NT) PTY LTD
[2023] SADC 137
Civil

Mr Lewis applies for a review of orders made by a Magistrate on 23 June 2023. The application is made pursuant to s 38(6) of the Magistrates Court Act1991 (SA).
The orders were made in the context of a very long history of litigation between the parties. Some of the history is discussed in the judgments of Judge Slattery in 2015 and Judge Durrant in 2019.[1] It is not necessary that I discuss that history again for the purposes of this review, except to a very limited extent. The issues here are quite narrow.
[1] [2019] SADC 200.
Mr Lewis resides in Hawker. It had been arranged that he would participate in the hearing on 23 June 2023 by telephone. By some mischance, he was unable to do so, and the orders were made by the Magistrate in his absence. There is no suggestion that this was the fault of Mr Lewis in any way.
The background to the Magistrate’s orders is that on 11 October 2013, an order made by the Darwin Local Court following an assessment of costs was registered in South Australia pursuant to s 105 of the Service and Execution of Process Act 1992 (Cth). Mr Lewis argues that this process was invalid, but it is not necessary to consider this argument for the purposes of this review. On 11 June 2015, a charging order was registered on the title to Mr Lewis’s property in Hawker pursuant to s 8 of the Enforcement of Judgments Act 1991 (SA).
Mr Lewis successfully applied to have the original orders made in the Darwin Local Court set aside. In May 2023, Mr Lewis applied to the Magistrates Court of South Australia to have the charging order set aside. The matter came before Magistrate Jackson on 25 May 2023. The application was not opposed by the respondent. Her Honour made the following orders:
1.   I set aside the judgment entered on 11 October 2013.
2.   I set aside the charging order made on 11 June 2015.
3.   I direct the applicant to take all steps reasonable to remove the charging order from the Certificate of Title Register Book Volume 5577 Folio 114, being a residence at 27 Chase View Terrace Hawker SA 5434, within the next 21 days. Confirmation that this has occurred is to be provided to Mr Lewis in writing within that timeframe also.
4.   The applicant and respondent have liberty to apply in relation to order #3, in the event there is any impediment to compliance with that order.
[Orders 5-9 not applicable]
In the event, the charging order was not removed until 19 July 2023, which was three business days after the expiry of the 21 days allowed by the order 3. Mr Lewis contends that there has been a breach of order 3. He says that Gilchrist Connell, solicitors for the respondent, did not take “all steps reasonable” to remove the charging order from the title to his property by the due date. Nor did they apply for an extension of time to comply with order 3, in accordance with order 4. He submits that the solicitors should be sanctioned, indeed punished, for these breaches. He seeks the following orders:
1.   The applicant in the matter of LINCI-13-93 MP(NT) Pty Ltd failed to comply with Court Order 3 made on 25 May 2023 and took no action in relation to Court Order 4 made on 25 May 2023.
2.   As a consequence of the failure to comply, MP(NT) Pty Ltd is in contempt and will pay $1000 to SA Courts within 14 days.
3.   As a consequence of the above orders 1 and 2, MP(NT) Pty Ltd will pay the other party to that matter Mr Peter Lewis the amount of $1000 within 14 days.
4.   As a consequence of the outcome of this Review, the Respondent MP(NT) Pty Ltd will pay an amount determined as costs to be $1500 to the Applicant Mr Lewis within 14 days.
Was order 3 complied with?
Magistrate Jackson’s order 3 required the respondent to take “all steps reasonable …” This phrase has been judicially considered in the context of corporations law where company directors are required to take “all reasonable steps” to comply with certain duties. It has been observed that this phrase requires them to take “a diligent and intelligent interest” in the task.[2] The phrase would seem to mean the same as the exercise of “reasonable diligence”. In the Europa,[3] it was explained that the phrase is
… not the doing of everything possible, but the doing of that which, under ordinary circumstances, and having regard to expense and difficulty, can be reasonably required.[4]
[2] Australian Securities Commission v Fairlie (1993) 11 ACLC 669 at 681- 682 and Morley vStatewide Tobacco Services Ltd (No 1) [1993] VR 423 at 448-9.
[3] (1863) 2 New Rep 194 at 196.
[4] See also Peco Arts Inc v Hazlitt Gallery Ltd [1983] 3 All ER 193 at 199 per Webster J to similar effect.
Another familiar phrase which is familiar in contract law is the obligation to use “reasonable endeavours” to do something. This has been described as “not an absolute or unconditional obligation” and is “necessarily conditioned by what is reasonable in the circumstances”.[5]
[5] Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 92 per Mason J.
The affidavit of Mr Henry Baker, sworn on 22 June 2023 (FDN 56), sets out the steps taken by Gilchrist Connell to comply with Magistrate Jackson’s order. I summarise the steps as follows:
-The file was conducted by Ms Eaton, who is a Special Counsel at the firm, and she was assisted by Mr Baker, a solicitor.
-On Friday 26 May 2023, the day after the orders were made, Ms Eaton requested that Mr Baker contact Land Services SA and ascertain the correct procedure for removing the charging order.
-On Monday 29 May 2023 he did so and was told to use Form A3, and was provided with an example to follow.
-On Thursday 1 June 2023 Mr Baker arranged for a title search and then completed the Form A3, attached to which was a copy of the court order for removal. On the same day these documents were lodged at Land Services SA.
-On Tuesday 13 June 2023 Land Services SA sent a requisition notice in relation to the application. On the same day, Mr Baker arranged for his legal secretary to attend and collect the original form for rectification. She did so but the form had already been mailed to Gilchrist Connell.
-On Thursday 15 June 2023, the day on which the 21-day time limit in order 3 expired, the original hard copy of the application was received.
-On the same day, Mr Barker amended the application as directed. On the same day, the amended application was lodged with Land Services SA by Mr Baker’s secretary, who paid the $179 fee at the same time.
By 19 June 2023 Land Services had not registered the removal of the charging order on the title to Mr Lewis’s property. He telephoned them on that day and was told that they required six working days to do so. He complained about the fact that the charge remained on the title. Registration of the removal of the charging order was entered that afternoon. In the meantime, Mr Lewis emailed the court asserting that Magistrate Jackson’s order had been breached. The matter was listed for hearing on 23 June 2023.
On 23 June 2023, as I have mentioned, there was no appearance by Mr Lewis The Record of Outcome is as follows:
Remarks
The court tried to telephone Mr Lewis at 10.37 a.m. and the call went to a message bank. The applicant appeared and advised the court the charging order was removed by the LTO on 19 June 2023 and Mr Lewis was advised of this on that date also. Ms Eaton advised that they had taken all steps to remove the charging order within the 21 days as per the order made on 25 May 2023 however the LTO required an amendment to a lodged document and that slowed the process.
Order
1. Noting that the charging order has now been removed, the court makes no order.
2. I make an order closing the case.
Mr Lewis now seeks a review of those orders, particularly order 2.
At the hearing of the Minor Civil Review before me, Mr Lewis submitted that:
-Gilchrist Connell had been dilatory in lodging the application;
-Ms Eaton had delegated the task to Mr Baker;
-the Form A3 had not been filled out with reasonable care, resulting in the requisitions;
-the $179 fee was not paid on 1 June 2023 when the application was first lodged.
There is a disagreement between the parties as to when the corrected application was re-lodged at Land Services SA and the $179 fee paid. Mr Lewis said that it was not lodged until 16 June 2023, one day after the deadline. Mr Baker’s affidavit states that it was lodged on 15 June. The receipt for the $179 fee is dated 19 June 2023, so that does not assist. Mr Lewis was not present when these events took place, and it is unclear what the source of his information was. In all the circumstances, I find that the amended application was lodged and the fee was paid on Wednesday, 15 June 2023. My decision in this matter would not have been different if the amended application was lodged a day later.
Mr Lewis argued that Gilchrist Connell should have been aware that Land Services SA required up to six working days to process the application, and so it was dilatory to leave it until the last day. In the circumstances, having regard to the posting of the original application, and Mr Baker’s attention to the matter after it was reviewed, I reject this criticism. The delay did not constitute a breach of Magistrate Jackson’s order.
Mr Lewis also criticised the errors made in the original application which resulted in the requisitions. He said that these errors were below the standards reasonably expected of professional lawyers. I do not agree. I think Mr Lewis is adopting the counsel of perfection. Having regard to the interpretation of “reasonable steps” discussed previously, perfect behaviour is not required. Errors in the filling out of forms are commonplace and occur in solicitors’ offices, as they do everywhere else. This is particularly so when dealing with agencies such as Land Services SA, who are meticulous and very rigorous in their requirements. They are administering the Torrens System of land tenure, and accuracy in documentation is essential. I reject Mr Lewis’s assertion that these errors constituted a breach of Magistrate Jackson’s order.
Mr Lewis also submitted that Gilchrist Connell’s failure to seek an extension of time was also a breach of Magistrate Jackson’s order 4. But order 4 only requires such an application “in the event there is any impediment to compliance with order 3.” I have found that order 3 was complied with. “All steps reasonable” were taken to remove the charging order from the title. There was no need to seek an extension. Magistrate Jackson obviously thought so on 23 June 2023, and her Honour was not in error in that regard.
In view of these conclusions, Magistrate Jackson’s order closing the case was correct. There was nothing more to be done.
It follows that Mr Lewis’ application for a declaration that Magistrate Jackson’s orders were not complied with should be dismissed, and his applications that the respondent is in contempt of court, and that it should pay costs, should also be dismissed.
The respondent has applied for costs for the review. It is true that Mr Lewis ignored Ms Eaton’s suggestions that there was no need for the hearing on 23 June because the charging order had been removed. He thereby left himself open to an application for costs by the respondent.
However, the respondent is ultimately responsible for seeking registration of invalid orders from the Northern Territory, thereby setting in train this sorry saga. It should bear its own costs.