Liu v Great Rates Aust Pty Ltd - [2018] SADC 120

District Court of South Australia
(Civil: Application for Review)
LIU v GREAT RATES AUST PTY LTD
[2018] SADC 120
Judgment of His Honour Auxiliary Judge Clayton (ex tempore)
21 November 2018
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA
Review of the decision of a magistrate who dismissed an application to set aside a default judgment.
Held: No cogent reason to disturb the decision of the magistrate. Decision affirmed.
Sandery v Kowalski [2016] SASC 175, considered.

LIU v GREAT RATES AUST PTY LTD
[2018] SADC 120

This is an application to review the decision of the magistrate in a minor civil claim. Ms Liu had applied to set aside a default judgment which was entered on 15 August 2018.
The plaintiff, the respondent to this application, commenced these proceedings on 20 October 2007 for the cost of alleged damage to a caravan. Ms Liu had told me that the amount of the claim was of the order of $5,000. The merits of that claim are not presently before the court.
Ms Liu, who is the defendant to the proceedings, failed to file a defence within the time prescribed, and on 16 November 2017 the plaintiff signed judgment in default. On 14 February 2018 the applicant applied to set aside the judgment and sought leave to file a defence. She filed an affidavit stating that she had not received the claim and that she had a defence to the claim.
On 28 February 2018 the default judgment was set aside and leave to file a defence was granted. A defence was filed by Ms Liu’s solicitor on 16 March 2018. Ms Liu has been represented by a solicitor throughout although she was unable to recall his surname. The defence contained a bare denial of the claim, but provided no details.
The plaintiff was unable to attend a directions hearing on 25 June 2018 by reason of interstate work commitments, and the hearing was adjourned in the presence of Ms Liu to a further directions hearing on 23 July 2018.
On the morning of 23 July 2018 Ms Liu contacted the Magistrates Court Registry and advised that she was unable to attend the hearing that day because she was on holiday interstate. Mr Nolan, from the plaintiff, did attend on that occasion and the court made an order that unless there was proper and sufficient notice given or reasonable excuse both parties were required to attend at the next directions hearing, which was fixed for 15 August 2018. The court ordered that the Registrar notify Ms Liu of the order and a copy of the order was sent to her solicitor.
Ms Liu failed to attend at the directions hearing on 15 August 2018 and judgment was entered in favour of the plaintiff in default of her appearance.
On 5 September 2018 Ms Liu applied to set aside the judgment on the basis that her failure to attend the hearing on 15 August 2018 was caused by the fact that she was caravanning interstate and not aware of the hearing.
The learned magistrate who heard the application determined that Ms Liu had not demonstrated that she had reasonable excuse for not attending the directions hearing on 15 August 2018. Her Honour found the requirements of MCR 87(2) were not satisfied and she dismissed the application.
On the present application Ms Liu must demonstrate that there is cogent reason to depart from the decision of the learned magistrate. In her Application to Review the Minor Civil Decision dated 26 September 2018 Ms Liu has sought a number of orders which relate to the primary claim in the proceedings. It is not appropriate on this application to make any of the orders which are sought. A full hearing of the claim would be required before the orders which are set out in paragraph 2 of the Application to Review a Minor Civil Decision could be made. This application is confined to a review of the magistrate's decision dismissing Ms Liu's application to set aside the judgment.
The grounds of appeal stated in the Application to Review a Minor Civil Decision are extensive, however they are relevant to primary relief in the action, in particular a potential counterclaim, not the decision of the magistrate dismissing the action for non-attendance at the directions hearing. On this application it is not relevant to consider those grounds of appeal. The question on this review is whether there is cogent reason to set aside the decision of the magistrate.
The learned magistrate gave careful consideration to the legal principles which apply to the application, she referred to MCR 87, which empowers the court to set aside a judgment. However the Rule provides that the court must not set aside a judgment unless the party seeking to set it aside establishes that she (a) has an arguable case on the merits, and (b) has a reasonable excuse for not having complied with the Rules.
Her Honour found that the evidence in an affidavit filed by Ms Liu satisfied the requirements of R 87(2)(a), that is that Ms Liu had an arguable defence. However her Honour found that Ms Liu had not demonstrated that she had reasonable excuse for not attending the directions hearing on 15 August 2018. It is that finding which is the subject of the present review.
Her Honour noted that Ms Liu was aware of the requirements because she had made the previous application to set aside the judgment. Her Honour found that in the circumstances Ms Liu was aware that failing to comply with the Rules, including attendance at a directions hearing, was likely to lead to an order for judgment. Her Honour noted that the defendant had attended at the directions hearing on 25 June 2018 when the July date was set, and that she was well aware of the adjourned date.
Her Honour noted that notice of the adjourned date and the specific requirement that she attend was forwarded to her solicitor, being the address on the file.
At the hearing before the magistrate, Ms Liu claimed that her solicitor did not telephone to advise of the adjourned date. Today she told me that her solicitor did send an email but that she did not read the email because she was travelling and that it was only when she returned that she became aware of the contents of the email.
The magistrate found that Ms Liu had not established that she had a reasonable excuse for her default in not attending at the directions hearing. Her Honour noted that Ms Liu was aware of the hearing date on 23 July 2018 and took holidays the day before advising the court by an email that she would not attend. However, Ms Liu made no attempt to ascertain the date to which the matter was adjourned. Her Honour observed that occurred in circumstances where Ms Liu was not ignorant of the court rules because she had previously been involved in the application to set aside the default judgment. Her Honour found that Ms Liu was well-aware of the requirements of the court and the need to attend.
Her Honour concluded that Ms Liu had provided no reasonable basis for not making an attempt to ascertain the date to which the hearing had been adjourned. She referred to the remarks of Doyle J in Sandery v Kowalski (2016) SASC 175 where his Honour stated that the Rules should be interpreted in a way which was conducive to the expeditious determination of proceedings.
At the present hearing, Ms Liu told me about family problems. She has a child who has suffered from burns. She has two children from her present marriage and three from an earlier marriage. She has had difficulties with a business and she is undergoing study at Adelaide University.
I have sympathy for her predicament but none of the matters which she has mentioned provide an excuse for not making an effort to determine the date to which the proceedings were adjourned following the hearing on 23 July 2018.
Ms Liu should have contacted her solicitor to find out the date to which the proceedings had been adjourned but she did not do that. Alternatively, she could have checked her email messages. As the magistrate found, Ms Liu made no attempt to ascertain the date to which the matter had been adjourned.
In the circumstances, I find that there is no cogent reason to disturb the decision of the learned magistrate. The application must be dismissed.