Lymberopoulos v District Court of SA & Ors No. Scgrg-98-1002 Judgment No. S350

LYMBEROPOULOS V DISTRICT COURT OF SOUTH AUSTRALIA, MAGISTRATES COURT OF ADELAIDE AND
THE ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA

[1999] SASC 350

JUDGE BURLEY. This is a summons for judicial review originally brought by the plaintiff against CIC Insurance, the District Court of South Australia and the Adelaide Magistrates Court. The plaintiff was given leave to serve the proceedings by order made on 5 August 1998. The relevant orders sought in the summons are as follows:-
“2..... Leave to serve this Summons upon the defendants.
3...... An order that the order made by Milard [sic] SM on the 7/11/97 in the Magistrates Court of Adelaide-Civil-setting aside the plaintiff’s Judgment in Action No 20218/97, be quashed.
4...... An order that the order made by Judge Burnett on application for review in the District Court-Civil, in Action No 1551/97 on 5/5/98 refusing to set aside the order of Magistrate Milard [sic] be quashed.
5...... A finding that the provisions of Section 38 of the Magistrates Court Act 1992 have been contravened.
6...... A finding that the provisions of rules 19, 20, 64 and 87 have been contravened.
7...... A finding that the provisions of Section 66 of the Evidence Act 1929 (Cth) have been contravened.
8...... A finding that the provisions of Section 54(1) of the Insurance Contracts Act 1984 (Cth) have been contravened.
9...... An order for costs to be fixed by the Court.”

The plaintiff brought proceedings in the Small Claims Division of the Magistrates Court against an insurer for alleged breach of a policy of insurance. He obtained a default judgment but it was set aside. He appealed to the District Court against the order setting aside the default judgment. The appeal was dismissed. He then brought this summons for judicial review.
The plaintiff filed an affidavit in support of his application for judicial review which he swore on 17 September 1998. In that affidavit he said:-
“1..... On or about the 3rd day of December 1997 I lodged an application in the District Court seeking a review of a minor civil decision which was listed for hearing before his Honour Judge Lawry [sic], for the 24th February 1998.
2...... The defendant was represented by a solicitor whom I know as Mr Blight and I was handling the matter in person. I have asked the Judge to disqualify himself from hearing my application on the grounds of impartiality and his Honour agreed. His Honour has then adjurned [sic] the hearing on the basis of the Registrar allocating a new date and advise the parties.
3...... The matter was relisted for the 5th day of May 1998 before his Honour Judge Burnett. The defendant was again represented by Mr Blight and I handled the matter in person.
4...... I have in the first instance asked that his Honour order that the affidavit of Alexander John Wakefield of October 1997 be struck out on the grounds that the same is not sworn in accordance with the provisions of Section 66 of the Evidence Act 1929 (Cth), and the affidavit of Salma Borg of 6/11/97 on the grounds that it is not sworn at all.
5...... I have drawn to the attention of the Court the fact that in the case of the affidavit of Borg it is purported that the actual affidavit is sworn at Adelaide and the annexures were not sworn at all. His Honour has at some point said:
‘It appears that the affidavit is sworn before a Haram’.
I have then informed his Honour that there is not a Justice of the peace by either name in the State. I have further informed the Court overall that the defendant is not a lay person having no idea how to go about in matters like that but ruther [sic] a large Company that is dealing with millions of dollars having at its disposal experienced staff to handle matters of this sort and that after all the documentation is prepared by solicitors that should know better. I have then submitted to the Court that ‘even a child would have done a better job’. His Honour ruled that the documents were o.k. for the purpose of the lower Court and refused my application to struck out the affidavits.
6...... I have drawn to the attention of the Court the fact that the defendant was at all material times represented by solicitors at every opportunity at the Magistrates Court, contrary to the provisions of Section 38 of the Magistrates Court Act., but his Honour ruled that it is o.k., because the defendant is a Company.
7...... I have drawn to the attention of the Court the provisions of the Magistrates Court Rules with a view of establishing the fact that the defendant is in breach of avery [sic] single one with the blessings of the Magistrates Court and have in fact asked that his Honour peruse the decisions of higher Court on file. His Honour did peruse those decisions but refused to rule in my favour.
8...... I have drawn to the attention of the Court the fact that by reason of Section 54(1) of the Insurance Contracts Act 1984 (Cth) the defendant may not refuse to pay my claim, but his Honour took no notice.
9...... I have drawn to the attention of the Court the fact that the defendant is using in its proposed defence policy conditions that have nothing to do with my policy of Insurance and have invited his Honour to peruse my policy for comparison-a copy of which is now produced to me marked annexure JL1-but his Honour decline telling me ‘some other time’.”
After service of the summons the first defendant entered an appearance and filed affidavits in opposition to the application for judicial review. The first defendant also sought an order that the summons be struck out, relying upon SCR 98.05(2) and (3). The plaintiff filed an affidavit in opposition to that application. His affidavit was sworn on 2 November 1998. In that affidavit he complained about the way in which the Magistrates Court proceedings and subsequently the review in the District Court of those proceedings were handled by the presiding Magistrate and Judge respectively.
The first defendant’s application to strike out the summons was heard by a Master of the Court on 9 December 1998. The Master declined to strike out the summons on the basis that arguable points had been raised by the plaintiff which should proceed to a hearing in accordance with the provisions of SCR 98. After that hearing the plaintiff and the first defendant settled their differences with the result that the proceedings in the Magistrates Court were dismissed and the plaintiff filed a notice of discontinuance against the first defendant in this action. The discontinuance was filed on 8 March 1999.
The application for directions came before me on 28 April 1999. On that occasion the plaintiff had informed me that the defendants, the District Court and the Magistrates Court, had previously indicated to the Court that they would abide the result of the proceedings. On that occasion I said:-
“It is not clear to me how this matter is to proceed and I think the Crown Solicitor should be requested to attend to inform the Court as to the defendant’s attitude to the relief now sought by the plaintiff. I am not sure whether the plaintiff is able to proceed against the 2nd & 3rd defendants, having settled with the 1st defendant, but that may be a matter for argument in due course.”
At a further hearing of the application for directions on 21 May 1999, the plaintiff asked me to refer the summons for trial or hearing before a Judge. I wished to hear submissions from the Crown Solicitor on that question and adjourned the matter for further hearing on 3 June 1999. The matter came on before me again on 17 June 1999. On that occasion the Attorney-General applied for leave to intervene in these proceedings and, without opposition from the plaintiff, I granted leave to the Attorney-General to intervene. I also gave leave to the Attorney-General to apply to strike out the within summons pursuant to SCR 98.05(3). That application was in due course made.
The hearing of that application came before me on 5 August 1999. On that occasion the plaintiff appeared in person and Mr Parker appeared on behalf of the Attorney-General and the remaining defendants, the District Court of South Australia and the Adelaide Magistrates Court. I have referred to the now second defendant as the Adelaide Magistrates Court, although technically speaking the defendant should be named as the Magistrates Court of South Australia. No point was taken by Mr Parker as to this discrepancy.
Prior to the hearing on 5 August 1999, the plaintiff had indicated that a Master does not have jurisdiction to hear and determine the application to strike out the summons under SCR 98.05(3). That point was addressed by Mr Parker who conceded that on the authorities there may be doubt as to whether or not I could hear the Attorney-General’s application. I propose to deal with the question of my jurisdiction first.
Both the plaintiff and the Attorney-General referred to the decision of the Full Court in Robertson v Kelly & Anor, an unreported decision delivered on 6 November 1989, Judgment No 1933. The reasons of the Full Court were stated shortly by the Presiding Judge, Jacobs J, and they are as follows:-
“We have before us an appeal from an Order of a Master who refused leave to serve a summons seeking judicial review of proceedings in the Magistrates Court and made a further order striking out the summons for judicial review. The proceedings in the Magistrates Court, which were the subject matter of the application, resulted in the conviction of the appellant for an offence under the Companies Act. An appeal to this Court against that conviction has been dismissed.
By S. 164 of the Justices Act, any conviction in a court of Summary Jurisdiction cannot be removed by way of certiorari into this Court unless there has been an excess of jurisdiction or the conviction had been obtained by fraud. That section of the Justices Act provides that the proper procedure for a review of such a conviction is otherwise by way of appeal. That procedure has already been taken without success. In those circumstances I entertain no doubt that the Master was justified in refusing leave to serve the summons for judicial review, but his jurisdiction under Rule 106.01 does not extend to a final determination of matters in which the jurisdiction of the Court is in issue, and it may well be, having regard to the provisions of S.164 of the Justices Act, that the summons for judicial review should be struck out for want of jurisdiction. In that event, it is an order that is proper to be made by this Court, and not by the Master, but upon a consideration of the whole of the circumstances, I have no doubt that it is an order which ought to be made.
The appellant has not appeared upon this hearing but has forwarded to the Court a lengthy written submission. Insofar as it raises any matters proper for consideration, they are matters which have already been before this Court on the hearing of the appeal.
In those circumstances, I think the proper determination is for this Court to confirm the order of the Master whereby he declined to order service of the summons for judicial review, and for such summons to be struck out.”
It is clear from that decision that a Master’s jurisdiction under Rule 106.01 “does not extend to a final determination of matters in which the jurisdiction of the Court is in issue ...”.
The relevant parts of Rule 106.01 are as follows:-
“(3).. A Master may do and transact all such business, and exercise all such authority and jurisdiction in respect thereof as by virtue of any Statute, custom, Rule or practice of the Court may be done, transacted or exercised by a Judge in chambers, except in respect of the following proceedings and matters, that is to say:
...
(c)... proceedings on the Crown side of the Court other than a summons for leave to serve an application for judicial review under Rule 98 unless the question of the jurisdiction of the Court to grant leave is in doubt ...”
SCR 98.05(3) is as follows:-
“On the hearing of the application for directions in an action for judicial review the Court may:
...
(3)... Strike out the summons, or such part of it as seeks judicial review, where on the evidence then before the Court there is no reasonable prospect that the Court would make any order in the nature of a judicial review.”
By SCR 5, “the Court” includes a Master.
In order to understand the point taken in relation to whether or not I have jurisdiction to hear and determine the application under SCR 98.05(3), it is necessary to consider the ground upon which the Attorney-General has pursued the application. It may be stated simply: the fact that the plaintiff has entered into a compromise agreement with the first defendant in this action whereby the proceedings in the Magistrates Court have been dismissed and the notice of discontinuance has been filed in respect of the first defendant in this action, inevitably means that there is no subject matter which now may be pursued on the summons brought by the plaintiff. The plaintiff wishes to obtain an order from this Court that the order made in the Magistrates Court on 7 November 1997, which set aside the plaintiff’s judgment in that action, be quashed. It was argued that the only operative order in the Magistrates Court proceedings was the dismissal of the action in the Magistrates Court pursuant to the compromise agreement entered into between the plaintiff and the defendant in that action, who is the first defendant in this action. As a result there is no point in quashing the order which set aside the plaintiff’s judgment obtained by default in the Magistrates Court prior to the settlement reached between those parties.
The same reasoning applies to the order made by Judge Burnett in the District Court.
The plaintiff also seeks by his summons various findings as set out in paragraphs 5, 6, 7 and 8 of the summons. Even if these paragraphs are construed as seeking declarations in terms of the respective paragraphs, it was argued by the Attorney-General that there again was no point in making these orders since the Magistrates Court proceedings had been brought to an end by an order for dismissal made pursuant to the compromise agreement reached between the plaintiff and the defendant.
The point argued before me is whether those contentions by the Attorney-General should be characterised as relating to whether or not the Court had jurisdiction to entertain the summons or whether they merely raise the point that the plaintiff had no maintainable claim for judicial review. If the former, it was argued that I had no jurisdiction to determine the application.
In my view, the opposition raised by the Attorney-General does not amount to a contention that the Court has no jurisdiction to hear the summons. The ground relates to whether or not the plaintiff by his affidavits has established subject matter in respect of which the supervisory jurisdiction of the Court is invoked. There is little doubt that, if there had been no settlement between the plaintiff and the defendants in the Magistrates Court proceedings, the plaintiff may have been able to invoke the supervisory jurisdiction of this Court in respect of decisions of lower courts because it was possible that this Court may have quashed the decision in the Magistrates Court on 7 November 1997 and the decision of the District Court on 5 May 1998. In the absence of a settlement, the proceedings then would have been that the default judgment obtained by the plaintiff against the defendant in the Magistrates Court would have prevailed. However, because of the settlement between the plaintiff and CIC Insurance, no purpose would be served by making orders quashing any of the orders in the inferior Courts nor by granting the declarations sought in the subsequent paragraphs of the summons.
In those circumstances I am of the view that I have jurisdiction to hear and determine the application made by the Attorney-General for an order that the summons be struck out on the ground that, on the evidence before the Court, there is no reasonable prospect that the Court would make any order in the nature of a judicial review.
It was argued by the Attorney-General that the exercise of the discretion to make orders in the nature of certiorari would not be exercised in favour of the plaintiff where no benefit can be derived from the order: Ex parte Metropolitan Meat Industry Board; Re Australasian Meat Industry Employees Union [1972] 1 NSWLR 259 at 262-263. Nor will declaratory relief be granted if it would produce no foreseeable consequences to the parties: Gardner and Anor v The Dairy Industry Authority of New South Wales (1978) 52 ALJR 180 at 184, 188 and 189; Minister for Immigration and Multicultural Affairs and Anor v Ozmanian (1986) 71 FCR 1 at 31-33.
Those authorities confirm that the grounds advanced by the Attorney-General do not give rise to the question of whether or not the Court has jurisdiction. On the contrary, they deal with the question of the exercise of the discretion to grant judicial review orders depending upon whether or not a proper case has been made out. So characterised jurisdiction is not in question.
In light of the above, there is, in my view, no reasonable prospect that the Court would make any order in the nature of a judicial review on the summons pursued by the plaintiff. For that reason the summons must be struck out.

[1999] SASC 350

30 August 1999