Mandeville v Better Lending P/L
[2016] SADC 146
•6 December 2016
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
MANDEVILLE v BETTER LENDING P/L AND ANOR
[2016] SADC 146
Reasons for Decision of His Honour Judge Slattery
6 December 2016
STATUTES - BY-LAWS AND REGULATIONS - VALIDITY - ULTRA VIRES IN GENERAL
STATUTES - ACTS OF PARLIAMENT - STATUTORY POWERS AND DUTIES - EXERCISE - DELEGATION OF POWER CONFERRED BY ACT
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS
In action number 4461 of 2015 in the Magistrates Court Better Lending Pty Ltd sued Deborah Kay Mandeville to recover the amount of an outstanding loan lent to her and another in May 2010. The loan was secured by equitable mortgages over properties owned by Mandeville. In the first Magistrates Court action Better Lending sought repayment by Mandeville of the sum of $75,000 then alleged to be due in respect of the loan which totalled the sum of $160,000. There was no claim for unpaid interest. On 21 August 2014 Better Lending sought and obtained a default judgment in the amount of $77,577.75 and that judgment was then registered in the Supreme Court of Victoria. Better Lending then obtained a warrant of seizure and sale in respect of the properties over which the unregistered mortgages were granted. The properties owned by Mandeville were then sold, the net proceeds of sale of $124,000 was paid to Better Lending which then contended that it was owed $474,600.96 on the loan including interest. In a second action in the Magistrates Court which has been removed into this Court, Mandeville sought declarations that any rights of Better Lending against Mandeville have merged in the judgment in the first Magistrates Court action and therefore the doctrine of res judicata applies. Mandeville alleges that Better Lending is estopped from asserting any cause of action against her.
Better Lending has filed three defences in that second action as well as a cross action in which it seeks orders for payment by Mandeville of the sum of $474,600.90 . In the third defence, Better Lending pleads that the default judgment entered by a Registrar in the first action was not a judgment within the meaning of s 3 of the Magistrates Court Act, was not an operative judicial act within the meaning of the common law and was not capable of giving rise to an estoppel in rem judicatum. In the alternative, Better Lending pleaded that the default judgment entered by a Registrar was the purported exercise of judicial power contrary to the Magistrates Court Act and the Magistrates Act and was ultra vires the Magistrates Court Act and Rules. In the further alternative, Better Lending sought to plead in the third defence that the entry of any judgment by a Registrar in the Magistrates Court was an improper delegation of judicial power.
Upon the filing of the third defence of Better Lending, the court ordered that notice be given to the Attorney-General as to whether the Attorney-General wished to appear and be heard on the status of the third defence of Better Lending.
The Attorney-General intervened in the proceedings under s 9(2) Crown Proceedings Act. The Attorney-General contends that s 8(1)(b) District Court Act precludes this Court from having any supervisory jurisdiction with respect to the Magistrates Court and this Court has no jurisdiction to grant the relief in the nature of a prerogative writ. The Attorney-General contends that the pleadings of the defendant in paragraph 29.1.7.2 and 29.1.7.3 of the third defence seek to invoke the supervisory jurisdiction of this Court because any decision by this Court about whether a default judgment under the Magistrates Court Rules is a purported exercise of judicial power or was ultra vires the Magistrates Court would be tantamount to this Court exercising supervisory jurisdiction which is beyond the power of this Court.
Mandeville made no submissions except to support the submissions of the Attorney-General.
In an application before the court that challenges portion of the content of the third defence and that was dealt with on the basis of an application by Better Lending under Rule 54(4) of the District Court Rules for permission to amend its pleadings to the third defence.
Held:
Leave to Better Lending to amend its defence in terms of paragraphs 29.1.2, 29.1.3, 29.1.4, 29.1.5, 29.1.6 and 29.1.7.1.3.
Permission refused to amend in terms of paragraph 29.1.7.1.1, 29.1.7.1.2, 29.1.7.2 and 29.1.7.3 on the basis that the pleadings of the defendant Better Lending for which permission is refused are wrong in law, required the District Court to exercise supervisory jurisdiction over the Magistrates Court contrary to s 8(1)(b) of the District Court Act or are otherwise not arguable under R 54(4) of the District Court Rules.
Crown Proceedings Act (SA) s 9(2); Magistrate Court (Civil) Rules 2013 MCCR R60, R61, R62; Magistrates Court Act s 3, s 6, s 7(a), s 8, s 12, s 14, s 15; District Court Rules R100, R 211, R229; District Court Act s 8(1)(b); Corporations Act s 592; Corporations (South Australia) Act 1990 s 42; Admiralty Act s 9, s 11; Acts Interpretation Act 1959 (SA) s 22A; Judiciary Act s 39(2); Constitution of Australia s 77(iii); Halsbury’s Law of England, 4th ed, vol 37 para 10, referred to.
Churcher v Edwardstown Carpets (1993) 60 SASR 503; D & H Investments Pty Ltd v Wagner t/as Wagner’s Boatworks (2005) 91 SASR 27; R v Ross-Jones; Ex parte Green (1984) 156 CLR 185; Kotsis v Kotsis (1970) 122 CLR 69; Knight v Knight (1971) 122 CLR 114; Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; SGIC v Kassais Unreported judgment 5 September 1997, discussed.
Legal Practitioners Complains Committee v A Practitioner (1987) 46 SASR 126; Salter v DPP [2009] NSWCA 357; Johnston v Nationwide News Pty Ltd [2005] NSWCA 17; Re South America and Mexican Company Ex parte Bank of England (1895) 1 Ch 37; Kok Hoong v Leong Cheong Kweng Mines Limited [1964] AC 993; Re Funds in Court; Application of Mango Credit Pty Ltd [2016] NSWSC 199; Verco v Strata Corporation NO. 2822 [2005] SASC 403; Administration of Papua New Guinea v Daera Guba [1973] HCA 59; Rana and Military Rehabilitation and Compensation Commission [2008] AATA558; Sidhu v Van Dyke [2014] HCA 19; Owners of the Motor Vessel ‘Iran Amanat’ v KMP Coastal Oil Pty Ltd (1999) 196 CLR 130; Federated Sawmill Timber Yard and General Woodworkers Employees Association (Adelaide Branch) v Alexander (1912) 15 CLR 308; Commonwealth v District Court of the Metropolitan District Holden at Sydney (1954) 90 CLR 13; R v Bull (1974) 131 CLR 203; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531; Rogers v Legal Services Commission (1995) 64 SASR 572; Attorney General v Kowalski [2014] SASC 1; Heath Wines v Atradious [2016] SADC 72; Hughes v Hughes (1971) 2 SASR 368; Rodway v R (1991) 69 CLR 515; Cook’s Hotel Pty Ltd v Pope (1983) 33 SASR 240; Re Claridge House Limited (in liq) (1981) 28 SASR 481; Commonwealth Bank of Australia v Forshaw (1990) 158 LSJS 197; Commonwealth Bank of Australia v Forshaw (1990) 55 SASR 247; Armitage v Parsons [1908] 2 KB 410; Clayton v Thomas C Denton and Co Pty Ltd [1972] VR 46; Philp v DM Aston and Co [2010] SASC 114; Eschenberg v Ellerton [2004] SASC 327, considered.
MANDEVILLE v BETTER LENDING P/L AND ANOR
[2016] SADC 146
The Crown Solicitor as solicitor for the Attorney-General for the state of South Australia has intervened in these proceedings by right under s 9(2) of the Crown Proceedings Act 1992 (SA).[1] The Attorney-General contends that insofar as the first defendant seeks within its third defence to impugn the validity of the entry of a judgment on 21 August 2014 in the Magistrates Court of South Australia in Action 2084 of 2014 then that argument seeks to invoke a jurisdiction that is not vested in this court. The Attorney-General also contends that the entry of a default judgment under the Magistrate Court (Civil) Rules 2013 (“MCR”) is an exercise of judicial power, is not ultra vires the Magistrates Court Act 1991 (SA) (“MCA”) and does not involve an improper delegation of power.
[1] (2) The Attorney-General may intervene, on behalf of the Crown, in any proceedings—
(a)in which the interpretation or validity of a law of the State or Commonwealth is in question; or
(b)in which—
(i) legislative or executive powers of the State or Commonwealth, or of an instrumentality or agency of the State or Commonwealth are in question; or
(ii)judicial powers of a court or tribunal established under the law of the State or Commonwealth are in question; or
(c) in which the Court grants permission to intervene on the ground that the proceedings raise issues of public importance, for the purpose of submitting argument on issues of public importance.
In order to properly to understand how the application of the Attorney-General arises, it is necessary to canvas the history of this matter.
History
On 9 November 2015 Better Lending Pty Ltd (Better Lending) commenced proceedings in the Magistrates Court of South Australia in Action AMCCI-15-4461 against Deborah Kay Mandeville (Mandeville) a resident of Victoria and her former husband Andrew Mandeville. The material facts pleaded in that action were that in May 2010 Andrew Mandeville signed a contract to purchase a residential property at Ferny Creek Victoria for the price of $1,600,000. A deposit of $160,000 was due to be paid by 15 June 2010 with settlement on 29 June 2010. Andrew Mandeville made payments totalling $10,500 towards the deposit from his own funds between the date of the contract and 31 May 2010. In the absence of the ability of Andrew Mandeville to source further funds, he persuaded Mandeville to pledge two properties owned by her as security for the deposit and she then borrowed those monies jointly with Andrew Mandeville.
A loan agreement of 2 September 2010 was executed between Better Lending, Mandeville and Andrew Mandeville as borrowers for a loan amount of $167,000 upon particular terms. The loan was secured by equitable mortgages over the properties owned by Mandeville; these mortgages were protected by caveat. The funds borrowed were used by Andrew Mandeville to pay the deposit.
Andrew Mandeville was unable to complete the purchase upon the contract and the deposit was forfeited. The loan became repayable but it was not repaid by Andrew Mandeville or by Mandeville.
In Action 2984 of 2014, Better Lending commenced an action in the Magistrates Court of South Australia claiming for payment of the sum of $75,000, alleged to be the amount then due and payable in respect of the loan. There was no claim made for (unpaid) interest. On 21 August 2014 Better Lending signed a default judgment, in the absence of a defence, against Mandeville and Andrew Mandeville. The total judgment sum including court assessed interest to the date of judgment was $77,577.75. It does not appear to be in contention that this judgment was not served personally upon Mandeville but was served only upon Andrew Mandeville or that Mandeville did not become aware of the judgment until January 2015. On 26 February 2015 Better Lending registered that judgment in the Supreme Court of Victoria and obtained a warrant of seizure and sale in respect of the properties over which the unregistered mortgages were granted.
Upon becoming aware of the judgment, Mandeville attempted to discharge the judgment by selling the subject properties upon the open market. The total net proceeds of sale were in the amount of $124,000. This amount exceeded the judgment sum but Better Lending insisted that the full amount of the judgment sum be paid to it otherwise it would refuse to withdraw its caveat over the properties. Better Lending then asserted that Mandeville owed substantially more to it than the sum of its judgment. It did not treat the judgment as having been discharged by any payment made by Mandeville.
In these separate proceedings that were first commenced in the Magistrates Court[2] but have now been removed into this court, Mandeville claims that any rights of Better Lending against her have merged in the judgment and the doctrine of res judicata replies. Alternatively, Mandeville pleads that Better Lending is estopped from asserting any cause of action against her arising in any way from the factual matters the subject of the judgment and that the loan has been fully discharged by virtue of the payment. Declarations are sought including for payment by Better Lending of the difference between the judgment sum and the amount paid to Better Lending, in the amount of $46,422.25.
[2] Action AMCCI-15-4461.
Better Lending has filed three defences. In the second defence, at paragraph 19, Better Lending pled that on 21 August 2014 it filed a request to the Registrar of the Magistrates Court in Adelaide to sign judgment and on that day at 11:12am, the Registrar of the court signed a copy of judgment in default of any appearance by Mandeville or Andrew Mandeville. Better Lending then asserts that the principles of estoppel, merger or res judicata have no application. It relies on Clause 16 of the Loan Agreement and Clause 31(6) of the mortgages and then pleads that the judgment was obtained by default and did not determine any substantive matter of fact or law. It also pled that Mandeville has not acted on the judgment to her detriment. At paragraph 30 of its second defence, Better Lending pled that it is not liable to the plaintiff for any amount claimed or any amount at all and seeks the amount claimed in the counterclaim. In a separate cross action by counterclaim, Better Lending claims the full amount of the debt said to be due and owing under the Loan Agreement which it calculated at $474,600.96. In the alternative, Better Lending pled that Mandeville is obligated to pay to it the amount of $43,000.
On 25 July 2016 Better Lending filed a third defence. It substantially recast and re-pleaded paragraph 29 of its pleading. That paragraph, in the previous iterations of its pleaded defence was a denial that Mandeville was entitled to the relief sought or at all and the reasons therefore. In order to comprehend the differences between the two defences, it is necessary to set out paragraph 29 of the second defence and then paragraph 29 of the third defence. They are as set out hereunder:
Second Defence
29. Better Lending denies that Deborah is entitled to the relief sought or any relief at all:
29.1. Recovery of the amount outstanding under the Loan Agreement is not fettered by principles of estoppel, merger or res judicata:
29.1.1.Better Lending relies on Clause 16 of the Loan Agreement and Clause 31(6) of the Mortgages.
29.1.2.The Judgement was a judgment obtained by default and didn’t determine any substantive matter of fact or law as between Better Lending, Deborah or Andrew.
29.1.3.Deborah has not acted on the Judgment to her detriment.
29.2. Further or in the alternative to the matters pleaded in paragraph 29.1 herein:
29.2.1.By email communication dated 31 March 2015 from Deborah to Better Lending (through its solicitors), Deborah advised Better Lending that she had taken advice that all she needed to pay Better Lending to discharge the Warrant was $77,577.75.
29.2.2.By email communication dated 1 April 2015 from Better Lending (through its solicitors) to Deborah, Better Lending put Deborah on notice that the Payment (it made) would not discharge the Warrant but would be received by Better Lending as a payment in reduction of the amount outstanding under the Mortgages.
29.2.3.Deborah made the Payment to Better Lending on notice of the matters set out in paragraphs
29.1.2.229.2.2 herein and with the benefit of advice.29.2.4.Better Lending withdrew a caveat it held over the Investment Property to enable settlement of the sale of that property to be effected in reliance on the conduct of Deborah pleaded in paragraph 29.2.3 herein.
29.2.5. Had Deborah advised Better Lending that she was making the Payment on a basis other than that set out in paragraph 29.2.2, Better Lending would have acted differently including by not withdrawing the relevant caveat.
29.2.6.On account of the matters set out in paragraphs 29.2 herein, Deborah is estopped from asserting that she made the Payment on a basis other than as reduction of the amount outstanding under the Mortgages.
Third Defence
29. Better Lending denies that Deborah is entitled to the relief sought or any relief at all:
29.1. Recovery of the amount outstanding under the Loan Agreement is not fettered by principles of estoppel, merger or res judicara in that:
29.1.1.Better Lending relies on Clause 16 of the Loan Agreement and Clause 31(6) of the Mortgages.
29.1.2.
The Judgement was a judgment obtained by default and didn’t determine any substantive matter of fact or law as between Better Lending, Deborah or Andrew.The Claim in Magistrates Court of South Australia Action No. AMCCI-14-2954 (“Action No. AMCCI-14-2954”) was filed and served on 24 July 2014.29.1.3.On 21 August 2014, a form 18 – request to sign judgment was filed with the Adelaide Magistrates Court at approximately 10.30am.
29.1.4.On 21 August 2104 at 11.12am, a copy of judgment was signed by a registrar of the Adelaide Magistrates Court and the seal of the Court was affixed to the judgment.
29.1.5.The record of outcome maintained by the Adelaide Magistrates Court with respect to Action No. AMCCI-14-2954 does not note:
29.1.5.1.the signing of default judgment;
29.1.5.2.the involvement of a Magistrate in the issue of the default judgment (“the Default Judgment”).
29.1.6.No officer with a judicial appointment nor “Magistrate” within the meaning of the Magistrates Court Act 1992 (SA) (“the MCA”) was involved in signing or entering the Default Judgment.
29.1.7.In the premises:
29.1.7.1the Default Judgment was not:
29.1.7.1.1.a “judgment” within the meaning of s3 of the MCA.
29.1.7.1.2.an operative judicial act within the meaning of the common law;
29.1.7.1.3.capable of giving rise to an estoppel in rem judicatum.
29.1.7.2.the Default Judgment was, further or in the alternative:
29.1.7.2.1.the purported exercise of judicial power by a registrar contrary to ss3, 8, 7a, 12 and 14 of the MCA and ss5-6 of the Magistrates Act 1983 (SA) (“the MA”).
29.1.7.2.2.ultra vires the MCA and at most an administrative decision of a registrar that did not give rise to res judicata or issue estoppel or render the court functus officio regarding the subject matter of Action No. AMCCI-14-2954.
29.1.7.3.in the still further alternative if the Default Judgment as entered by the registrar is a valid exercise of an operative judicial act and a “judgment” within the terms of s3 of the MCA (Both matters being denied) then it is nevertheless invalid as an improper delegation of judicial power in that:
29.1.7.3.1.the MCA does not provide for the delegation of the power to enter Default Judgment to a registrar;
29.1.7.3.2.the Magistrates Court (Civil) Rules 2013 (SA) (“the MC Rules”) do not provide for the power to enter a Default Judgment to a registrar;
29.1.7.3.3.Rules 60 and 61 of the Magistrates Court (Civil) Rules 2013 (SA) provides no mechanism by which a Form 18 submitted by a part is converted to a judgment whether by a Magistrate or a registrar or anyone else;
29.1.7.3.4.in the premises there is no instrument of delegation of the power of the Court to a registrar.
29.1.7.3.5.in any event, any such delegation is contrary to the terms of the MCA and to ss 3, 8, 7a, 12 and 14 of the MCA and ss 5-6 of the MA.
29.1.8. Deborah has not acted on the judgment to her detriment.
29.2. Further or in the alternative to the matters pleaded in paragraph 29.1 herein:
29.2.1.By email communication dated 31 March 2015 from Deborah to Better Lending (through its solicitors), Deborah advised Better Lending that she had taken advice that all she needed to pay Better Lending to discharge the Warrant was $77,577.75.
29.2.2.By email communication dated 1 April 2015 from Better Lending (Through its solicitors) to Deborah, Better Lending put Deborah on notice that the Payment (it made) would not discharge the Warrant but would be received by Better Lending as a payment in reduction of the amount outstanding under the Mortgages.
29.2.3.Deborah made the Payment to Better Lending on notice of the matters set out in paragraphs
29.1.2.229.2.2 herein and with the benefit of advice.29.2.4.Better Lending withdrew a caveat it held over the Investment Property to enable settlement of the sale of that property to be effected in reliance on the conduct of Deborah pleaded in paragraph 29.2.3 herein.
29.2.5. Had Deborah advised Better Lending that she was making the Payment on a basis other than that set out in paragraph 29.2.2, Better Lending would have acted differently including by not withdrawing the relevant caveat.
29.2.6.On account of the matters set out in paragraphs 29.2 herein, Deborah is estopped from asserting that she made the Payment on a basis other than as reduction of the amount outstanding under the Mortgages.
In the third defence, Better Lending no longer contends that the judgment in its favour and obtained by default did not determine any substantive matter of fact or law. Rather, it now seeks to impugn its own judgment because, as it alleges, no officer with a judicial appointment or a Magistrate was involved in the signing or entering of the default judgment. As a consequence, the default judgment was not a judgment, an operative judicial act or capable of giving rise to an estoppel in rem judicatum. Then, in paragraphs 29.1.7.2 and .3 Better Lending challenges the purported exercise of judicial power by the Registrar, alleging that such exercise was ultra vires the Magistrates Court Act because it was only an administrative decision of a Registrar or alternatively that the judgment entered by the Registrar was invalid because it was an improper delegation of a judicial power.
The introductory wording of paragraph 29.1.7 are “In the premises”. This suggests that when considering this plea, it is necessary to at least have regard to paragraphs 29.1.1 to 29.1.6. The pleading in paragraph 29.1.7.1 appears at least in part to be a summary of the legal position as a consequence of the earlier pleadings. The pleading in paragraph 29.1.7.2 is a further plea to that contained in paragraph 29.1.7.1 as well as being an alternative plea. The plea in paragraph 29.1.7.3 is a plea “in the further alternative” and this is therefore an alternative plea to that contained in paragraphs 29.1.7.1 and 29.1.7.2.
It is important for the court to have a complete grasp of these pleadings and their meaning in light of the application of the Attorney-General. The defence in paragraph 29.1.7.1 alleges that Better Lending’s default judgment for $75,000 was not a judgment, was not an operative judicial act under the common law (and there must be some doubt what that means) and did it give rise to rem judicatam. This appears to be the substantive plea in defence by Better Lending.
On their face the pleadings in 27.1.7.2 and 29.1.7.3 raise different but related issues. The first (29.1.7.2) is that the registering of the judgment by the Registrar was an exercise of judicial power, was ultra vires the MCA and did not give rise to a res judicata, issue estoppel or render the court functus officio. This pleading is related to the conduct of the Registrar in acting upon the Form 18 request (of Better Lending) under Rule 60 MCR and the status of anything done by the Registrar accordingly.
Paragraph 29.1.7.3 of the third defence alleges that if the default judgment was not a valid exercise of an operative judicial act and a judgment for s3 MCA (29.1.7.1.1) then it is an improper delegation of judicial power. As has been seen, each of 29.1.7.1, 29.1.7.2 and 29.1.7.3 are in some way connected. For example the pleading in paragraph 29.1.7.2 elucidates each of paragraphs 29.1.7.1.1, 29.1.7.1.2 and 29.1.7.1.3 of the pleading. The pleading in paragraph 29.1.7.3 is more likely to be truly an alternative plea because it alleges that even if a default judgment was registered as part of the exercise of judicial power, that it was nevertheless (occasioned) under an improper delegation of judicial power. The five reasons then given strike at the status of the Registrar, the powers in the Rules, the mechanics of the operations of the Rules, the absence of an instrument of delegation and if there is a delegation it contravenes the MCA and the Magistrates Act. It is apparent that these pleadings are in addition to the matters in paragraph 29.1.7.1. It is also apparent from this discussion that the plea in paragraph 29.1.7.1.3 is to be viewed as a different category than those in 29.1.7.2 and 29.1.7.3, These two latter paragraphs purport to strike at the status of a default judgment entered in the Magistrates Court by a Registrar under Rule 60 MCCR and using a Form 18 (as occurred in this case). Of course the peculiarity of all of this is that Better Lending here purports to challenge the status of the very judgment which it obtained, registered in Victoria and used to obtain warrants of sale for Mandeville’s property.
In paragraph 30 of the defence, the denial by Better Lending of any liability to the plaintiff for any amount claimed or at all continues. Better Lending also seeks for payment of the amount claimed in the counterclaim. The amount claimed by Mandeville in the statement of claim is the sum of $46,422.25.[3] That denial therefore is confined to the money claim made by the plaintiff relative to the alleged overpayment which occurred because Better Lending insisted that the full amount of the proceeds of sale of the property be paid to it. The sum claimed by the plaintiff in the statement of claim is the difference between the judgment sum plus interest and the proceeds of sale. Paragraph 30 of the pleading of Better Lending does not set out any substantive defence. It is merely a further denial of the plaintiff’s claim. It follows that the substantive defence is set out in paragraphs 19 and 29 of the pleading.
[3] Statement of claim paragraph 29.5.4.
The plaintiff filed a reply to the third defence. In paragraph 4.5 of that reply, the plaintiff sets out a substantive answer to the pleadings of Better Lending. Those paragraphs read as follows:
4.5.Deborah denies all of the matters raised in sub-clause 29.1.7 of the third defence and further says that:
4.5.1. the interpretations of the MCA, MA and MC Rules (as those terms are defined in the third defence) promoted by Better Lending and the conclusions drawn by Better Lending as a consequence of those interpretations are incorrect and misconceived;
4.5.2. to the contrary, the MCA provides for a lawful process whereby a default judgment may be properly entered by a plaintiff in an action, which judgment is thereby impressed with the judicial authority and power of the Magistrates Court;
4.5.3. the Default Judgment was properly entered by Better Lending pursuant to that process;
4.5.4. as a consequence, the Default Judgment:
(a)is a judgment within the meaning of s3 of the MCA;
(b)is an operative judicial act within the meaning of the common law;
(c)is a valid exercise of judicial power in compliance with the MCA and the MA;
(d)gives rise to res judicata, merger and issue estoppel and render the court functus officio regarding the subject matter of Action No. AMCCI-14-2954; and
4.5.5. in contradiction of the third defence, Better Lending sought the Default Judgment and then enforced it in a manner set out in the Claim as if the Default Judgment had all the characteristics referred to in sub-clauses 4.5.4(a), (b) and (c) of this reply.
4.6Sub-clause 29.1.8 is meaningless in the context of the third defence and Deborah is therefore unable to plead to it.
4.7. With respect to sub-clause 29.2 of the third defence:
4.7.1. The argument postulated therein is based on the entirely false premise that Better Lending is entitled to recover from Deborah monies in excess of the of the Default Judgment.
4.7.2. If all of Better Lending’s rights against Deborah have merged in the Default Judgment by virtue of the principles of res judicata, merger and issue estoppel as claimed by Deborah, it necessarily follows that Better Lending has no legal basis or entitlement to recover monies from Deborah or the second defendant in excess of the Default Judgment in the absence of an alternative lawful claim by Better Lending to be entitled to those monies, which such claim does not exist.
4.7.3. It therefore also necessarily follows that Better Lending has no legal basis or entitlement to retain any monies that were paid by Deborah to it in excess of the Default Judgment no matter what the circumstances of that payment.
4.7.4. In any event, the matters pleaded in sub-clause 29.2 are irrelevant to the issue of whether Deborah is entitled to the relief sought in sub-clauses 29.5.3 and 29.5.4 of the Claim
The hearing before me followed orders made by a Master of the court in the following terms:
The following orders are by consent.
1. …
2. It is ordered that there be a separate trial of the plaintiff’s claim to be listed for hearing.
3. The first defendant is at liberty to file and serve an amended defence by 6 June 2016 in respect of the manner in which the Magistrates Court judgment referred to in the plaintiff’s claim was entered and the effect of that on the plaintiff’s claim.
4. The parties are to file a statement of agreed facts on or before 13 June 2016.
5. The plaintiff is to file and serve her outline of submissions by 20 June 2016.
6. The first defendant is to file and serve its outline of submissions by 27 June 2016.
7. …
8. The plaintiff is to file a trial book incorporating the pleadings, the statement of agreed facts, the outlines of submissions, a copy of this order and a short statement as to why a separate trial was though appropriate.
9. …
10. The plaintiff is to serve the trial book by 1 July 2016.
11. …
12. …
13. Hearing is not to be before 8 July 2016.
14. Estimated length of trial half a day.
15. …
The matter was listed before me for hearing on 22 July 2016. No defence to counterclaim was filed by the plaintiff prior to the hearing on that date.
In accordance with the orders of the Master, a statement of agreed facts was prepared and lodged. It reads as follows:
1. On 21 August 2014, Better Lending Pty Ltd (Better Lending) obtained default judgment (Judgment) against Mrs Deborah Mandeville (Mrs Mandeville) and her husband, Mr Andrew Mandeville, in Magistrates Court of South Australia (Court) in Action Number 2084 of 2014 (First Proceedings) in the amount of $77,577.75 (Judgment Sum).
2. On 21 August 2014, and pursuant to Rule 60(1) of the Magistrates Court (Civil) Rules 2013:
a. Better Lending filed in the Court a Form 18 Request (Request) to Registrar to sign judgment.
b. The Court provided the judgment to Better Lending pursuant to the Request.
3. The Judgment was dated 21 August 2014, and bears the seal of the Court and the apparent seal of the Registrar of the Court.
4. No magistrate of the Court was involved in the entry of the Judgment.
5. Better Lending’s claim in the First Proceedings related to monies lent (Loan) by Better Lending to, and payable to Better Lending by, Mrs Mandeville and her husband pursuant to a loan agreement (Loan Agreement), which is exhibit P1.
6. It was a term of the Loan Agreement that Mrs Mandeville would provide a mortgage (Mortgage) over a property situate at 5 Beverley Street, Scoresby, Victoria 3179 as security for the Loan and the parties entered into the Mortgage on that basis, which Mortgage is exhibit P2.
7. …
8. Mrs Mandeville did not plead any defences or cross-actions (including as against her husband) in the First Proceedings in relation to her alleged liability in respect of the Loan.
9. For reasons which remain unexplained, Better Lending did not claim the full amount of the Loan from Mrs Mandeville and her husband in the First Proceedings. As a result, the Judgment Sum was for an amount that was significantly less than the Loan.
10. Better Lending took action against Mrs Mandeville to enforce the Judgment and, on about 2 April 2015, Mrs Mandeville paid to Better Lending, at its insistence, the sum of $124,000 (Payment), which amount exceeded the Judgment Sum.
11. Mrs Mandeville says that, by operation of law, Better Lending’s rights against her merged in the Judgment and that the Payment necessarily discharged the Judgment.
12. Mrs Mandeville also says that, as Better Lending’s rights against her merged in the Judgment, Better Lending is liable to repay her the amount by which the Payment exceeded the Judgment.
13. Better Lending says that its rights against Mrs Mandeville did not merge in the Judgment and that it is free to sue Mrs Mandeville again for the amount by which the Loan (plus interest on the Loan) exceeds the Judgment.
14. Better Lending has in fact now sought to sue Mrs Mandeville again by way of the Counterclaim.
15. The parties acknowledge that no other facts will be relied upon by them or evidence adduced for the purpose of the trial to commence on 16 September 2016 apart from those facts contained in this statement and in the pleadings in this matter.
Also in accordance with the order of the Master, a statement of reasons for separate trial was filed. It reads as follows:
1. On 30 May 2015, Master Norman ordered that the trial book in this matter contain a short statement as to why a separate trial in this matter was thought to be appropriate.
2. This statement is in response to that order.
3. I refer to the pleadings and to the statement of agreed facts filed in this matter.
4. The plaintiff’s claim in this matter (Claim) is, in part, that the first defendant, Better Lending, is, by virtue of the judgment it received in the Magistrates Court, a copy of which follows this statement (Judgment), estopped from initiating any further action for the recovery of any further monies from the plaintiff and the second defendant as claimed in the first defendant’s counterclaim (Counterclaim).
5. It was the view of the parties that, should the plaintiff be successful in this aspect of the Claim, the first defendant would be estopped from pursuing the Counterclaim.
6. It is also part of the Claim that, in the event that the first defendant is in fact estopped from pursuing the Counterclaim, the first defendant must repay to the plaintiff monies received by the first defendant in excess of the amount required to satisfy the Judgment.
7. It was the view of the parties that all aspects of the Claim could be dealt with on the basis of the pleadings, the statement of agreed facts and the relevant documents without requiring any further evidence, including any oral evidence, to be raised or called at a separate trial of the Claim.
8. It was therefore also the view of the parties that it was in all respects most expedient to dispose of the Claim by way of a separate trial prior to pursuing any aspect of the Counterclaim, if required.
The parties filed submissions. The contentions of the defendant are set out in paragraphs 2-15 of its written submissions. They read as follows:
2.By definition, a judgment is the exercise of a judicial, and not an administrative, power.[4]
[4] Legal Practitioners Complains Committee v A Practitioner (1987) 46 SASR 126 at 127 per King CJ. See also, Salter v DPP [2009] NSWCA 357 at [14]; Johnston v Nationwide News Pty Ltd [2005] NSWCA 17 at [29].
3.The foundation for the principles of res judicata and issue estoppel, whether arising out of a defendant’s default or a defendant’s consent, is the exercise by the Court of judicial power giving finality to a justiciable controversy.[5]
[5] The foundation of doctrine is in the principle of estoppel per rem judicatum. In re South America and Mexican Company Ex parte Bank of England (1895) 1 Ch 37 at 45 per Vaughn Williams J, approved, inter alia, by the Privy Council in Kok Hoong v Leong Cheong Kweng Mines Limited [1964] AC 993 at 1010. See also, Re Funds in Court; Application of Mango Credit Pty Ltd [2016] NSWSC 199 at [138] per Lindsay J.
4.Relevantly, section 15 of the Magistrates Court Act 1991 (SA) (MCA) expressly confines the powers conferred on the Registrar of the Court to “procedural or non-judicial powers of the Court assigned by the rules”.[6]
[6] By s 12 of the MCAct the Registrar and registry employees are defined to be “administrative and ancillary staff” of the Court. Compare, the definition of “Magistrate” in s 3 of the MCAct as a person “holding office”. Section 49 of the MCAct provides for the general matters with respect to which the Court may make rules and sub-s (1)(a) allows for rules governing the duties of officers, and not staff. The power to make rules under the MCAct is submitted to be subject to the more specific division between judicial officers and administrative staff given by ss3, 12 and 15.
5.The Magistrates Court Civil Rules 2013 (MCCR), do not expressly assign the power to sign default judgment to the Court’s Registrar.[7]
[7] MCCR 60 at most speaks of “on proof to the Registrar of such service” but does not expressly provide the Registrar with the power to effect the judgment. Indeed, the rules cannot do so given the operation of s 15 of the MCAct.
6.MCCR 60 provides that a plaintiff may by filing a form 18 sign judgment against a defendant who defaults in filing a defence within 21 days of being served with the Plaintiff’s claim.
7.The effect of MCCR 61 and 62, is that a hearing need not be fixed before a Magistrate for proof of quantum and entry of the default judgment if the claim is in the nature of a debt or liquidated damages claim.
8.A form 18 is not itself a default judgment of the Court.[8]
[8] By analogy to consent judgment, see Verco v Strata Corporation NO. 2822 [2005] SASC 403 at [35] per Bleby J for the Full Court.
9.The MCCR are silent regarding how a form 18 is to be converted into a default judgment of the Court when no hearing is required before a Magistrate because the claim is one for liquidated damages. However that might be achieved, it required the operative judicial act of a Magistrate and cannot be accomplished by the administrative act of a Registrar.
10.On the facts of this case, the apparent process adopted by the Court on receipt of the form 18 was to sign judgment under the hand of the Registrar.[9]
11.That procedure is, in the defendants’ submissions:
11.1.ultra vires the MCAct and the MCCR;
11.2.an improper delegation of power given the express terms of the MCAct; and
11.3. at most, an administrative act which is incapable of giving rise to a res judicata or to an issue estoppel.[10]
12.It is for the plaintiff to meet the onus of proof in establishing that the defendants’ counterclaim is barred.[11]
13.There is nothing in the agreed facts, which establishes, on the balance of probabilities, that a Magistrate was ever involved in the entry of orders on 11 August 2014, or that there was any exercise of judicial power at all.
14.In consequence, no res judicata or issue estoppel arises.
15.That result is particularly so, given that even when judicial discretion of a limited kind has been exercised in permitting judgment by default there is a long standing recognition that “a much more restricted operation must be given to any estoppel arising from a default judgment” than when considering a judgment on merits.[12]
[9] Paragraphs 2 and 3 of the Statement of Facts Agreed for use at Trial.
[10] Administration of Papua New Guinea v Daera Guba [1973] HCA 59. Unlike a judicial decision, the fact that an administrative decision has been made does not necessarily lead to a consideration of whether it affects subsequent proceedings by virtue of the application of the principles of res judicata and issue estoppel. That is not to say that an administrative decision will never lead to a consideration of those principles. However, whether it will do so depends very much on an analysis of the administrative decision, of the power under which it is made and the consequences that Parliament intended that decision to have. It is submitted that an administrative act of the Registrar was never intended by Parliament to give rise to a judgment given the terms of the MCAct. See, Rana and Military Rehabilitation and Compensation Commission [2008] AATA558 at [93] – there is a useful discussion of the decided authorities concerning this issue generally from [81] to [111] of the reasons of Deputy President Forgie.
[11] In Australia in an estoppel action the plaintiff bears the burden of proof and there is no shifting burden. See, Sidhu v Van Dyke [2014] HCA 19 at [61].
[12] Kok Hoong v Leong Cheong Kweng Mines Limited [1964] AC 993 at 1010.
Following a long discussion between bench and bar at a hearing on 22 July 2016 I was satisfied that the matters raised in the defendant’s outline of submissions for trial were not reflected in its pleadings. I was also of the view that if there was to be a challenge to the operation of the Magistrates Court Act and the Magistrates Court (Civil) Rules, it was necessary to give notification to the Attorney-General of that fact.
On that day I made the following orders:
1. That on or before close of business 25 July 2016 the defendant shall file and deliver an amended defence to be amended to reflect only those matters described in paragraphs 11.1 and 11.2 in the defendant’s outline of submissions for trial dated 15 July 2016.
2. Leave to the plaintiff to file and deliver any reply to the defendant’s amended defence by close of business 2 August 2016.
3. The parties are to file and deliver a further statement of agreed facts by close of business 4 August 2016.
4. The defendant shall notify the Attorney-General of the State of South Australia in writing by close of business on 5 August 2016 of the challenges that it makes to the operation of the Magistrates Court Act and the Magistrates Court civil rules and the question of the delegation of power under the Magistrates Court Act which are described in paras.11.1 and 11.2 of the defendant’s outline of submissions for trial dated 15 July 2016.
5. Permission to the defendant to provide a copy of the transcript of today to the Attorney-General of the State of South Australia when providing the written notification to that Attorney-General in compliance with order No.4 of these orders.
6. I adjourn the hearing for this trial to Friday 16 September 2016 at 10 a.m.
7. I order that the costs of the further pleadings together with the costs of this adjournment are reserved for my consideration on 16 September.
Further on that day, I received into evidence two documents being a Loan Agreement made between Better Lending Pty Ltd as lender and Andrew Mandeville and Deborah Mandeville as borrower, dated 2 September 2010 which was admitted to evidence and marked Exhibit P1. I also received into evidence a document comprising a Memorandum of Mortgage of Land between Deborah Mandeville as mortgagor and Better Lending Pty Ltd as mortgagee, undated with a Memorandum of the common provisions attached thereto which was marked Exhibit P2. Both documents were admitted by consent. I also received into evidence the Statement of Agreed Facts. In due course that document will be marked Exhibit P3.
Following those orders, Better Lending filed the third defence. The position remains that the plaintiff has not filed any defence to the counterclaim. The plaintiff filed her reply to the third defence which has been set out above.
Following service of the documents upon the Attorney-General, the Attorney-General filed a notice of acting and address for service dated 4 October 2016 in the following terms:
The Crown Solicitor for the State of South Australia acts as solicitor for the Attorney-General for the State of South Australia, intervening by right under section 9(2) of the Crown Proceedings Act 1992 (SA)…
There was no challenge that the Attorney-General is empowered under s 9(2) of the Crown Proceedings Act to intervene in these proceedings.
The matter was eventually reset for hearing on Friday 7 October 2106. At that time, Mr Hurren appeared as counsel for the plaintiff, Mr Douglas as counsel for the first defendant and Mr O’Flaherty appeared as counsel for the Attorney-General. Prior to the hearing, the Attorney-General had filed a summary of argument. The Attorney-General contends that the argument of Better Lending to impugn the validity of the entry of the judgment in the Magistrates Court action invokes a jurisdiction that is not vested in the District Court. The Attorney-General also contends that the entry of a default judgment under the rules of the Magistrates Court is an exercise of a judicial power, is not ultra vires the Magistrates Court Act and is not an improper delegation of power. Following addresses from counsel, I indicated that it would be my preference to decide the issues arising on the argument put by the Attorney-General first before hearing any further submissions by the parties. One of those submissions included whether or not I would proceed to hear the matter under Rule 211 of the District Court Rules.[13]
[13] 211—Trial of separate issues
The Court may order the separate trial of an issue of fact or law (or an issue involving mixed questions of fact and law) involved in an action.
At the hearing on 7 October 2016 I decided to proceed on the basis that the application be dealt with as one under which Better Lending seeks leave to amend in the terms of the third defence pursuant to 6R54(4)(a).[14] The parties agreed with this approach. I considered that this was the appropriate way to proceed because the complaints raised by the Attorney-General were matters that, if successful, would lead to orders for the removal of those pleas. Thus, the only issue for me became the exercise of my discretion. The applicable test for my consideration is well known and understood. It is necessary for me to be satisfied that the point raised by the proposed amendments is arguable. I do not need to determine and nor should I embark upon the process of determining the issue. I should only have regard to what is shown on the face of the pleadings.
[14] This was the position even though the 3rd defence had been filed at Court and given a “file document number” (FDN).
At the hearing before me, and at my suggestion, counsel made submissions about whether or not the matter should be removed to the Supreme Court; all parties agreed that I should deal with the matter on the basis upon which the matter was before me and as an application under 6R54(4)(a). I raised that possibility with counsel because it seemed to me that this would obviate at least part of the issues arising under the notice filed by the Attorney-General. On that basis the issue for resolution before me became the matters raised by the Attorney-General. Mr Hurren for the plaintiff supported those submissions and did not seek to be separately heard on them. I turn then to the issues raised by the Attorney-General.
The objection to the pleading proposed by Better Lending is summarised as follows:
1.Section 8(1)(b) of the District Court Act precludes this court from having any supervisory jurisdiction… with respect to inferior courts… and has no jurisdiction to grant relief in the nature of a prerogative writ;
2.The expression “supervisory jurisdiction” means the exercise of the jurisdiction of the Supreme Court of South Australia to determine and enforce the limits on the exercise of the State executive and judicial power by persons and bodies other than the Supreme Court. This power is unique to the Supreme Court and thus is excluded from the jurisdiction of the District Court; and
3.The pleadings of the defendant in the alternative plea in paragraphs 29.1.7.2 and 29.1.7.3 of the third defence seek to invoke a supervisory jurisdiction of this court by suggesting that the entry of a default judgment under the rules is a purported exercise of judicial power and therefore was ultra vires the Magistrates Court Act or was an improper delegation of power. Any ruling on that matter would be to purport to exercise supervisory jurisdiction beyond the power of this court.
The matter then proceeded on that basis.
Better Lending first referred to the statement of claim of Mandeville and submitted that her prayer for relief seeks remedies that are entirely conventional to the jurisdiction of the court. That prayer for relief pleads as follows:
29. In the circumstances set out above:
29.1. The rights of Better Lending against Deborah and Andrew under and in respect of the Loan and the Loan Agreement merged in the Judgment, and res judicata applies.
29.2 Further, or in the alternative, Better Lending is to be estopped from asserting any cause of action against Deborah and, or, Andrew arising in any way from the factual matters the subject of the Judgment (including the Loan and the Loan Agreement).
29.3. The Judgement was fully discharged by virtue of the Payment.
29.4. Better Lending has been unjustly enriched to the extent that the Payment exceeded the Judgment and is liable to make Restitution to Deborah in respect of the difference.
29.5. The plaintiff accordingly seeks the following orders and declarations:
29.5.1.A declaration that any and all causes of action in favour of the first defendant against the plaintiff and/or against the second defendant in respect of the Loan Agreement and, or, the Loan have merged in the Judgment and are otherwise extinguished.
29.5.2.A declaration that the first defendant is to be estopped from asserting against the plaintiff and/or against the second defendant any cause of action arising in respect of the Loan Agreement or the Loan, otherwise than in respect of the Judgment.
29.5.3.A declaration that the plaintiff has discharged in full the Judgment by the payment to the first defendant on or about 2 April 2015 of the Payment.
29.5.4.An order that the first defendant make Restitution to the plaintiff by paying to the plaintiff the sum of $46,422.25 (being the difference between the amount of the Judgment and the amount of the Payment) together with interest thereon.
29.5.5.An order that the first defendant pay the plaintiff’s costs of and incidental to this Action on a full indemnity basis.
Better Lending submits and I accept that this prayer for relief seeks remedies that are conventional to the jurisdiction of this court. They include pleas at common law or in equity for relief or relief ancillary to common law relief such as the declarations sought in sub-paragraphs 29.5.1, 29.5.2 and 29.5.3. Better Lending contends that the defence at paragraph 30 merely denies any liability to the plaintiff on any basis. It contends that it does not seek orders that in any way limit the scope of the processes of the Magistrates Court or seek orders in the nature of any prerogative relief. It concedes that the issues for determination under Rule 211 are different because they relate to the question of whether an estoppel arises in one form or another against Better Lending; it contends that those questions are matters arising in equity and do not therefore engage the supervisory jurisdiction or the administrative jurisdiction of a court.
Better Lending concedes that, to an extent, the pleadings in paragraph 29.1.7.2 and 29.1.7.3 of the third defence and the alternative arguments raised by it are akin to administrative remedies. However Better Lending submits that a distinction must be maintained between the reasons for a judgment given by a court and the judgment itself which comprises the orders that a court would make having regard to the relief sought by a party upon the determination of a case. Thus, Better Lending contends that because reasons are not the judgment, it would be necessary in a judgment for the relief granted by a court to be precluded by the specific terms of the statute and not by the reasoning process itself. Put shortly, the contention of Better Lending is that paragraph 30 of its defence is the order that Better Lending seeks, namely that it is not liable to make any payment to the plaintiff and that it is entitled to a payment on the counterclaim. It is said that this is the only place to which the court should look in making a determination about the argument raised by the Attorney-General.
I am unable to accept that submission. Paragraph 30 of the defence is a summary of the position of Better Lending in its defence. The requirements for pleading a defence are set out in 6R 100. 6R 100(1)(c) requires a defendant to specifically raise any special defence on which the defendant relies and 6R 100(1)(d) requires a defendant to state the basis of each special defence on which the defendant relies including by reference to any statutory provision on which the defendant relies. 6R 100(1)(e) requires a defence to contain a short statement of the material facts and matters on which each special defence is based. A special defence is defined in 6R 100(3) to mean a defence which is other than a denial of facts and matters alleged by the plaintiff or a denial that facts and matters alleged by the plaintiff to give rise to a cause of action.
The plea in paragraph 29 of the defence is that the plaintiff is not entitled to the relief sought because recovery under the Loan Agreement is not fettered by principles of estoppel, merger or res judicata. The particulars of that plea are then set out in 29.1.1 to 29.1.7.3.5 and these are set out earlier in this judgment. Those pleadings constitute a defence other than a denial of facts and matters alleged by the plaintiff or a denial that the facts and matters alleged by the plaintiff give rise to a cause of action. The intention of the pleadings is to strike at the heart of the plaintiff’s plea about estoppel, merger and res judicata. The reasons are obvious. If it was not otherwise necessary to set out the pleadings in the sub-paragraphs of paragraph 29.1, it would only have been necessary to set out a simple denial. The better view is that the drafter of the pleading saw fit to plead special defences within the paragraph specifically directed at the effect of the pleadings raised by the plaintiff. It follows that the plea in paragraph 30 of the defence is a summary plea arising from the operation and effect of that which precedes it. The denial is based upon the reasons set out in paragraphs 1-29 of the defence. It is a bare denial based upon earlier pleadings and therefore justified by those pleadings. It follows that the characterisation by Better Lending about focusing only upon the “portal” of the relief pleading in paragraph 30 is not correct.
The civil jurisdiction of the District Court
Section 8 of the District Court Act reads as follows:
8—Civil jurisdiction
(1)The Court has the same civil jurisdiction (both at law and in equity) as the Supreme Court at first instance subject, however to the following qualifications:
(a) the Court has no jurisdiction in probate or admiralty;
(b) the Court has no supervisory jurisdiction except as expressly conferred by statute with respect to inferior courts or tribunals, or with respect to administrative acts, and has no jurisdiction to grant relief in the nature of a prerogative writ.
(2)The Court, in its Criminal Injuries Division, has the jurisdiction conferred on it by the Victims of Crime Act 2001
or a corresponding previous law.
(3)The Court, in its Administrative and Disciplinary Division, has the jurisdiction conferred by statute.
(4) The Court has any other civil jurisdiction conferred by statute.
(5)All proceedings before the Court, other than in its Criminal Division, are to be regarded as civil proceedings for the purposes of this Act or any other Act or law.
(6) Subsection (5)
does not affect any special rule as to the conduct of proceedings for a contempt of the Court.
The second contention of Better Lending was that s 8(1)(b) precludes this court from exercising supervisory jurisdiction except as expressly conferred by statute. It contends that it is necessary to resolve the meaning of that provision by giving primacy to the language of the statute appearing in context. It is a restriction upon the District Court making orders of an administrative nature without there being some specific statutory enactment enabling the court to make orders of an administrative nature or to exercise powers of judicial review.
Better Lending also contends that there is no basis within the pleading to suggest that the court is being asked to make an order of an administrative character. However, Better Lending contends that even if, as a necessary incident of my decision making, it was necessary to form some views as precursors to the exercise of equitable jurisdiction, any decision I make is not binding upon the Magistrates Court. Thus, if Better Lending was successful in its contentions, the effect of my decision would be that the basis upon which the Magistrates Court Rules were used to create a judgment in favour of Better Lending were in error and therefore no estoppel would arise.
Better Lending put those contentions on the following bases. The first was that s 8(1)(b) of the District Court Act was only effective on the basis of an estoppel and not a prerogative writ according to the judgment of the Full Court in Churcher v Edwardstown Carpets.[15] That case concerned a debt arising between a carpet supplier and an end purchaser in a trading period which ended in early 1991. In August 1991 the purchaser was wound up compulsorily by the Supreme Court. The vendor of the carpet then sued the directors of the insolvent purchasing company alleging that those directors were liable under s 592 of the Corporations Act.[16] The directors denied that a Local Court had jurisdiction to entertain a claim under that section but before the matter could be resolved, the Local Court was abolished and the Magistrates Court was established under the Magistrates Court Act 1991. The claim was dismissed by the Magistrate hearing the matter and on appeal to the Supreme Court, the matter appears to have been removed into the Full Court of the Supreme Court, which found that s 42 of the Corporations (South Australia) Act 1990 did not confer jurisdiction on the Magistrates Court and that jurisdiction was only conferred upon the Supreme Court. Comments were made by King CJ and Perry J that under s 8 of the District Court Act, it appeared to be the case that s 42 of the Corporations Act vested jurisdiction in the District Court as well as the Supreme Court. The comments of King CJ and Perry J were obiter. At page 508 King CJ said that s 8 of the District Court Act provides that the District Court has the same civil jurisdiction both in law and in equity as the Supreme Court at first instance. This would be looked upon as a concurrent jurisdiction so that any matter in which the Supreme Court has jurisdiction would, similarly, provide jurisdiction to the District Court including under the Corporations (South Australia) Act. However, in the end, his Honour did not find it necessary to decide the point. Perry J was slightly more emphatic in his Honour’s judgment at page 519 when he said:
…However, I am presently of the view that s 8 (District Court Act) has the effect of engrafting onto the jurisdiction of the District Court the particular jurisdiction created by s 42 of the Corporations (South Australia) Act.
[15] (1993) 60 SASR 503.
[16] (1) Where:
(a)a company has incurred a debt before 23 June 1993; and
(b)immediately before the time when the debt was incurred:
(i) there were reasonable grounds to expect that the company will not be able to pay all its debts as and when they become due; or
(ii) there were reasonable grounds to expect that, if the company incurs the debt, it will not be able to pay all its debts as and when they become due; and
(c) the company was, at the time when the debt was incurred, or becomes at a later time, a company to which this section applies;
any person who was a director of the company, or took part in the management of the company, at the time when the debt was incurred contravenes this subsection and the company and that person or, if there are 2 or more such persons, those persons are jointly and severally liable for the payment of the debt.
(1A)An offence based on subsection (1) is an offence of strict liability.
(2)In any proceedings against a person under subsection (1), it is a defence if it is proved:
(a)that the debt was incurred without the person's express or implied authority or consent; or
(b)that at the time when the debt was incurred, the person did not have reasonable cause to expect:
(i)that the company would not be able to pay all its debts as and when they became due; or
(ii)that, if the company incurred that debt, it would not be able to pay all its debts as and when they became due.
(3) Proceedings may be brought under subsection (1) for the recovery of a debt whether or not the person against whom the proceedings are brought, or any other person, has been convicted of an offence under subsection (1) in respect of the incurring of that debt.
(4) In proceedings brought under subsection (1) for the recovery of a debt, the liability of a person under that subsection in respect of the debt may be established on the balance of probabilities.
(5) Where subsection (1) renders a person or persons liable to pay a debt incurred by a company, the payment by that person or either or any of those persons of the whole or any part of that debt does not render the company liable to the person concerned in respect of the amount so paid.
(6) Where:
(a) a company has done an act (including the making of a contract or the entering into of a transaction) with intent to defraud creditors of the company or of any other person or for any other fraudulent purpose; and
(b) the company was at the time when it does the act, or becomes at a later time, a company to which this section applies;
any person who was knowingly concerned in the doing of the act with that intent or for that purpose contravenes this subsection.
(6A) For the purposes of an offence based on subsection (6), absolute liability applies to paragraph (6)(b).
(7) A certificate issued by the proper officer of an Australian court stating that a person specified in the certificate:
(a) was convicted of an offence under subsection (1) in relation to a debt specified in the certificate incurred by a company so specified; or
(b) was convicted of an offence under subsection (6) in relation to a company specified in the certificate;
is, in any proceedings, prima facie evidence of the matters stated in the certificate.
(8) A document purporting to be a certificate issued under subsection (7) is, unless the contrary is established, taken to be such a certificate and to have been duly issued.
It is worth noting that this matter has been otherwise resolved against the thought processes employed by King CJ and Perry J by statutory enactment. There is now a clear distinction between “Courts” and “courts” within the corporations law jurisdiction. No doubt anomalies may be pointed to in relation to persons exercising that jurisdiction however this is not the place to discuss those anomalies. It is sufficient to say that Churcher does not give any assistance to Better Lending on its submission in relation to the distinction between estoppel and a prerogative writ.
The next argument of Better Lending was by analogy. The focus of this argument was the s 8 (1)(a) of the District Court Act and some authorities on the Admiralty jurisdiction which under the law of South Australia, is confined to the Supreme Court. By analogy, Better Lending argued that the prohibition on the exercise of a supervisory jurisdiction did not remove any possibility of the exercise of such jurisdiction if it was ancillary to or collateral to the proper exercise of some other power. I have earlier described the meaning of the exercise of a supervisory jurisdiction and that expression seems sufficiently well understood. The Supreme Court has supervisory jurisdiction over the Magistrates Court except as specifically provided by statute.
Better Lending argued that the decision of the Full Court in D & H Investments Pty Ltd v Wagner t/as Wagner’s Boatworks[17] concerning s 8(1)(a) of the District Court Act is to be read as not containing any absolute provision prohibiting the District Court from deciding any matter with respect to Admiralty. Better Lending submitted that on a proper understanding of that decision, if there is an incidental issue involving Admiralty that is collateral to the court’s proper exercise of power, the court is not precluded from making such orders. By analogy, if a matter for s 8(1)(b) arose as a collateral or incidental matter, the District Court would not be exercising supervisory jurisdiction. It is necessary to deal with that decision in some detail.
[17] (2005) 91 SASR 27.
Section 9 of the Admiralty Act read as follows:
(1) Jurisdiction is conferred on the Federal Court, the Federal Circuit Court and on the courts of the Territories, and the courts of the States are invested with federal jurisdiction, in respect of proceedings commenced as actions in personam:
(a)on a maritime claim; or
(b)on a claim for damage done to a ship.
(2) Subsection (1) does not confer on a court other than the Federal Court or a Supreme Court of a Territory, or invest a court of a State other than the Supreme Court of a State with, jurisdiction in respect of limitation proceedings.
Section 10 of the Admiralty Act provides:
Jurisdiction is conferred on the Federal Court and on the Supreme Courts of the Territories, and the Supreme Courts of the States are invested with federal jurisdiction, in respect of proceedings that may, under this Act, be commenced as actions in rem.
It follows that under s 9 of the Admiralty Act, jurisdiction is conferred on the Federal Court as well as on all State and Territory courts with respect to proceedings brought in personam.[18] Where there are actions in rem, then jurisdiction is limited to the Federal Court and the Supreme Court of the States and Territories.[19]
[18] Owners of the Motor Vessel ‘Iran Amanat’ v KMP Coastal Oil Pty Ltd (1999) 196 CLR 130 at [9].
[19] Ibid: refer also s 11 Admiralty Act.
Besanko J held at [46] that any jurisdiction exercised by the Supreme Court in Admiralty is not given to the District Court. That does not preclude any other act or law providing Admiralty jurisdiction to the District Court. It merely means that the South Australian Parliament did not see fit to give the Supreme Court’s Admiralty jurisdiction to the District Court. His Honour held that under s 9 of the Admiralty Act (Cth), the District Court has been given jurisdiction over actions in personam in maritime claims and there is nothing within the legislative framework indicating how or why the South Australian Parliament would deny to the District Court the Federal jurisdiction invested in it under s 9 of the Admiralty Act. Alternatively, if that was the intention of the South Australian Parliament, it would be evidencing an intent to repel Federal jurisdiction which would be unconstitutional and which would also run counter to s 22A of the Acts Interpretation Act 1959 (SA).[20]
[20] 22—Construction that would promote purpose or object of an Act to be preferred
It is well settled that Federal Parliament when conferring jurisdiction on a State court takes the court as it finds it.[21] It is also well settled that s 39(2) of the Judiciary Act functions in a way that recognises the jurisdictional limits of the courts of a State where Federal jurisdiction is vested in those courts.[22] It is always necessary for there to be the conferral of jurisdiction (on the State court by the Commonwealth) and therefore, the absence of jurisdiction does not attract the limits of jurisdiction.[23] There is also no doubt that the Federal Parliament had power to invest the courts of the State with Federal jurisdiction.[24]
[21] Federated Sawmill Timber Yard and General Woodworkers Employees Association (Adelaide Branch) v Alexander (1912) 15 CLR 308 at 313.
[22] Commonwealth v District Court of the Metropolitan District Holden at Sydney (1954) 90 CLR 13.
[23] R v Bull (1974) 131 CLR 203.
[24] Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 67 per Brennan CJ – 84 per Dawson J and at 102 per Gaudron J.
Besanko J summarised his view at paragraph [57] as follows:
The constitutional point in this case is quite a narrow one. The Federal Parliament has not by the provisions of the Admiralty Act sought to interfere with the structure or organisation of the courts of a State. Although by express declaration it could increase or limit the jurisdictional limits of the courts of a State, it has not sought to do so. In fact, s 39(2) of the Admiralty Act is a self-imposed limitation like s 39(2) of the Judiciary Act in that the federal Parliament has made it clear that it does not seek to invest federal jurisdiction in a State court beyond the limits of that court’s jurisdiction.
His Honour then said in paragraph [59] that where a State court has no jurisdiction over a particular subject matter then that may be seen as a jurisdictional limit for s 39(2) of the Admiralty Act, but only as it may involve the State legislation. Such a limit does not affect the breadth and operation of the Judiciary Act. And it will not be a limitation of jurisdiction for the District Court if it is not invested with the Admiralty jurisdiction (in rem) of the Supreme Court; the District Court may receive Federal Admiralty jurisdiction for in personam matters, under the Admiralty Act that is not solely within the jurisdiction of the Supreme Court. Thus, a state Act which limits jurisdiction is not a jurisdictional limit for s 39(2) of the Judiciary Act. Where s 9 Admiralty Act invests a state court with jurisdiction, the only limit upon the jurisdiction of the state court is the limitation of jurisdiction under the legislation establishing that court (accepting that in Admiralty matters there is no such limitation for the Supreme Court). His Honour held that it is also not within the legislative competence of the South Australian Parliament to enact a provision which is a denial or which repels Federal jurisdiction invested under the Admiralty Act.
I am therefore unable to accept the submission of Better Lending that the decision in D & H Investments turned on the question of an incidental issue in a proceeding involving an Admiralty matter that is collateral to a court’s proper exercise of jurisdiction not being precluded by the content of s 8(1)(a). In D & H Investments, the plurality decided that the issue turned on the conferral of jurisdiction of the District Court under s 9 of the Admiralty Act consistent with the operation of s 39(2) of the Judiciary Act. The court held that s 8(1) of the District Court Act could not operate in such a way as to prevent the District Court from exercising Admiralty jurisdiction vested in it under the Admiralty Act (or, similarly, the Magistrates Court). The plurality also held that although it cannot be said that the District Court has the Supreme Court’s jurisdiction in Admiralty because of the operation of s 8(1) of the District Court Act, it does not mean that the Federal Parliament cannot and does not invest the District Court with jurisdiction in Admiralty matters. Those matters are not ancillary or collateral issues; they are quite fundamental. I am therefore unable to accept the submissions of Better Lending on this topic.
Better Lending also submitted (and I accept) that consistent with the decision of the High Court in R v Ross-Jones; Ex parte Green,[25] I should decide the actual controversy that is before me within the jurisdiction of the court. I am unable to accept the further submission then made by Better Lending that the only exercise in which the defendant is involved is confined to the defendant seeking findings of fact consistent with an adjudication, that the normal principle of equitable estoppel invoked by the plaintiff was not engaged and that there is no res judicata issues arising. The extension of that argument on the part of Better Lending was that therefore no administrative relief was sought.
[25] (1984) 156 CLR 185.
The Attorney-General submitted initially that paragraph 29.1.7.1 of the defendant’s third defence seeks to characterise the entry of default judgment as an administrative act rather than a judicial act and in that sense it could be viewed as a pleading about a matter of fact and as the basis upon which Better Lending resists the equitable relief and common law relief sought by the plaintiff. I think that this submission can only be correct if it is assumed that paragraph 29.1.7.1 is a standalone plea and is therefore referable to the context of paragraphs 29.1.1 through to 29.1.6. At first glance, this may be thought to be the case because the preamble to paragraph 29.1.7 is “In the premises:” Also, paragraph 29.1.7.2 is a further or alternative plea. Insofar as it is a further plea it must be connected to the content of paragraph 29.1.7.1 which, by virtue of the preamble must be connected to the earlier sub-paragraphs to which I have made reference. Better Lending in its submissions accepted that the only true alternative was subparagraph 29.1.7.3 and therefore paragraph 29.1.7.2 may be read with and seen to be form part of paragraph 29.1.7.1.[26] I therefore consider that the concession made by the Attorney-General is not necessarily correct however it is not also necessary for me to resolve that issue in order to dispose of this matter.
[26] T 62.15-63.14.
Under s 8(1)(b) DCA this court has no supervisory jurisdiction except as expressly conferred by statute. Neither party pointed to any statute relevantly giving this court a general supervisory jurisdiction over the actions of the Magistrates Court as an inferior court. There are examples where specific jurisdiction has been given to this court such as in Minor Civil Reviews but it is not necessary to discuss them here.
The Attorney-General also submits that the supervisory jurisdiction referred to in s 8(1)(b) DCA refers to the:
…exercise by the Supreme Court of the “mechanism for the determination and enforcements on the limits on the exercise of State, executive and judicial power by persons and bodies other than the Supreme Court.”[27] It is this unique and inherent jurisdiction of the Supreme Court that has been explicitly excluded from the jurisdiction of the District Court.[28]
[27] Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531 at 580, at [98].
[28] Attorney-General’s submissions paragraph 4.
The Attorney-General contends that the primary submission of Better Lending that the entry of a default judgment does not involve the exercise of judicial power because a Magistrate was not involved in the process of entering that default judgment is fundamentally flawed. The Attorney-General criticises the three fundamental premises upon which that contention is based which by extension Better Lending says means that any default judgment entered in the absence of the action of a Magistrate would not be capable of giving rise to an issue estoppel or a res judicata. The Attorney-General submits that the logical steps in the argument put by Better Lending (as set out below) cannot withstand critical scrutiny. Those steps are:-
1. The Magistrates Court can only be constituted by a Magistrate who is the only person who may exercise judicial power generally. That judicial power includes the entry of a default judgment;
2. When a Registrar signs a default judgment under the Magistrate Court Rules, there is no involvement in that act of the exercise of judicial power;
3. As a result of the matters contained in paragraphs 1 and 2, whatever is the status of a judgment obtained through the Registrar being involved in the judgment, that judgment does not and cannot give rise to any form of issue estoppel or res judicata.
The Attorney-General submits that it is necessary to consider those submissions in the background of the statutory scheme under which the Magistrates Court operates. The first criticism of this line of argument is that the Magistrates Court is not constituted only by a Magistrate. The Attorney-General submits that this is a fundamental flaw in the approach of
Better Lending.
Section 15 of the Magistrates Court Act provides:
15—Exercise of procedural and administrative powers of Court
A Registrar, special justice or justice may—
(a) issue summonses and warrants on behalf of the Court;
(b) adjourn proceedings before the Court;
(c) exercise any procedural or non-judicial powers of the Court assigned by the rules.
It has been clear since the decision of the High Court in Commonwealth v Hospital Contribution Fund of Australia[29] that persons other than judges who are empowered to exercise the jurisdiction of the court are no less members of the court than judges or justices appointed to the court. In that case, the question before the High Court was whether in an action for damages between a health fund and a federal government Minister, that Minister and former Ministers were answerable to a subpoena for production of documents issued out of the Supreme Court of New South Wales? A second question was whether a Master of the Supreme Court could compel the Ministers to provide the documents identified in the subpoena if it was contended that their production would be injurious to the public interest? A third question was whether the Master of the Supreme Court had jurisdiction to hear and determine the Minister’s claim for public interest privilege? As a result, the action was commenced in the original jurisdiction of the High Court where a declaration was sought that the Master had no jurisdiction to hear and determine the claim or to order production of any of the documents. The issue was whether the Master was exercising the federal jurisdiction conferred upon the Supreme Court of New South Wales under s 39(2) of the Judiciary Act.[30]
[29] (1982) 150 CLR 49.
[30] Section 39(2) Judiciary Act.
(2) The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it...
The High Court decided not to follow its decisions in Kotsis v Kotsis[31] and Knight v Knight.[32] The court held that under s 77(iii) of the Constitution,[33] an officer of the Supreme Court was not part of the court and therefore was not invested with federal jurisdiction. The High Court held that the appointment of a Master of the court under the Supreme Court Act meant that although the Master is not a part of the court in the same sense that a Justice of the court is, the Master still constitutes the court for the purposes of the exercise of the power conferred upon the Master. That is, the Master of the court is part of the court only for the purposes of the exercise of the powers conferred upon him. The High Court held that state law determines the organisation through which the powers and jurisdictions of the state courts are exercised and the jurisdiction and powers of the court do not cease to be its own jurisdiction and powers because they are exercised by an officer of the court under the rules of the court.[34] Gibbs CJ held at [59] as follows:
In the present case, the jurisdiction and powers which (the) Master… was called on to exercise were undoubtedly the jurisdiction and powers of the Supreme Court. He was the officer of the court by whom the jurisdiction and powers of the court in the manner in question were normally exercised and an order made by him, if not set aside or varied by the court, would take effect as an order of the court. Although he was not a member of the court, he was… part of the organisation through which the powers and jurisdiction of the court were exercised in matters of State jurisdiction, and through which they were to be exercised in matters of federal jurisdiction also, once the court was invested with federal jurisdiction.
[31] (1970) 122 CLR 69.
[32] (1971) 122 CLR 114.
[33] “… with respect to any of the matters mentioned in the last two sections the Parliament may make laws-
…
(iii) investing any court of a State with federal jurisdiction.”
[34] Per Gibbs CJ at [58]-[59].
Under the wording of s 15 Magistrates Court Act, the Registrar, as an officer of the court is capable of constituting the Magistrates Court in the exercise of the powers conferred upon him (including judicial powers conferred under statute). This is the limited purpose of the exercise of those powers having regard to the content of the legislative scheme under which the Registrar is appointed. This is consistent with the approach of the High Court in Commonwealth v HCF.
In his submissions,[35] the Attorney-General has set out the history of default judgments culminating in the special endorsement on claims for rents, for debts or liquidated demands in money[36] which enabled a plaintiff to sign judgment and to proceed to execution where a defendant did not enter an appearance. This procedure was largely replicated in most Australian jurisdictions and is the same type of procedure which currently exists under R229 of the District Court Rules.
[35] Para 11, 12 and 13.
[36] Common Law Procedure Act 1852 15 and 16 Vict c 76 s 25.
In Brandy v Human Rights and Equal Opportunity Commission[37] the High Court held that a default judgment constitutes the exercise of a judicial power by a court under its rules. It may therefore be set aside in accordance with those same rules. It is the failure to comply with the rules which will allow one of the parties to the action to enter a default judgment which then remains a judgment of the court under those rules. Thus the action is commenced and it may be brought to a conclusion under the operation of the rules.
[37] (1995) 183 CLR 245 at 262 per Mason CJ, Brennan and Toohey JJ and at 270 per Deane, Dawson, Gaudron and McHugh JJ.
It is well understood that a default judgment obtained in the absence of an appearance or defence by a defendant, for example, is a particular type of case and the court has a discretionary power to set aside that default judgment. It may be said that in the absence of special circumstances, there is a preponderance of view in favour of setting aside the default judgment. These are all questions of fact.
There are also a series of authorities indicating that a default judgment is also capable of creating a res judicata.[38] In Rogers,[39] Lander J held at 596 as follows:-
A judgment entered by reason of the default of another party can give rise to an estoppel per rem judicatam. It has been said that a default judgment can be looked at as another form of judgment by consent and as such, then becomes capable of giving rise to all of the consequences of a judgment contained in a contested action.
The difficulty with judgment in default is determining exactly what it is that has been concluded by the first proceedings.
[38] Kok Hoong v Leong Cheong Kweng Mines Limited [1963] AC 993 at 1010; Rogers v Legal Services Commission (1995) 64 SASR 572 at 596.
[39] Rogers v Legal Services Commission (1995) 64 SASR 572.
The judgment of Lander J in Rogers has been referred to favourably on a number of occasions in other decisions of the Supreme Court of South Australia.[40]
[40] See Attorney General v Kowalski [2014] SASC 1 at [186]-[194]; cf. decision of Judge Barrett in Heath Wines v Atradious [2016] SADC 72.
Magistrates Court Rule 60 reads as follows:-
ACTIONS NOT DEFENDED
60.
(1)Subject to Sub-rule (4), where a party has been served with an action (other than an action under Rules 26, 37, 39 and 40) and does not file a defence within 21 days of service, or any other period fixed by the Court, the other party, on proof to the Registrar of such service, may sign judgment against the party in default, by filing a Form 18.
(2) A party cannot sign judgment –
(a) on a counterclaim or an interpleader action;
(b)on a Third (or subsequent) Party Claim, unless a judgment has been obtained against that party.
(3)(a) The 21 days referred to in Sub-rule (1) will be taken not to include the day on which the party was served.
(b)Where the 21 days referred to in Sub-rule (1) expires on a Saturday, Sunday or public holiday, the period within which a defence may be filed will be extended to expire on the next working day.
(4) Where a party has been served with an action under either Section 15 or Section 16 of the Building and Construction Industry Security of Payment Act 2009, and does not file a defence within 21 days of service, or any other period fixed by the Court, the other party, on proof to the Registrar of such service, may only sign judgment against the party in default by filing with the Form 18 an affidavit certifying as to the circumstances required by either Section 15(1) or Section16(1).
Under sub-rule 1, where a defendant party fails to file a defence within 21 days of service, then it is the other party who is required to prove to the Registrar service (of the proceedings) upon the defendant party and upon such proof, that party may sign judgment against the party in default. This process is done by the filing of the Form 18. The first party must prove the service of proceedings, the expiration of the time for response by the other party and then the application by Form 18 for the signing of judgment by the first party against the party in default.
Magistrates Court Rule 61 reads as follows:-
61. (1) Where a party signs judgment for a claim:
(a) for a debt or liquidated sum; or
(b) …
the party will have judgment for the claim, plus costs on the scale applicable to the claim, but the party has no entitlement to pre-judgment interest except if it is awarded by the Court on an interlocutory application.
Thus, it is necessary for the party who moves the court under an application by filing a Form 18 to satisfy the court that the claim is for a debt or liquidated sum. Consistent with the approach of the High Court in Commonwealth v HCF, the action of the Registrar in receiving proof of service does not derogate from the fact that it is the party seeking the judgment that uses the Rules of the court to obtain judgment against the party in default. Properly considered, any action by the Registrar in those circumstances constitutes an order of the court in the exercise of judicial power, responsibility for which is vested in the Registrar as an administrative functionary of the court. It is necessary to properly construe the Rules of court in order to assess whether the power of the court exercised by a member of the court who is not a Magistrate gives rise to an order of the court. In this instance, the answer to that question is clearly in the affirmative.[41] This proposition is easily tested: the judgment obtained is an order of the court; it remains so unless set aside; and it may be acted upon in the same way as any other order of the court.
[41] Viz Lang v Carron Investments Pty Ltd [2016] VSC 165 at [55].
Referring then to paragraph 29.1 of the third defence, the facts disclosed in paragraphs 29.1.2 and 29.1.3 are correct. In the context of the operation of MCCR 60 and 61, the facts pleaded in paragraph 29.1.4 are correct and the factual allegations in paragraph 29.1.5 are irrelevant. So also are the factual allegations in paragraph 29.1.6 because there is no requirement under the Rules for the involvement of a Magistrate in the issue of a default judgment. And it is not necessary for an officer with a judicial appointment or a Magistrate within the meaning of the Magistrates Court Act or the Magistrates Act to be involved in the signing or entering of the default judgment.
Paragraph 29.1.7.2 of the proposed third defence pleads that the default judgment was a purported exercise of judicial power by a Registrar contrary to ss 3, 7(a), 8, 12 and 14 of the MCA and ss 5-6 of the Magistrates Act 1983. Section 3 MCA is the interpretation provision. In s 3 of MCA, the court is defined as the Magistrates Court of South Australia. Judgment is defined to mean a judgment or order or decision and including an interlocutory judgment. Judicial officer is defined as to mean the office of Magistrate or Special Magistrate and Magistrate is defined to mean a person holding office as a Magistrate under the Magistrates Act 1983. Section 7A MCA prescribes the constitution of the Magistrates Court and that the court may be constituted of a Magistrate or of a Special Justice in particular circumstances. Section 8 MCA prescribes the civil jurisdiction of the court. Section 12 MCA prescribes the administrative and ancillary staff which shall include the principal Registrar, Registrars and Deputy Registrars. Section 14 MCA prescribes the responsibilities of non-judicial staff and under that section, a member of the court’s administrative staff is responsible to the Chief Magistrate for the proper and efficient discharge of his or her duties. Section 5 of the Magistrates Act provides for the appointment of Magistrates by the Governor on the recommendation of the Attorney-General. The Magistracy is defined in s 6 of the Magistrates Act as being the Chief Magistrate, the Deputy Chief Magistrate appointed by the Governor on the recommendation of the Attorney-General.
All of these pleadings may be factually correct but they do not address the fundamental issue for consideration here. A Registrar may constitute the Magistrates Court dependent upon the statutory framework of legislation and Rules in which the Registrar operates. In Commonwealth v HCF the Master was not a member of the court but could make orders of the court if the statutory and rules regime authorised him to do so. The High Court upheld the power of the Master to hear and determine the applications brought in relation to the subpoena because of the statutory and rules regime in which he operated. The position of the Registrar under Rule 60 should be viewed in the same fashion. And there is no pleading of any material facts informing as to how the default judgment was, by virtue of those particular provisions, the “purported” exercise of judicial power by a Registrar. To contrary, it was the exercise of judicial power. It will be necessary to return to that matter.
Paragraph 29.1.7.2.2 pleads that the default judgment was ultra vires the MCA and at most is an administrative decision of a Registrar that did not give rise to res judicata or issue estoppel or render the court functus officio regarding the subject matter of the action. Paragraph 29.1.7.3 pleads that if the default judgment was a valid exercise of an operative judicial act and a judgment within the terms of s 3 of the MCA it is invalid as an improper delegation of judicial power because the MCA does not provide for the delegation of the power to enter default judgment to a Registrar and the rules do not provide for the power to enter a default judgment to a Registrar. Better Lending also pleads that MCCR 60 and 61 do not provide any mechanism by which a Form 18 is converted to a judgment and there is no instrument of delegation of the power of the court to a Registrar. There is then an omnibus plea that such delegation is contrary to the terms of MCA ss 3, 8, 7A, 12 and 14 and MA ss 5 and 6.
I consider that these pleadings of Better Lending do not properly take account of the content of s 15 MCA and especially s 15(c). Under that provision, the Registrar may exercise any procedural or not-judicial power of the court. It is not necessary for me to embark upon a discussion of the meaning of the expression “non-judicial” when discussing powers.
For the reasons which follow I consider that a proper reading of the provision means that the words “procedural” and “non-judicial” refer to different functions. A procedural power is one which, by necessary implication, includes a judicial power of the court. In SGIC v Kassais[42] the Full Court of the Supreme Court of South Australia held that the power in s 15(c) was sufficient to enable the Registrar to record a consent order as to costs, thus becoming an order of the court. Matheson J wrote the decision of the plurality; Doyle CJ agreed with the decision of Matheson J. The facts were that a Magistrate gave judgment for a plaintiff in a motor vehicle claim in an amount well in excess of the plaintiff’s filed claim. For reasons which are not expressed, the Magistrate was unable to deliver judgment and that judgment was delivered by the Registrar of the court pursuant to Rule 103(4). The Registrar was sitting as a Special Justice. The Registrar made an order that by consent the plaintiff have her costs to be agreed or taxed. The Magistrate then later separately heard argument on costs and purported to interpret the order of the Registrar as being an order in accordance with Rule 59(2) which entitled the plaintiff to solicitor and client costs.
[42] Unreported judgment 5 September 1997.
The Full Court held that the Magistrate was not permitted to reinterpret the order for costs made by the Registrar and that the costs order of the Registrar was an order for costs on a party/party basis. This was an order of the court. Thus, if Rule 59(2) was to apply, it was necessary for the plaintiff to have requested the court to make some other form of order before the Registrar at the time of delivery of the judgment. This request was not made. The Full Court set aside the order of the Magistrate. The court did not give consideration to the meaning of the words “procedural” or “non-judicial” power of the court. This is likely because the Registrar was sitting as a Special Justice when he made the order for costs. Bleby J expressed doubt whether an award of costs, especially a contested award, constitutes the exercise of a procedural power of a court. His Honour said as follows:
I remain to be convinced that in the context of this act, the award of costs, especially a contested award, constitutes the exercise of a procedural power of the court. A consent order, where the officer of the court is merely recording as a judgment of the court the parties agreement with respect to costs will constitute the exercise of non-judicial power for the purposes of s 15(c) of the act: Hughes v Hughes (1971) 2 SASR 368 per Zelling J at 374-376. Accordingly, in my opinion, s 15 of the act and Rule 2(3) and Schedule 1 of the rules permitted the Special Justice to make the order, but only so long as it was by consent.
The importance of this discussion is that his Honour appears to recognise the difference between the exercise of a procedural power and a non-judicial power. Although it is necessary to recall that this discussion is obiter, it is some support for the view that I earlier set out that the expression “procedural” and “non-judicial” are disparate. The disjunctive pronoun “or” separates the two words that are intended to carry different meanings.
Halsbury’s Law of England[43] suggests that the term “procedure” refers to the mode or form of conducting judicial proceedings and its function is to regulate the machinery of litigation. The text suggests that the notion of “procedure” cannot affect jurisdiction or accrued rights or duties.[44] In Rodway, the High Court said that:[45]
…a statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance. But the difference between substantive law and procedure is often difficult to draw and statutes which are commonly classified as procedural – statutes of limitation, for example – may operate in such a way as to affect existing rights or obligations. When they operate in that way they are not merely procedural and they fall within the presumption against retrospective operation.
[43] 4th ed, vol 37 at para 10.
[44] Rodway v R (1991) 69 CLR 515; Cook’s Hotel Pty Ltd v Pope (1983) 33 SASR 240; Re Claridge House Limited (in liq) (1981) 28 SASR 481; Commonwealth Bank of Australia v Forshaw (1990) 158 LSJS 197; Commonwealth Bank of Australia v Forshaw (1990) 55 SASR 247.
[45] Rodway v R (1990) 169 CLR 515 at 518.
My researches indicate that the term “procedural” or “procedure” has been the subject of only general consideration by the courts. The authorities that I have earlier discussed are therefore only of general application and are not specifically on point. However, even so, that discussion tends to recognise that procedural matters can include, directly or indirectly, matters that affect existing rights or obligations under the statute under consideration. This lends support to my expressed view about the difference between the exercise of a power which is “procedural” and the exercise of a power which is “non-judicial”. The exercise of a power which is procedural may well determine rights and obligations in a way that is not contemplated by the use of the expression “non-judicial”. This approach is consistent with all of the judgments in Kassais.
At the same time, the exercise of a procedural power will not, as Bleby J opined, permit the Registrar to exercise judicial power as if the Registrar was a Magistrate absent an appointment as a Special Justice for the purpose of hearing and determining a particular matter. So much is obvious from the decision of the Full Court in Kassais and from the wording and structure of the Magistrates Court Act and the Magistrate Court Rules. Thus, in accordance with that decision, a distinction must be made between a matter that is both substantive and contested and one which is purely procedural but which carries some aspect of judicial power. I accept the submissions of the Attorney-General that this distinction, when properly understood, is reflected in Rules 60 and 61. A distinction is made between entering judgment for a debt or liquidated sum (MCCR 61(1)(a)) on the one hand and signing judgment for the costs of repairs to or loss of property and other consequential loss (MCCR 61(1)(b)) on the other. Under this second alternative, MCCR 61(2) operates upon the right of any party signing judgment for a claim for the costs of repairs to or loss of property and other consequential loss. The difference between these two types of claims is so obvious as not to require further discussion.
The discussion of Bleby J in Kassais reflects the difference between substantive law and procedural law where procedural law is generally concerned with the method of enforcing known and established rights and duties. Thus, by this process of reasoning, a procedural power is to be understood as being different from a non-judicial power and is only exercised in accordance with the Rules of court by a person with the necessary authority under those Rules. A Registrar acting upon a request of a party under R60 to sign judgment under the Rules following the fulfilment of the requirements of the Rules is exercising a judicial power but that is not the same thing as, for example, where there is a contest between the parties that requires resolution in a proceeding before the court. The Act and Rules create a different scheme for the resolution of that dispute by a Magistrate. Conversely and consistent with the decision of the High Court in HCF the Registrar is here acting in accordance with the powers given under the Rules; the plaintiff sought the judgment to which it was entitled in the absence of a defence, in the exercise of the judicial power granted under the MCA and the MCCR.
It follows that the registering of a judgment in the court under Rule 60 by the Registrar upon request by a party that has fulfilled the prerequisites for such an application is the apparent exercise of a procedural power. Once that is done, that party may proceed to act upon that judgment as an order of the court in any way that it sees fit. Consistent with that approach and by contrast, Rule 62 requires that in any case not provided for in Rule 61, where a party signs judgment, the Registrar is required to fix a date, time and place for hearing by the court of any assessment of damages or for such order, remedy or relief as the action may require. Thus, a distinction is made within the Rules between a party signing judgment for a debt or liquidated sum and a party signing judgment where there is required to be an assessment of damages. In the former, the Court Rules empower the Registrar to sign the judgment and it may be acted upon as an order of the Court. In the latter, the Court Rules require that once the judgment is registered the matter be referred to the court for the assessment of damages or for the granting of other remedies. The relevant court officer may consider the application to sign judgment and that relevant officer is required to act as required by the terms of the Rules. What may be done by the Registrar varies according to the nature of the claim. The Registrar has all of the power granted under the Rules and in this instance, Rule 60 enables the Registrar to enable the signing of judgment by the party in default.[46]
[46] Armitage v Parsons [1908] 2 KB 410 at 417; Clayton v Thomas C Denton and Co Pty Ltd [1972] VR 46; Philp v DM Aston and Co [2010] SASC 114 at [38]; Eschenberg v Ellerton [2004] SASC 327 at [25]; Commonwealth v HSF (supra) at [58] and at [71].
Paragraph 29.1.7.3 of the proposed pleading of Better Lending contends that a default judgment entered by a Registrar is an exercise of an operative judicial act and is invalid as an improper delegation of judicial power. For the foregoing reasons I am unable to accept this contention which I consider is wrong in law. There are then five further sub-paragraphs of pleadings. They are:
1.That the MCA does not provide for the delegation of power to enter a default judgment to a Registrar;
2.That the rules to do not provide for the power to enter a default judgment to a Registrar;
3.That Rules 60 and 61 provide no mechanism by which a Form 18 may be converted to a judgment by any judicial officer of Registrar;
4.As a result, there is no instrument of delegation of the power of the court to a Registrar; and
5.Any such delegation is contrary to the terms of the same provisions of the Magistrates Court Act and the Magistrates Act.
There is an assumption which sits at the foundation of this plea. It concerns the allegation of an improper delegation of judicial power. I am unable to accept that contention which I consider is wrong in law. The operation of MCCR 60, 61, 62, 63 and 64 and MCA s 15 do not involve the delegation of judicial power in the sense that by some extraneous act, the judicial power which ordinarily would be exercised by a Magistrate is now, somehow, to be exercised by an officer of the court (other than a Magistrate).
This question about delegation of power was comprehensively dealt with by the High Court in Commonwealth v HCF. It is necessary to canvas in some detail the judgments of Gibbs CJ, Mason J and Wilson J in that case. The question before the High Court was whether the word “court” in s 77(iii) of the Australian Constitution and “Courts” in s 39(2) (of the Judiciary Act) mean the persons of whom the court is composed (that is the Judges) or a court as an institution meaning “an organisation for the administration of justice consisting of Judges and with Ministerial officers having specified function”.[47] In giving consideration to the question of the operation of s 77(iii) of the constitution or the operation of s 39(2) of the Judiciary Act, the apparent question is what constitutes “the court”. That question requires, in turn, an examination of the jurisdiction and powers of the court. Gibbs CJ dealt with that question at p 59 of the judgment as follows:
The jurisdiction and powers of the court do not cease to be its jurisdiction and powers because they are exercised by an officer of the court, under the rules of the court. In the present case the jurisdiction and powers which (the Master) was called on to exercise were undoubtedly the jurisdiction and powers of the Supreme Court. He was the officer of the court by whom the jurisdiction and powers of the court in the matter in question were normally exercised, and an order made by him, if not set aside or varied by the court, would take effect as an order of the court. Although he was not a member of the court he was… part of the organization through which the powers and jurisdiction of the court were exercised in matters of State jurisdiction, and through which they were to be exercised in matters of federal jurisdiction also, once the court was invested with federal jurisdiction.
[47] See Windeyer J in Kotsis v Kotsis (1970) 122 CLR 69 at [91].
As page 64, Mason J addressed the question in the context of the High Court and s 71 of the Constitution. He said as follows:
Section 71 vests the judicial power in the High Court, the federal courts and such courts as may be invested with federal jurisdiction. It also provides that the High Court shall consist of a Chief Justice and so many other judges, not less than two, as Parliament prescribes. However, as I see it, the vesting of judicial power in a High Court consisting of a Chief Justice and justices should not necessarily exclude the exercise of some jurisdiction and powers by a master or registrar of the court, whether as a delegate or otherwise, provided that the exercise is subject to review or appeal… In the case of other courts created by Parliament… there is perhaps even less reason for denying that part of their jurisdiction and powers may be exercised by officers who are not judges, whether as delegates or otherwise, provided of course that they are officers who truly form part of the court's organization.
At p 71, Wilson J said as follows:
Jurisdiction is vested in a court, and in that sense the word “court” identifies an institution consisting both of the persons who compose the court, and the officers and procedures through which its judicial function is performed. On this view, there is no problem in giving effect to an exercise by the Parliament of the power to invest federal jurisdiction in a Supreme Court. That invested jurisdiction in the absence of any qualification attached to the investiture is intended by the Parliament to be exercised in the same manner as the State jurisdiction of the court.
The last part of the passage taken from Wilson J’s judgment may be paraphrased as follows:
On this view, there is no problem in giving effect to an exercise by the South Australian Parliament of the power to invest jurisdiction in the Magistrates Court.
The invested jurisdiction spoken of here is exercised through the judicial function. That judicial function may be exercised through the members of the court and its officers and the procedures through which the judicial function is performed.
The Magistrates Court is an institution of statutory creation consisting both of persons who compose the court and the officers and procedures through which its judicial function is performed. Mason J referred to the exercise of judicial function by officers who are not Judges, whether as delegates or otherwise. His Honour’s comments do not carry the presumption that all judicial function exercised through officers who are not Judges would occur through a delegation of power. All that is necessary is that the authorised judicial function is performed by officers who truly form part of the court’s organisation. Wilson J emphasised that the notion of a court is the identification of an institution which comprises the court and the officers and procedures through which the judicial function is performed. The judicial function of the Magistrates Court is conferred under the Magistrates Court Act and through the rules. The judicial function to be performed by a Registrar is described in s 15 MCA. The Registrar, (and other named persons), may exercise any procedural power of the court prescribed by the Act and the Rules.
It is therefore necessary to look to the Acts and the Rules to identify the power. Under Rule 60, a party may commence an action, serve the action, await the requisite 21 days from service (as prescribed under the rules) and then may request the court through the Registrar to sign judgment against a party in default. Once the judgment is registered against a party, then under MCCR 61 the party signing a judgment for a debt or liquidated sum shall have judgment for the claim plus costs but without pre-judgment interest.
The structure which I have described does not fit within what may be described as an “improper delegation of power”. Rather it is an empowerment through the act and the rules that enables the exercise of jurisdiction vested in the court by an officer of the court through which the judicial function of the court is performed according to the MCA and the MCCR. The MCA and the MCCR recognise that the judicial function is exercisable by the Registrar of the court. That is not the language of delegation as that expression may be ordinarily understood. It is not a situation where the power is vested in a Magistrate who, by another power of delegation, then delegates authority to the Registrar. Rather, this is the exercise of invested jurisdiction in the absence of any qualification attached to that investiture. It is therefore not in the nature of a delegation of judicial power and therefore could not attract the epithet of an improper delegation of judicial power. As a result it is not necessary to give consideration to the operation of the Magistrates Act because those pleadings proceed upon a wrong premise. Once it is accepted (because it cannot be in doubt) that the Registrar forms part of the court and is empowered under the Act and Rules there is no utility in examining the operation of the Magistrates Act. The pleadings of Better Lending in paragraph 29.1.7.3 are wrong in law.
I have earlier referred to proposed paragraphs 29.1.7.2.1 and 29.1.7.3.5 wherein reference is made to ss 3, 8, 7a, 12 and 14 of the MCA and ss 5-6 of the Magistrates Act.[48] In the first, it is alleged that a default judgment was a purported exercise of judicial power by a Registrar contrary to those provisions. The second form of pleading allege that the act of the Registrar is an improper exercise of judicial power.
[48] 5—Appointment of magistrates
On the first plea, I have already set out my reasons for reaching the conclusion that the action of the Registrar is the exercise of a judicial power which is specifically authorised by the MCA and the MCCR. Not only is such an action by the Registrar not contrary to those provisions, it is specifically authorised in the same Act and Rules. There is no basis in law to sustain this plea.
On the second plea, similarly there is no question of the delegation of “judicial power”. There is no basis to sustain this plea.
Both of these pleas are not assisted by the references to the Magistrates Act which do not elucidate the issue.
The primary position of the Attorney-General was that the pleadings in paragraph 29.1.7.2 and 29.1.7.3 seek to ventilate matters that are in excess of the civil jurisdiction of this court because they require the court to exercise supervisory jurisdiction over the Magistrates Court. The exercise of such jurisdiction is proscribed by s 8(1)(b) MCA.
The second position is that, as agreed with the parties, this application was to be treated on the same footing as an application by Better Lending to amend its defence. I agree with the parties’ submissions generally that the pleadings in proposed paragraphs 29.1.2, 29.1.3, 29.1.5 and 29.1.6 are all allegations of fact. No basis is suggested or shown that would lead to an unfavourable exercise of discretion against the defendants.
I consider that some of the pleas in paragraph 29.1.7.1 are plainly arguable for R54; paragraph 29.1.7.1.3 falls into this category because that paragraph may stand alone in any event. One reason may be that there is some arguable limitation upon the effect of the decisions in Rogers and Kowalski. Paragraph 29.1.7.1.1 stands in a different category of case. It draws impetus from the pleas in paragraphs 29.1.2 to 29.1.6 which challenge the fact of the default judgment implicitly on the basis that no Magistrate was involved in the signing or entering of the default judgment. I am unable to perceive how this plea raises questions of fact that should be left to the trial Judge. There is no factual challenge to the existence of the judgment procured through the Rule 60 procedure and the Form 18 process. The challenge to the judgment is fundamental because the pleading in 29.1.7.1.1 attacks the scheme of the statute and rules under which the judgment was procured. I am satisfied that a District Court Judge making a judgment on this plea would plainly be exercising supervisory jurisdiction improperly: that jurisdiction is the provenance of the Supreme Court.
My initial view was that the plea in paragraph 29.1.7.1.2 appears to challenge the correctness of the decision in Commonwealth v HCF. The usual approach that I would take to such a plea is that although I think that such a challenge is wholly misconceived, I am unable to categorise it as unarguable. On reflection I consider that I am incorrect on my initial view as expressed. This is because subparagraph 29.1.7.1.2 is to be understood as a step in an approach that reaches the conclusion in paragraph 29.1.7.1.3. It is a plea about a “default judgment”. What is or is not an operative judicial act at common law is not a matter to be decided in a vacuum, as it were. It is a matter to be resolved after a full analysis and consideration of the statutory scheme in which the common law operates. Under the MCA and the MCCR, the Registrar is empowered to act according to the request of the parties seeking the judgment; absent such a request, the Registrar has no power to act and would not do so. Once the request is received and acted upon it becomes an order of the court. For this Court to opine about whether such judgment is an operative judicial act I consider rises above a mere question of fact. The same reasoning applies for 29.1.7.1.1; I consider that any order made by this Court on that pleading would involve the exercise of supervisory jurisdiction in contravention of s 8(1)(b) DCA. The reason is that Better Lending asks this Court to opine on whether a default judgment has a particular status in the midst of its attack on the same judgment that arises under the Act and Rules. This Court does not directly or indirectly possess that jurisdiction. The pleas are not arguable for that reason.
Different to those views, paragraph 29.1.7.1.3 raises questions of fact and law that do not offend the proscription of s 8(1)(b) DCA.
I turn then to paragraph 29.1.7.2 and 29.1.7.3. I consider that no objection could be taken to the pleas about res judicata, issue estoppel or this Court being rendered functus officio. Those matters are demonstrably within the jurisdiction of this Court and require no further discussion. I also consider that for the reasons that are discussed above, the balance of the contents of those paragraphs are not arguable whether standing as separate alternative pleadings or further pleadings connected to the pleading which preceded them. The judicial power exercised was authorised. It was intra vires. To hold otherwise would be to exercise the supervisory jurisdiction proscribed by s 8(1)(b) DCA.
The question of the challenge to the existence of a res judicata is already raised earlier in the pleadings. It is for Better Lending to reconsider its position on the mentioned exclusion in light of this decision.
The exercise of the judicial power was not under a delegation of power but was specifically authorised under the Act. I would refuse leave to plead paragraph 29.1.7.3 for that reason as the pleas about res judicata, issue estoppel and functus officio may be found elsewhere in the pleading of Better Lending. I am satisfied that those specific pleas are raised elsewhere in this defence.
Turning then to the question of the civil jurisdiction of this Court, I am also satisfied that each of the same paragraphs cannot stand because they ask this Court to exercise a supervisory jurisdiction contrary to the requirements of s 8(1)(b) of the DCA. I consider that if a challenge in the nature of these paragraphs was to be made, then the appropriate venue was the Supreme Court of South Australia. I agree that by seeking to impugn this judgment, then Better Lending is asking this Court to exercise jurisdiction that is not vested in this Court.
I will hear the parties as to consequential orders and to costs.
(1) Subject to subsection (2), where a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object.
(2)This section does not operate to create or extend any criminal liability.
(1) The Governor may, on the recommendation of the Attorney-General, appoint such magistrates as the Governor thinks necessary for the proper administration of justice.
(2a) An appointment of a magistrate under this section will be taken to be on a full-time basis unless the instrument of appointment provides that the appointment is on a part‑time basis.
(2b) However, a magistrate not appointed on a part-time basis may, by written agreement with the Chief Magistrate made with the approval of the Attorney-General, perform the duties of his or her office on a part-time basis for a period specified in the agreement.
(2c) An instrument appointing a magistrate on a part-time basis or an agreement under subsection (2b) must specify the hours of duty the magistrate will ordinarily be required to work, expressed as a proportion of the time a magistrate appointed on a full-time basis is ordinarily required to work.
(2d) The hours of duty specified in an instrument of appointment or an agreement under subsection (2b) may be varied by written agreement between the magistrate and the Chief Magistrate made with the approval of the Attorney-General.
(3) A magistrate appointed under this section will, if the instrument of appointment so provides, be an acting magistrate and, in that case, the appointment will be for a term (not exceeding 12 months) specified in the instrument of appointment.
(3a)A former magistrate who has retired from office is eligible for appointment as an acting magistrate.
(4)The Attorney-General must, before making a recommendation for the appointment of a magistrate, consult with—
(a)the Chief Justice; and
(b)the Chief Magistrate,
in relation to the proposed appointment.
(5) A person is not eligible for appointment as a magistrate unless he or she is a legal practitioner of at least 5 years standing.
(6) For the purpose of determining whether a legal practitioner has the standing necessary for appointment as a magistrate, periods of legal practice and (where relevant) judicial service within and outside the State will be taken into account.
(7) An instrument of appointment of a magistrate may contain a condition requiring the duties of the magistrate to be performed wholly or predominantly at 1 or more specified places in accordance with such directions as the Chief Magistrate may give to the magistrate under section 8.
(8) The Governor may, on the recommendation of the Attorney-General made with the concurrence of the Chief Magistrate, vary a condition of an appointment of a magistrate imposed under subsection (7).
(9)A magistrate whose appointment is varied under subsection (8) must be notified in writing of the variation.
6—Magistracy
(1)There will be—
(a)a Chief Magistrate; and
(b)a Deputy Chief Magistrate,
appointed by the Governor on the recommendation of the Attorney‑General.
(2) A person is not eligible for appointment as the Chief Magistrate or Deputy Chief Magistrate unless he or she is a legal practitioner of at least 7 years standing.
(3) The Deputy Chief Magistrate will be taken to have been appointed as a magistrate (if he or she is not already a magistrate).
(4) For the purpose of determining whether a legal practitioner has the standing necessary for appointment under this section, periods of legal practice and (where relevant) judicial service within and outside the State will be taken into account.
(5) Notice of intention to resign an office under this section must be given to the Attorney‑General at least 1 month before the resignation is to take effect.
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