Marmanidis v Germein - [2017] SASC 103

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
MARMANIDIS v GERMEIN & ANOR
[2017] SASC 103
Judgment of The Honourable Justice Hinton
7 July 2017
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS - ACTIONS TO REVIEW OR SET ASIDE JUDGMENT OR ORDER - WHERE JUDGMENT OR ORDER MADE IRREGULARLY, ILLEGALLY OR AGAINST GOOD FAITH
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - UNREASONABLENESS
Application for judicial review of a judgment of a Magistrate refusing an application to set aside a default judgment.
On 24 July 2013 the first defendant filed an originating claim in the Magistrates Court, Minor Civil Division, seeking $2,335.31 plus interest and costs in consequence of damage caused to his Alfa Romeo motor vehicle when it collided, he asserted, with the plaintiff’s BMW motor vehicle in Tynte Street at North Adelaide on or around 21 November 2012.
That claim was purportedly served by pre-paid post by the Registrar upon the plaintiff on 31 July 2013, as permitted by the Magistrates Court (Civil) Rules 2013 (SA). Service upon the plaintiff was taken to be effected on 2 August 2013. The plaintiff did not file a defence within 21 days, with the consequence that as of 23 August 2013 the defendant was entitled to judgment in default.
On 27 August 2013 the defendant sought and obtained judgment against the plaintiff in default. The defendant then turned to enforce the judgment. A warrant of sale was issued on 4 December 2015 in respect of a property owned by the plaintiff in North Adelaide. The property was to be auctioned on 29 July 2016.
On the day immediately preceding that set for the auction the plaintiff applied for orders setting aside the default judgment and staying the warrant of sale. On 28 July 2016 the Magistrate ordered that the warrant of sale be stayed upon the plaintiff paying the sum of $14,768.75 to the Sheriff by 5.00 pm that day. The plaintiff paid $14,768.75 to the Sheriff on the morning of the auction in time to prevent it proceeding.
On 11 October 2016 the Magistrate dismissed the plaintiff’s application to set aside the default judgment and ordered that the money held by the Sheriff, namely the $14,768.75, be paid to the defendant’s solicitors.
The plaintiff applied to this Court for the judicial review of the Magistrate’s order dismissing the application to set aside the default judgment. She contends that the default judgment was not regularly obtained; that the order refusing the application to set aside the default judgment was infected by jurisdictional error; that the order refusing to set aside the default judgment was, in all the circumstances, legally unreasonable; and that the plaintiff was not afforded procedural fairness by the Magistrate in that all material that she put before the Magistrate was not considered.
Held, allowing the application for judicial review:
1.       The default judgment was not regularly obtained.
2.       An order in the nature of certiorari should be made quashing the default judgment entered in the record of the Magistrates Court on 27 August 2013.
3.       The matter is remitted to the Magistrates Court to be dealt with according to law.

MARMANIDIS v GERMEIN & ANOR
[2017] SASC 103
Civil: Judicial Review
HINTON J.
Introduction

On 24 July 2013 the first defendant (the defendant) in these proceedings filed an originating claim in the Magistrates Court, Minor Civil Division, seeking $2,335.31 plus interest and costs in consequence of damage caused to his Alfa Romeo motor vehicle when it collided, he asserted, with the plaintiff’s BMW motor vehicle in Tynte Street at North Adelaide on or around 21 November 2012.[1] That claim was purportedly served by pre-paid post by the Registrar upon the plaintiff on 31 July 2013, as permitted by the Magistrates Court (Civil) Rules 2013 (SA) (MCCR).[2] Proceeding in this way meant that service upon the plaintiff was taken to be effected on 4 August 2013.[3] From that date the plaintiff had 21 days in which to file a defence.[4] She did not do so with the consequence that as of 25 August 2013 the defendant was entitled to judgment in default.[5] On 27 August 2013 the defendant sought and obtained judgment against the plaintiff in default.
[1] The proceedings were conducted by the defendant’s insurer, RAA Insurance Ltd, as permitted by s 125 of the Motor Vehicles Act 1959 (SA).
[2]    Magistrates Court (Civil) Rules 2013 (SA) r 47(1)(a).
[3]    Magistrates Court (Civil) Rules 2013 (SA) r 52(1) which provides that service is taken to be effected four days after the Registrar posted the originating claim.
[4]    Magistrates Court (Civil) Rules 2013 (SA) r 60(1).
[5]    Magistrates Court (Civil) Rules 2013 (SA) r 60(1).
The defendant then turned to enforce the judgment. Below the details of the process engaged in are set out. For present purposes it is sufficient to note that the process resulted in a warrant of sale being issued on 4 December 2015 in respect of a property owned by the plaintiff in North Adelaide. The property was to be auctioned on 29 July 2016.
On the day immediately preceding that set for the auction the plaintiff applied for orders setting aside the default judgment and staying the warrant of sale. The Magistrate adjourned the application to set aside the default judgment to 11 October 2016. In addition, she ordered that the warrant of sale be stayed upon the plaintiff paying the sum of $14,768.75 to the Sheriff by 5.00 pm that day. The plaintiff did not pay $14,768.75 to the Sheriff by 5.00 pm. She did however pay $14,768.75 to the Sheriff on the morning of the auction in time to prevent it proceeding.
On 11 October 2016 the Magistrate dismissed the plaintiff’s application to set aside the default judgment. The Magistrate also ordered that the money held by the Sheriff, namely the $14,768.75, be paid to the defendant’s solicitors. That same day the plaintiff instituted these proceedings. It will be necessary to say something more regarding the history of these proceedings in this Court. For now, it is enough to indicate that they have gone forward as an application for the judicial review of the Magistrate’s orders of 11 October 2016. Accordingly, the Magistrate’s Court is joined as the second defendant to these proceedings.[6]
[6] Rule 200A(2)(a) of the Supreme Court Civil Rules 2006 (SA).
Essentially, the plaintiff contends that the default judgment was not regularly obtained; that the order refusing the application to set aside the default judgment was infected by jurisdictional error; that the order refusing to set aside the default judgment was, in all the circumstances, legally unreasonable; and that the plaintiff was not afforded procedural fairness by the Magistrate in that all material that she put before the Magistrate was not considered.
Before dealing with each of the arguments advanced it is necessary to set out in greater detail the history of the matter in the Magistrates Court, to summarise the reasons of the Magistrate for refusing the application to set aside the default judgment, and to say something more regarding the history of the proceedings in this Court. At this juncture, it should also be observed that the second defendant has advised the Court of its intention to abide the event. Further, that the Attorney‑General has intervened, pursuant to s 9(2) of the Crown Proceedings Act 1992 (SA).[7]
[7] The Attorney-General intervened in these proceedings purportedly as of right under s 9(2)(b)(ii) of the Crown Proceedings Act 1992 (SA) contending that the judicial powers of this Court were in question. The plaintiff objected to his intervening on the basis that for some time she had corresponded with the Attorney-General’s Department regarding, amongst other things, problems with the Courts Administration Authority and its registries without satisfactory response.
In my view s 9(2)(b)(ii) of the Crown Proceedings Act1992 (SA) is not engaged in this case. The power of this Court to either entertain the plaintiff’s application or to grant the relief sought is not in question. Neither is the power of the Magistrates Court to entertain the applications made in question. As much is evident in the Attorney-General’s outline of argument which did not address the question of any power being in issue. The Attorney-General’s submissions focussed upon the exercise of the discretion to grant prerogative relief where all appeal avenues had yet to be exhausted. That is to make a submission on a long established principle. Nevertheless, I would grant the Attorney-General permission to intervene under s 9(2)(c) of the Crown Proceedings Act1992 (SA). Issues of public importance arise in this case concerning the operation of the Magistrates Court (Civil) Rules 2013 (SA) and the nature of the record and I have found counsel for the Attorney-General’s submissions on each issue of great assistance.
The defendant’s minor civil action and enforcement of the default judgment obtained
As mentioned, on 27 August 2013, pursuant to rule 60(1) and rule 125(1) MCCR, the defendant filed a Form 18 “Request to Registrar” in the Magistrates Court seeking to sign judgment in the sum of $2,470.06 in addition to the issue of an investigation summons against the plaintiff whose address was given as Barton Terrace, North Adelaide SA 5006, the same address as that contained in the claim. The investigation summons was issued in order that the plaintiff attend an investigation hearing for the purposes of investigating her means of satisfying the judgment debt.[8]
[8] Magistrates Court (Civil) Rules 2013 (SA) r 125(1).
That same day, 27 August 2013, pursuant to rule 125(2) the Registrar entered judgment and issued a Form 25 investigation summons. That summons was addressed to the plaintiff as judgment debtor at Barton Terrace, North Adelaide SA 5006. After identifying the Registry out of which the summons was issued, the summons referred to the court action number and stated:
JUDGMENT including costs          $2335.31
BALANCE  $2335.31
Issue fee  $    50.00
Service fee  $    34.75
Solicitors fee  $    50.00
TOTAL OWING   $2470.06
(plus interest on balance from date of issue)
The summons identified the judgment creditor and the judgment debtor, then stipulated:
TO JUDGMENT DEBTOR – Ms Helen Marmanidis
… Barton Tce NORTH ADELAIDE SA 5006
You must appear at the Court at Court 25 – Level 4, Adelaide Magistrates’ Court (Civil) 260-280 Victoria Square, Adelaide on Thursday the 10^th day of October, 2013, at 10:00am to answer questions about how you pay the above total owing.
If you do not attend within 15 minutes of the appointed time and wait until your case is called you may be arrested.
You may apply to the Court to set aside this judgment if you have an arguable case on the merits and the judgment was not a final judgment.
The summons was signed and dated and had affixed to it the seal of the Magistrates Court.
Rule 122(2) MCCR required that an investigation summons be personally served by the Sheriff. A Sheriff’s Officer made three unsuccessful attempts to personally serve the investigation summons on the plaintiff at the Barton Terrace address on 4 September 2013, 11 September 2013 and 21 September 2013.[9]
[9] Attempted Execution Report, 25 September 2013.
On 9 December 2013 the defendant filed a fresh Form 18 Request to Registrar seeking the re-issue of the investigation summons and nominated the plaintiff’s work address as the address for service. The Registrar issued a second investigation summons, this time in the amount of $2,584.24 due to the inclusion of interest of $29.43. The summons commanded the attendance of the plaintiff at “Court 25 – Level 4, Adelaide Magistrates’ Court (Civil), 260-280 Victoria Square, Adelaide, on Thursday the 13^th day of February, 2014, at 10.00 am”.
With the exception of the inclusion of the interest component of the judgment debt, the change in address for service and the fresh date for attendance, the investigation summons was no different in content to that issued on 27 August 2013. In particular it included in bold type the warning as to the risk of arrest in the event of non-attendance.
On 7 January 2014 a Sheriff’s Officer personally served the investigation summons on the plaintiff at her work address.[10]
[10] Affidavit of Jeffrie Clement Ridley, sworn 14 January 2014.
Under cover of a letter dated 6 February 2014 the plaintiff returned the investigation summons to the Registrar of the Magistrates Court. The letter stated:
The attached Investigation Summons was given to me by a Sheriff’s Officer, (? Mr Jeff Ridley) at my rooms while I was in consultation with a patient.
I do not know and have never heard of the person named in it and know of no reason that they would believe that I owe them any money.
Yours sincerely
On 13 February 2014 the investigation hearing was called on before the Deputy Registrar. There was no appearance by the plaintiff.
On 5 March 2014 using a Form 18 Request to Registrar the defendant sought the issue of a warrant for the arrest of the plaintiff. That same day, under rule 125(5) MCCR, a warrant for the arrest of the plaintiff was issued by a Deputy Registrar of the Court.[11] The warrant was endorsed as expiring on 4 March 2015.
[11] The power to issue a warrant is vested in the Registrar by s 15 of the Magistrates Court Act 1991 (SA).
On 6 May 2014 a Sheriff’s Officer was unsuccessful in executing the warrant of arrest.[12]
[12] Advice of Warrant for Arrest, Magistrate Court File No. AMCCI-13-3288.
On 28 July 2014 the defendant, using once more a Form 18 Request to Registrar, sought the re-issue of the warrant for the arrest of the plaintiff. The warrant of arrest was issued the same day.
On 11 February 2015 a Sheriff’s Officer filed a progress report with the Registry indicating that the arrest warrant was yet to be executed.[13]
[13] See Magistrates Court Copy of Record, printed 25 October 2016 at 9.57 am.
On 26 February 2015 the defendant made an ex parte application to extend the life of the warrant of arrest issued on 5 March 2014 for a period of 12 months pursuant to rule 137(7) MCCR.[14] A paralegal in the employ of the solicitors acting for the defendant, Mr Koppany, swore an affidavit in support of the application. That affidavit referred to the efforts made to date to execute the warrant.[15]
[14] Magistrates Court (Civil) Rules 2013 (SA) r 63(2) permits a person to make an application ex parte where proper cause exists.
[15] Affidavit of Andrew Mark Koppany, sworn 26 February 2015.
On 27 February 2015 the application was granted by a Magistrate in chambers and the life of the warrant was extended to 26 February 2016.
On 23 September 2015 a Sheriff’s Officer unsuccessfully attempted to execute the warrant of arrest upon the plaintiff at her work address.
On 16 November 2015 the defendant filed an application for leave to issue a warrant of sale against the real property of the defendant located at Barton Terrace, North Adelaide 5006. Power to issue the warrant is to be found in rule 133 MCCR and s 7 of the Enforcements of Judgments Act 1991 (SA). The application was supported by a further affidavit sworn by Mr Koppany.[16] That affidavit told of the defendant’s solicitor’s inquiries of the registry regarding the execution of the warrant of arrest and the response given as to the efforts undertaken. The affidavit also stated that the plaintiff was the sole registered proprietor of three properties and the joint registered proprietor of two other properties. The defendant elected the Barton Terrace property as the subject of the warrant of sale.
[16] Affidavit of Andrew Mark Koppany, sworn 13 November 2015.
The defendant’s solicitors served the application and supporting affidavit on the plaintiff by post sent to two addresses, the address of the plaintiff’s consulting rooms in addition to her post office box number.[17] The letter accompanying the application and affidavit said:
[17] Affidavit of Maria Giameos, sworn 19 November 2015.
RE: ADELAIDE MAGISTRATES COURT (CIVIL) ACTION NO: 3288 OF 2013 SAMUEL GERMEIN V YOURSELF
We act for the plaintiff in this matter under instructions from RAA Insurance Ltd.
We enclose for your attention and by way of service an application and supporting affidavit of the writer including various annexures. The application is set for a hearing at the Adelaide Magistrates Court (Civil) at 10.00am on 2 December 2015.
On 2 December 2015, the Registry received a copy of the defendant’s solicitors’ letter forwarded to it by the plaintiff. There is no accompanying letter from the plaintiff on file. Nonetheless, the plaintiff admits she sent the letter to the Registry.[18]
[18] Affidavit of the plaintiff, sworn 28 July 2016 at [61].
On 2 December 2015 a Magistrate granted the defendant leave to issue a warrant of sale against the Barton Terrace property. There was no appearance by the plaintiff at the hearing of the application. The Magistrate ordered the plaintiff to pay the defendant’s costs of the application fixed in the sum of $100.
The warrant of sale was issued by the Registrar on 4 December 2015 and sent to the Sheriff’s Office for execution on 9 December 2015. The Sheriff’s Office then took steps to seize and sell the property. Those steps culminated in arrangements being made for the property to go to auction on 29 July 2016.
The applications to set aside the default judgment and stay the execution of the warrant of sale
On 28 July 2016 the plaintiff filed in the Magistrates Court an application seeking a stay of the warrant of sale and an order setting aside the default judgment of 27 August 2013. In support of her application the plaintiff filed and served an affidavit sworn 28 July 2016.
Due to the impending auction those applications were heard the same day as that on which they were filed. The plaintiff attended in person. The defendant was represented by counsel.
The Magistrate informed the parties that she had read the plaintiff’s application and affidavit. The Magistrate informed the plaintiff that on an application to set aside a default judgment it was incumbent upon the applicant to satisfy the Court that she had an arguable case on the merits.[19] The Magistrate said:[20]
I cannot see in the affidavit that has been filed what your proposed defence to the action is or would have been had it been filed within the appropriate time frame. If I’m missing something let me know but just saying there’s not enough detail in the claim isn’t enough. I need to know your version and I need to know it on oath.
[19] Transcript, 28 July 2016 at 2.
[20] Transcript, 28 July 2016 at 2.
The plaintiff elected to give evidence on oath.
Once sworn the Magistrate asked the plaintiff what her defence would have said, had she filed a defence, in answer to the allegations contained in the claim. Through a series of questions and answers it was determined that the defence would have denied that the plaintiff was driving a BMW on the relevant date and would have denied that she was involved in an accident with the other car, albeit that if the plaintiff had more detail she could confirm exactly where she was.[21]
[21] Transcript, 28 July 2016 at 3-6.
The Magistrate then turned to the question of why a defence had not been filed. The plaintiff denied receiving a copy of the claim that was apparently served by post to the Barton Terrace address on or about 31 July 2013. The Magistrate asked if she was living at that address on or about that time. The plaintiff said that she only lived there half of the time.[22]
[22] Transcript, 28 July 2016 at 6.

The Magistrate asked the plaintiff about the investigation summons that was served upon her at her work address in January 2014. The plaintiff agreed that she was served with the summons. The Magistrate observed that since that time the plaintiff had had contact with Sheriff’s officers on numerous occasions and received communications from the solicitors for the defendant, then asked the plaintiff why it had taken until 28 July 2016 for her to apply to set aside the default judgment. The plaintiff said that she had not done anything about it because she did not know what the judgment was about.[23] All she had “was a summons that had nothing on it”.[24]
[23] Transcript, 28 July 2016 at 7.
[24] Transcript, 28 July 2016 at 7.
The Magistrate asked the plaintiff whether she had received a letter dated 14 February 2014 addressed to her, care of the post office box number that appears on her letterhead from the defendant’s solicitors.[25] She denied receiving the letter.[26] The Magistrate said that even if the plaintiff did not receive the letter she had nonetheless been aware of the proceedings for a long time and, indeed, had the benefit of the investigation summons which advised her that she could apply to have the default judgment set aside. The Magistrate again asked the plaintiff why it had taken her so long to apply to set aside the default judgment and explained that the authorities required that the Magistrate be convinced that the plaintiff genuinely desired to defend the claim.[27] The plaintiff said:[28]
Because I have sought, because I have sought the particulars of what happened before I’ve been able to – in order to set aside the default judgment. So what I’ve been advised is I need to know what was being claimed. The details of what was being claimed.
[25] The letter dated 14 February 2014 sets out the nature and history of the proceedings in detail. The letter invites the plaintiff to contact the writer as soon as possible, and suggests that the plaintiff provide her motor vehicle insurer with the details of the enclosed proceedings and have them contact the defendant’s solicitors. The letter concludes by saying they will hold the matter in abeyance for 14 days and that they look forward to receiving an appropriate reply. The letter contains the note “Enc – court proceedings 24/7/13”.
[26] Transcript, 28 July 2016 at 7-8.
[27] Transcript, 28 July 2016 at 9.
[28] Transcript, 28 July 2016 at 9.
The plaintiff said she did not receive a copy of the claim until 6 May 2016 when she was provided with a copy of the court file.[29]
[29] Transcript, 28 July 2016 at 9.
The Magistrate then raised with the plaintiff that prejudice to the defendant was a relevant factor.[30] She again asked the plaintiff if there was any other reason why it took her so long. The plaintiff told the Magistrate that a further reason was because of her experience in applying for a default judgment in another matter to be set aside. She said that because of her difficulty in that matter in filing documents that she was very wary of the Registry and added:[31]
I feel as if I’m being induced to get involved in court proceedings and as a result of that I find myself then being accused of things which are untrue but which I can’t defend because I have an issue with the court registries.
[30] Transcript, 28 July 2016 at 10.
[31] Transcript, 28 July 2016 at 11.
No further questions were asked of the plaintiff.
Counsel for the defendant then made submissions in opposition to the plaintiff’s application. She said that the claim had been sent to the plaintiff’s Barton Terrace address after obtaining the address from a property search. Further, counsel said that when the defendant lodged the claim he informed his insurer that he had exchanged details with the other driver, including her name, address and mobile telephone number. Counsel had not had the opportunity to get a sworn affidavit from the defendant to that effect.
The Magistrate told the plaintiff:[32]
…when the court deals with applications to set aside default judgment, I’m not supposed to really be weighing up the evidence as to whose position I believe, but you are the person who bares the onus of proving to me you have an arguable case on the merits, that’s the first criteria. What you’re saying is that you don’t recall to the best of your recollection ever being involved in an accident on that date. You may well be right that you don’t recall that but information from the other driver involved in the accident and what might have happened oat (sic) or about that time is really important for me to have a look at and I need to see that in relation to your application to set aside the default judgment because there’s no point in setting aside a default judgment if in fact it occurred or transpires that after we go through the process all over again, it transpires that in fact you realise or remember or whatever that yes actually the accident did occur and yes you did reverse into this car and yes there was damage. There’s no point in going through the process again. That’s why you have to prove you’ve got an arguable case on the merits. I don’t think I can properly determine your application today in the absence of hearing that information from the [defendant]. That’s the application to set aside the default judgment I’m talking about.
[32] Transcript, 28 July 2016 at 15.
The Magistrate adjourned the application to set aside the default judgment to allow the defendant to file and serve an affidavit as to the circumstances of the accident and the exchange of details.
The plaintiff then made a number of submissions calling into question the propriety of the obtaining of the default judgment. She told the Magistrate that she never received a copy of the claim that was sent to her Barton Terrace address. The plaintiff told the Magistrate that it was her understanding that there had to be on the court file an affidavit of service, and that, if judgment in default of a defence being filed was to be entered, the Registrar was required to fix a date in order to assess damages. The Magistrate explained to the plaintiff the effect of rule 62(3) MCCR.[33]
[33] Transcript, 28 July 2016 at 19. Magistrates Court (Civil) Rules 2013 (SA) r 62(3) provides: In a minor civil action, the Court may receive as evidence of the fact or quantum of injury, damage or loss an affidavit, deposed to by the party, the solicitor acting for the party, or an assessor or other expert, which annexes relevant evidentiary material.
The plaintiff then queried why the defendant was entitled to be represented by a lawyer.[34] The Magistrate explained the extent to which lawyers can assist a claimant in prosecuting a claim in the minor civil division.
[34] Transcript, 28 July 2016 at 19.
The plaintiff asked the Magistrate, if the Court was aware on 11 February 2014 that she was not aware of who the defendant was as she had indicated in her letter of that date, why it did not at that time contact her to inform her of the making of any court order against her.[35] The Magistrate replied that the obligation was upon the plaintiff to respond to the investigation summons in accordance with its terms. The plaintiff was of the opinion that, as she did not receive a response from the Court to her letter, it was patently obvious that there was no reason for her to attend.[36] The Magistrate said that it was not the Court’s role to chase people, and that it was for the parties in the action to protect their interests in accordance with the documents that are provided to them.[37]
[35] Transcript, 28 July 2016 at 20.
[36] Transcript, 28 July 2016 at 22.
[37] Transcript, 28 July 2016 at 22.
The Magistrate advised the plaintiff that the default judgment had been regularly obtained, that to set it aside certain steps had to be taken and that those steps included giving the defendant the opportunity to file an affidavit from the insured telling of the accident and the exchange of details that counsel had advised the Court occurred. The Magistrate indicated that she proposed to adjourn the application to allow that to occur. Eventually, after some discussion of dates, the application to set aside the default judgment was adjourned to 11 October 2016 at 9.30 am.
Having determined that the application to set aside the default judgment could not be dealt with, the Magistrate turned to the application to stay the warrant of sale.[38] The Magistrate indicated that, bearing in mind the period of time that had passed and the prejudice to the defendant, she was only prepared to stay the warrant for sale if the plaintiff paid the sum of $14,768.75 into Court by 5.00 pm that day. The plaintiff indicated that she would not pay the money into Court. The Magistrate made the following orders:
1. The warrant of sale will be stayed only if the [plaintiff] pays the sheriff’s account the sum of $14,768.75 by 5pm today 28 July 2016.
2. The application to set aside judgment is adjourned to Tuesday 11 October 2016 at 9.30 am.
3. Any responding affidavits sought to be relied upon by the [defendant] with respect to the application are to be filed and served by the [defendant] by close of business Friday 23 September 2016.
4. Service upon the [plaintiff] is to be at address PO Box … North Adelaide 5006.
[38] Transcript, 28 July 2016 at 25.
On 29 July 2016, the morning of the auction of the Barton Terrace property, the plaintiff paid $14,768.75 to the Sheriff. The auction did not proceed.
The hearing of the plaintiff’s application to set aside the default judgment resumed on 11 October 2016. By that time the defendant had filed an affidavit, affirmed 5 August 2016, in which he deposed as follows:
1.I confirm that on the 21^st day of November 2012 I was driving an Alfa Romeo motor vehicle displaying registration no. … which was travelling along Tynte Street, North Adelaide in the State of South Australia.
2.My motor vehicle was involved in a collision with a BMW motor vehicle displaying registration no. … which at the time was being driven by Helen Marmanidis.
3.The said BMW motor vehicle reversed from a car park and collided into my Alfa Romeo motor vehicle.
4.Following the accident scene I exchanged details with the driver of the BMW motor vehicle.
The plaintiff had also filed a further affidavit, sworn 10 October 2016.
The Magistrate indicated that she was in receipt of the defendant’s affidavit and the plaintiff’s second affidavit. The Magistrate invited the plaintiff to make any further submissions she wished.
The plaintiff repeated that she still did not understand how the process had come about. She repeated that she did not know who the defendant was, did not understand why he was not in Court, and had no way of communicating with him. She again denied being involved in any accident. The plaintiff said that she had asked for a copy of the transcript because she did not want to find herself implicated in something that had nothing to do with her. She said:
I really asked for a copy of the transcript because I don’t want to find myself in proceedings as I have in the past where I’ve been implicated in something that has nothing to do with me and on this occasion the events that occurred after our hearing were such that I think they are so grossly unusual that they only serve to, for me, substantiate my concerns that this process is not about any car accident, this process has been about my, my home being searched, my being prevented from practicing, my continuing to be harassed, I, endless phone calls, my not being able to see patients, my medical notes being denied me. So I have serious concerns about, about what this matter is about.
The defendant remained opposed to the application on the grounds of prejudice arising from the delay and the absence of any defence being disclosed.
The Magistrate then delivered judgment.
The Magistrate’s reasons
The Magistrate introduced her reasons by identifying the nature of the application and the evidential material received. Importantly the reasons make plain that the Magistrate had regard to the two affidavits of the plaintiff referred to above (sworn 28 July 2016 and 10 October 2016), the defendant’s affidavit (sworn 5 August 2016), and the oral evidence given by the plaintiff on 28 July 2016. The Magistrate then reminded herself of the applicable rule (rule 87 MCCR) and the task she was to undertake. Thereafter the Magistrate set out in detail the procedural history of the matter. In the course of doing so the Magistrate noted that the plaintiff had acknowledged receipt of the investigations summons but chosen to return it to the Court on 6 February 2014 and that the plaintiff did not attend the investigations summons hearing on 13 February 2014.[39] The Magistrate also noted that following the issue of the warrant of arrest to which reference has been made above, numerous attempts were made to execute the warrant.[40] The Magistrate said:[41]
…it is clear from the material on file that [the plaintiff] understood that attempts were being made to arrest her, but did not at that time actively engage in the court process in the sense of either applying to set aside the default judgment or coming to court with a view to endeavouring to engage with the process and put forward a defence.
[39] Reasons of the Magistrate at [9].
[40] Reasons of the Magistrate at [11].
[41] Reasons of the Magistrate at [11].
The Magistrate then recorded:[42]
The [plaintiff] maintains that she did not receive a copy of the claim that was posted to the address as stipulated on the claim and further that she did not receive a copy of the letter from BDK that I have referred to previously dated 14 February 2014. I do note that the [plaintiff] acknowledges that she does live occasionally at the address at Barton Terrace and that her PO Box is …
By reference to the affidavits filed by the [plaintiff], she maintains that she has not been provided with adequate information by the [defendant] to properly defend the claim and maintains that she was not aware of the nature of the claim against her until April 2016 when she received information from the Registry to the effect that the claim related to a motor vehicle accident.
[42] Reasons of the Magistrate at [13]-[14].
The Magistrate then turned to consider the merits of the application. With respect to the question of whether the plaintiff had an arguable case, the Magistrate referred to the plaintiff’s lack of recollection of being involved in any motor vehicle accident on or about 21 November 2012 or any motor vehicle accident at all since 2007. The Magistrate also referred to the fact that the plaintiff admitted that at the relevant time she owned a BMW motor vehicle with the registration number identified in the claim, and that the plaintiff worked in North Adelaide and lived there occasionally. The Magistrate noted that the defendant’s case included the assertion that the details of the plaintiff were provided to the defendant by the driver and that the vehicle that collided with his car was a BMW with a registration number matching that of the plaintiff’s BMW. In the circumstances, the Magistrate concluded:[43]
… Whilst the [plaintiff] maintains that she has no recollection of being involved in the accident, in my view her prospects of successfully defending the claim on that basis are almost impossible.
I do not believe the [plaintiff] has an arguable case on the merits. If I am wrong about that, I would still need to be satisfied that the [plaintiff] has a reasonable excuse for failing to comply with the Rules. …
[43] Reasons of the Magistrate at [18]-[19].
The Magistrate then turned to consider the second limb of rule 87 and the requirement that she be satisfied that the plaintiff had a reasonable excuse for failing to comply with the rules and any court order. The Magistrate said:[44]
… Now I acknowledge that the [plaintiff] says she didn’t receive the claim at the Barton Terrace address when it was first served and I accept that explanation. However, the [plaintiff] knew of the proceedings when she received the investigation summons in January 2014. It is now October 2016. I appreciate the application to set aside the default judgment was lodged at the end of July 2016, but we are still talking two and a half years after the [plaintiff] became aware of the fact that there was a judgment that had been entered against her in this court.
[44] Reasons of the Magistrate at [19].
The Magistrate then referred to the importance of compliance with rules of court and court orders to the administration of justice. The Magistrate referred to the investigation summons that was served on the plaintiff in January 2014 and the fact that it clearly referred to a default judgment that was in effect. She said that if the plaintiff had taken the steps to apply to set aside the default judgment at that time the matter “presumably would have resolved many years ago”. Having regard to rule 87(2) MCCR the Magistrate determined that the plaintiff’s application “fails on both limbs”. She refused to set aside the default judgment and proceeded to make ancillary orders including that the Sheriff pay out of the money received from the plaintiff such sums as were due to the defendant.
The history of the proceedings in this Court
On 11 October 2016 the plaintiff filed a notice of appeal in this Court against the decision of the Magistrate refusing the plaintiff’s applications of 28 July 2016.
It is necessary to set out the procedural history of the matter in this Court.
As mentioned the action commenced in the Magistrates Court was a minor civil action within the meaning of s 3 of the Magistrates Court Act 1991 (SA) (MCA). No right to appeal to this Court exists from a judgment or order in a minor civil action.[45] Rather, under s 38(6) MCA, a party dissatisfied with a judgment in a minor civil action in the Magistrates Court may institute proceedings in the District Court for the review of the matter. The plaintiff’s appeal was therefore incompetent.
[45] Magistrates Court Act 1991 (SA) s 40(1).
The matter was called on before a judge of this Court on Friday 14 October 2016. The Judge advised the plaintiff that the matter could not proceed as an appeal to this Court. The Judge advised the parties that to remedy the situation he could either convert the notice of appeal into an application for review under s 38 MCA and remit it to the District Court for hearing, or, convert it to an application for judicial review in which case it would remain in this Court and be heard on a future date. The plaintiff indicated that it was her preference that the matter proceed as an application for judicial review. Accordingly, the Judge ordered that the notice of appeal be converted into a summons for judicial review and, with the consent of the parties, directed that the plaintiff’s summary of argument handed to the Court that day stand as the statement of grounds under rule 200A(3) of the Supreme Court Civil Rules 2006 (SA) (SCCR). The Judge then proceeded to make a number of other ancillary and programming orders including that the money held by the Sheriff not be paid out pending further order by this Court and that the question of whether the warrant of sale be removed from the certificate of title in respect of the land subject of the warrant be included as an issue to be determined on the hearing of the application for judicial review.
The matter was called on again before the same judge of this Court on 20 October 2016. With the assistance of a “cheat sheet” handed to the parties the Judge proceeded to explain to the plaintiff the differences between proceeding as if the original notice of appeal were an application under s 38 MCA or, alternately, as if it were an application for judicial review.
The Judge told the parties that a s 38 MCA review would involve a merits review, in that a judge would decide whether they thought the Magistrate got it right or wrong in answering the question whether the default judgment should be set aside. The Judge told the parties that an application for judicial review would not be a merits review and would not involve looking at whether the Magistrate was right or wrong. It would involve looking at the process that the Magistrate went through to get to the result. The Judge said that for the plaintiff to succeed on an application for judicial review would involve her showing, for example, that the Magistrate considered the wrong question, or took into account a factor that was irrelevant, or failed to take into account a factor that she was required to take into account, or that her decision is so unreasonable that no reasonable person could possibly have come to it.

The Judge told the parties that it was generally harder to succeed on judicial review than merits review. The Judge said that it was easier to introduce new evidence on a s 38 MCA review because the section empowers a District Court judge to receive new evidence. He said that on an application for judicial review the Court would look at the position as it was before the Magistrate, and that whilst the Court might receive new evidence to shed light on whether the Magistrate made one of the process errors he had outlined, the Court would not receive new evidence going to the merits of whether the Magistrate was right or wrong.
The Judge also told the parties that on a s 38 MCA review it was within the discretion of the Court to permit a party to be represented. By contrast, on an application for judicial review the parties would have an automatic right to have a solicitor represent them. The Judge told the parties that as this was an appeal from an interlocutory judgment where solicitors were present, he would be inclined to allow the parties to be represented on any review.
The Judge referred to costs and noted that the normal order on an application for judicial review would be that the losing party pay the party/party costs of the successful party. He said that on a s 38 MCA review the question of costs involved the exercise of a broader discretion and that costs might not be ordered simply because it is a minor civil action.
The Judge noted that under a s 38 MCA review there is no appeal, although an application for judicial review could be made. He noted that on an application for judicial review there was an automatic right of appeal.
The Judge said that if he had realised one of the Supreme Court judges could sit as a District Court judge, he likely would not have raised converting the notice of appeal to an application for judicial review but have said that the simplest way forward was to convert the matter to a s 38 MCA review.
The Judge said that normally the Court would not entertain an application for judicial review if there was another avenue of appeal available. Normally the Court would insist that a party exhaust all appeal rights before an application for judicial review would be entertained.
The Judge said that it was for the plaintiff to determine how she wished to proceed. The plaintiff determined that her notice of appeal be treated as an application for judicial review. On a number of occasions before he adjourned the Judge confirmed with the plaintiff that she preferred to proceed in this Court treating her notice of appeal as an application for judicial review and not a s 38 MCA review. On each occasion the plaintiff confirmed that she wished the matter to proceed as an application for judicial review.
This Court’s supervisory jurisdiction and the task required of the Magistrate
An application for judicial review engages this Court’s supervisory jurisdiction. In Kirk v Industrial Court of NSW French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said:[46]
The supervisory jurisdiction of the Supreme Courts was at federation, and remains, the mechanism for the determination and the enforcement of the limits on the exercise of State executive and judicial power by persons and bodies other than the Supreme Court. That supervisory role of the Supreme Courts exercised through the grant of prohibition, certiorari and mandamus (and habeas corpus) was, and is, a defining characteristic of those courts. And because, “with such exceptions and subject to such regulations as the Parliament prescribes”, s 73 of the Constitution gives this Court appellate jurisdiction to hear and determine appeals from all judgments, decrees, orders and sentences of the Supreme Courts, the exercise of that supervisory jurisdiction is ultimately subject to the superintendence of this Court as the “Federal Supreme Court” in which s 71 of the Constitution vests the judicial power of the Commonwealth.
[46] (2010) 239 CLR 531 at 580-581.
This role is fundamental to the maintenance of the rule of law. It enjoys constitutional protection at both state and federal levels.[47] At the risk of oversimplification the function is to police the limits governing the extent and exercise of power vested in inferior courts and in the executive. It is not to review the merits of the decision reviewed. Hence in Minister for Immigration and Citizenship v SZJSS French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ said:[48]
General principles governing the limited role of the courts in reviewing administrative error have long been identified. As Mason J observed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, “mere preference for a different result, when the question is one on which reasonable minds may come to different conclusions” is not a sufficient reason for overturning a judicial decision upon a review. Further, Brennan J said in Attorney-General (NSW) v Quin:
“The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”
(footnotes omitted).
[47] Australian Constitution s 75(v); Kirk v Industrial Court of NSW (2010) 239 CLR 531.
[48] (2010) 243 CLR 164 at [23].
In this case the Magistrate acted pursuant to rule 87 MCCR. Subject to one exception referred to below, the limits governing the extent and exercise of the Magistrate’s power are to be found in that rule and in the implication that the power vested, being a species of delegated legislation, will be exercised reasonably and after affording procedural fairness to those whose rights, interests and entitlements may be affected.
Rule 87 MCCR provides:
(1)The Court may set aside or vary a judgment (not being a final judgment).
(2)The Court must not set aside such a judgment unless the party seeking to set it aside establishes that he or she –
(a)     has an arguable case on the merits; and
(b)     has a reasonable excuse for not having complied with these Rules, or an order of the Court, or any time limit fixed by these Rules or order of the Court, in respect of the action or proceeding.
(3)When setting aside a judgment the Court may order-
(a)     payment to the other party of costs thrown away;
(b)     payment or security under Rule 81.
A final judgment is defined in rule 2(1) MCCR as meaning any judgment –
(a)made with the consent of the parties;
(b)given at the conclusion of a contested hearing;
(c)made in the terms of the acceptance of either an offer to consent to judgment or a payment of a sum of money to the Registrar; or
(d)a summary judgment.
A default judgment within the meaning of rule 60 MCCR is not a final judgment within the meaning of rule 2(1) MCCR and is thus a judgment in relation to which the power contained in rule 87(1) MCCR may be exercised.
The exception alluded to above, and the first observation to make, is that rule 87 MCCR operates in a context of a judgment having been regularly obtained. A judgment irregularly obtained may be set aside ex debito justitiae.[49] A judgment irregularly obtained would also be liable to an order in the nature of certiorari made by this Court.
[49] Watson v Anderson (1976) 13 SASR 329 at 333 (Bray CJ).
It is clear that the exercise of the discretionary power vested in the Magistrates Court by rule 87(1) MCCR is conditioned by rule 87(2) MCCR. That is, the discretion vested by rule 87(1) cannot be exercised unless and until the party seeking to have the non-final judgment set aside establishes that it has both an arguable case on the merits, and, a reasonable excuse for not having complied with the rules, or an order of the Court, or any time limit fixed by the rules or order of the Court, in respect of the action or proceeding. It may also be said that rule 87(2)(a) and (b) are in the nature of jurisdictional facts in that the discretion vested by rule 87(1) MCCR is not enlivened unless and until the Magistrate forms the opinion that the applicant has an arguable case and a reasonable excuse for non-compliance with the rules and orders of the Court and any time limits set by the Court. In this connection, in Plaintiff M70/2011 v Minister for Immigration and Citizenship French CJ said:[50]
The term “jurisdictional fact” applied to the exercise of a statutory power is often used to designate a factual criterion, satisfaction of which is necessary to enliven the power of a decision-maker to exercise a discretion. The criterion may be “a complex of elements”. When a criterion conditioning the exercise of statutory power involves assessment and value judgments on the part of the decision-maker, it is difficult to characterise the criterion as a jurisdictional fact, the existence or non-existence of which may be reviewed by a court. The decision-maker’s assessment or evaluation may be an element of the criterion or it may be the criterion itself. Where a power is expressly conditioned upon the formation of a state of mind by the decision-maker, be it an opinion, belief, state of satisfaction or suspicion, the existence of the state of mind itself will constitute a jurisdictional fact. If by necessary implication the power is conditioned upon the formation of an opinion or belief on the part of the decision-maker then the existence of that opinion or belief can also be viewed as a jurisdictional fact. …
(footnotes omitted).
[50] (2011) 244 CLR 144 at [57]. See also at [109] (Gummow, Hayne, Crennan and Bell JJ).
That an evaluative judgment needs be made with respect to the criteria contained in rule 87(2)(a) and (b) does not alter the nature of those criteria as being in the nature of jurisdictional facts.
As to rule 87(2)(a), in Saunders v Esanda Finance Corporation Ltd Lander J said:[51]
It is not possible on an application of this kind, to resolve disputed questions of fact, primarily when those answers will depend upon the credibility of the parties (Watson v Anderson (1976) 13 SASR 329 at 334).
The appellant is not called upon to establish that his defence will be made out, but merely that he has an arguable case. To that end, the appellant must establish that upon the facts, as the appellant alleges them to be, the appellant has an arguable defence. The appellant must go further than assert that he has a defence, he must bring forward sufficient information and material to show that he is bona fide and intends to defend the action and that there “is some possibility of his doing so with success” (Grimshaw v Dunbar [1953] 1 QB 408 at 416).
[51] (Unreported, Supreme Court of South Australia, 31 May 1996, S5631). See also, Watson v Anderson (1976) 13 SASR 329 at 333-334 (Bray CJ), 341 (Walters J).
As to rule 87(2)(b), a reasonable excuse is one which in all circumstances the ordinary person would consider warrants forgiveness for non-compliance. Here it is necessarily the case that the ordinary person will appreciate the high premium that the community places upon compliance with rules of courts and orders of courts in order that justice be administered effectively and efficiently. That appreciation reflects an understanding of the importance to the functioning of the community of the effective and efficient exercise of judicial power to quell controversies arising in the community. With this understanding, the community, no less than the courts, expects litigants to discharge the obligations placed upon them by the law and the courts.
If both of rule 87(2)(a) and (b) are satisfied the discretion vested by rule 87(1) is, as I have said, enlivened. As to the exercise of that discretion, in Saunders v Esanda Finance Corporation Ltd Lander J said:[52]
In the circumstances where both of the matters referred to in the rule have been made out, and the delay in the application explained, and no real prejudice established, it would be appropriate to exercise the Court's discretion in favour of the appellant.
“The fundamental duty of the court is to do justice between the parties. It is, in turn, fundamental to that duty that the parties should each be allowed a proper opportunity to put their cases upon the merits of the matter. Any limitation upon that opportunity will generally be justified only by the necessity to avoid prejudice to the interests of some other party, occasioned by misconduct, in the case of the party upon whom the limitation is sought to be imposed.” (Davies v Pagett (1987) 70 ALR 793)
[52] (Unreported, Supreme Court of South Australia, 31 May 1996, S5631).
The exercise of the power conferred by rule 87(1) MCCR, conditioned as it is by rule 87(2), is reviewable by this Court for legal unreasonableness in the sense explained below in relation to each of the jurisdictional facts and the exercise of the overall discretion exercised upon those facts being satisfied.
The grounds of review
As indicated above, with the consent of the parties a Judge of this Court directed that the plaintiff’s summary of argument filed 14 October 2016 was to be treated as the plaintiff’s statement of grounds for the purposes of rule 200A. From the numerous contentions contained in the summary of argument the following grounds may be distilled:
i.The claim filed was deficient in detail such that it should never have been received by the Registry.
ii.The default judgment was not regularly obtained because the claim was not served upon the plaintiff.
iii.The default judgment was not regularly obtained because rule 61(2) MCCR was not complied with.
iv.The Magistrate’s refusal to set aside the default judgment was legally unreasonable. In the course of considering this ground the arguments that the Magistrate was wrong to conclude that the plaintiff’s prospects of defending the claim were “almost impossible”, that the plaintiff had not engaged in the court process, and that the plaintiff did not have a reasonable excuse fall to be considered.
v. The plaintiff has not been afforded procedural fairness.
Subsequently the plaintiff filed a further affidavit, sworn 18 November 2016. That affidavit extends to 39 pages. In it the plaintiff states:[53]
[53] Plaintiff’s affidavit sworn 18 November 2016 at 6 -7.
4.3 THE GROUNDS OF THE APPEAL ARE :
(3a)The Court dismissed the application without any consideration of the [plaintiff’s] filed affidavits.
(3b)The Actions of the Registries and of the Sheriff’s Office have not followed due legal process, remain unaddressed and continue to prejudice the [plaintiff’s] access to justice.
4.4 THE REVISED GROUNDS OF THE APPEAL ARE IN ADDITION :
(c)There are no filed documents in the Magistrates Court of South Australia, in the Minor Civil Division Jurisdiction , AMCCI – 13-3288 on the Court Record for AMCCI- 13- 3288 which provides no evidence of filed documents or on the Court File for AMCCI – 13- 3288 which has no filed documents.
(d)All of the documents in the claim, including in the submissions provided to the [plaintiff] in the [defendant’s] Response and in the Intervener’s Submissions, having been produced by Botten Dnistriansky Kellis Lawyers.
(e)There is no evidence for the claim.
(f)The claim was never served.
(g)Particulars of the claim have never been provided.
(h)An investigation summons was served on the [plaintiff] for a purported debt for which no legal Order existed.
(i)An investigation summons wrongly used to attempt to intimidate, threaten and coerce the [plaintiff] to enforce payment of an unsubstantiated debt that if it had existed arose from the conducting of business.
(j) The attendance of Sheriff’s Officers at the [plaintiff’s] private medical rooms was not lawfully authorised in the absence of a summons, claim or Order of the Court in these proceedings.
(k)A Warrant of Sale obtained for a sum less than $10,000 for which a Warrant of Sale cannot be issued in the State of South Australia was not lawful.
(l) The Sheriff seizing of the [plaintiff’s] home which contained the [plaintiff’s] medical files hindered the conducting of a business, the [plaintiff’s] home being registered as premises related to the running of a business and was not lawful.
(m) The Sheriff seizing the [plaintiff’s] and the [plaintiff’s] family’s personal property was not lawful.
(n)The Court erred in not considering the evidence contained in:
(i)    the [plaintiff’s] affidavit of 28 July 2016 provided to the Magistrates Court Registry for filing on 28 July 2016.
(ii)     the [plaintiff’s] affidavit of 10 October 2016 provided to the Magistrates Court Registry for filing on 11 October 2016.
(iii)     the transcript of the hearing of 28 July 2016 from 3pm to 4.10 pm which includes the [plaintiff’s] evidence under oath.
(iv)    the transcript of the hearing of 11 October 2016 from 9.37 am to 9.42 am.
(v)     the Court Record and the Court File which contained no filed documents.
The plaintiff also complains that the Court Registries and the other parties have failed to provide her with filed documents, and that the Court Registries have refused to file the plaintiff’s documents and the plaintiff cannot know what is or what is not before the Court.
Grounds 4.4 (c), (d), (e), (i), (j), (k), (l), (m) and (n)(v) may be dealt with shortly.
This Court has had access to the Magistrates Court file. All documents referred to in these reasons are either on that file or the file of this Court. Grounds 4.4(c), (d) and (n)(v) are wrong and misconceived.
Ground 4.4(e) is also misconceived. The system of default judgment provided for by the MCCR does not require proof of the facts asserted in a claim. The default position is not the conduct of a trial in the absence of the defendant, but judgment in the amount of the claim. Consequently, on an application under rule 87 MCCR whether the plaintiff has proven their case is not in issue.
Ground 4(i) is unsubstantiated and may be put to one side.
Ground 4(j) is irrelevant. The lawfulness of the basis upon which the Sheriff’s Officers attended the plaintiff’s rooms can have no bearing on the question before the Magistrate. So too grounds 4(l) and (m) are irrelevant. The assertions can have no bearing on whether the default judgment was regularly obtained, whether the plaintiff has an arguable case on the merits, and why the plaintiff did not respond to the investigation summons and did not take action at the first reasonable opportunity to set aside the default judgment. Nor do I see how these assertions could influence the exercise of the overall discretion if it were enlivened.
Ground 4.4(k) can also be disposed of quickly. Whether or not there is a condition prohibiting the issue of a warrant for the sale of real property for the purpose of enforcing a judgment debt of $10,000 or less is irrelevant to the question of whether the Magistrate has committed a reviewable error in dismissing the plaintiff’s application to set aside the default judgment.
The remaining grounds contained in the affidavit of 18 November 2016 may all be considered particulars of the five grounds that I have distilled from the 14 October 2016 summary of argument.
Material I have considered
In support of the plaintiff’s application for judicial review, I have considered the following documents:
·The plaintiff’s notice of appeal filed 11 October 2016;
·The plaintiff’s affidavit filed 11 October 2016 in support of her notice of appeal, which annexes the affidavit that she swore on 10 October 2016 and filed in the Magistrates Court;
·The Magistrates Court record comprising:
i.The originating claim filed in the Minor Civil Division of the Magistrates Court on 24 July 2013;
ii.The short form Pleadings attached to the originating claim;
iii.Form 18: Judgment signed against judgment creditor on 27 August 2013;
iv.Form 18: Request to Registrar to issue investigation summons dated 27 August 2013;
v.Form 25 investigation summons dated 27 August 2013;
vi.Form 25 investigation summons dated 9 December 2013;
vii.Form 18: Request to Registrar to issue investigation summons dated 9 December 2013;
viii.Letter from plaintiff to the Registrar dated 6 February 2014;
ix.Order of the Magistrates Court granting leave to issue a warrant of arrest made on 13 February 2014;
x.Form 18: Request to Registrar to issue warrant for arrest dated 5 March 2014;
xi.Re-Levy warrant for arrest dated 5 March 2014;
xii.Warrant of arrest issued on 5 March 2014;
xiii.Form 18: Request to Registrar to re-issue warrant for arrest dated 28 July 2014;
xiv.Application for extension of warrant of arrest, dated 26 February 2015;
xv.Order granting leave to extend life of a warrant of arrest made on 27 February 2015;
xvi.Application for leave to issue warrant of sale and supporting affidavit, dated 13 November 2015;
xvii.Order granting leave to issue a warrant of sale made on 2 December 2015;
xviii.Form 18: Request to Registrar to issue a warrant of sale dated 4 December 2015;
xix.Warrant of sale dated 4 December 2015;
xx.Application to set aside default judgment dated 28 July 2016;
xxi.Order made on 28 July 2016;
xxii.Order dismissing the application to set aside default judgment made on 11 October 2016.
·An affidavit of Ms Deborah Patricia Lively, sworn 9 November 2016;
·An affidavit of Mr Stephen Craig Ferguson, sworn 10 November 2016;
·The plaintiff’s affidavit sworn 18 November 2016 and filed 2 December 2016;
·An affidavit of Mr Stephen Andrew Kellis, sworn 16 December 2016;
·The transcript of proceedings in the Magistrates Court on 28 July 2016 and 11 October 2016, and
·The transcript of proceedings in this Court on 14 October 2016, 20 October 2016, 25 October 2016, 2 December 2016 and 9 January 2017.

Mr Ferguson was the Deputy Sheriff. His affidavit provides a breakdown of the total amount currently owed by the plaintiff. Ms Lively was the Coordinating Registrar in the Magistrates Court. In her affidavit she informed this Court of the number of minor civil claims lodged in the Magistrates Court, the number of default judgments issued in relation to those claims, and the number of applications to set aside those default judgments made in each of the financial years 2013/2014, 2014/2015 and 2015/2016. The content of these affidavits informed the intervener’s submissions. I received the affidavits of Mr Ferguson and Ms Lively for that limited purpose.
Mr Kellis’ affidavit is in reality a submission made in response to the affidavit of the 18 November 2016 affidavit of the plaintiff and I receive it on that basis.
I also indicate that I have had the benefit of the plaintiff’s summary of argument filed 14 October 2016 (which is to be treated as her statement of grounds), the defendant’s response filed 19 October 2016, three sets of written submissions from the defendant filed 25 October 2016, 21 November 2016 and 16 December 2016, and two sets of written submissions from the Attorney-General filed 25 October 2016 and 8 December 2016.
When this matter was called on before me on 25 October 2016 the plaintiff made lengthy submissions largely repeating what she had put to the Magistrate. Her primary argument was that having regard to the content of her oral evidence and two affidavits, the Magistrate’s refusal of her application was, in effect, legally unreasonable. During the course of her submissions the plaintiff also challenged certain findings made by the Magistrate, in particular, that the plaintiff had not engaged in the process. The plaintiff referred to correspondence that she said was on the court file and to which she said she referred the Magistrate. The question arose as to what was before the Magistrate. Ordinarily it would be limited to documents forming the court record, including the particular application and affidavits sworn in support. It would not extend to correspondence engaged in between the plaintiff and the Registry. The plaintiff also argued that the Magistrate could not have had regard to her affidavit of 11 October 2016 because many of the contentions it raised did not feature in the Magistrate’s reasons.
I adjourned the hearing to 2 December 2016 and gave the parties liberty to file further affidavit material setting out what was before the Magistrate in addition to submissions on what constituted the court record according to law.
The plaintiff experienced difficulty in complying with the orders I made on 25 October 2016. On 2 December 2016, after hearing from the parties, I varied my orders in reflection of the difficulties experienced. I also listed the matter for any further submissions to be made on 9 January 2017.
On 9 January 2017 the Court received two books of documents filed by the plaintiff. Neither booklet was accompanied by an affidavit deposing to the contents of the booklets and explaining why it is that the plaintiff considered that the contents were necessarily before the Magistrate.
This being an application for judicial review, new evidence is generally inadmissible. The question of whether the administrative decision maker or inferior court has transgressed the limits of its power is generally determined on the basis of the material before the decision maker. That is not to say that evidence may not be received which has a capacity to demonstrate reviewable error.
Bearing in mind my distillation of the arguments advanced by the plaintiff, I have gone through the booklets. I have marked volume 1, MFI P1, and volume 2, MFI P2. Using the document numbers contained in the booklets, I do not receive the following documents contained in MFI P1 – 3, 4, 5, 13, 19, 20, 21, 22, 23, 24, 25, 26, 27, 29.1, 29.2, 29.3, 29.4, 29.5, 29.6, 29.7, 30, 31, 32, 33, 37, 38, 39, 47, 48, 50, 50.1-50.5, 51, 52, 53, 54, 55, 56. These documents were not before the Magistrate and/or are irrelevant to the task I am required to undertake. Further, I do not receive documents – 2, 6, 7, 8, 9, 10, 11, 12, 12.1, 12.2, 12.3, 15, 17, 18, 34, 35, 36, 40, 41, 42, 43, 44, 49. These documents are already before the Court. I include in this category the copies of the Certificates of Record of this Court and the Magistrates Court that relate to this matter.
Documents 12.4 and 12.5 were not included in MFI P1. Those documents are the two affidavits sworn 28 July 2016 and 10 October 2016 filed by the plaintiff in support of her applications of 28 July 2016. Those affidavits are before this Court and I have considered their content.
Paragraphs 13.1-13.3, 14, 14.1-14.5, 16, 28, 29, 45, 46 do not identify a document included in MFI P1 but rather are in the nature of comment or submission and I have treated them as such.
Turning to MFI P2, I do not receive the following documents contained in MFI P2 - 5 and 6. These documents were not before the Magistrate and/or are irrelevant to the task I am required to undertake. Further, I do not receive documents 1, 2, 3, 4, 7, 8, 9, 21, 22, 23, 29, 30 and 31. These documents are already before the Court. I include in this category the Certificates of Record of this Court and the Magistrates Court that relate to this matter. Paragraphs 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 24, 25, 26, 27 and 28 are in the nature of comment or submission and I have treated them as such.
I turn to deal with the plaintiff’s grounds.
Should the claim never have been received by the Registry?
I understand the plaintiff’s argument to be that the claim was so deficient in the particulars it contained of the asserted collision and consequent damage such that it should have been rejected by the Registry.
The defendant correctly used Form 3 as required by rule 25(1) MCCR. Amongst other things Form 3 states:
PARTICULARS: State what you want from the Court. Briefly state the date, place and circumstances from which the claim arose. Where the claim is for damages the amount claimed for each head of damages must be given (e.g. an amount for pain and suffering or economic loss etc.). The plaintiff or his/her solicitor must sign and date each page. There are costs penalties for making an unsuccessful claim or counterclaim.
This notation reflects rule 24(1)(a) MCCR which states:
In a minor civil action, subject to any order of the Court, a short form of pleading disclosing the date(s), place(s), circumstances and the cause of action upon which the action is based is sufficient…
The claim stated:
PARTICULARS OF CLAIM
1.At all material times:
a.     The [defendant] was the registered owner of an Alfa Romeo motor vehicle bearing registration number … (“the [defendant’s] vehicle”)
b.     The [plaintiff] was the driver of a BMW motor vehicle bearing registration number … (“The [plaintiff’s] vehicle”).
2.On or about 21 November 2012, the [defendant’s] vehicle travelling along Tynte Street, North Adelaide in the State of South Australia when the [plaintiff] whilst driving the [plaintiff’s] vehicle, reversed from a car park and collided into the [defendant’s] vehicle thereby causing damage (“the collision”).
3.The collision was caused solely by the negligence of the [plaintiff].
PARTICULARS OF NEGLIGENCE
The [plaintiff], inter alia:
(a)     Failed to stop the [plaintiff’s] vehicle in time or at all so as to avoid the collision;
(b)     Failed to apply the brakes of the [plaintiff’s] vehicle in time or at all so as to avoid the collision;
(c)     Failed to keep a proper lookout;
(d)     Drove the [plaintiff’s] vehicle without due care and attention; and
(e)     Failed to comply with the Road Rules and/or Regulations.
4.As a result of the collision the [defendant] has suffered loss and damage.
Under the heading “Particulars of Loss and Damage (see annexure “A”)” the claim then set out the cost of the repairs to the plaintiff’s (the defendant in this Court) vehicle and the cost of a hire car. Annexure A was a tax invoice recording the cost of repairs done on the Alfa Romeo. Annexure A did not include any evidentiary material in support of the claim for the cost of the hire car.
In my view the claim as drafted and accepted by the Registrar complied with the requirements of Form 3 and rules 5(2), 24(1)(a) and 25(1)(a) MCCR.[54] In arriving at this conclusion I bear in mind that this is a claim filed in the minor civil jurisdiction of the Magistrates Court, a jurisdiction in which any trial takes the form of an inquiry into the matters in dispute between the parties rather than an adversarial contest, where the Court will itself elicit from the parties and the witnesses, and by examination of evidentiary material produced to the Court, the issues in dispute and the facts necessary to decide those issues, and where the parties are not bound by written pleadings.[55] And of course, it is a jurisdiction where the norm is that the parties will not be represented at trial.[56]
[54] Magistrates Court (Civil) Rules 2013 (SA) r 25(1)(a) requires the use of Form 3 to commence an action in the minor civil jurisdiction of the Magistrates Court.
[55] Magistrates Court Act 1991 (SA) s 38(1).
[56] Magistrates Court Act 1991 (SA) s 38(4)(a).
At times the plaintiff appeared to contend that a Form 3 claim must refer to all evidence that may be adduced in support of the claim and that judgment could not be signed in the absence of that evidence being adduced and scrutinised. The MCCR make plain that this is not so.
Is the validity of the default judgment dependent upon effective service?
As indicated above, rule 87 MCCR operates in a context of a judgment by default having been regularly obtained. The plaintiff raised arguments before the Magistrate and in this Court that the default judgment in this case was not regularly obtained. The transcript of the proceedings before the Magistrate make plain that she considered that the default judgment had been regularly obtained despite the reasons not addressing the issue.
As mentioned in opening this judgment, the defendant filed a claim in the Magistrates Court compliant with Form 3 and rule 25(1)(a) MCCR. The claim provided an address for the plaintiff as Barton Terrace, North Adelaide SA 5006. The defendant nominated in the claim to have the claim served by the Registrar. The copy of the claim on file is stamped, “Service By Post: 31 Jul 2013”, indicating that pursuant to rules 46(1) and 47(1)(a) MCCR the Registrar purported to effect service upon the plaintiff by pre-paid post.
A party may only sign judgment against a party in default if the Registrar is satisfied that the party in default has been served with the claim and failed to file a defence with 21 days of service.[57] In submissions before me there was some suggestion made that the plaintiff’s true postal address was Barton Terrace West, North Adelaide. The submission was made without notice and without the opportunity for anyone to call evidence as to what the Post Office may have done with a letter addressed to Barton Terrace, North Adelaide. It was also made in a somewhat equivocal fashion tending to suggest the address of Barton Terrace, North Adelaide adequate. I do not act upon this suggestion.
[57] Magistrates Court (Civil) Rules 2013 (SA) r 60(1).
The plaintiff gave the following evidence on oath in the Magistrates Court.
Q:Okay can I just ask you one other question while I’ve got you in the witness box and otherwise you can go back to your seat. In the affidavit that you have filed you describe about the fact you say that there was ineffectual service of the claim on your address. Do you deny receiving a copy of the claim that was apparently served by post to the address of … Barton Terrace North Adelaide on or about 31 July 2013.
A:I do.
Q:Were you living at that address at or about that time.
A:We half live there and we have (sic) live in an apartment in the city which is where we are at the moment. My postal address – now that’s interesting – that’s an interesting point in itself because we don’t have any mail that goes to Barton Terrace and I don’t know who would of even through (sic) of sending any mail to Barton Terrace. My home address is not on the electoral role because I’m a silent elector and because I’m a psychiatrist who’s often working with people with medico-legal issues. So the fact that anyone would even serve anything to that address is interesting. Why would anyone choose to serve anything to that address when my address is well known. It’s in the phone book, you can google it, its PO Box, either the post office box or my rooms address is easily available to anyone.
Q:Okay, all right. You say you didn’t get the summons, or the claim and had you got the claim you would have filed a defence saying that you weren’t involved in a crash on that day.
A:That’s correct.
In view of the plaintiff’s concession before the Magistrate as to her North Adelaide address[58] and the Court file indicating that the Registrar served the claim by pre-paid post care of the same address, it was open to the Magistrate and the Registrar to be satisfied that the claim had been served in accordance with the rules. The point agitated was not that the address contained in the claim was incorrect, but that the claim was not received. Non-receipt does not mean that rule 47(1) MCCR was not complied with. That service effected in accordance with the rules was not effective, is relevant to the application of rule 87(2)(b). In my view the Registrar was entitled to be satisfied that the defendant had been served for the purposes of rule 60(1) MCCR. Thereafter, there being no defence filed, the defendant could, subject to complying with rule 61 MCCR (considered below), sign judgment.
Was the Registrar right to enter judgment absent evidentiary material supporting the claim for the cost of the hire car?
[58] Transcript, 28 July 2016 at 6.
The second argument focuses on Annexure A and the absence of any evidentiary material supporting the claim for the recovery of the cost of a hire car. Here it is necessary to analyse the operation of rules 60, 61 and 62 MCCR. Relevantly rule 60 provides:
ACTIONS NOT DEFENDED
(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; or
(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)… not presently relevant …
Rule 60 concerns who may sign judgment and in what circumstances. I have already indicated that I consider it was open to the defendant to sign judgment under rule 60(1) MCCR.
Rule 61 MCCR provides:
(1) Where a party signs judgment for a claim:
(a) for a debt or liquidated sum; or
(b) for the cost of repairs to, or the loss of, property and any other consequential loss;
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.
(2)A party may sign judgment for a claim under paragraph (b) of Sub-rule (1) only if the party proves that, at the same time as the action was served, a copy of any relevant evidentiary material (including a repair or loss account, quotation, invoice or receipt) upon which he or she is intending to rely, was served on the other party.
(3)For the purposes of paragraph (b) of Sub-rule (1) the claim may also include a liquidated sum in respect of incidental expenses (including towing and storage fees in respect of the property and the reasonable cost of hire or rental of alternative property during the period the first-mentioned property underwent repairs).
(4)… not presently relevant …
Rule 61(1) concerns the amount in which judgment may be signed for a claim for a debt or liquidated sum or for the cost of repairs to, or the loss of, property and any other consequential loss. Further, rule 61(3) makes plain that the claim and the amount in which judgment may be signed may include a liquidated sum in respect of incidental expenses.
Rule 61(2) conditions rule 61(1)(b). A party may only sign judgment for a claim under rule 61(1)(b) if the party proves that, at the same time as the action was served, a copy of any relevant evidentiary material upon which he or she is intending to rely, was served on the other party. The intention of rule 61(1)(b) is clear, that the defendant to the claim must be provided with evidence supporting the amounts claimed. That way he or she may make an informed decision as to whether to defend the proceeding or, by inaction, submit to judgment being signed in the amount claimed. Rule 61(1)(b) may be contrasted with rule 61(1)(a) where the amount will ordinarily be known to the defendant.
The claim in this case was one falling within rule 61(1)(b).
Rule 62 provides:
(1)Subject to Sub-rule (4), in any other case not provided for in Rule 61, where a party signs judgment the Registrar must fix a date, time and place for the hearing, by the Court, in respect of the assessment of damages or such other order, remedy or relief as the action may require, and give at least 21 days notice in writing of the hearing to the parties.
(2)The party who has signed judgment must serve on all other parties at least 21 days before the hearing date –
(a) a notice in Form 19; and
(b) a copy of any affidavit evidence to be relied upon and a written schedule of costs sought.
(3)In a minor civil action, the Court may receive as evidence of the fact or quantum of injury, damage or loss an affidavit, deposed to by the party, the solicitor acting for the party, or an assessor or other expert, which annexes relevant evidentiary material.
(4)… not presently relevant …
A case not provided for in rule 61 is one falling within rule 61(1)(b) in relation to which rule 61(2) is not satisfied. In such case an assessment of damages must be undertaken as provided for by rule 62.
The question arises, can judgment be signed where rule 61(2) has not been strictly complied with?
The use of the word “only” and the provision of an alternate mode of proceeding suggests that the condition contained in rule 61(2) MCCR is to be strictly complied with. So too the contrast in the application of rule 61(2) to rule 61(1)(b) but not rule 61(1)(a). By that I mean, the differential application of rule 61(2) supports the conclusion that judgment cannot be signed in the amount of a claim if the defendant has not had notice (including the provision of any account, quotation, invoice or receipt upon which a plaintiff is intending to rely) of the basis upon which the amount has been determined and no assessment of that amount has been undertaken by the Court.
It could be said that the subsequent use of the word “any” as opposed to “all” is intended to have the consequence that the plaintiff provide what they have and not necessarily everything they might be able to get. I do not think such construction should be afforded rule 61(2). In my view “any” qualifies the nature of the evidentiary material that may be provided and not whether such material must be provided.

The plaintiff’s affidavit of 28 July 2016 did not address the question of whether the plaintiff had an arguable case on the merits. The plaintiff’s affidavit of 10 October 2016 took the matter no further than her evidence given in person before the Magistrate.
In this Court the plaintiff was firmer in her assertion that neither she nor her BMW were involved in a motor vehicle accident at any time in 2012. As is apparent from the excerpt from the evidence reproduced above, that is not what the plaintiff said before the Magistrate. In this Court the plaintiff submitted:[72]
HIS HONOUR: Did you say - and if you didn’t, you don’t have to answer this question now – ‘I was not involved in the collision on 21 November. I can’t remember the year, but I was not involved in the collision as the plaintiff says I was’?
DR MARMANIDIS: Yes, I did. Because I didn't know the hours, what I said is ‘to the best of my knowledge’, because, you know, I don’t want to say something only to feel as if then someone contradicts me, so all I could say is my car has not been involved in the collision, I have not been involved in a collision, that if someone thinks I’ve been involved in a collision, until they tell me something more, there’s no way for me to disprove it. My car has not been damaged, it hasn't been chipped on the road.
[72] Transcript, 25 October 2016 at 15.
As in the Magistrate’s Court, the plaintiff stopped short in this Court in her submission of denying being involved in any accident at all on or around 21 November 2012. In both Courts she left open the possibility but complains of a lack of particularity in the claim having the consequence that she cannot show that neither she or her BMW were so involved. That suggests that it is possible that there was a collision, but that the plaintiff cannot recall it, if there was.
There is nothing to suggest that the Magistrate failed to take into account a relevant factor and took into account an irrelevant factor in relation to her treatment of rule 87(1)(a) MCCR. Nor can it be said that she has misunderstood her task. Can her decision be said to be lacking an “evident and intelligible justification” such that it is not “defensible in respect of the facts and law”? In my view it cannot.
Before the Magistrate, in her affidavits, and before this Court the plaintiff complained that the claim lacked particularity. It made it difficult, she contended, for her to mount a case in her defence. With further particulars, she said, she would be able to prove where she was and refute the claim. The onus, however, is upon the plaintiff to establish that she has an arguable case on the merits. Nothing prevented the plaintiff from attending Court armed with her 2012 appointment records for the period on or about 21 November 2012. She did not do so. She gave no evidence, either orally or in affidavit form addressing the period subject of the claim. At no time did she give evidence without qualification that she was not involved in any accident on or around 21 November 2012 and neither was her BMW involved in any accident on or around 21 November 2012. She chose instead to complain about a want of particularity.
In the circumstances, I cannot say that the Magistrate’s conclusion that the plaintiff did not have an arguable case on the merits within the meaning of rule 87(1)(a) MCCR lacked an evident and intelligible justification such that it is not defensible.
The Magistrate moved to rule 87(1)(b) MCCR. The Magistrate did not consider that the plaintiff had a reasonable excuse for non-compliance with the rules and orders of the Court.
There is no doubt that in January 2014 the plaintiff received the investigation summons the content of which has been set out above. Approximately two and half years later, on the eve of her property being forcibly sold to discharge the judgment debt and related costs, the plaintiff applied to set aside the default judgment. The Magistrate accepted that service of the claim upon the plaintiff was ineffective. Nonetheless:[73]
The Rules exist for a reason. This court deals with thousands of cases every year and unless the court processes are adhered to this court ca not (sic) run efficiently and justice ca not (sic) be served. Had the [plaintiff] engaged in the court process in or about January 2014 we would not be here today and we would not have had the horrible litany of events that has occurred since January 2014.
The investigation summons served on the [plaintiff] in January 2014 clearly stated there was a default judgment that was in effect. It gave a date for the [plaintiff] to attend at court and it indicated quite clearly that there was the ability to apply to set aside the default judgment, given it was not a final judgment.
Had the [plaintiff] taken those steps then we would not be here today. This matter presumably would have resolved many years ago, however rather than engage with the court process and comply with the Rules, as this court requires its litigants to do, the [plaintiff’s] behaviour or actions in this matter suggest that she was ignoring the process rather than to properly engage in the process and deal with it as required of all litigants in this jurisdiction and in the other jurisdictions. Unfortunately the result of that has meant that there has been considerable delay, considerable expense and considerable angst incurred by everyone.
[73] Reasons of the Magistrate at [20]-[22].
In her evidence and affidavits and in this Court the plaintiff explained her non-responsiveness and delay in applying to set aside the default judgment on numerous bases. They included – she did not know what the judgment was about;[74] she did not know the defendant (plaintiff);[75] because she did not have sufficient particulars of the claim;[76] because no evidence in support of the claim had been provided;[77] because her experience on other occasions in attempting to set aside default judgments had left her wary;[78] because after she returned the investigation summons to the Court she never heard from the Court again;[79] because she had no reason to think she owed anyone money;[80] because she was threatened with arrest;[81] because she considered the conduct of Sheriff’s officers to be such that no court could possibly have ordered them to take the action they attempted to take;[82] because she did not consider that any court would order the sale of a property of significant value, such as the Barton Terrace property was, to satisfy a judgment debt in the amount that it was said she owed.[83] Subsequently she did take steps to investigate the claim. To the extent that she could do so she has raised a number of complaints regarding the validity of the process.
[74] e.g. Transcript, 20 October 2016 at 19, 27.
[75] e.g. Transcript, 9 January 2017 at 16.
[76] e.g. Affidavit sworn 10 October 2016 at [3]-[4].
[77] e.g. Transcript, 25 October 2016 at 17.
[78] Transcript, 28 July 2016 at [10].
[79] e.g. Transcript, 20 October 2016 at 27.
[80] e.g. Transcript, 9 January 2017 at 16.
[81] e.g. Transcript, 25 October 2016 at 23-24.
[82] e.g. Affidavit sworn 10 October 2016 at [22]-[29]; Transcript, 25 October 2016 at 23.
[83] e.g. Affidavit sworn 10 October 2016 at [42]-[50].
In this Court she submitted:[84]
I do have a reasonable excuse for not engaging in a process which, from the time of my awareness of it, consists of threats of arrest, as the process I believe has been illegitimately initiated, where orders have been obtained by deception, where arrest warrants have been illegitimately ordered, I believe. I don't think that every person that gets an investigation summons, if they were to say ‘I don't know what this is about’, would have someone arresting them. I think most people rather get a phone call, or they get a letter, or at least the person that came would be apologetic about the behaviour of the person that had come previously that really threatened not only me but my patients, and I believe that these arrest warrants have been illegitimately ordered with the intent of intimidating me and threatening me. And I believe my home was seized in order to obtain the documents related to my freehold certificate of title, which it appears that a sheriff is entitled to seize if he can legitimately seize a property.
[84] Transcript, 25 October 2016 at 30-31.
The terms of the investigation summons are set out above.[85] The command made by the court is clear and unequivocal. So too the warning. The plaintiff was obliged to attend the court, and, in that forum, raise any and all concerns she had. She was not entitled to refuse to engage until such time as she was satisfied that it was appropriate to do so.
[85] At [8]-[10].
Contrary to the plaintiff’s belief, returning an investigation summons to a court registry under cover of a letter that, in essence, rejects the summons as applying to her, is not engaging in the process. Neither is engaging in written correspondence or other communication with the Registry.[86] Where proceedings are instituted in a court the judicial power is engaged. Withdrawal by the complainant aside, the resolution of proceedings in which the parties are in dispute can only occur by the exercise of the judicial power. That will occur in accordance with the judicial process. In Hogan v Hinch French CJ said:[87]
An essential characteristic of courts is that they sit in public. That principle is a means to an end, and not an end in itself. Its rationale is the benefit that flows from subjecting court proceedings to public and professional scrutiny. It is also critical to the maintenance of public confidence in the courts. Under the Constitution courts capable of exercising the judicial power of the Commonwealth must at all times be and appear to be independent and impartial tribunals. The open-court principle serves to maintain that standard. However, it is not absolute.
(footnotes omitted).
[86] The plaintiff sought to draw my attention to such correspondence. It is contained in MFI P2. I have had no regard to it as it was not before the Magistrate.
[87] (2011) 243 CLR 506 at [20].
Courts are vested with all power necessary to the effective exercise of the jurisdiction conferred upon them. That includes the power to summonses people to court in order that, in the public view, all steps necessary to the resolution of a dispute instituted in the court may be taken. In my view this is well understood by the community. More than that, it is expected and required. The discharge by all members of the community summonsed to court of the duty to attend so that the judicial process may occur is a necessary concomitant of living in a community governed by the rule of law.
The plaintiff’s actions in this matter defied such summons. It was not for her to determine when she would attend and under what circumstances.
In my view, having regard to the affidavits of the plaintiff and to her oral evidence, it cannot be said that the Magistrate has taken into account an irrelevant consideration. Whilst the Magistrate’s reasons do not recount the plaintiff’s explanations, in my view it was unnecessary to do so. Nothing said amounts to a reasonable excuse for the purposes of rule 87(1)(b) MCCR. Most importantly, the plaintiff offers no reasonable explanation for failing to answer the investigation summons. At no time was the plaintiff impeded by her circumstances or otherwise from attending court. Even upon being advised of their intent to issue a warrant for the sale of her property she chose not to attend. In my view the conclusion arrived at by the Magistrate was reasonably open on the material. It does not lack an “evident and intelligible justification” such that it is not “defensible in respect of the facts and law”.
Was the Magistrate’s refusal to set aside the default judgment legally unreasonable?
The Magistrate concluded that the plaintiff did not have an arguable case on the merits and did not have a reasonable excuse for failing to comply with rules and orders made. I have held that in so concluding the Magistrate made no jurisdictional error nor, on the evidential material before her, could it be said that her conclusion was legally unreasonable. Thus the Magistrate being satisfied the criteria contained in rule 87(2)(a) and (b) MCCR were satisfied, the discretion vested by rule 87(1) MCCR was enlivened. The Magistrate held:[88]
It was not until the middle of this year, just before attempts were to be made to sell the [plaintiff’s] home that the application to set aside the default judgment was issued. The authorities say that a consideration in the exercise of my discretion under Rule 87 is to look at the delay and the prejudice that has been incurred by the [defendant] and in this case there has been significant delay and prejudice, so even if I am wrong about whether or not there is an arguable case on the merits I would not have granted the application to set aside the default judgment in any event.
In my view this application fails on both limbs and I am not prepared to set aside the default judgment.
The application to set aside the default judgment will be dismissed.
[88] Reasons of the Magistrate at [23]-[25].
These three paragraphs do indicate some confusion as to the operation of rule 87 MCCR. As indicated above, upon satisfaction that both criteria contained in rule 87(2)(a) and (b) are established, the general discretion contained in rule 87(1) MCCR is enlivened. It is not then a matter of simply considering whether the criteria contained in rule 87(2)(a) and (b) are satisfied. Further, if either criterion contained in rule 87(2)(a) or (b) is not satisfied, the residual discretion is not enlivened and no need arises to consider, for example, prejudice to the plaintiff that might occur if the discretion were exercised in favour of the defendant.
Here in my view, the Magistrate’s conclusions that neither rule 87(2)(a) or (b) were satisfied were not infected by jurisdictional error and were not otherwise legally unreasonable. Accordingly, no occasion to consider the exercise of the residual discretion arose and the Magistrate could simply have dismissed the application. Nonetheless the Magistrate appears to have proceeded to consider the application of the residual discretion. She did not do so on any assumed basis. It appears she has misunderstood the operation rule 87(1) and (2) MCCR. So doing she has committed a jurisdictional error.[89] Establishing such error does not assist the plaintiff, however, because, as I have said, no error amenable to judicial review was committed by the Magistrate in rejecting the plaintiff’s case in relation to rule 87(1)(a) and (b). Those conclusions were decisive of the application.
[89] See above at [140].
A failure to afford procedural fairness?
It has been said that procedural fairness lies at the heart of the judicial function[90] and that, amongst other things, “it requires that a court … provide each party to proceedings before it with an opportunity to be heard, to advance its own case and to answer, by evidence and argument, the case put against it”.[91]
[90] International Finance Trust Company Ltd v NSW Crime Commission (2009) 240 CLR 319 at [54] (French CJ); See also, Wainohu v NSW (2011) 243 CLR 181 at [44] (French CJ and Kiefel J); Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [42] (Gaudron and Gummow JJ); Leeth v The Commonwealth (1992) 174 CLR 455 at 470 (Mason CJ, Dawson and McHugh JJ).
[91] International Finance Trust Company Ltd v NSW Crime Commission (2009) 240 CLR 319 at [54] (French CJ), at [141] (Heydon J); See also, Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at [56] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ); Harris v Caladine (1991) 172 CLR 84 at 150 (Gaudron J); Commissioner of Police v Tanos (1958) 98 CLR 383 at 395 (Dixon CJ and Webb J).
In her reasons the Magistrate refers to the two affidavits filed by the plaintiff.[92] I see no reason to think that she did not have regard to them. It was not necessary that she recount in detail the content of the affidavits in her reasons nor summarise the plaintiff’s oral evidence. The plaintiff’s argument is, in truth, one that attacks the outcome in that, having regard to the content of her affidavits, she contends, the outcome is wrong. Consequently, she infers, the Magistrate must not have had regard to her affidavits.
[92] Reasons of the Magistrate at [1]-[2].
I have read the plaintiff’s affidavits closely and her evidence given in the Magistrates Court. The affidavit of 10 October 2016 did not take the matters referred to in her affidavit of 28 July 2016 or her oral evidence any further. For the reasons I have already given in considering the Magistrate’s treatment of rule 87(1)(a) and (b) I detect no error.
Should relief be granted?
On an application for judicial review the grant of relief is within the discretion of the Court. I have concluded that judgment may only be signed and judgment entered into the record by the Registrar if rules 60 and 61 are strictly complied with. As unsatisfactory as the conduct of the plaintiff has been between when she received the investigation summons and applied to set aside the default judgment, to deny her the relief she seeks means ignoring an unlawful act by an officer of a court. That puts the court in an invidious position. I appreciate that significant expense has been incurred, but in view of my conclusion, that can no longer simply be sheeted home to the plaintiff. Indeed, the defendant bears some responsibility. I have also considered the prejudice to the defendant. The prospect of a trial now looms. However, I do not consider the events so old that the defendant is irremediably compromised.
I accept the submission made by the Attorney-General that ordinarily this Court will not entertain an application for judicial review where all appeal rights have not been exhausted. However, that principle is not a rule of law. The history of these proceedings in this Court in particular render it inappropriate, in my view, not to entertain the plaintiff’s application or to refuse her relief.
In my view it is appropriate in this case to grant the relief sought. I would make an order in the nature of certiorari quashing the default judgment.
As certiorari has the consequence of annihilating the legal effect of the relevant order or judgment,[93] all orders and any administrative act erected upon the foundation of the quashed default judgment must likewise fall away. In these circumstances it is not necessary for me to deal with the removal of the memorial of the warrant of sale that I have been advised has been entered on the title of the plaintiff’s Barton Terrace address. In the first place the necessary evidence to enable me to deal with the matter has not been placed before the Court. Secondly, and in any event, the lawful basis for that memorial evaporates with the making of my order. In these circumstances the defendant and the relevant authority should take all steps necessary to expeditiously secure the removal of the memorial.
[93] Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at 159 (Brennan CJ, Gaudron and Gummow JJ).
The plaintiff’s interlocutory application
After I reserved judgment in this matter the Registrar referred to me an interlocutory application purportedly bearing the plaintiff’s signature and dated 31 March 2017 which the plaintiff attempted to file with the Registry.
The Registrar has formed the view that the application constitutes an abuse of process of the Court and referred it to me pursuant to rule 53 SCCR. Pursuant to rule 53(3) SCCR I am empowered to direct the Registrar to reject the document if I am satisfied that its receipt amounts to an abuse of process. A document that is not worthy of serious consideration by the Court may be considered frivolous within the meaning of rule 53(1) SCCR. To file such document is an abuse of process.

An interlocutory application is an action that is ancillary to the issues raised in a substantive action, the true purpose of which is to enable the proper conduct of the substantive action and the final resolution of the issues between the parties.[94] Many of the orders sought in the plaintiff’s interlocutory application do not answer this description (e.g. orders 2.5, 3, 4, 6.2-6.9). Others duplicate the relief sought in the judicial review proceedings or would be determined by that proceeding (e.g. orders 2.1., 2.2, 2.3, both orders 2.4, 6.1). One is simply beyond power (e.g. order 7).
[94] Savings and Investment Bank Ltd v Gasco Investments (Netherlands) BV (No 2) [1988] Ch 422 at 429 (Purchas LJ), at 444-445 (Nicholls LJ), at 448 (Russell LJ).
In the circumstances I consider the interlocutory application dated 31 March 2017 frivolous in the sense described above. I direct the Registrar to reject the document for filing.
Conclusion
For the above reasons, I make an order in the nature of certiorari quashing the default judgment entered in the record of the Magistrates Court on 27 August 2013 in Action AMCCI-13-3288.
I remit the matter to the Magistrates Court to be dealt with according to law.