McNamara v Morrow Investments Pty Ltd - [2006] SASC 16

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
MCNAMARA v MORROW INVESTMENTS PTY LTD
Judgment of The Honourable Justice Vanstone
30 January 2006
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PRACTICE UNDER RULES OF COURT
Appeal against entry of judgment in default of appearance - various defects in appeal notice - no grounds identified - application to dismiss appeal as incompetent granted.
Supreme Court Rules, r 96B.02, r 97.03(1)(b), r 97.05, r 97.11; Magistrates Court Rules, r 2(1), r 87, r 101, referred to.
SA Repairs and Painting Pty Ltd v Trenka Pty Ltd (1993) 171 LSJS 300; Vorassi v Maxwell Property Consultants Pty Ltd (2003) 227 LSJS 1; Stavropoulos & Anor v Morrow Investments Pty Ltd [2005] SASC 444, considered.

MCNAMARA v MORROW INVESTMENTS PTY LTD
[2006] SASC 16
Magistrates Appeal

VANSTONE J: The appellant, Francis McNamara, seeks to appeal from the decision of a magistrate refusing to adjourn the trial of an action (in which he was the first of two defendants), entering judgment for the plaintiff in default of attendance and dismissing the appellant’s counterclaim. It appears that the appeal is directed only to the dismissal of the counterclaim.
The respondent has filed a Notice for Specific Directions seeking to have the appeal notice struck out as being incompetent, pursuant to SCR 97.11. In support the respondent points to a number of matters. The notice does not comply with SCR 96B.02, inasmuch as leave to appeal from this Court is required and has not been sought and any such application for leave is now well out of time. The notice was not served on the respondent as required by SCR 97.05. It is said to fail to comply with SCR 97.03(1)(b) in that the grounds set out do not adequately convey what points are being relied on. A document purporting to be an affidavit in support of the appeal notice does nothing to clarify the error attributed to the magistrate. Indeed, counsel submits that it contains offensive and slanderous assertions about the respondent’s solicitors and that, consequently, the proceeding amounts to an abuse of process.
The appellant has not instructed solicitors in relation to the appeal and represented himself before me. In those circumstances the Court might be inclined to overlook matters of form and to treat the Notice of Appeal as an application for leave to appeal and for an extension of time within which to appeal. The grounds of appeal might also have been amended to elucidate the matters of complaint. However, in this case there are other considerations.
This matter has previously come to this Court by way of an appeal against an interlocutory decision in respect of the appellant’s counterclaim. It seems that late in December 2004 the appellant withdrew his counterclaim, but then sought to reinstate it in June 2005. A magistrate refused his application. The appellant appealed against that refusal. (The second defendant appealed as well, for other reasons.) I note that the hearing of that appeal took place on 8 November 2005. Debelle J allowed that appeal: Stavropoulos & Anor v Morrow Investments Pty Ltd [2005] SASC 444. In dealing with that appeal the Court was prepared to overlook various deficiencies in the appeal notice – including a failure to apply for leave – treating it as if it complied with the Rules. The appropriate procedures were explained to the appellant. On that occasion the respondent took no issue with those matters of form. However, because of those proceedings, the appellant must have been on notice as to the requirements of the Rules when he lodged his current appeal notice. On this occasion counsel for the respondent has taken a stricter approach. I shall return to the matters of form a little later in these reasons.
Although in terms of determining whether the Notice of Appeal should be dismissed as incompetent, it is not necessary to descend to the merits of the appeal, I propose to do so, to some extent. The events leading to the magistrate’s decision are as follows. The action was listed for trial in the Magistrates Court on 28 November 2005. On that day it was first mentioned at a callover of the day’s trials. The respondent was represented by counsel. The second defendant appeared in person. Mr Craig Roberts appeared for the appellant and advised the magistrate that he was instructed to the extent of making application for an adjournment. Mr Roberts tendered a photocopy of a medical certificate in support of that application. It purported to certify, “on 15/11/5”, that the appellant was suffering from “Medical Certificate” (sic) and would be unfit for work from “3/11/5 to 3/12/5”. In other handwriting on the photocopy, identified as the appellant’s by Mr Roberts, it was asserted that the appellant was injured and could not attend court. It seems that the appellant sustained injuries in a fall, which is said to have occurred on 3 November 2005, some five days before the appellant’s appearance in person before Debelle J.
The application for adjournment was opposed and was refused. Mr Roberts was asked to contact his client and advise him of the outcome. The trial was then scheduled to start at 11.30 am. A little after that time the magistrate advised the parties that the appellant had apparently telephoned the court registry and asked whether he could attend the trial by way of his mobile telephone. The magistrate adjourned to obtain written confirmation of the details of the appellant’s advice, including that he claimed to be in Queensland.
Upon resuming, the magistrate refused the request, noting that while an application to attend by video conferencing might have been entertained, it was not possible, in terms of logistics, to have the appellant appear by means of mobile telephone. The magistrate entered judgment for the plaintiff on its claim against the appellant and dismissed the counterclaim. The trial in respect of the claim against the second defendant then proceeded. It has not yet been completed.
Judgment entered in default of appearance, pursuant to MCR 101, has been held to fall outside the definition of “final judgment” in MCR 2(1): SA Repairs and Painting Pty Ltd v Trenka Pty Ltd (1993) 171 LSJS 300; Vorassi v Maxwell Property Consultants Pty Ltd (2003) 227 LSJS 1. That being the case, the appellant could have applied under MCR 87 to set aside the judgment. Despite having been advised of that avenue, both by the magistrate and by the respondent’s representatives, he has chosen to appeal to this Court. That would otherwise be a matter relevant to the grant of leave.
As can be seen from the foregoing, the complaint is as to an exercise of discretion by the magistrate, rather than one raising any error of law. In my view the material placed before the magistrate was entirely inadequate in terms of supporting the application. The magistrate really had no choice but to refuse the adjournment and the request to appear by telephone. Moreover, no further material has been put before this Court. As I have said, the affidavit filed with the appeal notice contains only offensive assertions, both about the magistrate’s conduct and that of the respondent’s solicitors. That fact, added to the decision to appeal to this Court rather than taking recourse pursuant to the Magistrates Court Rules, together with the failure to identify any ground for upsetting the magistrate’s decision, is suggestive (I put it no higher than that) of an attempt, by way of a tactical manoeuvre, to frustrate the orderly disposition of this matter. Even if I had been prepared to treat the Notice of Appeal as an application for leave to appeal and to extend the time within which to appeal, I would have refused leave to appeal.
However, principally for the reasons that the notice fails to identify grounds of appeal and that the affidavit in support contains abusive and offensive material, I consider that the respondent makes good its application.
The order of the Court is that the appeal filed on 1 December 2005 be dismissed as incompetent.
I shall hear the parties as to costs.