Minter Ellison a Firm v Lauro - [2020] SADC 41

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application)
MINTER ELLISON A FIRM v LAURO
[2020] SADC 41
Decision of His Honour Judge Durrant
7 April 2020
PROCEDURE - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE - ACTIONS TO REVIEW OR SET ASIDE JUDGMENT
Trial adjourned on day one as applicant complained of poor health. Three years and seven months of interlocutory consideration of his medical condition and the appropriate arrangements for resumption of trial.
Trial ordered to resume with special arrangements made for applicant to attend. Applicant failed to appear and judgment in default entered.
Application made that the Court exercise its unfettered discretion to set aside judgment. Asserted judgment irregularly entered without jurisdiction, contrary to practice or consequent upon improper conduct of counsel. Alternatively, if judgment is regular, applicant contends he had a reasonable excuse for non-attendance and an arguable defence.
Held:
(1) Judgment was not irregularly obtained.
(2) Judgement was regularly obtained.
(3) Applicant had no reasonable excuse for non-attendance.
(4) Applicant does not have an arguable defence to the claim.
(5) Whether the judgment regular or irregular, exercise of discretion to set aside not warranted.
(6) Application to set aside dismissed.
District Court Civil Rules rr 234, 131, 230, 229; Legal Practitioners Act 1981 Schedule 3, s 41, referred to.
Andrew Garrett Wines Pty Ltd & Anor v National Australia Bank Ltd [2007] SASC 173; Lauro v Minter Ellison Lawyers [2019] SASC 23; CBFC Limited v Charitopoulos [2009] SASC 30; Ford v Gray (1988) 50 SASR 525; Alexander v Ajax Insurance Co Ltd [1956] VLR 436; Lauro v Minter Ellison Lawyers [2019] SASC 23; Lauro v Minter Ellison Lawyers [2017] SASC 197; Southern Cross Commodities Pty Ltd (In Liquidation) v Martin & Martin [1986] SASC 8837; Lauro v The Marble House of Australia Pty Ltd & Ors AMCCI-06-3496; Battiste v Mulvaney SASC 56419 of 1997; Rasch Nominees Pty Ltd & Anor v Bartholomaeus & Ors (No. 3) [2013] SASC 14; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR; Idameneo (No. 123) Pty Ltd v Thomas Martin Suszko [2015] SASC 29; PPG Development Pty Ltd v Capitano [2016] SASC 169; Aistrope & Aistrope v South Australian Housing Trust [2015] SASC 202; Sandery v Kowalski & Anor [2016] SASC 175; Mathews v Whites Hill (SA) Pty Ltd & Anor [2019] SASC 78; Papagiorgos v Complete Credit Acquisitions Pty Ltd [2019] SASC 44, considered.

MINTER ELLISON A FIRM v LAURO
[2020] SADC 41
Summary

From May 2011 to December 2012, Mr Natale Lauro retained Minter Ellison Lawyers to conduct litigation on his behalf. In June 2013, Minter Ellison sued Mr Lauro for unpaid fees and disbursements. Mr Lauro defended that claim, denied any indebtedness, counterclaimed and pleaded a set-off.
On 12 February 2015, the trial of that dispute commenced before Chivell DCJ. The trial judge adjourned the trial before lunch when Mr Lauro, representing himself, complained of poor health. An interregnum of three years and seven-months was occupied by interlocutory arguments concerned with Mr Lauro’s medical condition and arrangements to enable resumption of the trial.
With Sisyphean persistence, the trial judge proposed arrangements to accommodate Mr Lauro’s concerns and ordered that the trial resume on 17 September 2018. Applications by Mr Lauro to adjourn the resumption were refused: the trial judge concluding Mr Lauro had no intention of dealing with the Court in a constructive way so that the action might proceed and that he had been wilfully avoiding the hearing of the matter. Mr Lauro failed to appear at the resumed trial. Judgment in default was entered on 18 September 2018.
Mr Lauro says the judgment was obtained irregularly and must be set aside. Alternatively, he proffers an excuse for his non-attendance and a defence to the claim. He urges the Court to exercise its discretion to set judgment aside.
I have found the default judgment was regularly obtained and that Mr Lauro had no reasonable excuse for his non-attendance at trial and has not established a reasonably arguable defence. Accordingly, I dismissed the application to set aside judgment. In any event, whether the judgment was regular or irregular I would have declined to exercise my discretion to set aside.
My detailed reasons follow.
Procedural history of this action
A history of this action and relevant findings are set out in ex tempore interlocutory reasons for ruling of the trial judge[1] as follows:
[1]    Chivell DCJ delivered 17 September 2018 DCCIV-13-1810.
·the Claim was issued on 28 June 2013;
·a Defence, Set Off and Counterclaim was filed on 15 June 2014;
·a Defence to the Counterclaim was filed on 16 October 2014;
·Mr Lauro appeared in person at the trial on 12 February 2015 and Minter Ellison proved the amounts claimed and unpaid;
·at 11:25am on 12 February 2015, Mr Lauro unsuccessfully applied to stay the trial on procedural grounds and then announced he was unwell and, if not granted an adjournment, would suffer a collapse;
·the trial was adjourned to 13 February 2015, for Mr Lauro to provide a medical certificate;
·on 13 February 2015, a medical certificate indicated Mr Lauro had been referred to a cardiologist and the trial was further adjourned to allow his GP to give evidence;
·the trial was adjourned on a number of further occasions until 31 March 2016, when an application to appoint Mr Andrew Garrett as litigation guardian for Mr Lauro was refused;[2] and, Mr Lauro then applied for his son, Mr Eric Lauro, to appear as his McKenzie friend;
·further adjournments were ordered on 19 May 2016, 18 August 2016 and 13 October 2016;
·on 24 November 2016, disclosure of the records of Dr D’Angelis, Dr Giordano, the Royal Adelaide Hospital and a Psychologist were ordered for presentation to a Cardiologist engaged by Minter Ellison to opine as to Mr Lauro’s medical condition:
·further adjournments were ordered on 25 January 2017, 1 March 2017 and 29 March 2017 and on 24 May 2017 the trial was adjourned sine die for discussions to take place between the parties;
·on 6 June 2018, the trial judge proposed special arrangements to cater for Mr Lauro’s concerns about his health:[3] the Court would sit afternoons only; Mr Lauro would give evidence in-chief by affidavit; Mr Lauro could conduct the proceedings and/or give evidence by video link from his home; and, on any occasion Mr Lauro had to attend Court, he could be accompanied by medical personnel; and
·the trial was fixed to resume on 17 September 2018, and Mr Lauro was invited to raise any objections to the arrangements proposed (or suggest any alternatives) by 8 August 2018.
[2]    In Andrew Garrett Wines Pty Ltd & Anor v National Australia Bank Ltd and other actions [2007] SASC 173, Mr Garrett had been declared, and remains, a vexatious litigant.
[3]    Those arrangements were proposed by the Court as a consequence of the consideration of Dr Ardill's report (who was retained as an expert by Minter Ellison).
Mr Lauro did not raise any objection or suggest any alternatives to the special arrangements proposed on 6 June 2018. On 17 September 2018, an application was made by Mr Eric Lauro to adjourn the resumed trial because:
·his father continued to be medically unfit;
·he (Mr Eric Lauro) had been suffering from pressure due to onerous Court commitments;
·the use of the Lauro family home for trial was intrusive;
·he had not been provided with transcripts;
·his father’s medical condition prevented him from making his own submissions;
·other treatment options for his father were being explored by other cardiologists; and
·his father was suffering from oncological and endocrinal complications.
In dismissing that application, the trial judge said:
I have concluded from all that has transpired in this litigation so far that Mr Natale Lauro has no intention of dealing with the Court in a constructive way so that this action might proceed. The Court has on many occasions been able to make arrangements for people with severe disabilities and/or medical conditions; for example, people dying of mesothelioma giving evidence at home, people attending Court on a hospital barouche with nursing attendants, people giving evidence from their hospital bed or from inside their nursing home. The Court can conduct litigation involving people who reside in virtually any country on earth. All that is required is internet access.
I consider that the proposed arrangements for Mr Lauro to conduct his case and give evidence if he chooses are reasonable and compassionate but I emphasise that Mr Natale Lauro has been asked to indicate what other arrangements could be made if he does not share that view of the proposed arrangements. He declines to do so. He, through his son, simply repeats all of the same argumentative and unhelpful arguments which have taken place prior to this date.
It is this last-mentioned feature which leaves me to conclude that he is wilfully avoiding the continued hearing of this matter. It is now 3 years and 7 months since the trial began and Mr Lauro says he is still pursuing other treatment options and so that leaves the fact that Mr Mitchell has given evidence and is still yet to be cross-examined.
In my view, this is grossly unfair to the plaintiff. It is entitled to have its claim considered by the Court. All of Mr Lauro’s allegations and allegations against some of the Minter Ellison members does not change that fact. Litigants are entitled to their day in Court. That applies to Mr Lauro too. His Set Off and Counterclaim are also before the Court and should be considered. The plaintiff is entitled to resolve on these causes of actions as well.
The High Court has made the point on several occasions, initially in Aon v ANU, that it is not just the question of the parties whose interests are at stake when considering applications for adjournments which unduly delay litigation; the public at large has an interest in an efficient administration of justice. This case has been set for trial now twice and has taken up time in the Court list in great disproportion to the issues which have been ventilated in the various interlocutory applications. In my view, the time has come where delays based on speculation that Mr Lauro might receive some further treatment, at some future time, taking into account Mr Lauro’s refusal to even countenance the idea of making special arrangements whereby he could give evidence in comfort somewhere else than in a Court room, and at times to suit himself, means that further delays must not be permitted.
The trial judge confirmed the trial would resume the following day, 18 September 2018. Mr Lauro did not attend. Mr Eric Lauro was present in Court and applied for orders:
·granting leave to file his 24^th affidavit;
·to excuse the non-attendance of his father due to his medical condition;
·that the trial judge disqualify himself;
·that he be granted permission to intervene in the action;
·that members of Minter Ellison and counsel appearing for Minter Ellison be restrained from acting;
·for third party disclosure of documents concerning the credit management of the claim; and
·that the trial be vacated, stayed or adjourned until further order.
Mr Eric Lauro told the trial judge that a Supreme Court appeal from his refusal of the application the previous day had been filed.[4]
[4] Lauro v Minter Ellison Lawyers [2019] SASC 23.
The trial judge declined to hear argument in respect of matters the subject of his ruling the previous day. The trial judge dismissed the application for third party disclosure as too late. He also refused to disqualify himself.
The transcript then records the following exchange:
Mr Coppola:    Mr Mitchell is here and ready to be cross-examined by Mr Natale Lauro.
His Honour:     Yes, well he is obviously not here. So, do you have an application?
Mr Coppola:    I do, can I take your Honour to the terms of –
Mr E Lauro:I’m sorry to interrupt, your Honour might not believe this but I hope Mr Coppola will be able to confirm what I am about to say. I have said yesterday that I was due to undergo a dental procedure, that dental procedure was scheduled for 2:15pm. I have skipped it, I feel unwell, I am in pain, I might very well, I wouldn’t attend medical care now.
His Honour:     Alright.
Mr E Lauro:And I reserve the right to seek damages in other actions against Minter Ellison, because that procedure has now been delayed for a number of months or otherwise cost me twice as much.
His Honour:     That’s up to you.
Mr E Lauro:So, I am leaving both because of my pain. I wanted to ask at the outset as well, I presume these hearings are being recorded.
Entry of Judgment
After Mr Eric Lauro exited, Mr Coppola resumed his application for judgment. He referred to r 234(2) of the District Court Civil Rules. That rule allows, in circumstances where an action is called on for trial and the defendant does not attend, the Court can enter judgment for the plaintiff in default of the defendant’s attendance.
Mr Lauro has not contended that he had attended at the trial. In any event, if a party attends when an action has been called on for trial for the purpose of applying for an adjournment and then leaves the Court after the application has been refused, the party has not attended for the purposes of the trial.[5]
[5] CBFC Limited v Charitopoulos [2009] SASC 30 per White J.
The trial judge ordered, “[h]aving regard to the fact that there’s no appearance by or on behalf of the defendant at the hearing of the trial in this action, that the plaintiff has judgment on its claim in the sum of $173,633.61 inclusive of interest.” He also made orders dismissing the Defence, Counterclaim and Set-off and in respect of the costs of the action.
It cannot be assumed that the trial judge proceeded under r 234. The trial had commenced and had resumed. The power to enter judgment in default was also available under r228. That rule provides that if a party commits a procedural irregularity that seriously prejudices the proper and expeditious conduct of the action, another party may, with the Court’s permission, enter a default judgment. The definition of procedural irregularity is broad and includes unreadiness to proceed with the hearing of a proceeding.
Application to set aside judgment in default of appearance at trial
A default judgment is not a final determination of the claim and can be subject of an application to set aside.
On 4 September 2019, solicitors filed a Notice of Acting for Mr Lauro and made application to set aside the default judgment entered on 18 September 2018, and restore his Defence, Counterclaim and Set-off.^[6] The application is made pursuant to rr 131 and 230 of the District Court Civil Rules and is also reliant on this Court’s inherent jurisdiction to set aside an irregular judgment. Affidavits from a solicitor[7] and from Mr Lauro,[8] were read in support.
[6]    Application dated 4 September 2019.
[7]    Affidavit of Rino Marrone sworn 3 September 2019.
[8]    Affidavit of Natale Lauro sworn 23 October 2019.
Rule 230 of the District Court Civil Rules allows this Court, on conditions it considers just, to set aside or vary a default judgment. This Court also has inherent power to set aside an irregular judgment.[9] In both cases the Court has an unfettered discretion. As White J put it in Westpac Banking Corporation v Garrett[10]:
It is not every irregularity which entitles a defendant to have a default judgment set aside as of right. The Court retains a discretion. See ANZ Banking Group v Kostovski SC Vic, Chernov J, 2 July 1997, unrep’d BC 9703266; CBA v Buffett (1993) 114 ALR 245. Relevant to the exercise of the discretion in this case is that the defect does not affect all defendants, and in the case of Mr and Mrs Garrett and the third defendant, does not affect their personal liability under the judgments.
[9] Ford v Gray (1988) 50 SASR 525.
[10] (2004) 235 LSJS 2465
Mr Lauro argued his application in the alternative.
First, he submitted that the judgment had been irregularly obtained and as such, his non-attendance at trial and his defence to the claim were irrelevant. An irregular judgment, he submitted, must be set aside.
Second, and alternatively, he said that he had a reasonable excuse for his non-attendance and a defence to the claim. Accordingly, he submitted, if the judgment had been regularly obtained, it should be set aside in the exercise of this Court’s discretion to do so.
Irregular judgment
RT Co Pty Ltd v Minister of State for the Interior,[11] concerned a default judgment entered against defendants jointly but pleaded against each of the defendants in the alternative. Dixon CJ found the judgment irregularly obtained because it had been entered against all defendants, jointly and severally and for the full amount.
[11] [1957] HCA 39; (1957) 98 CLR 168.
Other examples of the setting aside of irregular judgements include the entry of a default judgment: for a liquidated sum when the claim made was not for a liquidated sum;[12] in reliance on a defective affidavit in support; and, in reliance on incorrectly served process.[13]
[12] Alexander v Ajax Insurance Co Ltd [1956] VLR 436.
[13] Violi v Commonwealth Bank of Australia [2015] NSWCA 152.
Mr Lauro submitted that there had been three separate and distinct irregularities, each capable of founding an order to set aside upon those bases.
First, he submitted the Court had no jurisdiction to enter judgment for legal fees and disbursements as a liquidated sum. He said that the quantum of the legal fees and disbursements, claimed by Minter Ellison, could only have been determined by an adjudication of the Supreme Court.
Second, he submitted he had been given no warning at the resumed trial, as he should have been, that judgment would be entered in default of his appearance.
Third, he submitted that Counsel, who had appeared for Minter Ellison at the trial, had previously advised him and his appearance was, therefore, improper.
Legal Practitioners Act – Section 41
Section 41 of the Legal Practitioners Act 1991, applies Schedule 3 in relation to the recovery and adjudication of legal costs. Clause 37 of Schedule 3 provides the Supreme Court may, on the application of a client, adjudicate and settle a bill for legal costs. Further, a Court may, in respect of proceedings for the recovery of legal costs, order a legal practitioner to apply to have the legal costs adjudicated in accordance with Schedule 3, and adjourn the proceedings until the adjudication is complete.[14]
[14] Schedule 3 – Legal Practitioners Act, 1981.
No application for adjudication by Mr Lauro, as client, was made and no order was made by this Court that Minter Ellison apply for adjudication.
The effect of the submission of Mr Lauro is that King William Law Chambers and Williamson & Co v Mobitel (International) Pty Ltd[15] required the trial judge in this case to, first, determine if he had been liable under the retainer and, if he was so liable, give him the opportunity to seek adjudication or order that Minter Ellison apply for adjudication. Mr Lauro submitted that the jurisdiction to adjudicate the quantum of Minter Ellison’s fees resided solely with the Supreme Court. It followed, by application of that submission, that the trial judge had no jurisdiction to enter judgment for a liquidated sum.
[15] (1981) 29 SASR 316.

As already noted, when he entered judgment the trial judge did not determine liability under the retainer nor did he determine the amount of fees and disbursements due. Having been satisfied there had been no attendance by Mr Lauro, the trial judge entered a judgment in default for a liquidated sum as allowed by the rules.
The reliance of Mr Lauro on King William Law Chambers[16] is misplaced. There is no exclusive jurisdiction in the Supreme Court, as contended by Mr Lauro, to determine the quantum of legal costs claimed. This Court can determine both liability for and the quantum of legal fees.
[16] Supra.
The Full Court made that clear in Von Doussa Legal Pty Ltd v Nasr,[17] when it considered whether the Magistrates Court had a general common law jurisdiction to both find a legal retainer existed and to determine the amount properly recoverable under such retainer.[18] The Full Court, having considered King William Law Chambers, rejected a submission that a Magistrate had no jurisdiction to determine the quantum of legal costs outstanding. The Court held:
… there is nothing in the Legal Practitioners Act or in any relevant decision which confers any exclusive jurisdiction on this Court for the resolution of disputes on costs between a solicitor and a client or alleged client. I agree with the single Judge that s 41 provides a convenient and, I would add, a flexible means of resolving disputes as to both liability and quantum in such cases, with the principle role of this Court being, on taxation, to determine the amount of the costs where a retainer exists.[19]
[17] [2009] SASC 246.
[18] Ibid at 56.
[19] Supra at [71].
The adjudication process under the Legal Practitioners Act, 1981 is complimentary and discretionary. It allows a trial Court a discretion to adjourn proceedings to enable disputed costs to be taxed. It does not support the contended irregularity.
Warning not given
In CBFC Limited v Charitopoulos,[20] White J was faced with non-attendance at trial by all three defendants. The first and second defendants (husband and wife) were not present at all. The third defendant (son) presented to argue in person an application to stay or adjourn the trial. He told the Court that, in the event his application was refused, he would not be staying for the trial.[21] The application was refused and the third defendant confirmed that he proposed to leave.
[20] [2009] SASC 30.
[21] Ibid at [13].
Counsel for the plaintiff informed the Court that in the event the third defendant did depart, the plaintiff would seek a default judgment under the then rule of Court allowing for judgment in default of attendance at trial. White J explained the effect of that rule to the third defendant and encouraged him to stay and participate in the trial. Despite that encouragement, the third defendant did leave and took no further part. An application was granted for default judgments against all three defendants.[22]
[22] At 14, 15 and 16.
Mr Lauro contends White J had followed a practice in existence to warn a defendant that a departure from the Court, in the circumstances before him, could result in judgment being entered in default of appearance at trial. Mr Lauro criticises counsel for Minter Ellison in this case as he did not draw that practice to the attention of the trial judge. It followed, submitted Mr Lauro, that the failure to do so (especially bearing in mind that Mr Lauro was unrepresented) meant the judgment in default was irregularly obtained.
Minter Ellison submitted that no such practice existed in these circumstances.[23] I agree and I find no such practice existed.
[23] Mr Harms submitted that a practice or convention, in respect of the administrative entry of judgment at the Registry in default of Defence and where a solicitor had filed a Notice of Acting, might exist. I accept the utility and proper courtesy of such a practice: to give legal practitioners the opportunity to take steps to protect the interests of their client and to avoid an application to set aside concerned with practitioner default. The failure to courteously warn a member of the profession in those circumstances, may be a matter the Court would have regard to in any subsequent application to set aside.
White J in Charitopoulos had simply recounted that counsel for the plaintiff had intimated he would, if the third defendant exited, seek an order for judgment in default. His Honour then provided the third defendant (a self-represented litigant) with a measure of assistance so that he was aware of what might be expected of him. Such assistance fell short of giving advice: the court cannot compromise its independence and impartiality.[24]
[24] Lauro v Minter Ellison Lawyers [2019] SASC 23 at [13] per Hinton J.
Charitopoulos does not stand as authority that a warning must be given in these circumstances. What Mr Lauro contends for is that the Court should have impermissibly provided (presumably through his son) advice as to the consequence of his non-attendance.
Rules 228 and 234 are premised on non-attendance at a fixed and notified hearing or trial. Mr Lauro knew the trial was to resume: the trial judge had found he had been wilfully avoiding it. He did not attend and the factual basis for an order under r 228 or 234 was satisfied and the power properly exercised. Mr Eric Lauro was not a party to this litigation and his presence or absence is irrelevant to the requirements of ss 228 or 234.
The submission also overlooks what occurred before the trial judge. Mr Coppola had commenced his application for default judgment when Mr Eric Lauro was present. Mr Eric Lauro had interrupted him to announce he was leaving. He exited and Mr Coppola resumed his application, commenced, before being interrupted, that judgment be entered. In so far as the submission of Mr Lauro criticises Mr Coppola for not intimating that he would seek judgment in default, it is without foundation.
If I be in error and a practice to warn existed, I agree with Mr Harms that the adoption of the practice, in the circumstances of this case, would have been nugatory and was not required.
Mr Eric Lauro, who was fully authorised to appear on behalf of his father, had, for the reasons below, known exactly what would happen if Mr Lauro did not turn up at trial. Mr Lauro also had, for the reasons below, direct knowledge of what would happen.
Mr Eric Lauro had also been a defendant in a claim for fees by Minter Ellison in the Magistrates Court. On the day of trial, Mr Eric Lauro advised the Registry of his inability to attend for medical reasons. He was advised the trial had been adjourned to the following day. He failed to attend and judgment in default of his attendance at trial was entered. Mr Eric Lauro appealed that default judgment, having unsuccessfully applied to set it aside.[25]
[25] Lauro v Minter Ellison Lawyers [2017] SASC 197.
I granted leave to cross-examine Mr Lauro on his affidavit in support of this application.[26] Mr Lauro told me his medical advisers were concerned about his blood pressure. I told Mr Lauro that if he felt distressed or uncomfortable during his evidence, he could take a break. A break was taken, beyond those ordinarily allowed, on a couple of occasions.
[26] See Southern Cross Commodities Pty Ltd (In Liquidation) v Martin & Martin [1986] SASC 8837.
Unfortunately, cross-examination did not complete in the time allocated and I fixed a convenient date for Mr Harms to finish. At the resumption, counsel for Mr Lauro had been instructed that Mr Lauro was unwell and unable to attend. Rather than delay, Mr Harms did not press to cross-examine further.
In cross-examination, Mr Lauro had confirmed his son had his ‘full authorisation’ to attend before the trial judge on his behalf [27] and that his son had reported to him what happened at Court.[28] He had been aware of the arrangements proposed by the trial judge for him to attend and give evidence.[29] He had been aware of the requirement that he indicate any objection to or suggested alternatives to those arrangements by 6 August 2018.[30]
[27] T73.32, T74.9-19.
[28] T75.8-19.
[29] T83.5, T86.2-13, T86.31-88.
[30] T88.13-22.
Mr Lauro had also known that the trial judge had dismissed his application for adjournment, made one day before the trial was due to resume, on 17 September 2018:[31]
[31] T94.5-10.
Q.So, your understanding was that he [his son] was preparing an appeal about an order that Judge Chivell had made that day, is that right.
A.I presume so, I don't recall, I don't have it in front of me, but I believe they were all orders which has made according to the advice we see from Bampton J.
Q.Did you know that he had to go back to court the following day.
A.Yes, of course, and then my son attend, if you want we can cut, my son attend the court, no-one come in to call for Mr Natale Lauro outside the room to check, although someone said in the transcript said 'Lauro has been called by the Sheriff, there was nobody there', and they just a liar. And no-one said to my son if your father will be not here of it you go away, because my son he was sick, he presented medical evidence, he was very, very sick and Judge Chivell said 'Since you are sick I allow you to go', but he didn't say 'if you go I will proceed with the default.' We was thinking the only thinking the only thing that can happen was another adjournment, nothing else.
Q.Really. So, you knew that he had refused, that Judge Chivell had refused to adjourn the trial on the 17th, is that correct, and he adjourned it to the following day, do you agree with that.
A.Even if is so it's not important, on the 18 my son was there, and if Judge Chivell was in the case of a son you can proceed on behalf of your father, but he been not invite on that. Not even Coppola did that.
Q.You were told by your son, were you not, that the judge had refused to adjourn the trial and he was going to lodge an appeal against that, is that correct or not.
A.My son did lodge an appeal on the morning of the 18th.
Q.You haven't answered the question. You were told by your son on the 17th that Judge Chivell had refused, he adjourned the trial, and he adjourned it to the following afternoon on the 18th. You were told that, weren't you.
A.Well ... it's not important because again my son was there.
Q.It doesn't matter what you think is important, were you told that.
A.Yes, so.
Q.And on the 18th you didn't attend, did you.
A.Well, unless I am still the person I just said I was incapacitated to be before the court.
Q.And you knew what would happen if nobody attended on your behalf, didn't you.
A.No, you're wrong, because the only thing I was thinking would happen will be another adjournment. If Judge Chivell was expressed on his order 'If next time you don't appear, then I will do this', well in that case it was different, I still did not appear, but there will be a medical stuff come in before Judge Chivell to explain why I was not there.
As I interpret these exchanges, Mr Lauro considered, notwithstanding the refusal of his application to adjourn, that if he did not appear at the resumed trial the Court would adjourn again. He complained the trial judge had not warned his son that if he did not appear, judgment could be entered in default. However, he said, even if he had been told that would happen, he would not have attended because of his medical condition.
Mr Lauro admitted knowledge of the Magistrates Court proceedings between Minter Ellison and his son. He had been aware that judgment had been entered against his son because he had failed to appear at trial. He had also been aware that his son had unsuccessfully applied to set aside the judgment.
The trial judge had concluded on 17 September 2018, that Mr Lauro was ‘wilfully avoiding the continued hearing of the matter’.[32] I find that Mr Lauro knew that if he failed to attend at trial, judgment could be entered against him. I also find that, if the trial judge had given a warning at the resumed trial that his non-attendance risked judgment in default, that Mr Lauro would still not have attended at trial.
[32] T104.25-105-106.15.
Counsel at trial
The third ground of irregularity contended by Mr Lauro concerned counsel who appeared for Minter Ellison at the trial. Mr Eric Lauro, at the hearing of the application to adjourn on 17 September 2018, had complained that Mr Coppola, when a member of the Bar, had previously given advice to his father. He asked that Mr Coppola be restrained from appearing for Minter Ellison.
The trial judge accepted what Mr Coppola told him from the bar table: that a brief to appear had been delivered but his fees had not been secured and he had returned the brief.
That first application to restrain Mr Coppola from appearing was dismissed: the trial judge having found no evidence to justify such an order.[33] The trial judge refused to entertain the second application, made the following day.
[33] At 36.
On this application, Mr Lauro repeated his complaint about Mr Coppola. He submitted his appearance at the resumed trial had resulted in the judgment being irregularly obtained. That was because it was unfair that counsel who had previously acted for him had then acted against him.
A legal practitioner should not act against a party when he or she has obtained confidential information from that party, relevant to a current matter, received as a result of a previous practitioner/client relationship and where that information could reasonably be perceived by the former client to be able to be used to his or her detriment in the proceedings.
No evidence of, or submission was put to the trial judge, that any confidential information had been obtained by Mr Coppola from the brief provided or from Minter Ellison or from Mr Lauro, relevant to the matter, received as a result of the previous practitioner/client relationship and that such information could reasonably be perceived by Mr Lauro to be able to be used to his detriment in these proceedings.
The trial judge made a finding of fact that there had been no basis to the submission subsequently re-agitated before me. A judge of this Court has no jurisdiction to review or consider a collateral challenge to the findings of another judge of this Court. I accept that finding of Judge Chivell and accordingly, find there is no basis for the asserted irregularity based on the appearance of Mr Coppola at trial.
In the event I am in error in that approach, and, am entitled to assess afresh the circumstances of the appearance of Mr Coppola at the resumed trial, and, whether those circumstances were such, that, the default judgment had been irregularly obtained, I would have rejected the complaint. No evidence was presented that any confidential information had been obtained by Mr Coppola from the brief provided or from Minter Ellison or from Mr Lauro, relevant to the matter, received as a result of the previous practitioner/client relationship and that such information could reasonably have been perceived by Mr Lauro to be able to be used to his detriment in respect of the application for default judgment.
Having considered each of the three separate grounds raised, I have concluded that the default judgment was not irregularly entered.
Judgment Regular
I do find that judgment was regularly obtained in default of attendance at trial. The alternate application of Mr Lauro is therefore enlivened.
Mr Lauro alternatively, urges this Court exercise its discretion to set aside a regularly obtained judgment. In support of that application, Mr Lauro says he had both a reasonable excuse for his non-attendance and a defence to the claim.
Reasonable excuse
In relation to his non-attendance, I have considered all the circumstances of this case and the actions of Mr Lauro as detailed herein.
Mr Lauro repeated his reliance upon the medical evidence before the trial judge and did not read any further expert medical evidence. Specifically, there was no medical evidence before me that the arrangements proposed by the trial judge, to allow the attendance of Mr Lauro at trial, had been other than reasonable and compassionate.
Chivell DCJ had considered all the medical evidence in ruling on the application to adjourn on 17 September 2018 and suggested arrangements to deal with the defendant’s medical condition such as to allow him to attend at trial and give evidence. The trial judge had made it clear to Mr Lauro, if he had any concerns in relation to those arrangements, that he was to notify his position by 8 August 2015. Mr Lauro did not raise any medical concerns or avail himself of the opportunity to present alternative arrangements. There was no challenge before me that the proposed arrangements were other than compassionate and reasonable.
The trial judge had concluded on 17 September 2018, that Mr Lauro had no intention of dealing with this Court in a constructive way so that the action could proceed. Further, he had concluded Mr Lauro was wilfully avoiding the continued hearing of the matter.
Mr Lauro contended before me that the evidence of his medical condition, the same as before the trial judge, was sufficient on this application to establish that he had reasonable excuse not to attend.
I find that Mr Lauro had no reasonable excuse for non-attendance for the following reasons.
Noting again that a judge of this Court has no jurisdiction to review or consider a collateral challenge to the findings of another judge of this Court, the suggested arrangements were reasonable and compassionate.
Mr Lauro could have engaged lawyers to attend. He obtained representation before me and instructed his solicitors to bring this application. His solicitors briefed counsel. Mr Lauro attended Court for the hearing of his application and for cross-examination. No special or other arrangements to allow for his attendance was sought. Other than extending him a short break on a couple of occasions, no other or special arrangements were required to allow his attendance and evidence.
Mr Lauro had been untruthful when he deposed in his supporting affidavit that he had not been to Court since February 2015.[34] Mr Lauro admitted in cross-examination that five days after he said he had been unable to appear before the trial judge (in January 2017), he had attended in person in the Supreme Court (in February 2017). Mr Lauro said in cross examination that he had been able to attend the Supreme Court on that occasion because he had been ‘trialling new medications’.[35] No mention of that attendance, or the trial of new medication had been made in any of the twenty-four affidavits of Mr Eric Lauro filed in this matter dealing with his father’s medical condition.
[34] Affidavit of Natale Lauro sworn 23 October 2019 at [499].
[35] T70.8-73.28.
I carefully assessed Mr Lauro when he gave evidence. He was a poor listener. He was unresponsive and rude to Counsel. He was argumentative. He was evasive when asked questions which were capable of a straight answer. He tried to deflect or change the subject when his examination got to a point where he may have had to give an answer that might be contrary to his interest. One example related to the evidence he gave concerning his attendance at trial quoted above. Another concerned his evidence about his knowledge of the default judgment obtained against Mr Eric Lauro in the Magistrates Court. He did not directly answer the questions put. He deflected, saying he was not ‘an Australian lawyer, I don’t know about’. He was uncooperative, particularly when asked about the arrangements proposed by Chivell DCJ to enable attendance at trial.
Having regard to the matters detailed above, I have concluded and found several matters arising from the cross-examination of Mr Lauro, namely:
·Mr Lauro could have engaged lawyers to attend at the resumed trial;
·Mr Lauro had been untruthful in his affidavit concerning his ability to attend before this court;
·Mr Lauro intended to repeat the same assertions about his health in support of this application to set aside judgment, as had been put to Chivell DCJ; and,
·irrespective of the reasonable and compassionate arrangements proposed, Mr Lauro had no intention of attending at the resumed trial; and
·no special or other arrangements to allow for his attendance before me were required.
I find, having regard to all of the matters detailed in these reasons, that Mr Lauro had no reasonable excuse for his non-attendance on 18 September 2018.
An arguable defence

Given my finding that Mr Lauro did not have a reasonable excuse for non-attendance, the application to set aside a regular judgment must fail.
In the event I have erred as to the existence of a reasonable excuse, I have considered whether Mr Lauro had a reasonably arguable defence.[36]
[36] Watson v Anderson (1976) SASR 329: Defence, Counterclaim and Set-Off filed on 15 June 2014.
As well as seeking to restore his Defence, Mr Lauro also relied on his affidavit and the evidence of a solicitor who deposed to his consideration of the way Minter Ellison had fulfilled their retainer.
The solicitor opined that he would have conducted the litigation matters[37] differently as, “Minter Ellison failed to take a holistic approach to the matters Mr Lauro entrusted to their professional care’. The solicitor says that he thinks some costs would be taxed off in an adjudication. He does not provide any estimate and simply says the magnitude of the fees were neither reasonable nor proper. His assessment implicitly acknowledges that a properly pleaded Defence would admit the amounts payable and deny what is said to be not payable.
[37] At [36].
Mr Lauro in his affidavit deposed generally to disputing ‘significant anomalies’ in the invoices due as set out in his Defence.[38]
[38] At [12].
This Court is entitled to take judicial notice of the myriad ways in which litigation can be conducted and proceed: the path is rarely smooth. Consequently, I have had regard to the affidavit of the experienced solicitor but have not given it significant weight in my assessment of whether Mr Lauro has a reasonably arguable defence because the opinions expressed are necessarily speculative and based on assumptions as to how the matters might have proceeded and that Mr Lauro would have provided meaningful and prompt instructions, and taken a commercial approach to litigation. In respect of one matter in which Minter Ellison were engaged, Mr Gumpl SM assessed the approach of Mr Lauro to litigation as follows:
Vindictiveness and revenge, rather than any true cause, fuelled this case. The plaintiff’s [Mr Lauro’s] unshakeable belief in the virtue of his various grievances is matched only by the dearth of evidence in support of this litigation.[39]
[39] Lauro v The Marble House of Australia Pty Ltd & Ors AMCCI-06-3496 (Gumpl SM).
In assessing whether a reasonably arguable defence has been proffered, I consider the Defence relied upon by Mr Lauro is of greatest import.
The claim in this matter was issued by Minter Ellison nearly seven years ago[40] and claimed a liquidated sum: outstanding fees and disbursements for work undertaken pursuant to a written retainer.
[40] On 28 June 2013.
Mr Lauro[41] had filed a Defence, Set Off and Counterclaim admitting the engagement[42] and had pleaded:
1Minter Ellison was negligent in the provision of its services;
2Minter Ellison rendered excessive and/or unreasonable charges;
3services were provided in breach of retainer and solicitor conduct rules;
4Minter Ellison ceased acting without due cause;
5Minter Ellison refused regular payments in satisfaction pending resolution of his claims by the Legal Practitioners Conduct Board;
6Minter Ellison had failed to deliver up his files; and
7Minter Ellison had defamed him.
[41] Acting in person on 6 December 2013.
[42] Defence, Set Off and Counterclaim at [11].
The Defence is premised on an assertion the invoices have been disputed ‘due to significant failure and anomalies’.[43] The Defence is acknowledged to be inadequately particularised and contains an unfulfilled promise that further particulars would be provided.
[43] At [4].
In his Defence, Mr Lauro denied any obligation to pay and had complained generally about the conduct of Minter Ellison. Without particularity, he pleaded Minter Ellison had: acted contrary to instruction and retainer;[44] made fortnightly requests for payment when it had agreed to do so monthly; acted in contravention of the conduct rules by billing for incomplete work; failed to review and revise outstanding and disputed accounts as promised; failed to inform him of the possibility of joining insurers in claims they were conducting; published his private email address without authority; exercised a lien over documents; failed to make clear all outstanding payments due; not explained the difference between its retainer and costs on the scale; and, not offered a contingency costs agreement.
[44] In paras 4.1 to 4.2 of the Defence.
The Defence, Counterclaim and Set-Off was elliptical and obscure in relation to the remedies sought. For example, it avers a violation of ethical standards - by the accumulation of work in progress rather than billing monthly - and claims that had caused unspecified financial hardship. It does not identify any particular items of over or excessive charging but does complain work had been undertaken by junior staff, instead of partners, as apparently, promised. It does not plead negligent acts in the ordinary way and provides no nexus between the acts complained of and the unspecified loss and damage claimed. It does not explain how the making of fortnightly rather than monthly requests for payment had excused Mr Lauro from the obligation to pay those accounts and caused him unspecified loss or damage.
One aspect of the claim was conceded by Minter Ellison, in argument, as sufficient to found a defence. In the event judgment was set aside, Minter Ellison accepted that a real dispute would arise as to whether the firm had agreed or not to cap the fees payable by Mr Lauro for the conduct of a mediation. The sum the subject of that dispute is modest: perhaps a few thousand dollars.
Mr Cameron, counsel for Mr Lauro, was unable to point to any itemisation or quantification by Mr Lauro of the fees in dispute (and by elimination the fees not in dispute). No expert assessment of the costs claimed has been presented.
What has been put forward in the proposed defence was unsatisfactory and does not set out a reasonably arguable defence. The Defence would require amendment before permission to file could be considered[45] and currently, may be insufficient to obtain from the solicitors on record the endorsement of a certificate that it conforms with the rules.[46]
[45] Battiste v Mulvaney SASC 56419 of 1997.
[46] District Court Civil Rules r 98(1)(b).
What the Defence sets out is a series of complaints about what Minter Ellison did and the invoices presented. It does not say what is payable and what is not and why. It does not satisfy me that Mr Lauro has a reasonably arguable defence in this case.
If I am in error and the Defence and affidavits read do establish a reasonably arguable defence, in my view it would require significant amendment and I would decline to grant the order sought that the Defence be restored. Together with a number of other matters canvassed below, the proposed Defence would not persuade me to exercise my discretion to set aside judgment. Further, the potential of an amended proposed Defence would not persuade me to exercise my discretion to set aside.
Discretion
In any event, there are a number of discretionary considerations which I have given consideration to in the exercise of my unfettered discretion to set judgment aside and whether, as Kourakis CJ said in respect of protracted litigation before the Supreme Court, ‘Enough is enough.’[47]
[47] Rasch Nominees Pty Ltd & Anor v Bartholomaeus & Ors (No.3) [2013] SASC 14.
The following matters are the relevant considerations I have had regard to in relation to the exercise of my discretion in this context and more generally:
·this matter commenced in June 2013;
·the proposed Defence, Counterclaim and Set-Off would likely require significant particularisation and amendment, likely following or being followed by the obtaining of expert evidence in relation to costs and the separate assertions of loss, damage and set-off;
·disclosure may likely be required in relation to the counterclaim and set off;
·the files of Minter Ellison relating to the matters in which they had been engaged have been available for inspection but as at 27 November 2019, neither Mr Lauro nor his solicitor had attended at their offices to inspect;[48]
[48] Afffidavit of Grant Mitchell sworn 27 November 2019 at [4.2].
·Mr Lauro did not take responsibility for informing himself whether orders were made by the trial judge on 18 September 2018 and what the nature of those orders were;
·Mr Lauro did not make himself aware of judgment being entered against him until January 2019;[49]
·Mr Lauro said he assumed that Chivell DCJ would, in consequence upon his non-attendance, adjourn the trial, yet he took no steps to contact the court or Minter Ellison to obtain the expected adjourned date and rather asserted that the Registry of this court and Minter Ellison had an obligation to inform him of what had occurred;
·Mr Lauro took nearly a year to bring his application to set aside judgment and first consulted his solicitors on 31 January 2019 about doing so;[50]
·the trial judge had concluded that Mr Lauro had wilfully delayed the conduct of the matter and had not been prepared to countenance the reasonable and compassionate arrangements put in place to enable his participation;
·the trial judge had concluded that Mr Lauro had no intention of dealing with the Court in a constructive way, so that this action might proceed;
·Mr Eric Lauro, who was fully authorised to appear on behalf of his father, had known exactly what would happen if Mr Lauro did not turn up at trial;
·Mr Lauro had direct knowledge of what would happen in the event of his non-attendance;
·Mr Lauro, when giving evidence before me, was unhelpful, evasive and uncooperative;
·this case has already been set for trial twice; and
·the trial judge had found, in respect of the various interlocutory applications made, this case had taken up Court time in great disproportion to the issues ventilated.
[49] Lauro v Minter Ellison [2019] SASC 23 at [15].
[50] Affidavit of Mr Marrone sworn 3 September 2019 at [14].
Having considered those matters in consideration of my discretion, I would not consider that the setting aside of judgment and the continuation of this litigation is in the interests of the public and the proper administration of justice.[51]
[51] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; See also: Idameneo (No 123) Pty Ltd v Thomas Martin Suszko [2015] SASC 29; PPG Development Pty Ltd v Capitanio [2016] SASC 169; Aistrope & Aistrope v South Australian Housing Trust [2015] SASC 202; Sandery v Kowalski & Anor [2016] SASC 175; Matthews v Whites Hill (SA) Pty Ltd & Anor [2019] SASC 78; and Papagiorgos v Complete Credit Acquisitions Pty Ltd [2019] SASC 44.
I exercise my discretion to set aside the judgment by declining to do so.
Order and Costs
The application to set aside judgment is dismissed. I will hear the parties as to costs.