NGW Pty Ltd v Avis Mary Swanson No. 4257 Judgment No. SCGRG 93/773 Number of Pages 2 Practice

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA BOLLEN(1), MOHR(2) AND LEGOE(3) JJ

CWDS
Practice - Defendant filed appearance which was rejected by the court - attempt to re-file appearance out of time - order made by master setting the matter down for assessment of damages - appeal against decision to set aside the order for assessment of damages dismissed. Pope v Aberdeen Transport Co. Pty Ltd (1965) NSWLR 1550, applied.

HRNG ADELAIDE, 4 November 1993 #DATE 4:11:1993
Counsel for appellant:     Mr M A W Birchall
Solicitors for appellant:    Foreman Mead
Counsel for respondent:     Mr G L Muecke
Solicitors for respondent: Manos and Associates

ORDER
Appeal dismissed.

JUDGE1 BOLLEN J In my opinion, one can express reasons very briefly in this matter. I do not propose to embark upon a dissertation about the facts. The significant feature is that the defendant, through her solicitors, sought to file an appearance. There was an error in it. It was received but then rejected by the court. Thereafter, the solicitors acting for the plaintiff, on peremptory instructions from her, set about the procedure of, in effect, signing judgment and having the matter set down for assessment of damages. An attempt to re-file or re-enter the appearance failed administratively. 2. In these circumstances, I think that the matters which I have just recited are sufficient in the interests of justice to require a setting aside of the order setting the matter down for assessment and the setting aside of the incidental order. 3. I refer to the case of Pope v Aberdeen Transport Co. Pty Ltd (1965) NSWLR
1550. At p.1551, Wallace J said:
    "But not only did the insurer receive mistaken legal advice
    but the plaintiff signed interlocutory judgment without sending
    a warning letter to the defendant. I think that where the party
    signing judgment does so without giving warning of its intention
    to do so, such party will generally, though perhaps not
    invariably, be in difficulties on a summons to set aside the
    judgment where a defence on the merits is disclosed. ... I
    think that justice requires that the interlocutory judgment be
    set aside." 4. Judge Pirone was almost moved to follow those reasons and proceed in a more peremptory way than he did to upset the order of the Master. I think he could have done so. Might I say, that is sufficient to justify the order which Judge Pirone made. 5. But, if this be not so, after studying Judge Pirone's reasons in the light of the voluminous evidence by affidavit, I think he has taken all things into account. I cannot say that his reasoning is in error. I, therefore, would dismiss the appeal.

JUDGE2 MOHR J I agree.

JUDGE3 LEGOE J I agree.

CaseChat Overview and Summary

The Full Court of the Supreme Court of South Australia heard an appeal in the case of NGW Pty Ltd v Avis Mary Swanson No. 4257. The defendant, Avis Mary Swanson, had filed an appearance which was initially received but subsequently rejected by the court due to an error. The plaintiff then proceeded to set the matter down for assessment of damages without warning the defendant, leading to an unsuccessful attempt by the defendant to re-file the appearance. The defendant sought to set aside the order for assessment of damages, and the appeal against this decision was dismissed.

The legal issues before the court centred on whether the order setting the matter down for assessment of damages should be set aside, and whether the defendant's failure to timely re-file the appearance warranted any relief. The court had to consider the procedural steps taken by both parties and determine if the plaintiff's actions in proceeding to assess damages without warning the defendant were justified under the circumstances.

The court found that the defendant's attempt to re-file the appearance was administratively unsuccessful and that the plaintiff's actions in signing judgment without warning the defendant could lead to difficulties in setting aside the judgment. The court referenced the case of Pope v Aberdeen Transport Co. Pty Ltd (1965) NSWLR 1550, where it was held that where a party signs judgment without warning the defendant, such party may be in difficulties when seeking to set aside the judgment if a defence on the merits is disclosed. The Full Court dismissed the appeal, affirming the decision of the lower court that the order setting the matter down for assessment of damages should be set aside.

The Full Court's final order was that the appeal be dismissed.

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