Owen Pomery v Margaret Hand No. SCGRG 93/953 Judgment No. 4134 Number of Pages 7 Practice

[1993] SASC 4134

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA OLSSON J

CWDS
Practice - Action dismissed by magistrate - application to reinstate action in trial list granted - appeal against reinstatement - consideration of Magistrates Court Rules R2, R87 - magistrate had no power to reinstate action.
Caseflow management - application of caseflow management principles - appellant alleged that inappropriate to exercise discretion to reinstate action - respondent's solicitors guilty of gross and continuing defaults with respect to action.
Supreme Court Rules R84.12 and Magistrates Court Rules R2, R3, R87. Bailey v Marinoff (1971) 125 CLR 529; Pollard v Incorporated Nominal Defendant (1972) VA 955; Mohtar v Mohtar and Seputis (1988) 146 LSJS 377; United Motors Retail Ltd v Australian Guarantee Corporation Limited (1991) 58 SASR 156; McPhee v Blyth (1992) 166 LSJS 236 and Government Insurance Office of New South Wales v Ali (1992) 167 LSJS 286, considered.

HRNG ADELAIDE, 16 August 1993 #DATE 31:8:1993
Counsel for appellant:     Mr M Steele
Solicitors for appellant:    Ward and Partners
Counsel for respondent:     Mr C Barone
Solicitors for respondent: Andersons Barker Gosling

ORDER
Appeal allowed.

JUDGE1 OLSSON J This is an appeal against an interlocutory order made by Mr J Cannon SSM, pursuant to a certificate granted by him on 14 May 1993, in accordance with SCR 96B.02(1). It relates to an action originally commenced in the District Court, but later remitted to the Civil Division of the Magistrates Court. 2. On 22 November 1990 the respondent (who was plaintiff in the action) instituted proceedings against the appellant in the District Court. She claimed $150,000 damages for personal injuries said to have been sustained by her, as a consequence of the negligence of the appellant, in a vehicle collision which occurred on 9 February 1988. 3. The appellant both appeared to the claim and filed a defence to it on 18 January 1991. 4. In the normal course, following various interlocutory processes, the matter was listed for a pre trial conference on 11 July 1991. As a consequence of that conference the action was listed for trial on 3 October 1991. 5. Due to what was said to be a need for further medical investigations in relation to the respondent, that trial date was vacated by an order of Master Berry made on 26 September 1991. A fresh pre trial conference was scheduled for 20 January 1992. Later orders were made adjourning the conference to 2 September 1992, apparently due to ongoing medical treatment of the respondent. 6. When the action came before the chairman of the pre trial conference on 2 September 1992, the respondent amended her claim to $60,000, whereupon, on the same day, an order was made remitting the action to the Magistrates Court at Adelaide. 7. A notice subsequently issued to the parties, listing the action for trial in that court on 26 January 1993. 8. Prior to the remission of the action an interlocutory order had been made by the District Court on 2 June 1992 directing the respondent to file and deliver updated particulars as required by DCR 88A, on or before 31 July 1992. That order was not complied with. By application dated 4 November 1992 the appellant made application to a magistrate, inter alia, for an order that the action be dismissed for failure to comply with the order as to particulars. That application was dealt with on 20 November 1992 when, by consent, the respondent was required to provide Form 22 particulars within 21 days and also attend to various other interlocutory matters. At that time it was said that the respondent was still awaiting further medical reports. 9. Once again that order was not complied with. On 15 December 1992 the appellant made further application that the action be struck out by virtue of the respondent's continuing default. This came before Mr Hiskey SM, who, on 22 December 1992, made an order vacating the scheduled trial date and directing that the action be not reinstated "save by application and plaintiff having made full discovery of all medical reports and having filed up-to-date Form 22 particulars". 10. On 23 February 1993 the appellant further made application for the dismissal of the action, either for want of prosecution or, alternatively, for failure to comply with the interlocutory orders above referred to. 11. When that application came before Mr Hiskey SM he made the following order:-
    "This action do stand dismissed unless form 22 particulars
    be filed and served by 5 p.m. on 12/3/93 Copies of tax returns
    from 1985 to 30/6/90 be served on defendant within 21 days and if
    no tax return lodged for any year over such period plaintiff to
    serve on defendant a sworn affidavit describing particulars of all
    income and sources thereof earned any such period Plaintiff to pay
    defendant's costs of this application and order on scale of claim
    to be agreed or taxed" That self executing order was not complied with, at least in certain respects. 12. In this regard it must be noted that Mr Barone filed an affidavit asserting that he personally filed the particulars on 11 March 1993, although the court record indicates that the respondent lodged the required particulars in Court on 15 March 1993, namely three days after the self executing order was due to take effect. There is no explanation before me as to that discrepancy, but, in the event, it is not of vital importance for present purposes. 13. It is to be noted that the Form 22 which the respondent purported to file and deliver did not comply with MCR R68 because the requisite summary of economic loss was left blank and never completed. It seems to have been accepted by all parties that this amounted to a non compliance with the self executing order, which caused it to have effect. The relevant proceedings before Mr Cannon SSM went forward on that basis. 14. On 25 March 1993 the respondent sought an order extending the time for compliance with the direction to lodge copy tax returns for a further 28 days. That application was dismissed on 26 March 1993, the date upon which compliance was due. According to the Court record, an affidavit dealing with the tax aspects was filed on 30 March 1993, albeit that it was sworn on 26 March 1993. The affidavits on file reveal that no attempt was made on behalf of the respondent to obtain the relevant copy income tax returns until 18 March 1993. When faced with the refusal to extend time the respondent procured what was required within a further 24 hours. 15. It is to be noted that the application of 25 March 1993 made no reference to the particulars, presumably because they had actually been sworn by the respondent on 11 March 1993. According to a subsequent affidavit, a copy of them was served on the solicitors for the appellant on 11 March 1993. 16. On 27 April 1993 the respondent issued an application for an order that the action be reinstated in the trial list. 17. This was resisted by the appellant on the bases that the self executing order had already taken effect, a certificate of judgment had issued after the dismissal of the application for an extension of time in relation to the tax returns and because it was asserted that the particulars filed and served were, in any event, (as I have said) manifestly defective. Complaint was made of the respondent's long history of delay and non compliance with orders. 18. This application came before Mr Cannon SSM on 14 May 1993. Having heard the parties he made an order to the following effect:-
    "Claim reinstated. Defendant to have costs on this
    application and thrown away obtaining and consequent upon the self
    executing order whereby claim was dismissed, to be agreed or
    taxed. Plaintiffs right to be indemnified by her legal advisers
    reserved. That issue to set for argument Friday 11 June at 10.30.
    Plaintiff required to attend in person. Defendant not required to
    attend Court and Plaintiff's solicitors to advise plaintiff of
    this order. As to claim set for mention only 18/6/93 10.00am
    Flinders Street Leave to appeal. Plaintiff to fully complete Form
    22 within 7 days." 19. It appears that the matter again came before the learned magistrate on 11 June 1993, when he made the following order:-
    "PIP Mr Barone present Order plaintiff's legal advisers are
    to indemnify her against any cost order made against her between
    2.6.92 and today. Further order under section 37 of the
    Magistrates' Court Act 1991 that the plaintiff's legal advisers
    are disallowed from charging any costs to their client between
    2.6.92 and today. Further that the plaintiff's legal advisers
    will indemnify her against her potential liability in relation to
    the order for costs thrown away made on the 22 September 1991 and
    reserved to the trial Magistrate. AJ CANNON SM 11.6.93" 20. The respondent now appeals against the order of 14 May 1993 on the grounds that:-
     "1. The self executing order of His Honour, Mr Hiskey SM,
    made on the 5th day of March 1993 was not complied with;
     2. The judgment obtained by the defendant pursuant to that self
    executing order was regularly obtained;
     3. The Magistrates Court of South Australia did not have
    jurisdiction to set aside that judgment or to reinstate the
    action;
     4. In the alternative to 3, Mr A.J. Cannon SSM was wrong in
    law in reinstating the action because:-
     (a) the delays in compliance with prior orders of the
    magistrates Court were manifestly excessive,
     (b) there were insufficient attempt to comply with prior orders
    or the self executing order,
     (c) there was insufficient explanation for the delays and
    non-compliance,
     (d) the principles of Case Flow Management required that the
    action do stand dismissed in the absence of complete compliance
    with the Magistrates Court Rules and the self executing order,
     (e) it was just in all the circumstances that the action be
dismissed." 21. On the hearing of this appeal Mr Steele, of counsel for the appellant, submitted that, there being no counterpart of SCR 84.12 in the Magistrates Court Rules, the common law principle stemming from Bailey v Marinoff (1971) 125 CLR 529 at 530, 532 (as discussed in Pollard v Incorporated Nominal Defendant (1972) VR 955 at 961 and Mohtar v Mohtar and Seputis (1988) 146 LSJS
377 at 390) was applicable, ie that a final judgment having been entered and perfected, there is no inherent power in the court of entry to deal with the matter - that court being functus officio. He contended that, on that basis, Mr Cannon SSM had no power to make the order now in question. 22. It was further argued by Mr Steele that, even if that view be incorrect, such had been the gross and continuing defaults on the part of the solicitors for the respondents, that a proper application of the caseflow management principles espoused by MCR R3 (which incorporates the principles set out in SCR 2) necessarily indicated that it was an inappropriate exercise of discretion to make the order now sought to be impugned. In that regard reliance was placed on United Motors Retail Ltd v Australian Guarantee Corporation Limited (1991) 58 SASR 156, McPhee v Blyth (1992) 166 LSJS 236 and Government Insurance Office of New South Wales v Ali (1992) 167 LSJS 286. 23. Mr Barone, of counsel for the respondent, sought to meet the first point raised by Mr Steele by relying on the provisions of MCR R87, coupled with the definitions contained in MCR R2. 24. MCR R87 is couched in these terms:-
     "(MCR R87) (Setting aside or varying other than final
    judgments) (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." 25. The expressions "judgment" and "final judgment" are respectively defined in MCR R2 as under:-
    "judgment" means a judgment, declaration, decree, decision or
    order of the Court disposing of an action, and includes an
    interlocutory judgment or order: "final judgment" means any final
    judgment under these rules and includes -
     (a) a judgment made with the consent of the parties;
     (b) a judgment given at the conclusion of a contested hearing; or
     (c) a judgment made in terms of the acceptance of either an
    offer to consent to judgment or a payment of a sum of money to the
    Registrar:" 26. It is at once obvious that Mr Steele's primary argument must be upheld unless it may fairly be said that the judgment entered in these proceedings, pursuant to the self executing order, was not a final judgment. 27. As I understood his submissions Mr Barone sought to contend that the definition of "final judgment" is exclusive and is limited to judgments of the nature of the categories listed in subparagraphs (a), (b) and (c) of the definition of that phrase. Thus, he submitted, the judgment here under consideration does not constitute a final judgment as contemplated by MCR R87(1); and is merely a "judgment" otherwise defined - which may properly be the subject of an order to set aside or vary. 28. I must confess that, at first sight, there may be some logical difficulties in reconciling the two definitions, unless that related to "final judgment" is intended to be exclusive in terms of subparagraphs (a) to (c) inclusive. If this was not so then there would appear, on one possible construction, to be a potential for overlap and conflict between it and that portion of the definition of "judgment" which refers to a judgment, declaration, decree, decision or order of the Court "disposing of an action", albeit that these are said to include an interlocutory judgment or order. 29. The learned author of Lunn, Civil Procedure South Australia Volume 2 page 84,144 seeks to resolve this apparent difficulty upon the basis that MCR R87(1) is only intended to apply to any judgment or order which is interlocutory. In my view, upon reflection, this is correct. It seems to me that the words "disposing of an action" found in the definition are limited in their scope and only attach to the words "order of the Court" immediately preceding them. They are intended to characterise the word "order" only. They do not, I consider, attach to the earlier word "judgment", thereby creating a potential for overlap and confusion between the two definitions. 30. On balance, I am of opinion that this is the only sensible interpretation of the two provisions and that the definition of "final jugment" is truly inclusive and extends to all judgments which finally dispose of an action; but not those which are purely interlocutory in effect, such as an interlocutory judgment for damages to be assessed. 31. It follows that Mr Steele's argument is sound and that the learned magistrate had no power to make the order which he did. 32. Incidentally, in this regard it must be pointed out that nowhere did the learned magistrate ever purport to exercise a Rule 78 power by formally setting aside the relevant judgment. He merely ordered that the claim be "reinstated", whatever that may mean. Moreover, I would point out that the pre-condition for the making of a valid Rule 78 order was, in any event, the filing of a proper affidavit of merit (which was never filed) and the proof of a reasonable excuse for non compliance (which proof does not seem ever to have been forthcoming - a situation which was inferentially recognised by Mr Prescott SM when, on 25 March 1993, he declined to extend the time for supply of taxation details). 33. So it is that, even if I am incorrect in my interpretation of R78, no relevant order was ever validly made in any event. 34. Such a situation alone is sufficient to dispose of this appeal. However, quite apart from that, it seems to me that the respondent is in enormous difficulty in relation to Mr Steele's secondary argument, having regard to the authorities upon which he relies. It is undeniable that, to employ the expression found in McPhee v Blyth (supra), the respondent has been guilty of inexcusable dilatoriness and default, in this case extending over a period of at least two years and in relation to the consequences of a cause of action which arose as long ago as February 1988. That situation was recognised by the learned magistrate when, on 11 June 1993, he made penal costs orders against the solicitors for the respondent. 35. There have been five pre-trial conferences and two vacated trial dates. There have also been five formal requests for particulars required by the rules and three applications to strike out. 36. This is a classic case attracting caseflow management sanctions. Enough is enough and it is no answer to say that most of the problems have been due to the inaction or default of the respondent's solicitors, rather than herself. If that was an acceptable answer then effective caseflow management would become impossible. 37. For all of the above reasons this appeal must succeed. The appeal is allowed and the order appealed against set aside.