Philp v DM Aston - [2010] SASC 114

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
PHILP v DM ASTON & CO
[2010] SASC 114
Judgment of The Full Court
(The Honourable Justice Bleby, The Honourable Justice White and The Honourable Justice Kelly)
27 April 2010
PROCEDURE - INFERIOR COURTS - SOUTH AUSTRALIA - MAGISTRATES COURT
PROCEDURE - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE - ACTIONS TO REVIEW OR SET ASIDE JUDGMENT - IN GENERAL
Respondent/plaintiff signed judgment in default of defence in the Magistrates Court against appellant/defendant - Magistrate refused an application by appellant to set aside judgment - whether service properly effected 21 days prior to default judgment - consideration of when defendant received claim - whether default judgment irregularly obtained - whether defendant had to show an arguable case where no non-compliance by defendant - consideration of extension of time to appeal to Full Court of the Supreme Court.
Held: extension of time to appeal granted - appeal allowed - Magistrate erred in finding service properly effected 21 days prior to default judgment - Magistrate erred in failing to consider evidence as to defendant's place of residence.
Magistrates Court (Civil) Rules 1992 (SA) r 2, r 47, r 49, r 60, r 64, r 87; Acts Interpretation Act 1915 (SA) s 33; Supreme Court Civil Rules 2006 (SA) r 281, referred to.
Battiste v Mulvaney (Unreported, 7 November 1997, S6419), distinguished.
Howship Holdings Pty Ltd v Leslie (1996) 41 NSWLR 542; A/S Cathrinehold v Norequipment Trading Ltd [1972] 2 QB 314; Derma Pharmaceuticals Pty Ltd v HSBC Bank Australia Ltd (2005) 238 LSJS 230, considered.

PHILP v DM ASTON & CO
[2010] SASC 114
Full Court: Bleby, White and Kelly JJ
BLEBY J.
Introduction

On 12 August 2009 the respondent to this appeal and plaintiff in proceedings in the Magistrates Court of South Australia (“the plaintiff”) signed judgment in the proceedings against the appellant, the defendant in the Magistrates Court proceedings (“the defendant”), in default of defence. On 17 August 2009 the defendant applied to set aside the judgment by default. On 14 September 2009 a Magistrate refused to set aside the judgment. The defendant appealed to a Judge of this Court against that decision. The appeal was dismissed. The defendant now appeals, with permission, to the Full Court against that order.
The relevant Magistrates Court Rules
Because the appeal raises a question as to the service of the original claim, it is necessary at the outset to set out the relevant Rules of the Magistrates Court with respect to service of a claim. It is also convenient, at the same time, to set out the relevant Rules relating to signing judgment in default of defence and to the setting aside of default judgments.
This was a civil claim requiring commencement of the action by the filing of a claim as provided in Form 2 of the Magistrates Court (Civil) Rules 1992 (SA) (“the Rules”).[1] Rule 42(2) of the Rules required that the claim be served on the defendant.
[1] Rule 25(1).
Rule 47 provides for 13 different methods of service according to particular circumstances. So far as is relevant to this case the Rule provides:
47.(1) Subject to any other Act, these Rules and any order of the Court, a document may be served on a person:
…
(b)by personal service on the person;
…
(d)by leaving it for the person at the address of the place of dwelling or business of the person with someone apparently above the age of 14 years;
…
(2) A person must not rely on apparently ineffective service. If any action has been requested in reliance of service that subsequently appears to have been ineffective he or she immediately must advise the Registrar in writing of that fact and must not again attempt service at that address unless the party seeking service has made further reasonable esquires [sic] and has ensured that the address for service is the address of the party to be served.
Rule 49 provides that where service is effected by means which include that prescribed in r 47(1)(d), a person will be taken to be served two business days after the document is served in accordance with the Rules.
So far as is relevant r 60 provides:
ACTIONS NOT DEFENDED
60.(1) Where a party has been served with an action … 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 -
…
…
(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.
…
The setting aside of a judgment is provided for in r 87. So far as is relevant that provides:
PROCEEDINGS AND APPLICATIONS
87.     (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.
…
The judgment in question in this case was, by definition,[2] not a final judgment.
[2]    Rule 2(1), definition of “final judgment”.
The relevant facts
The plaintiff is a firm of solicitors practising in Mount Gambier. The claim against the defendant was filed on 3 July 2009. The endorsement on the claim provided:
The Plaintiff claims the sum of $9,378.60 for professional services rendered to the Defendant between 1 December 2008 and 21 January 2009.
Full and itemised particulars have previously been provided to the Defendant.
The form provided for four alternative methods of service and required the plaintiff to tick the box indicating by whom service was to be effected. In this case the plaintiff opted for service by the sheriff. In that part of the form requiring particulars of the defendant appeared the full name of the defendant followed by the line:
Address: 3 Strangways Street MOUNT GAMBIER 5290
The claim form did not indicate whether the address was the defendant’s place of residence, place of business or some other (e.g. postal) address.
Form 2 also incorporates a form of affidavit of proof of service. A sheriff’s officer completed that form and swore the affidavit on 17 July 2009. The form allows for the deponent to tick the appropriate box to indicate the method of service. In this case the sheriff’s officer deposed to the fact that she served the defendant with the claim and an accompanying Form 17 on 8 July 2009 between the hours of “17-00” and “18-00”. She ticked the box which indicated:
By leaving it for the person at the address of the place of dwelling or business of the person with someone apparently above the age of 14 years.
As mentioned above, judgment was signed by the plaintiff in default of defence on 12 August 2009. On 13 August 2009 the plaintiff sent a letter addressed to the defendant at the same address as stated on the Form 2. It informed the defendant that judgment had been signed, of the amount then due including costs, and informing the defendant that if payment was not received by 21 August the plaintiff would issue further proceedings against the defendant.
On 17 August 2009 the defendant applied to set aside the judgment. That application was accompanied by an affidavit sworn by the defendant in which he gave his address as “Crane Lane, Mil-Lel”. It will be noted that that is not the same address as that on the claim. In the body of the affidavit the defendant affirmed:
The court action was served on my mother while I was on holidays. The paper work was not fully recieved (sic) by me and not understood. I wasn’t aware an actual date for a hearing was set and I missed it. I wish to defend the allegations.
The application to set aside the judgment was heard by a magistrate on 14 September 2009. Both parties were self-represented, although, as mentioned above, the plaintiff is a firm of solicitors and it was represented by a solicitor employed by the firm.
No record of the proceedings before the Magistrate was kept other than a record of the Magistrate’s brief reasons for decision to which reference is made below. There is some dispute between the parties as to the conduct of the Magistrate at the hearing. It is not necessary to resolve that on this appeal. What did occur was the subject of affidavits of the defendant and of Mr Williamson, the solicitor who appeared for the plaintiff before the Magistrate. Subject to certain excisions at the direction of the Judge after hearing objections to admissibility, those affidavits were tendered before the single Judge on the hearing of the appeal.
According to the defendant’s affidavit he told the Magistrate, in relation to the claim, that he never asked for the work to be done and never authorised the work to be done. That assertion was consistent with the affidavit of Mr Williamson who asserted in his affidavit that the defendant “appeared to be focused on the concept of explaining the details of his case rather than concentrating on any particular reason why he had not filed the defence or counterclaim within 21 days after service of the claim …”. Regarding service of the claim the defendant swore that he told the Magistrate that “the documents were served at my mother’s address at 3 Strangways Street, Mount Gambier which is not my address and I did not receive the documents until a few weeks after I had returned from my holidays”. A little later in the affidavit he asserted that the summons “was not served at my address, I haven’t lived at that address for some time, I don’t know exactly when I got the documents, but it was a few weeks after the end of the school holidays and I did not understand the documents”.
In his affidavit, Mr Williamson deposed to the fact that, in completing the Form 2, he had requested service “at the [defendant’s] residential address of 3 Strangways Street, Mount Gambier, as stated in the claim”. That assertion was incorrect, as there was no assertion in the claim that that address was the defendant’s residential address. Mr Williamson did, however, express in his affidavit the belief that the defendant resided at that address and that various accounts, statements, and other documentation had been posted to him at that address, including the letter of 13 August 2009 which seemed to have prompted the defendant’s application to set aside the judgment. However, the postage of a letter on 13 August with certain inferred results can say nothing about Mr Williamson’s belief as at 3 July when he filed the claim and requested service. Mr Williamson also deposed that the defendant had said to the Magistrate on the hearing of the application, “I was served with the documents at my mother’s house at 3 Strangways, Street Mount Gambier which is not my address, and I did not get them until I returned from my holidays”. He said that the Magistrate asked the defendant when he received the documents, to which the defendant said words to the effect of “It was about the third week in July, I didn’t understand them, they did work that I didn’t ask for”. Later in his affidavit Mr Williamson swore that the defendant, later in the hearing, said words to the effect of “I have nothing else to add, it was served at my mother’s house, where I do not live, I got the documents in about the third week of July”.
The Magistrate’s reasons for rejecting the defendant’s application were as follows:
This is an application to set aside a default judgment signed on 12 August.
The applicant, the defendant, admits service of the claim. The proof of service on file indicates service was effected on 8 July. The defendant says he was on leave and it was served on his mother at his home and that he did not see the documents until a couple of weeks later, in about the third week of July.
The defendant was well aware that he was due to appear on 12 August and did not appear. During discussion with the defendant, he says that he did not understand the papers of did not read them sufficiently clearly and did not appreciate that he had to be on [sic] Court on the given date. I do not accept any of this. The claim was quite clearly set out in three lines.
This is not a case of the defendant forgetting to appear, this is a case of the defendant simply ignoring his obligations.
I decline to set aside the judgment. I am going to order costs for today’s attendance in favour of the plaintiff in the sum of $100.
The Magistrate’s errors
It is clear from the evidence of what took place before the Magistrate that the Magistrate made a number of errors.
In the first place the Magistrate was in error in finding that the defendant admitted service of the claim if by that the Magistrate meant service by the sheriff’s officer on 8 July. The defendant admitted having received a copy of the claim from his mother, but that does not amount to service in accordance with the requirements of r 47(1)(d) of the Rules. However, the acknowledged receipt of the claim by the defendant was evidence of personal service. In Howship Holdings Pty Ltd v Leslie[3] Young J was concerned with the requirement of service of a statutory demand. The relevant section did not deal with what constituted service. Young J said:
… The ordinary meaning of “service” is personal service, and personal service merely means that the document in question must come to the notice of the person for whom it is intended. The means by which that person obtains the document are usually immaterial. This is clear in cases that have been considered good law over the centuries, including Hope v Hope (1852) 4 De GM & G 328 at 341-345; 43 ER 534 at 539-540; R v Heron: Ex parte Mulder (1884) 10 VLR 314 at 315; Pino v Prosser [1967] VR 835 at 838. Some of those cases were complicated by the requirement in the former statutes that a person serving initiating process had to endorse the initiating process, but the principle is clear from them.
If this were not so, one would get the absurd situation referred to by McInerney J in Pino v Prosser (at 837), that the conclusion would be one which is:
“ remarkable to the point of seeming absurdity, in that the defendant who, on his own affidavit admits that he received the writ … should be held not to have been served.”[4]
[3] (1996) 41 NSWLR 542.
[4] Ibid 544. See also Derma Pharmaceuticals Pty Ltd v HSBC Bank Australia Ltd [2005] SASC 48, [24]; (2005) 238 LSJS 230, 235.
In that sense the Magistrate was correct in holding that the claim had been served, but not on 8 July or even two days later.
In the second place, although it is not a material error, the Magistrate found that service was effected on 8 July. Assuming that the claim was otherwise served in accordance with r 47(1)(d) on that date, the effect of r 49 is that service was not effective until 10 July 2009. However, service was not effective by merely leaving the claim at the Strangways Street address with a person apparently above the age of 14 years.
In the third place the Magistrate found that the claim was served on his mother “at his home”. Service at the Strangways Street address would only have been effective service if that was the address of the place of dwelling or place of business of the defendant at the time. It is clear from the material that was before the Magistrate that it was neither. In the defendant’s affidavit filed in support of his original application to set the judgment aside he stated his address at that time as being “Crane Lane, Mil-Lel”. He swore that he twice told the Magistrate that the Strangways Street address was not his address at the relevant time. Mr Williamson’s affidavit confirmed that the defendant had said words to that effect to the Magistrate. The fact that the plaintiff may have sent correspondence and other documents to the defendant at that address did not establish that that was his place of residence. It established no more than that the defendant could be contacted at that address. It did not indicate that it was then his place of residence. No doubt the defendant could have given more detail of where he lived at particular times, but his statement that he was not resident at the Strangways Street address in July 2009 was not contradicted. There was therefore no justification for the finding that the claim was served at the defendant’s home.
Fourthly, there was no justification for the finding that the defendant was “well aware that he was due to appear on 12 August and did not appear” and that the defendant “did not appreciate that he had to be on [sic] court on the given date”. The claim form imposed no obligation on the defendant to appear on 12 August. 12 August was merely the day on which the plaintiff signed judgment. The only warning apparent on the face of the claim form was as follows:
DEFENDANT/S – If you have a defence or counterclaim you must, within 21 days from receiving this claim, go to your nearest court and file a defence and/or counterclaim.
**TAKE THIS FORM WITH YOU**
If you do nothing, the plaintiff may get judgment against you.
From these observations, it is clear that the proceedings before the Magistrate miscarried for the following reasons:
1.The Magistrate failed to address the question whether the defendant was validly served in accordance with the requirements of r 47(1)(d) of the Rules.
2.It was not open for the Magistrate to find that service had been effected in accordance with r 47(1)(d). The claim was not served by leaving it at the place of dwelling or business of the defendant. Once that became apparent, r 47(2) imposed an obligation on the plaintiff and on the Magistrate not to rely on that apparently ineffective service.
3.Although the Magistrate was correct in finding that the claim had been served as a result of the defendant’s admission of having received it, there was no attempt to relate the date of receipt to the date of signing judgment in order to establish whether the time prescribed by r 60 had elapsed before judgment was signed.
4.In hearing the application to set aside the judgment by default, the Magistrate appears to have misunderstood the matters on which he had to be satisfied. Assuming for present purposes that r 87 of the Rules applied in this case, the Magistrate did not address the question whether the defendant had an arguable case on the merits, and appears to have misconceived the nature of any reasonable excuse that the defendant may have had for not filing a defence within the time required, assuming effective service on 10 July 2009.
The errors required that, on appeal to the single Judge, this Court should set aside the Magistrate’s decision and should reconsider the defendant’s application to set aside the judgment.
The appeal before the single Judge
The single Judge did not take that course. Her Honour identified the defendant’s contentions before the Magistrate as being: “First, that he was not served with the claim; second, that he never asked for or authorised the work to be done by the respondent and did not understand the claim in the documents”. With the exception of the final assertion, that identification of the defendant’s contentions was correct. However, the defendant never asserted that he did not understand the claim. His only assertion was that he did not understand the documents. It was clear from the other things he said about the claim that he understood that it was a claim for the cost of legal services allegedly incurred by him with the plaintiff, liability for which he disputed.

The Judge identified but did not decide a submission of the plaintiff that a judgment will be regarded as having been regularly obtained if, when it is obtained, it appeared that service had been regularly effected. Her Honour decided the appeal based on the plaintiff’s submission as to the effect of r 87 of the Rules, namely that the defendant had not satisfied the Court as to the matters contained in r 87(2)(a) and (b). The plaintiff’s argument was first, that there was no evidence to challenge the finding of the Magistrate about service on the defendant, and second that there was no basis put before the Magistrate which would have been sufficient to satisfy him of the requirement that the appellant had made out an arguable case on the merits.
The Judge dealt with the first of these reasons as follows:
As to the first point, I note that nowhere in the appellant’s affidavit of 17 August 2009, nor his affidavit of 30 November 2009, does he depose as to when he ceased to reside at Strangways Street, Mount Gambier. Further, in his more recent affidavit no mention was made that he informed the Magistrate that he began residing in Crane Lane let alone when it was that he said that he commenced residing at Crane Lane. Further, nowhere in his affidavit does he depose that he told the Magistrate that he had not received the numerous accounts and reminders sent by the respondent to the address at Strangways Street as well as the numerous telephone calls made by the respondent regarding an offer to settle prior to the issuing of the claim on 3 July 2009. In short, a fundamental plank upon which the appellant sought to set aside the judgment entered by the respondent was not made out either at the time he appeared before the Magistrate or in fact at the time of this appeal.
The Judge was correct in observing that the defendant did not depose as to when he ceased to reside at the Strangways Street address. However, her Honour was incorrect in finding that “no mention was made that [the defendant] informed the Magistrate that he began residing at Crane Lane let alone when it was said that he commenced residing at Crane Lane”. As mentioned above, all the evidence before the Magistrate and the Judge pointed to the fact that at the date of alleged service he was not residing at the Strangways Street address. So much was clear, in part, from the defendant’s original affidavit filed in support of his application, but more importantly from the affidavits of both the defendant and Mr Williamson tendered before the Judge. The fact that accounts and reminders had been posted by the plaintiff to the Strangways Street address and that there had been numerous telephone calls between the parties did not detract in any way from the evidence that, at the material time, the address on the summons was not the place of dwelling or business of the defendant. The Judge therefore erred in making the finding she did on that first point. She could not properly have been satisfied that service was effected in accordance with r 47(1)(d). Her Honour did not address any other means by which the defendant may have been served or when that occurred.
The Judge dealt with the second point as follows:
As to the second point, the Magistrate had before him two contradictory assertions made by the appellant with regard to his own deposition given on 30 November 2009. First the appellant says he told the Magistrate that he did not understand the documents, but at the same time he says he told the Magistrate that he had not asked the respondent to do the work and he had never authorised the work to be done. In making the latter statement, he clearly understood that what was being claimed by the respondent was money for work alleged to have been performed by the respondent for the appellant. He did understand what the claim was for.
The Magistrate was correct in determining not to accept the appellant’s assertion that he did not understand the claim.
As I have previously observed, at no stage did the defendant allege that he did not understand the claim. His only assertion was that he did not understand the document which he had received from his mother. That could be interpreted in two ways: either that he did not understand the nature of the claim which, on the evidence, clearly he did, or that he did not understand from the documents what his procedural obligations were.
I respectfully agree with the finding that the defendant knew what was being claimed and what the claim was for, but it was not his assertion that he did not know that. If the proper interpretation of the defendant’s assertion that he did not understand the documents is that he did not understand what he had to do about them, and if that was the finding of the Magistrate and the Judge, then I accept that it was open to both the Magistrate and the Judge to reject that assertion. The defendant was told on the face of the document what he had to do if he wanted avoid judgment being entered against him. Be that as it may, the finding of the Judge on the second point demonstrates a misapprehension of what the defendant’s case was.
At no point, however, did the Judge seem to address the question, if it was relevant, as to whether the defendant had an arguable case on the merits. Although not apparent from his original affidavit lodged with the application to set the judgment aside, what was put before the Magistrate and what was before the Judge made it tolerably clear that his defence was that he had never given instructions to the plaintiff to carry out the work in question. There was an obvious dispute of fact which, on its face, although lacking in detail, raised an arguable case. However, that question was not addressed by the Judge.
It follows that the proceedings before the single Judge on appeal also miscarried.
The course that should have been followed
For reasons which I have given, it was not open to the Magistrate or the Judge to find that service of the claim had been effected in accordance with r 47(1)(d) of the Rules. However, it was acknowledged by the defendant that he had received the claim. In those circumstances, service had been effected, but there also needed to be an enquiry into when the defendant received the claim and whether judgment was signed by the plaintiff less than 21 days after the date of that receipt. That enquiry was not undertaken by the Magistrate or by the Judge.
The evidence as to the date of receipt of the claim by the defendant was imprecise and varied between what the plaintiff said in his affidavit and what Mr Williamson said in his. Both affidavits were sworn more than two months after the date of the hearing when memories as to precise details of what was said before the Magistrate might be less than accurate, and when it is clear that the defendant was unable to say precisely when he did see the claim. In these circumstances it is reasonable to act on the Magistrate’s observation as to what the defendant said. That observation was that the defendant did not see the documents “until a couple of weeks later (than 8 July), in about the third week of July”. “A couple of weeks” after 8 July would have been, at the very earliest, 22 July. 22 July was in the third week of July. Based on that evidence, the defendant did not receive the claim before that date. It could have been after.
If 22 July or some later date was the date on which the defendant received notice of the claim, by virtue of the endorsement on the claim and the provisions of r 60 of the Rules the defendant had 21 days from the date of receipt, excluding the day of receipt, within which to file a defence. The last day for filing a defence in those circumstances would have been 12 August at the very earliest. The earliest date on which judgment could lawfully have been signed was 13 August. In fact judgment was signed on 12 August. It follows that, on the evidence before the Magistrate as to the earliest point at which the defendant received notice of the claim, if the default judgment were to stand it would have been entered less than 21 days after service in denial of the defendant’s right to file a defence within 21 days. In that case, the judgment by default was irregularly obtained.
The requirement to serve an initiating procedure in the civil jurisdiction of a court is more than just a rule of procedure. Service of the claim in the Magistrates Court is both necessary and sufficient to found the Court’s jurisdiction. Without proof of service in accordance with the Rules and without a remedial order under r 47(1), the Court is powerless to exercise any jurisdiction over the defendant. There are one or two well recognised exceptions to that principle, such as the granting of an interim injunction on an ex parte application, but in general the principle as I have stated it applies.
The ability of the Court to enter judgment by default in accordance with the requirement of r 60 of the Rules is therefore necessarily contingent upon proof of valid service of the originating process and the passing of 21 days from the date of service. In that regard the onus of proof is on the plaintiff. It was not for the defendant to show when he received the claim in order to justify the default judgment.
It would appear that the evidence now shows that proof of service by the sheriff’s officer, on which the plaintiff relied, was defective. The affidavit of service merely showed that the summons was left at the place of dwelling or business of the defendant. All that the summons indicated was that that was the “address” of the defendant. In order to swear, as she did, that the sheriff’s officer left it for the defendant at the address of the place of dwelling or business of the defendant, she either assumed from the address on the summons that that was so and did not make any enquiries or was misinformed, by someone, that it was the defendant’s place of dwelling or business, when it was not. Had the sheriff’s officer made enquiry or been correctly informed, service at that address in the manner deposed to would have been ineffectual. There having been no valid service by that means, the judgment by default was irregularly obtained.
The plaintiff relied on an unreported decision of the Chief Justice in Battiste v Mulvaney[5] for the proposition that if non-delivery of a summons is proved, the judgment by default obtained as a result will nevertheless have been regularly obtained if, when it was obtained, it appeared that service had been regularly effected, and that the subsequent proof of non-delivery does not show that the judgment was irregular when obtained, but merely that, in the light of further facts, service had not in fact been effected.
[5] Unreported, 7 November 1997, S6419.
That decision must be read against the background of some rather different facts. There was no question that the originating process in that action had been validly served on the defendant. The defendant filed a defence and counterclaim which, as required by the Rules, gave an address for service for the defendant. The plaintiff filed an application for an order that the defence and counterclaim be struck-out, that summary judgment be entered against the defendant and for consequential orders. Matters upon which the plaintiff’s claim rested were proved by supporting affidavit sworn by the plaintiff.
The application was served by sending it by prepaid post to the address stated in the defendant’s defence and counterclaim. That was a method of service authorised by the Rules. The defendant did not appear at the hearing of the application and the orders sought by the plaintiff were made.
It was common ground on the hearing of the appeal by the defendant that the application for summary judgment was not delivered to the defendant’s stated address or received by him. It was returned to the plaintiff’s solicitors one week after the hearing of the application for summary judgment.
The Chief Justice held that the Magistrate was correct in holding that r 87 of the Rules did not give the Magistrate power to set aside the summary judgment. The defendant’s only remedy was therefore to appeal against the decision entering summary judgment.
Rule 64(3) of the Rules provided that the application was required to be served not less than four clear days before the date fixed for the hearing of it. Under r 47 service could be effected “by prepaid post to the most recent address of the relevant person supplied to the Registrar”. That had been done. There was an affidavit of service which established that service had been effected in that manner. The Chief Justice considered a number of cases concerning service by prepaid post and the provisions of s 33(1) of the Acts Interpretation Act 1915 (SA) to the effect that service is effected by properly addressing, prepaying, and posting a letter or packet containing a document and that, unless the contrary is proved, service will be taken to have been effected at the time at which the letter of packet would be delivered in the ordinary course of post. The Chief Justice followed a line of English cases to the effect that, in a case in which non-delivery is proved, the judgment will nevertheless have been regularly obtained if, when it was obtained, it appeared that service had been regularly effected.
There are three distinguishing features of that case. One is that it was dealing with the effect of a rule which enabled service by post. It did not deal with the form of service with which we are here concerned. In the second place, it was not dealing with service of an initiating proceeding which affected the jurisdiction of the Court to make any adverse order against the defendant. It was dealing with service of an interlocutory application and with proven service by a means authorised by the Rules at the address provided by the defendant in his defence. In the third place, the proof of service by an apparent stranger to the defendant, although it asserted service at the defendant’s place of residence or business, did not assert which of those applied, nor was it ever established that the sheriff’s officer had any personal knowledge of where the defendant resided or carried on business. She could not have obtained that from the information on the face of the summons. In Battiste v Mulvaney there was no question that the application for summary judgment had been served by a meticulous observance of the requirement of the relevant Rule even though, as a matter of fact, the defendant in that case apparently never received the documents before the hearing of the application.
Accordingly, I would distinguish Battiste v Mulvaney on its facts.
As the judgment by default in this case was irregularly obtained, a question arises as to whether r 87(2) of the Rules has any application in those circumstances. In A/S Cathrineholm v Norequipment Trading Ltd[6] Lord Denning MR said of a rule which conferred a discretion on the court to set aside a default judgment:
… [T]he way in which the discretion is exercised is well settled. If the judgment is regular, it is almost an inflexible rule that there must be an affidavit of merits, that is, an affidavit stating facts showing a defence on the merits. But if the judgment is irregular – that is, one which ought not to have been signed at all – then the defendant is entitled ex debito justitiae to have it set aside. That is the practice, as we all know , in chambers and as set out in the Supreme Court Practice (1970), note 4 to RSC, Ord 13, r 9. When the plaintiff has obeyed all the rules entirely properly and entered judgment accordingly, I think it should be treated as regular.
[6] [1972] 2 QB 314.
Rule 87(2) qualifies the discretion conferred by subrule (1), but the express assumption in subrule (2)(a) is that the defendant has not complied with the Rules, an order of the court or a time limit fixed by the Rules. Where service has not in fact been effected or where the judgment by default has been irregularly obtained, there is no non-compliance by the defendant. The non-compliance is by the plaintiff. Accordingly, in my opinion r 87(2) must be construed so as not to apply to a judgment irregularly obtained. If that is correct, there was no need to enquire into the merits of the defendant’s claim. The judgment should have been set aside.
If I am wrong in holding that Rule 87(2) had no application to these proceedings and that it was relevant to a consideration of the application to set aside the judgment by default, I would nevertheless set the judgment aside. Where the judgment has been irregularly obtained through no default of the defendant I would be much more ready to infer an arguable case on the merits than might otherwise be the case. It may be that the defendant could have said more than he did about what instructions, if any, he did give to the plaintiff which might have indicated the strength of his defence. But at this stage the defendant has to establish an arguable negative case – that he did not instruct the plaintiff to perform the work, when it is not known what the plaintiff’s positive case against him will be. In the circumstances I would be prepared to hold, if necessary, that paragraph (a) of subrule 87(2) was established.
The defendant sought permission to lead fresh evidence in the form of an affidavit elaborating on facts which were plainly within his knowledge both at the time of the hearing before the Magistrate and of the appeal before the single Judge. Use of the affidavit was opposed by the plaintiff. It is not necessary to resort to the further evidence in order to decide this appeal in favour of the defendant. I would therefore refuse the tender of the further evidence save to the extent that it deals with facts relating to the extension of time within which to commence this appeal.
An extension of time
The judgment of the single Judge dismissing the appeal was given on 2 December 2009. The application for permission to appeal was filed on 17 February 2010, some two and a half months after the judgment the subject of the appeal. The time limited for commencing an appeal by the filing of a notice of appeal which includes an application for permission to appeal is 21 days after the date of the judgment appealed from.[7] The last day for filing the appeal was therefore 23 December 2009. The notice of appeal was therefore almost two months late.
[7] Supreme Court Civil Rules 2006, r 281(1).
In an affidavit filed with the notice of appeal the defendant says that he did not file the notice of appeal within the time required “because of the Christmas break and lack of speedy response and advice by my legal advisers”. No further explanation was given either by the defendant or his legal advisers. The affidavit was prepared by his current solicitors. It is barely adequate as an explanation for the delay in filing the notice of appeal in support of an application for an extension of time. We gave permission to the defendant to file a supplementary affidavit in support of his application. The plaintiff also filed an affidavit in reply and delivered a supplementary written submission opposing the extension of time.
It is apparent from the supplementary affidavit filed by the defendant that any delay prior to 23 December was not caused by the defendant. Indeed he was diligent in pressing for advice as to his prospects of success on an appeal and in seeking information as to the plaintiff’s costs of the first appeal which he had been ordered to pay. A letter of advice to the defendant drafted by his solicitors on 9 December was not sent to the defendant, and then only to his son’s email address, until 22 December. The information as to the plaintiff’s costs of the first appeal, while relevant to a possible settlement, was also relevant to a decision whether or not to proceed with a further appeal. It was not supplied by the plaintiff’s application to the defendant’s solicitors until 23 December 2009 and to the defendant at an undisclosed time after that. It is not apparent that the defendant was advised by his solicitors of the time within which the appeal should have been commenced.

There was an inevitable delay with the Christmas closure of both the solicitors’ offices and the Court registry. Further correspondence to the defendant from his solicitors’ was misdirected resulting in a further week’s delay, following which the defendant, not unreasonably, sought an estimate of the costs of a further appeal and advice from fresh counsel as to his prospects of success. Further delays were incurred by the obtaining of that advice and by the subsequent seeking of instructions for the further affidavit for use on the appeal. In the meantime the plaintiff’s solicitors made an offer to settle the defendant’s outstanding liability, which offer remained open until 27 January 2010. That was another matter which the defendant was entitled to consider before deciding to proceed with the appeal, for which the filing fee alone, if permission was to be given, was $1,740.00.
I am satisfied that the delay in filing the appeal was not due to any default by the defendant but by the rather casual attitude of his solicitors to the time limit, to advising the defendant of that limit, to the obtaining of instructions in a timely manner and to advising the defendant in a timely manner. In part it was also caused by delay on the part of the plaintiff’s solicitors in supplying information as to the plaintiff’s costs of the first appeal and as a result of the plaintiff’s offer to settle made after the time had expired.
The defendant should not be prejudiced by the shortcomings of his or the plaintiff’s solicitors. Counsel for the plaintiff conceded that there was no prejudice to the plaintiff by the delay.
Even if the notice of appeal had been filed within time, it is unlikely that permission would have been considered until February 2010. As it happened it was dealt with by this Full Court on 12 March with directions that the appeal be set down for hearing at the April sittings, thus precluding any possible delay (for up to 6 months) in setting down the appeal. In fact, there has been little if any delay in the hearing of the appeal as the result of the defendant’s non-compliance with the Rule.
In all the circumstances, including the interests of the administration of justice, I would grant an extension of time within which to commence the appeal to the date of filing, 17 February 2010.
Orders which should be made
The appeal from the single Judge must be allowed. Her Honour’s orders dismissing the appeal and as to costs against the defendant and the Magistrate’s order dismissing the appellant’s application to set aside the judgment and his order as to costs must be set aside. There should be substituted for the Magistrate’s orders an order that the judgment signed on 12 August 2009 be set aside.
It is clear that at some point before the hearing before the Magistrate, the defendant received the claim and now has full knowledge of its contents and effect. He has therefore been served with the claim. He should now be able to file a defence if he wishes to do so. It is therefore appropriate to order that the time within which the defendant may file a defence and/or counterclaim in the proceedings be extended to a date 21 days after the delivery of the Full Court’s judgment. I would hear the parties as to the costs of the original hearing and of the two appeals.
WHITE J: I agree with the orders proposed by Bleby J and with his reasons.
KELLY J I agree with the orders proposed by Bleby J for the reasons he has given.