Pivot Limited v Green Triangle Fire & Security P/L No. Scgrg-98-1072 Judgment No. S6851

[1998] SASC 6851

PIVOT LIMITED V GREEN TRIANGLE FIRE AND SECURITY PTY LTD

[1998] SASC 6851
Magistrates Appeal
Perry J  (Ex tempore)
1 This is a civil matter which started off as a claim in the Magistrates' Court sitting at Mount Gambier for $5 457.81, alleged to be the balance of the monies due for the installation of a fire alarm and suppression system at the defendant Pivot's premises at Portland, Victoria.  The installation is said to have been effected in November and December 1995.
2 It is alleged that the total contract price was $42 000 odd and that only $37 000 odd was paid by the defendant, who is now the appellant before me.  For simplicity I will continue to refer to the defendant and the plaintiff. 
3 The defendant filed a short form of defence in the court below, which simply stated:
"The defendant denies that it is indebted to the plaintiff in the amount claimed or at all."
While many years ago a plea of not indebted was a good plea at common law, it is not tolerated now, and it is necessary for the parties to set out proper grounds.
4 The particulars of the claim as originally cast were not much better than the particulars of the defence to which I have referred, with the result that at an early stage of the action an order was made that the plaintiff furnish further and better particulars of claim, and that subject to the receipt of those further and better particulars the defendant file further and better particulars of its defence. 
5 Although the plaintiff complied with the order and furnished further and better particulars of its claim, the defendant did not comply.  That failure persisted over a period of time.  It was at that stage, in my opinion, this action became derailed.
6 Eventually there was a hearing in chambers on 17 July 1998, presided over by a magistrate.  She pronounced summary judgment in favour of the plaintiff on the footing that the previous orders had not been complied with.
7 As to the filing of the further and better particulars of defence, and I think also as to discovery, the defendant's failure to attend to those matters was in one sense inexcusable.  The matter had been handed from one person to another in the Melbourne office of the defendant company, and nobody had done what was required of them.
8 The solicitor who appeared at the hearing on 17 July 1998 on behalf of the defendant obviously lacked instructions.  He was unable to do other than say that the necessary particulars could be supplied within seven days. The magistrate thought that this was not good enough.  She proceeded there and then to enter judgment as I have indicated. 
9 In my opinion that was far too heavy-handed.  We do not these days shut people out of an adjudication on the merits for procedural reasons, unless the case is exceptional, and any defaults cannot be remedied by orders as to costs.  The proceedings in this matter had not been instituted very long beforehand, indeed they were filed in the Magistrates' Court general jurisdiction on 31 March 1998.  However irritating the failure of the defendant to comply with the orders subsequently made might have appeared to have been, an opportunity should have been given beyond that which was allowed, for the defendant to make amends.
10 The defendant has in fact now particularised a very substantial counterclaim which clearly ought to be heard together with the claim in the interests of saving the court's time and avoiding duplication of proceedings. 
11 Mr Krupka who appeared for the plaintiff before me, put everything which could be said in favour of holding the judgment under appeal.  But at the end of the day it seems to me that the proper course is to vacate that judgment and allow the matter to proceed to trial on proper pleadings.
12 Everything, however, will have to be at the expense of the defendant as it is the defendant’s default in the first place which precipitated the present situation.
13 It is unfortunate that such a small claim as this has blossomed out in the way that it has, and that this court has been swamped with such a large number of affidavits over such a simple issue.  I hope that once my orders have been made disposing of the appeal, the matter can be brought on for trial in the Magistrates' Court without undue delay, and dealt with expeditiously. 
14 The order is that the appeal is allowed for the purpose of setting aside the judgment pronounced on 17 July 1998 on terms that the order is conditional upon the defendant Pivot Ltd, paying to the registrar of the Mount Gambier registry of the Magistrates' Court, to the credit of this action, the sum of $400 on or before the filing and delivery of the defence and counterclaim which has been foreshadowed, that defence and counterclaim to be filed and delivered on or before Friday, 18 September 1998.  The sum of $400 is to be paid out forthwith by the registrar upon his or her receipt of the same to the solicitors for the plaintiff.
15 I indicate that the $400 is my assessment of what it is proper to allow for all costs thrown away to date including the costs of and incidental to the hearing of the appeal before me.  
16 I formally dismiss the separate appeal against the refusal of an interlocutory application to the Magistrates Court to set aside the judgment with no order as to costs.