Rusinski v Jamieson

[2025] SASCA 51

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

RUSINSKI v JAMIESON & ORS

[2025] SASCA 51

Judgment of the Court of Appeal  

(The Honourable Justice S Doyle and the Honourable Justice Bleby)

16 May 2025

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - GENERALLY

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - ENFORCEMENT OF JUDGMENTS AND ORDERS

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - ENFORCEMENT OF JUDGMENTS AND ORDERS - EXECUTION AGAINST PROPERTY - WARRANTS OF SEIZURE AND SALE

This is an application seeking leave to appeal the decision of a single judge of this Court, dismissing her application for a stay of enforcement pending appeal from a decision of the Magistrates Court.

The proceedings concern a default judgment of the Magistrates Court entered in favour of the respondents for approximately $25,000 for unpaid childcare fees owed by the applicant to the respondents.

The applicant made two applications in the Magistrates Court to set aside the default judgment, both of which were dismissed. 

The applicant has not satisfied the judgment sum and a warrant of sale has been issued over the applicant’s residential property.

Held, per the court, dismissing the applications for a stay of enforcement pending trial and leave to appeal:

1.The proposed appeal does not raise any issue of general importance or principle and is, in any event, without merit.

RUSINSKI v JAMIESON & ORS
[2025] SASCA 51

Court of Appeal – Civil:   S Doyle and Bleby JJA

1. THE COURT:           By application dated 29 April 2025, Ms Rusinski has sought leave to appeal to the Court of Appeal from a decision of a single judge of this Court dismissing her application for a stay of enforcement pending appeal.

2. These proceedings have their genesis in a default judgment of the Magistrates Court entered against Ms Rusinski and in favour of the respondents on 6 October 2023, for an amount of approximately $25,000.  The judgment sum related to fees for childcare services provided by the respondents during 2021 and 2022.

3. Ms Rusinski subsequently made two applications in the Magistrates Court to set aside this default judgment.  Both applications were beset with delays and default, and were ultimately dismissed.  The second application was dismissed by a magistrate on 11 November 2024.  The magistrate delivered some ex tempore reasons for dismissing the application, explaining in some detail her reasons for concluding that Ms Rusinski had both failed to provide a proper explanation for her defaults and delays, and failed to demonstrate that she had a reasonable basis for defending the claim against her.  In her Honour’s view, it was not in the interests of justice that the default judgment against Ms Rusinski be set aside.

4. Ms Rusinski was not represented during the course of the proceedings before the Magistrate, and indeed did not attend the hearing at which her second application was ultimately dismissed.  However, the magistrate’s reasons set out in detail her Honour’s reasons for concluding that Ms Rusinski had had a fair opportunity to present and pursue her application.

5. Whilst some modest payments have apparently been made, Ms Rusinski has not satisfied the judgment sum.  During the course of the Magistrates Court proceedings, and subsequently, steps have been taken to enforce the judgment through a warrant of sale over Ms Rusinski’s property on Milne Road, Tea Tree Gully.  Ms Rusinski lives at this property with her children.

6. In April 2025, Ms Rusinski commenced an appeal from the Magistrate’s decision in the Supreme Court.  This was accompanied by an application seeking various orders, including a stay of enforcement proceedings (particularly the warrant of sale over her Tea Tree Gully property) pending appeal. 

7. A single judge of this Court heard and refused this application for a stay on 24 April 2025.  Her Honour delivered ex tempore reasons which summarised the various matters relied upon by Ms Rusinski in support of her application.  These included the financial, emotional and other hardship that she had suffered (and was continuing to suffer); complaints about the circumstances surrounding her incurring of the debt to the respondents; the steps she had been taking to address these circumstances; the difficulties she had had in representing herself; what she claimed to have been procedural unfairness in the approach taken by the magistrate; and what she argued were disproportionate attempts to enforce the judgment sum against her.  Having considered all of these matters, the single judge decided that, even putting to one side the issue of arguable merit in the appeal, the interests of justice did not favour granting a stay of enforcement.

8. When the matter was called on before this Court, Ms Rusinski was told what she would need to establish in order to succeed in her application for leave to appeal.  She was told that the Court would be guided by the interests of justice, but having regard to whether her proposed appeal had arguable merit, whether it raised any issue of general importance or principle, and whether she would suffer any substantial injustice were leave to be refused.  She was content for the matter to be determined on the papers, and she was given a further opportunity to file any submissions in support of her application.

9. Having reviewed the material placed before this Court by Ms Rusinski, she has not identified any basis for apprehending error on the part of the single judge in the exercise of her discretion to refuse a stay of enforcement pending appeal.  Her written submissions, whilst raising relevant considerations, were largely a re-agitation of matters raised before, and considered by, the single judge.  She has not identified any matter which was overlooked by the single judge, or otherwise identified any arguable error on the part of the single judge. 

10. Mindful of the fact that Ms Rusinski remains unrepresented, we have undertaken our own review of the matter.  Having done so, we are satisfied that the judge identified a proper basis for refusing the stay, and that her decision was reinforced by the absence of any apparent merit in the appeal from the magistrate’s decision.

11. In the circumstances, the proposed appeal to the Court of Appeal has little if any prospect of succeeding.  Nor does it raise any issue of general importance or principle.  It is to be accepted that that the hardship to Ms Rusinski associated with losing her property will be significant.  However, this is not sufficient to tip the balance in favour of a stay in circumstances where her prospects of success on appeal are so weak.

12. For the reasons set out, permission to appeal is refused.  Given that the respondents provided written submissions at the invitation of this Court, it is appropriate that there be an order that Ms Rusinski pay the respondents’ costs, fixed in the sum of $750.