SA Fire Enterprises Ltd v Thomas Mitchell Builder No. Scgrg-98-516 Judgment No. S6764

[1998] SASC 6764

SA FIRE ENTERPRISES LTD v THOMAS MITCHELL BUILDER

Magistrates Appeal
Debelle J

Appeal in relation to an action in the Civil Division of the Magistrates Court. 

The action has had a most unsatisfactory history in relation to the failure by the plaintiff which is a firm or its legal advisers to attend upon appointments fixed by the Court. 

The action began with a claim by the appellant for $5,201.81 being for work and labour done and goods supplied by the plaintiff to the defendant between the months of August 1996 and July 1997.  A defence and counterclaim were filed on 13 October 1997.  It is conceded on behalf of the defendant that the defence and counterclaim were filed in time.  Notice was given of a directions hearing.  That notice was dated 18 October 1997.  The defendant also applied for the action to be heard as a minor civil action and that hearing was also listed for 12 November. 

In the meantime, on 16 October 1997, the plaintiff had asked for judgment to be signed. It seems that, notwithstanding the entry of the defence and counterclaim, judgment for the plaintiff was signed.  That was plainly an error on the part of officers in the relevant court.  That judgment has not yet been set aside, although it is obvious that, as it was entered notwithstanding the filing of a defence and counterclaim, it must be set aside. 

At some time between the application to sign judgment and 12 November the plaintiff decided to act on its own behalf.  However, the solicitors for the plaintiff failed to give notice to the court to that effect.  When the matter came on for hearing on 12 November, the plaintiff failed to attend.  This was apparently due to inadvertence.  On 12 November 1997, as the plaintiff had failed to appear, judgment was given on the counterclaim in the sum of $3,797.06.

The plaintiff then again consulted its solicitors, who then applied for the action to be restored to the minor civil claims trial list.  That application was listed for hearing on 14 January 1998.  Notice of the application was received by the plaintiff's solicitors on 1 December 1997.   Despite the fact that they had received more than six weeks notice of the application, the plaintiff's solicitors failed to attend on the hearing on 14 January 1998.  On that occasion the application to restore the matter to the civil list was struck out. 

The solicitors for the plaintiff again applied for the action to be restored to the minor civil claims trial list.  The application was heard on 25 March 1998 but was refused.  The magistrate gave no reasons for his decision. 

Thus, the present position is as follows.  There is a judgment for the plaintiff in the sum of $5,201.81 which has not been set aside.  There is also a judgment for the defendant on the counterclaim in the sum of $3,797.06.   That is, of course, an extraordinary state of affairs. 

There is one other matter which requires note.   Although the sum of $3,797.06 is the amount claimed in the defence and counterclaim, the particulars of the counterclaim are such that the sum of $1,110 is claimed.  There is, therefore, a major discrepancy between the amount claimed and the particulars. 

This appeal is the result of the negligence both of the plaintiff and of the plaintiff's solicitors.  The plaintiff was negligent in failing to attend on 12 November 1997.   The plaintiff's solicitors were negligent in failing to attend on 14 January 1998.  Had this been a case where either the plaintiff had been negligent on both occasions or his solicitors had been negligent on both occasions I think the appeal would have been doomed to have failed.   Indeed, the appeal had limited prospects of success. 

Both the Court and a defendant is entitled to expect that the plaintiff and his legal advisers will attend upon the occasions nominated by the court for hearings.  The business of a busy court, particularly a court as busy as the Magistrates Court in its Civil Division, will be brought to a standstill if parties do not adhere to times fixed for hearings of all kinds.  The only thing which saves the plaintiff on this occasion is the fact that there are other irregularities which require the whole matter to be properly reviewed.  In all the circumstances I will allow the appeal. 

In all the circumstances it is appropriate to set aside what is in effect a default judgment in favour of the defendant.  This will enable the matter to be restored to the list.  I have the powers of a court of appeal so I will invite Ms Mitchell to make an oral application to set aside the judgment. 

MR McGEE:     No objection. 

HIS HONOUR:  I am inviting you to make an oral application to set aside the judgment order. 

MS MITCHELL:                  I apply for the judgment that has been awarded to the plaintiff be set aside. 

HIS HONOUR:  An application has been made on behalf of the defendants to set aside the judgment in favour of the plaintiff.  I have the powers of the court appealed from. In all the circumstances, it is appropriate to make orders, first setting aside the judgment in favour of the plaintiff and, secondly, to set aside the judgment in favour of the defendant.  The parties are thus restored to the position that prevailed after the defendant had filed his defence and counterclaim. 

Notice has been given on behalf of the defendant that is it is proposed to amend the counterclaim.  It would be appropriate for that to be done perhaps some time next week once these papers have been returned to the Magistrates Court at Christies Beach. 

It is obviously not appropriate for the defendant to have to incur any cost in consequence of these matters.   Thus, although the appeal is allowed, the plaintiff will bear the costs of the appeal.  Have there been any out of pocket expenses incurred?

MS MITCHELL:                  Just my presence in attending the courts. 

HIS HONOUR:  As valuable as your time is I am afraid we can't recompense you for it.  There will be orders as follows:

1...... Appeal allowed. 

2...... Judgment for the plaintiff set aside. 

3...... Judgment for the defendant set aside. 

4...... The matter is remitted to the Civil Division of the Magistrates Court sitting at Christies Beach for the purpose of relisting the application and directions hearing which was to have taken place on 12 November 1997. 

5.     No order as to costs.