Shmakova v Piotrowski; Martincic v Piotrowski

[2023] SASCA 137

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

SHMAKOVA & ANOR v PIOTROWSKI; MARTINCIC & ANOR v PIOTROWSKI

[2023] SASCA 137

Judgment of the Court of Appeal  (ex tempore)

(The Honourable President Livesey and the Honourable Justice Doyle)

21 December 2023

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - NATURE OF RIGHT - SUBSTANTIVE RIGHT OR MATTER OF PROCEDURE

Applications for leave to appeal against the dismissal of appeals by a District Court judge.  The judge dismissed appeals against a master’s refusal to enter default judgments.  The applicants are pursuing claims for damages arising out of a motor accident.

Proceedings were served on the insurer without an order for substituted service.  Defences were not filed.  The master has since made orders progressing the action and defences have been filed.

HELD (the Court) refusing leave to appeal:

1.If service was not made with the benefit of an order for substituted service or an agreement to accept service, any default judgment would be irregular and vulnerable to being set aside as of right. 

2.In any event the respondent contends that she was not driving.  The respondent wishes to litigate a bona fide defence which must be determined before liability in negligence can be established.  Accordingly, default judgments should not be entered.

3.The applicants have not identified any arguable error or basis for the grant of leave to appeal a second time.  The applicants will not be prejudiced if these actions proceed in the ordinary way.

Uniform Civil Rules 2020 (SA) r 42.9(4), 61.3(3), 213.1(1)(b), referred to.
Fletcher v AHPRA [2023] SASCA 36; Harris Scarfe Ltd (in liq) v Ernst & Young (No 2) [2005] SASC 168; McDonald v Attorney-General for the State of South Australia [2022] SASCA 43; M, K v Chief Executive of the Department for Child Protection [2021] SASCA 27; Scott v Davis (2000) 204 CLR 333; Watson v Anderson (1976) 13 SASR 329, considered.

SHMAKOVA & ANOR v PIOTROWSKI; MARTINCIC & ANOR v PIOTROWSKI
[2023] SASCA 137

Court of Appeal – Civil:  Livesey P and Doyle JA

THE COURT (ex tempore):

1. These are appeals against the dismissal of appeals by a judge.  The judge dismissed appeals against a master’s refusal to enter default judgments against the respondent in the District Court.

2. The applicants are no longer legally represented.  They require leave to appeal, see r 213.1(1)(b) of the Uniform Civil Rules 2020 (SA).[1]  These appeals must be treated as applications for leave to appeal.  The question of leave must be evaluated on the basis that this is a proposed second set of appeals concerning a matter of practice and procedure rather than the substantive rights of the parties. [2]

   [1]     The requirements for leave to appeal, particularly for a proposed second appeal, are well known.  See for example M, K v Chief Executiveof the Department for Child Protection [2021] SASCA 27, [5]-[7] (Doyle and Livesey JJ).

   [2]     See McDonald v Attorney-General for the State of South Australia [2022] SASCA 43, [21]-[22] (Livesey P and Bleby JA) and Fletcher v AHPRA [2023] SASCA 36, [17] (Livesey P and Lovell JA), citing Harris Scarfe Ltd (in liq) v Ernst & Young (No 2) [2005] SASC 168, [14] (Bleby J).

3. The applicants are pursuing claims for damages for personal injury arising out of a motor accident on 9 December 2019.  Whilst the respondent is insured, she says that her daughter was driving at the relevant time.

4. Proceedings against the respondent, but not her daughter, were served on the respondent’s insurer.  Notices of acting and defences were not filed within time.  There was no order permitting substituted service.  That fact alone prevents the entry of default judgment because any default judgment would be both irregular and vulnerable to being set aside ex debito justitiae.[3]  However, even if there were such an order or entitlement,[4] such as where there was an agreement to accept service, the respondent contends that as her daughter was driving the wrong respondent has been sued.[5]  The respondent therefore wishes to litigate a bona fide defence which must be determined before liability in negligence can be established.[6]  There is, in any event, a contention about contributory negligence concerning one of the applicants. 

   [3]     Watson v Anderson (1976) 13 SASR 329, 333 (Bray CJ).

   [4]     Cf Uniform Civil Rules 2020 (SA), rr 42.7(4), 61.3(3) which anticipate service on an insurer.

   [5]     No issue of agency or vicarious liability in the respondent owner has been raised, see Scott v Davis (2000) 204 CLR 333.

   [6]     Again, this would be an important issue, relevant to whether any default judgment which was regularly entered should be set aside, see Watson v Anderson (1976) 13 SASR 329, 334-335 (Bray CJ), 338 (Mitchell J), “a prima facie defence to the action”, 341 (Walters J), “a plausible defence either in law or in fact”.

5. Accordingly, default judgments should not be entered when they are liable to being set aside. 

6. The master agreed and on 20 July 2023 he made orders progressing these matters.  Defences have since been filed.  The judge on appeal also agreed and on 7 November 2023 she dismissed the appeals. 

7. There are 30 proposed grounds of appeal to this Court.  They are in fact submissions.  In substance, the applicants are aggrieved that they were not told earlier about the involvement of the respondent’s daughter.  They say they “see abuse of process”.  That is a serious allegation which ought not be made lightly, especially where no proper basis is offered for it.  Even if there was an agreement between the applicants’ former solicitor and the respondent’s insurer to accept service – and there is no direct evidence of that agreement – default judgments should not be entered where there is a bona fide defence in prospect.

8. Accordingly, the applicants have not identified any arguable error or basis for the grant of leave to appeal a second time.  The applicants will not be prejudiced if these actions proceed in the ordinary way in accord with the orders made by the master. 

9. These applications for leave to appeal must be dismissed with costs.  Those costs will be the respondent’s costs in the cause.