Verco v Strata Corporation NO. 2822
[2005] SASC 403
•28 October 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
VERCO v STRATA CORPORATION NO. 2822
Judgment of The Full Court
(The Honourable Acting Chief Justice Perry, The Honourable Justice Duggan and The Honourable Justice Bleby)
28 October 2005
PROCEDURE - INFERIOR COURTS - SOUTH AUSTRALIA
MAGISTRATES COURT PRACTICE
CONSENT TO JUDGMENT
Action for damages for negligence by two plaintiffs in Magistrates Court - First plaintiff claimed damages not exceeding $40,000 - Second plaintiff claimed damages not exceeding $20,000 - Jurisdictional limit of Magistrates Court $40,000 - Defendant completed "Consent to Judgment" prescribed in Form 2 Magistrates Court (Civil) Rules 1992 - Purported consent to judgment in respect of first plaintiff only for "total amount claimed" - Defence filed in respect of second plaintiff - Whether more than one cause of action can be included in an "action" for purposes of s 8(1) Magistrates Court Act 1991 - Whether total amount of judgment must be within jurisdictional limit - Whether Form 2 as endorsed by the defendant ineffective as not disposing of entire action - Whether implied waiver of jurisdictional limit - Whether defendant entitled to judgment by consent pursuant to r 84 - Whether completion of Form 2 amounts to offer to consent to judgment under r 55 - Consideration of the effect of completing Form 2 Consent to Judgment - Appeal from single Judge allowed - Appeal from Magistrates Court to Supreme Court dismissed.
Magistrates Court (Civil) Rules 1992 (SA) r 2, r 3, r 5, r 23, r 25, r 55, r 57, r 58, r 84, r 93; Magistrates Court Act 1991 (SA) s 8, s 19, s 30; Acts Interpretation Act 1915 (SA) s 14, referred to.
Altmann v Becker [1932] SASR 26; Brincat v Kilsby [1983] VR 625; Turley v Saffin (1975) 10 SASR 463, applied.
VERCO v STRATA CORPORATION NO. 2822
[2005] SASC 403Full Court: Perry ACJ, Duggan and Bleby JJ
PERRY ACJ. In my view, the appeal should be allowed. I agree with the reasons of Bleby J and with the order which he proposes.
DUGGAN J. I agree with the orders proposed by Bleby J. I also agree with the reasons for decision prepared by him.
BLEBY J. The issue on this appeal concerns the effect of the completion by the defendant of a form of consent to judgment contained in Form 2 of the forms prescribed by r 5 of the Magistrates Court (Civil) Rules 1992. Form 2 is the form by which most civil proceedings in the Magistrates Court are required to be initiated. The printed form contains a number of items which require completion indicating the amount claimed (if any), various other prescribed fees and costs, the type of claim and details of the plaintiff or plaintiffs, defendant or defendants, and their respective solicitors. Immediately before the section of the form requiring completion of particulars of the claim is the following:
If you consent to judgment, please sign and return this form to the Trial Court (address above).
I ……………………………………………… consent to judgment for the total claimed.
Date: / / Signature: ………………………………………………
(Defendant/s)The title to Form 2 in the prescribed forms is “CLAIM”.
The present appellant (“the first plaintiff”) and his wife (“the second plaintiff”) were plaintiffs in an action commenced in the Magistrates Court by the filing of a “claim” on 18 June 2003. The action was for damages for negligence against the present respondent and the City of Unley. The first plaintiff claimed damages for personal injury arising out of a fall which allegedly occurred on 20 June 2000, caused by allegedly defective premises. The second plaintiff claimed damages for loss of consortium. The respective prayers for relief were as follows:
1.The first plaintiff claims as against the first and/or second defendants:
1.1 Damages not exceeding $40,000.00;
1.2 Interest;
1.3 Costs.
2.The second plaintiff claims as against the first and/or second defendants;
2.1 Damages for loss of consortium pursuant to Section 33 of the Wrongs Act 1936 (SA) (as amended)[1] not exceeding $20,000.00
2.2 Interest;
2.3 Costs.
[1] See now s 65 Civil Liability Act 1936. There is no statutory ceiling on an award of damages for loss of consortium.
On the front page of the claim, in the section which required completion of the details referred to above, the following details appeared:
AMOUNT CLAIMED [if any] $40,000.00
COURT FEE ON FILING $115.00
SERVICE AND OTHER FEE $19.80
SOLICITOR’S FEE $1,760.00
TOTAL CLAIMED: $41,894.80
The claim having been filed on 18 June 2003, it was not served on the defendants until 29 April 2004.
The sealed copy of the claim served contained the endorsement required of Form 2, making provision for the defendant to sign the form of consent to judgment. Instead of completing the form, the respondent’s solicitor added the following endorsement immediately below the form of consent:
I, FIONA ERRINGTON, SOLICITOR FOR THE SECOND DEFENDANT, CONSENT TO JUDGEMENT IN RESPECT OF THE FIRST PLAINTIFF’S CLAIM FOR THE TOTAL AMOUNT CLAIMED.
DATE [6 July 2004] (sign) Fiona Errington [signed]
The completed endorsement did not follow precisely that provided in Form 2. However, it is sufficient compliance with the Rules if the document is substantially in accordance with the Form.[2] The endorsement was substantially in accordance with the Form.
[2] Rule 5(3), Magistrates Court (Civil) Rules 1992.
It will be noted that the consent related only to the first plaintiff’s claim. The completed form was filed in the Magistrate Court on 7 July 2004, along with a defence to the claim of the second plaintiff in which liability was denied. A Contribution Notice against the City of Unley in respect of the claims of both plaintiffs was filed at the same time.
On the following day a defence to both claims was filed by the City of Unley. That defendant has taken no part in the proceedings giving rise to this appeal.
Also on 7 July 2004 the respondent’s solicitors forwarded a letter to the plaintiffs’ solicitors enclosing a copy of the endorsed consent to judgment and seeking instructions as to payment of the $40,000 in respect of the first plaintiff’s claim. The letter expressed the view that the endorsement on the claim constituted “an acceptance by the Second Defendant of the First Plaintiff’s claim for the total amount claimed ($40,000 plus costs and disbursements)”. Subsequent correspondence revealed that the parties were not ad idem as to the effect of the form of consent.
On 16 July 2004 the plaintiffs applied to have the proceedings transferred to the District Court on the basis that the plaintiffs’ solicitor, in the light of information then to hand, believed that the claims might well exceed the jurisdictional limit of the Magistrates Court. Section 19 of the Magistrates Court Act enables a magistrate to order that civil proceedings commenced in the Magistrates Court be transferred to the District Court.
On 27 August 2004 the respondent filed an application in the Magistrates Court seeking the following relief:
1.That the Court give judgment in this matter in accordance with the consent to judgment filed by the second defendant with respect to the first plaintiff’s claim …
2.In addition or in the alternative, a declaration that the consent to judgement … filed herein comprised a final judgement by consent with respect to the claim brought by the first plaintiff against the second defendant.
3.In addition or in the alternative, a declaration that the first plaintiff’s claim against the second defendant was settled and brought to an end upon the filing and service of and on the terms evidenced by (the form of consent).
4.Such further or other order as this Honourable Court deems fit.
Both applications came before a magistrate who dismissed the respondent’s application and who ordered that the proceedings be transferred to the District Court.
The respondent appealed to a Judge of this Court against the making of those orders. The Judge allowed the appeal, revoked the order transferring the action to the District Court and ordered that “judgment be entered in the Magistrates Court in accordance with the endorsement on the Form 2 therein”. The Judge took the view that by filing the claim the first plaintiff nominated that he was not seeking more than $40,000, plus a nominated amount for costs. He was saying, in effect, that he would accept that amount. The present respondent decided to pay that amount and availed itself of the procedure on the Form 2 “to enter a consent judgment. An offer has been made and accepted”.
The first plaintiff now appeals, by leave, against the judgment of the single Judge.
Section 8(1) of the Magistrates Court Act 1991 relevantly provides that the Court has jurisdiction “to hear and determine an action (at law or in equity) for a sum of money where the amount claimed does not exceed [in this case] $40,000”. Subsection (2) provides that the parties to an action may waive any monetary limit on the civil jurisdiction of the Court.
In my opinion it is possible for more than one cause of action to be included in an “action” referred to in s 8(1). Section 30(1) provides:
Legal and equitable claims and defences may be included (without discrimination between them) in the same action.
Rule 23(1) of the Magistrates Court (Civil) Rules 1992 provides:
23 (1) The misjoinder or non-joinder of parties will not defeat an action, but the Court must ensure that the correct parties are joined to enable the Court to determine all questions involved in the action.
Rule 3(2) provides:
3 (2) In the exercise of its jurisdiction and powers the Court must attempt to determine all matters in dispute in an action so as to avoid multiplicity of actions.
Although there is no provision which specifically authorises the joinder of different causes of action at the instance of different plaintiffs, the effect of those provisions is to allow and even to encourage the joinder of causes of action in the one action or claim where these can conveniently be dealt with together.
However, there are practical limitations on the ability of a court of limited jurisdiction to deal satisfactorily with multiple causes of action. In Altmann v Becker[3], the limit of the jurisdiction of a local court was £500. Napier J was required to consider the effect in an action of three or more claims, each for the sum of £500. He said[4]:
The question is whether the Local Courts Act 1926, which permits the plaintiff to join several causes in the one action (sec. 78), allows a general claim of damages not exceeding £500, or requires the plaintiff to specify damages, in respect of each separate cause of action, and not exceeding in the aggregate the sum of £500, which is the limit of the jurisdiction (sec. 31).
The system of pleading in the Local Court is analogous to the system under the Common Law Procedure Acts, where distinct causes of action could be joined as separate counts, and the form adopted by the plaintiff is in accord with the practice at common law. (See Bullen & Leake (3rd ed.) page 15, and Stephen on Pleading (7th ed.) pp. 324-5). I think it follows that a claim in this form is within the concept of a personal action, as permitted by sec. 31, and the defendant’s objection – that in substance the action comprehends three or more claims, and that each is for the sum of £500, thus exceeding the limit allowed – is met by the provisions of sec. 37. There is nothing to prevent the plaintiff claiming £500 in respect of each separate cause of action, and then concluding with a statement that he abandons any excess over £500, and this, I think, is the effect of his claim as it stands.
[3] [1932] SASR 26
[4] Ibid at 30-31
A similar conclusion was reached by the Full Court of Supreme Court of Victoria in Brincat v Kilsby[5] concerning an action brought in the Victorian County Court where the jurisdiction of the court was expressed in terms indistinguishable from s 8 of the Magistrates Court Act. The distinction was drawn between a cause of action and an action, which may include several causes of action. The monetary limit on the jurisdiction of the court applied to the total amount claimed in the action. It did not enable each plaintiff in one action to recover damages to the extent of the limit of the jurisdiction of the County Court.
[5] [1983] VR 625, Lush J at 626-627
It follows that, in the this case, although the first plaintiff had particularised his claim in the amount of $40,000 plus interest plus costs and the second plaintiff had particularised her claim in the amount of $20,000 plus interest plus costs, the plaintiffs between them, in the absence of a waiver under s 8(2) of the Magistrates Court Act, could recover no more than $40,000 plus costs between them.[6] Rule 25 of the Magistrates Court Rules provides that an “action” must be commenced in Form 2. By definition[7], “action” and “claim” mean the same, and include an action at law or in equity. Action in that sense must assume the meaning it has in the Act.[8] It follows that, unless the context otherwise requires, “action” or “claim” when used in the Rules contemplates a proceeding which may include more than one cause of action.
[6]There is authority for the proposition that pre-judgment interest may be added to the maximum amount of damages recoverable under s 8(1): Turley v Saffin (1975) 10 SASR 463.
[7] Rule 2
[8] Section 14 Acts Interpretation Act 1915
I assume for present purposes that the respondent’s argument is correct that, where a plaintiff particularises the amount of a claim in the Form 2, the plaintiff is making a claim which is capable of acceptance by the defendant, thereby entitling the defendant to obtain judgment by consent, thereby having effect as a contract. In order to achieve that by use of the endorsement on the Form 2, the defendant must consent to judgment for “the total claimed”. I agree with Mr Hayes QC, counsel for the first plaintiff, that the form of consent is only available, where there are multiple causes of action, if it will dispose of all of those causes of action within the action. In this case, the respondent only consented to pay an amount relating to the first plaintiff’s cause of action and not that of the second plaintiff. At the same time, the respondent filed a defence to the claim of the second plaintiff. The consent was not a consent required by the Form 2.
However, there is another reason why the respondent’s argument must fail. In order to convert the consent to a judgment of the Court, the respondent sought to rely on r 84 of the Magistrates Court (Civil) Rules. That rule relevantly provides:
84 (1) The Court may give judgment (including a final judgment) or make an order with the consent of the parties in the terms of the consent.
(2) Where a party files a consent in writing to the giving of judgment (including a final judgment) or the making of an order, the judgment or order may be given or made in the terms of the consent, in the absence of the parties.
The respondent relied on the quantification of the first plaintiff’s claim in the Form 2 and the respondent’s consent to judgment as constituting the consent of the parties to the judgment the respondent sought to have entered. However, there was no evidence of consent of the second plaintiff to that judgment. By asserting that the respondent was entitled to have judgment entered for the first plaintiff for the sum of $40,000, the respondent was effectively denying the second plaintiff any further claim in the proceedings, given the jurisdictional limit of the Magistrates Court. Therefore, even if it could be said that there was evidence of the first plaintiff’s consent, there was no consent by the second plaintiff to the effective exclusion of her claim.
The respondent suggested, without conceding, that it might be open to the second plaintiff to argue that, by consenting in that manner, the respondent had impliedly agreed to waive the jurisdictional limit of the Magistrates Court. Agreement to do so is possible under s 8(2) of the Magistrates Court Act. The implementation of that waiver is governed by r 93 of the Magistrates Court Rules. That rule provides:
93 A waiver of any monetary limit on the civil jurisdiction of the Court may be effected by the parties on an application, by a notice in writing jointly signed and filed or by oral application at trial.
On such a significant matter, I consider that compliance with r 93 would be essential for an effective waiver of the monetary limit. Rule 93 would preclude any implied waiver of that limit on the part of the respondent.
There was therefore no relevant consent of all parties for the purpose of r 84. For these reasons I consider that the respondent’s consent to judgment was ineffective to determine the plaintiffs’ action, and the respondent was not entitled to the judgment to which it claimed to be entitled.
The respondent gave notice of alternate contention that the letter to the plaintiffs’ solicitors dated 7 July 2004 which accompanied a copy of the offer to consent ‘effected a consent judgment and entitled the respondent to have judgment entered against it by the [first plaintiff] for the amount of $41,894.50 or in the further alternative for $40,000 plus costs to be taxed”. It is sufficient to say that the reasons I have given for rejecting the respondent’s contentions based on the offer to consent apply equally to contentions based upon the letter.
That is sufficient to dispose of the appeal. In the circumstances it is not necessary to rule on the first plaintiff’s application to lead further evidence on the hearing of this appeal.
It remains to consider the effect of a consent to judgment completed under Form 2 where there is a single cause of action and the amount of the claim is quantified by the plaintiff.
The form of consent to judgment is not a judgment in itself. Something else is required to convert it to a judgment of the court. The Magistrates Court Rules do not confer any power on the Registrar or on a magistrate to take action to convert that consent to a judgment. The rules are silent as to the effect of filing such a consent.
The respondent argued that r 84 was sufficient mandate to justify the entry of a judgment by consent. What that rule requires is consent of the parties to the entering of a judgment. There might be evidence of that on the part of a defendant by the execution of the consent to judgment in the Form 2 if it were sufficiently clear what the defendant was consenting to. However, the mere quantification of a claim by the plaintiff does not necessarily indicate consent on the part of the plaintiff to the entry of a judgment in those terms. The plaintiff may not wish to enter a judgment, and there may well be unresolved issues concerning costs and interest for which the plaintiff’s consent would be necessary. Rule 84(1) appears to require the presence of the parties or their representatives before the court in order to indicate their consent to the judgment being sought. Rule 84(2) allows a judgment to be entered in the absence of the parties where the parties file a consent in writing to the judgment in question.
If a defendant claims that by completing the endorsement in Form 2 there is an agreement to settle the action and that is disputed by the plaintiff it would be quite inappropriate for the court to enter judgment under r 84. In those circumstances the court should give liberty to the defendant to plead the agreement in defence of the plaintiff’s claim so that that matter could in due course be decided upon appropriate evidence.
It follows that the signing of a consent to judgment in Form 2 would not give rise to an entitlement to a judgment by consent under r 84.
Does the filing of the consent have effect as an offer to consent to judgment under r 55? That seems unlikely, as the endorsement in Form 2 is not described as an “offer to consent”, and it sits unhappily with the requirements of r 57 regarding an offer under r 55. Furthermore, there is nothing to indicate that the consent to judgment in Form 2 is not to be communicated to the judicial officer hearing the trial of the action. That is a requirement of r 58 in relation to an offer to consent filed under r 55.
The filing of the consent to judgment in the Form 2 may be able to be used by a plaintiff as a foundation for an application for summary judgment under r 8 of the Magistrates Court (Civil) Rules. However, that cannot assist a defendant in circumstances such as the present where it is the defendant who seeks to have the judgment entered.
Given the lacuna in the Rules as to the effect of a completed consent to judgment, the form of consent to judgment provided in Form 2 seems to be of questionable utility. It would seem appropriate that there should be either a review of Form 2 or the making of some rules to provide for the effect of a consent to judgment contained in Form 2 if the form remains.
In all the circumstances, I would allow the appeal. I would set aside the whole of the order of this Court dated 1 March 2005. In lieu thereof I would order that the respondent’s appeal against the order of the Magistrates Court made on 1 October 2004 be dismissed.
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