Xenophon v Lucas and Anor No. Scciv-01-160

XENOPHON v LUCAS and ANOR
[2001] SASC 160
Magistrates Appeal: Civil

PERRY J. This is a purported appeal from an order made in the civil jurisdiction of the Magistrates Court. I use the expression “purported” for reasons which will appear later in these reasons.
The proceedings in the Magistrates Court (which I will refer to as “the first proceedings”) were instituted by a Claim filed on 11 February 1999. Both defendants were served with the Claim on 16 February 1999.
In the proceedings, the plaintiff, Nicholas Xenophon, claimed damages “not exceeding $20,000” from Robert Lucas and Graham Ingerson. Mr Xenophon and Mr Lucas are members of the Legislative Council and Mr Ingerson is a member of the House of Assembly of the Parliament of South Australia.
In the proceedings, Mr Xenophon alleged that he had been defamed in documents published by the defendants in December 1998.
Mr Xenophon claimed damages “not exceeding $20,000”.
On 18 March 1999, Minter Ellison, solicitors for the defendants, faxed a letter to Mr Xenophon’s solicitors, Xenophon & Co, which read:
“The defendants consent to judgment for the amount claimed of $20,900.
A cheque will be provided shortly.
As the defendants are consenting to judgment for the full amount claimed, we note that this matter is therefore resolved.”
The amount of $20,900 was the full amount claimed plus costs of $900 as specified on the face of the Claim.
By a further letter of 21 April 1999, Minter Ellison wrote to Xenophon & Co in the following terms:
“I refer to my facsimile of 21 April 1999.
I have now received a cheque for $20,900 made out to ‘Xenophon & Co Trust Account’. That cheque is enclosed.
Would you please confirm that Action No 3341 of 1999 [the Magistrates Court proceedings] is now finalised.”
There is no evidence of a reply to that letter. In fact, no steps were taken to enter judgment in accordance with the defendants’ consent as expressed in the first of the two letters.
There were at least two ways in which judgment might have been entered.
In the first place, on the front page of the Claim there was an endorsement in the following terms:
“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”
That form was never filled in and returned.
The other way in which judgment might have been entered at that stage would have been for Mr Xenophon to have made an application to the Magistrates Court for judgment to be entered in accordance with the defendants’ consent, as evidenced by the first letter. No such application was ever made.
Indeed, thereafter no step was taken in the action by any of the parties to it for some time. It was, for all intents and purposes, at an end.
In those circumstances, r 28 of the Magistrates Court (Civil) Rules was of application. That rule reads in part:
“28(1)An action must be served within one year of the date of filing.
(2)The time for service of an action may be extended, on application to the Court filed within 1 year of the date of filing of the action.
(3)(a) If at the expiration of 21 days after the time for service of an action or any extension thereof-
(i)judgment has not been signed; or
(ii)a defence has not been filed,
the action will stand dismissed for want of prosecution.
(b).............
(c)Where an action is dismissed under this sub-rule, that dismissal has effect as a judgment but not as a final judgment.
(d)..............”
[I assume that throughout that rule, the word “action” means Claim.]
There was, of course, no application for an extension of the time for service of the Claim. It follows that by force of r 28(3)(a), the action stood to be dismissed automatically for want of prosecution.
In fact, before the expiration of the time referred to in r 28(3)(a), the Registrar of the Magistrates Court sent a notice to Xenophon & Co. It is headed “Notice of Impending Dismissal of a Case”. The notice is dated 27 January 2000. It is stamped as having been received, I assume by Xenophon & Co, on 30 January 2000.
The notice sets out the text of r 28(3)(a). It proceeds:
“At the time of the issue of this notice, judgment has not been signed and a defence has not been filed in this action. If the above rule is not complied with the action shall be dismissed without further notice to you.”
It is not clear what the words “If the rule is not complied with” mean. The parties had chosen to take no further step in the action, and no judgment having been signed or a defence having been filed, the rule took effect in accordance with its terms. An application might have been brought within one year of the date of the filing of the Claim to extend the time for service, but of course that was neither necessary nor appropriate. Furthermore, the best part of a year having elapsed from the date of service of the Claim, it was no longer possible to sign judgment or file a defence within 21 days after the time of service. So that the concept of compliance with the rule is, in this context, difficult to understand.
Be that as it may, no party to the action took any step in the action in consequence of the Registrar’s notice. It follows that on or about 3 March 2000, by force of r 28, the action stood dismissed.
One might have been pardoned for thinking that this would have signalled an end of the matter. Such was not to be the case.
On 6 May 1999, Mr Xenophon issued a further Claim in the civil division of the Magistrates Court (“the second proceedings”), this time against Mr Lucas alone. He again alleged that he had been defamed by Mr Lucas. The Particulars of Claim repeat the allegations as to publication of a document defamatory of Mr Xenophon in December 1998 which had been made in the earlier proceedings.
In the second proceedings, Mr Xenophon refers to the earlier proceedings, and the intimation given by Mr Lucas’ solicitors that “the defendant was submitting to judgment in the full amount claimed of $20,000 plus costs”. He goes on to allege that those proceedings “were thereby concluded”.
Mr Xenophon then alleges that between 19 and 22 March 1999 Mr Lucas, in the course of certain interviews with journalists which were variously published in the daily press, radio and TV, made remarks which in part carried the implication that the allegedly defamatory statements contained in the document published in December 1998 were in fact true, and made other statements which were defamatory in their own right. The later statements were said to carry the inference that Mr Xenophon was happy to take taxpayers’ money for his own purposes and that if he had any decency he would pay the money (the proceeds of settlement of the first proceedings) to charity.
The second proceedings in the Magistrates Court were removed into the District Court, presumably to enable damages to be sought beyond the jurisdictional limit of the Magistrates Court.
In his amended defence filed in the District Court, Mr Lucas pleaded (paragraph 38) inter alia that:
“... insofar as the plaintiff pleads that the defendant has adopted certain comments made by him and published in or about the second week of December 1998 ......... the defendant says that insofar as those words consist of statements of fact they were true in substance and in fact, and insofar as they consisted of expressions of opinion, they were fair comment on matters of public interest ..........” (“the rolled up plea”)
In his Reply (paragraph 21.1A), Mr Xenophon pleads, inter alia, that the plea to which I have just referred in paragraph 38 of the defence:
“... is an abuse of process that the defendant seeks to now defend the original publication pleaded in paragraph 4 of the Particulars of Claim, he having consented to judgment on that publication .........”
Mr Xenophon goes on to plead, in effect, what is commonly described as an Anshun[1] defence, asserting in effect that it was open for Mr Lucas to defend the first Magistrates Court proceedings by pleading the rolled up plea, and he had not done so. Having consented to judgment in the first proceedings, it was an abuse of process for him to attempt to raise the rolled up plea in his District Court defence.
[1] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
On 17 November 2000, a Master in the District Court ordered that the issues raised in paragraph 21.1A of the Reply be referred for trial before the other issues raised on the pleadings.
In accordance with that order, the matter came on for trial of the preliminary issue before Judge Kitchen on 23 February 2001.
In the meantime, a week beforehand, on 16 February 2001, Mr Xenophon by his solicitors applied to the Magistrates Court in the first proceedings for orders inter alia:
“1.That the dismissal of this action for want of prosecution on the 20^th March 2000 be set aside.
2.That judgment be entered in favour of the plaintiff in the sum of $20,900.00 by consent.”
That application had not been heard and determined at the time when the hearing commenced before Judge Kitchen.
During the course of argument before Judge Kitchen, Mr Heywood-Smith of counsel for Mr Xenophon not only referred to the Anshun principle, but also put submissions which appear to have been based on questions of issue estoppel and res judicata arising from the course of the first proceedings. This in turn gave rise to a question whether a judgment had in fact been entered in the first proceedings in the Magistrates Court, and if not, whether the abuse of process arguments based on the Anshun principle and questions of res judicata and issue estoppel were open.
Eventually Judge Kitchen took the view that it would be better if the application taken out in the Magistrates Court by Mr Xenophon for judgment to be entered in that court be determined before he proceeded further. He thereupon adjourned the District Court proceedings on the footing that they would be resumed when the outcome of the Magistrates Court proceedings was known.
Eventually the Magistrates Court application came on for hearing before Mr Rogers SM on 6 March 2001. On 13 March 2001, the learned magistrate published reasons for his decision. In accordance with those reasons, he made an order in terms of paragraph 1 of the application, that is, reinstating the action. However, he declined to enter judgment as sought in paragraph 2 of the application, and instead directed that the file be marked “Settled by the defendant paying the amount of the Claim and party and party costs on summons”.
There is no appeal against the Magistrate setting aside the dismissal of the action. Rather, Mr Xenophon appeals against the learned magistrate’s refusal to enter judgment. Effectively the learned magistrate dismissed paragraph 2 of the application. For present purposes, it is appropriate to regard the appeal as an appeal against an order dismissing an application to enter judgment.
When the appeal came on for hearing, I raised with counsel the fact that it was at least arguable that the order made by the learned magistrate was interlocutory in nature, with the result that an appeal could not be brought without the leave of this Court: see SCR r 96B.02:
“96B.02(1)Unless a Magistrate has certified that the proposed appeal involves:
(a)A point of law of difficulty or importance; or
(b)A point of sufficient importance in the proceedings to warrant an interlocutory appeal being dealt with before final judgment in the action,
any appeal against an interlocutory judgment under Section 40 of the Act is subject to leave being obtained from the Supreme Court.
(2)............”
There has been no certificate by the magistrate in terms of sub-rule (1)(a) or (b), with the result that if the order is properly characterised as interlocutory, leave is required.
I intimated that in the event that I took the view that leave was required, I would treat the notice of appeal as an application for leave and deal with it accordingly. Mr Harris QC for the respondent took no objection to that course.
Despite arguments which Mr Heywood-Smith to the contrary, the order is clearly interlocutory in nature and is caught by r 96B.02.
A judgment is interlocutory in nature if it does not finally determine the rights of the parties.
In Hall v Nominal Defendant,[2] Taylor J cited, with approval, Lord Alverstone CJ’s judgment in Bozson v Altrincham Urban District Council:[3]
“It seems to me that the real test for determining this question ought to be this: Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order; but if it does not, it is then, in my opinion, an interlocutory order.”
Windeyer J in Hall said:[4]
“In most cases the test that seems to be most satisfactory, and the one that accords most nearly with what has been said on the subject in this Court, is it seems to me to look at the consequences of the order itself and to ask does it finally determine the rights of the parties in a principal cause pending between them. It is never enough to ask simply does the order finally determine the actual application or matter out of which it arises; because, subject to the possibility of an appeal, every order does that, unless it be an order that is expressly declared to be subject to variation.” (emphasis added)
[2] (1966) 117 CLR 423 at 439.
[3] [1903] 1 KB 547 at 548-549
[4] Ibid at 443, and see generally 443-5.
In Licul v Corney,[5] Barwick CJ, referred to the question of what constituted a “final order” for the purposes of s 35(1)(a) of the Judiciary Act 1903 (Cth):
“To be final for this purpose, the order, in my opinion, must of its own force put an end to the action or proceeding between the parties. It is not enough, in my opinion, that by reason of circumstances unconnected with and uncontrolled by the order itself, it may be or become impossible or impracticable to proceed with this action. ... I am clearly of the opinion that the order of the Supreme Court was not a final order disposing of the action between the parties and settling their substantive rights. Their actions remain on foot and are capable of being pursued if a judge of the County Court is minded upon an application duly made to extend the time for service of the originally summonses.”
[5] (1976) 180 CLR 213 at 219-220.
Later, in the case of Carr v Finance Corporation of Australia Ltd (No 1),[6] Gibbs CJ said:
“The test now applied in this Court for determining whether a judgment is final or not is whether the judgment or order appealed from, as made, finally determines the rights of the parties: Licul v Corney.”
His Honour added:
“In my opinion, the test in Licul v Corney requires the Court to have regard to the legal rather than the practical effect of the judgment.”
[6] (1981) 147 CLR 246 at 248.
The Full Court of the Supreme Court of South Australia in TRAMS Pty Ltd v The Grand Hotel Pty Ltd[7] regarded the line of cases to which I have referred as settling the question.[8]
[7] (1993) 170 LSJS 312 per Bollen J at 315.
[8] See also Keylink v Ergoline, (unreported) 12 November 1999, Doyle CJ, Judgment No [1999] SASC 483 and Sullivan v Police (unreported) 22 June 2000, Mullighan J, Judgment No [2000] SASC 171.
Bearing those statements of principle in mind, when one examines the legal effect of the refusal to enter judgment by consent, it does nothing to prevent the appellant from bringing fresh proceedings on the same issues. There is no judgment that gives rise to a res judicata. Indeed, the learned magistrate’s refusal to enter a judgment, or more accurately, his order dismissing the application to enter judgment, from the point of view of the proceedings (as opposed to any contract between the parties) leaves open all issues, as there is no judgment.
The refusal to enter a judgment does not determine any rights and is therefore not a final judgment.
It is, therefore, an interlocutory judgment or order.
It follows that Mr Xenophon requires leave to appeal.
Returning to the learned magistrate’s order, it is not clear to me why he took the course which he did.
In the first place, had I been exercising the discretion whether or not to set aside the dismissal of the action, I would have refused the application. It seems to me that although the defendants to the proceedings had stated that they consented to judgment, it was for the plaintiff to see that judgment was entered, if he wished to have the benefit of a judgment. There was no obligation on the defendant to fill in the form of consent at the foot of the front page of the Claim and lodge it with the Court. As I have explained above, it was open to the plaintiff at the time of receipt of the fax of 18 March 1999 or at any time thereafter before the action was dismissed, to apply for a judgment based on the defendants’ consent.
Furthermore, the Registrar’s notice warning that the action would be dismissed under r 28(3) if something else was not done about it should have operated as a warning to the plaintiff that if he did not apply for judgment, the action would be at an end. But he did not respond to the notice.
The automatic dismissal of the action was, therefore, not tainted with any irregularity, and I would have thought that there was no warrant to disturb it.
However, the magistrate saw fit to exercise his discretion and set aside the dismissal of the action. It was within his discretion to take that course, although as I have said, had I been in his shoes I would not have done so.
There is no cross-appeal against the order setting aside the dismissal of the action.
On the hearing of the appeal, Mr Harris QC made an oral application for an extension of time and for leave to cross-appeal against the setting aside of the dismissal of the action. I refused to give leave to that end. It seemed to me that the application came far too late and it was not a proper case for the exercise of the discretion to allow either an extension of time or leave to cross-appeal, given that the proposed cross-appeal would have been an appeal against an interlocutory order dealing with a matter of practice and procedure. True it is that Mr Xenophon’s appeal or attempted appeal must be similarly characterised, but for reasons which I will come to, there are cogent reasons why leave should be given in his case.
It follows that the matter falls to be dealt with on the basis that the action of the learned magistrate in setting aside the dismissal of the proceedings is not under challenge and the Magistrates Court proceedings remain on foot.
I specifically asked Mr Harris QC whether the consent evidenced by the fax dated 19 March 1999 written by the solicitors for the defendants was still operative, in the sense that it was not withdrawn. He assured me that it was not withdrawn.
In those circumstances, the learned magistrate had before him proceedings which he had restored to currency, and a letter by the defendants consenting to judgment. It was nothing to the point that moneys had been paid to the plaintiff. No good reason existed at that stage why judgment should not have been entered in accordance with the defendants’ consent.
Neither is it to the point that the belated application by Mr Xenophon to obtain a judgment is clearly motivated by a desire to achieve some forensic advantage in the setting of the District Court proceedings. I am very doubtful that in fact it will have that effect. During the course of argument, I made it clear to the parties that I could not see how the circumstances of the matter gave rise to any sort of issue estoppel, res judicata or any application of the principles which find expression in Anshun (supra). The alleged defamatory statements the subject of the District Court proceedings, if proved, would give rise to a different cause of action from that which was the subject of the first proceedings. There are other arguments against Mr Xenophon’s contentions in that respect. But I have not heard full argument on the matter, and it would not be right of me to express a concluded opinion on the question.

Although as I have said, the application for leave to appeal relates to an interlocutory order, which in turn is limited to a question of practice and procedure, I think it is a proper case in which leave should be given.
One of the reasons why it is appropriate that leave be given is that if the learned magistrate’s order remains as it is, the first proceedings will never be terminated. Mr Harris QC argued that the endorsement “settled etc” is tantamount to an adjournment sine die. But the magistrate did not adjourn the application before him: he allowed it in part and dismissed it in part. There was nothing else to adjourn. The proceedings are therefore unconcluded.
Although the Courts should not allow themselves to be completely ruled by the procedures associated with case flow management and computer generated notices, there is nonetheless an obligation, in the interests of proper judicial management of proceedings, that they be terminated by one means or another. Absent an order for a stay, the ordinary means by which they are terminated is by a finalising judgment or order or by discontinuance.
In this Court, if the parties assert that an action has been settled, they would ordinarily be required either to enter a judgment or order reflecting the terms of settlement, file a notice of discontinuance or allow the matter to be struck out.
The same approach should have been adopted in this case by the learned magistrate. Having set aside the dismissal of the action, it was then incumbent upon him to terminate the proceedings in an appropriate way. Given the ongoing currency of the defendants’ offer to consent to judgment, he should have acceded to the plaintiff’s application and entered judgment accordingly.
Furthermore, as I pointed out to Mr Harris QC, the entry of a belated judgment in the circumstances now arising cannot be regarded as prejudicial to his client. It simply puts Mr Lucas in the position he would have been in if what he had consented to at the outset of the Magistrates Court proceedings had been carried into effect.
For these reasons, I give leave to appeal.
I would allow the appeal by quashing the action of the magistrate in marking the file as “Settled etc”, by setting aside his dismissal of the application for judgment to be entered in favour of the plaintiff, and by substituting an order that judgment be entered for the plaintiff against the defendants in the sum of $20,900 inclusive of costs.
I will hear the parties as to the costs of the appeal.

[2001] SASC 160

18 May 2001