Recent Judgments

Some decisions made in late 2024 were not published until 2025. Where they are important for procedural or other reasons, the author will include them in commentary on Recent Judgments later this year. Key updates in this chapter include: 

Setting aside a judgment for child support
In Johnson v Manuel [2024] SAMC 135, 9 October 2024, Magistrate Barnett considered an application to set aside a default judgment in child support matter. He ruled that the judgment was for a liquidated sum [18]. See [RJ.2024.36].

Not setting aside a judgment for a council clean up
In City of Port Adelaide Enfield v Pertsinidis [2024] SAMC 138, 15 October 2024, Magistrate Barnett decided that a default judgment from a properly served claim by the Council to collect expenses incurred under the Local Nuisance and Litter Control Act 2016 could not be set aside. See [RJ.2024.37].

No pre action claim
In Heinze v Heinze [2024] SAC 144, 23 October 2024, Magistrate Panagiotidis considered the consequences of a failure to serve a pre action claim. The applicant asserted that a pre action claim dated a week after the claim was filed was sufficient compliance, because although the claim was issued on 11 January 2024, it was not served until 14 March 2024. See [RJ.2024.38].

Amendment to identity and cause of action outside a limitation period
In Strazdins as liquidator of two companies v Portolesi Nominees PL and Anor [2024] SAMC 134, 27 September 2024, a cash payment was made by a company within the relation back period. As more information came into the liquidator’s hands it was necessary to apply to amend the claim by removing an individual. See [RJ.2024.40].

No debt collecting fees payable
Blackfriars Priory School v Asadi [2024] SAMC 147, 16 August 2024, was an action for school fees upon withdrawal of a student. Judicial Registrar Burke found that in accordance with the contract between the school and the parents one term’s fees were payable in default of prior notice but, at [16], he found that a debt collecting fee of $148.45 was not payable, but only the costs on the Magistrates Minor Civil cost scale. See [RJ.2024.41].

Set aside default judgment: only a solicitor’s affidavit
In Taura v Refcool Electrical PL and Mienie [2024] SAMC 157, 4 November 2024, Magistrate Barnett set aside a regularly obtained default judgment. The respondent had notified its insurers after judgment was obtained and their solicitors swore the affidavit in support of the application to set aside. See [RJ.2024.42].

Default judgment for a liquidated sum or damages to be assessed
In McOmish v Brown [2024] SAMC 164, 3 December 2024, Magistrate Vozzo heard an application to set aside a default judgment for a sum of money. The parties had a prior relationship as property developer and architect and fell into dispute in relation to a property transaction. See [RJ.2024.43].

Application to set aside a judgment refused
In Collaborative Employment Solutions PL v Li, [2024] SAMC 166, 11 September 2024, Registrar Burke refused to set aside a judgment. The claim was served by registered mail and later by email to which the respondent replied to the next day.  A defence was not filed so a default judgment was entered. See [RJ.2024.44].

Abuse of process: two bites of the cherry
In Blatchford v City of Victor Harbor [2024] SAMC 174, 13 December 2024, the applicant, claimed damages of $12,000 from the respondent City of Victor Harbor for alleged misfeasance in public office. This was a second attempt after an earlier claim for negligence against the council was dismissed. See [RJ.2024.45].

Aon is followed as late adjournment of a trial is refused
In Mesh Electrical PL v Carfora [2024] SAMC 194, 23 July 2024, the matter had a direction hearing in February 2024 when it was listed for trial on 23 July and no application was made for leave to file a cross claim. See [RJ.2024.46].

Whether to accept a no case submission
In Coonawarra Wines PL v Divas Beverages Australia Ltd & Anor [2024] SAMC 187, 12 December 2024, at trial the applicant closed its case and then during the evidence of the director of the respondent, Magistrate Barnett, permitted the applicant to join the director as a second respondent and amend its pleading to include a claim based on misrepresentation. See [RJ.2024.47].

The Stages of an Action

In Part 12: Minor Civil Actions, new commentary covers the following topics:

• Definition of a minor civil action and objective of the rules, at [SOA.1300]
• Pre-action requirements for a minor civil action, at [SOA.1303]
• Commencing a claim or an originating application, at [SOA.1308]
• Application of the rest of the UCR to Minor Civil Actions, at [SOA.1312]
• Defence set off, counter and third-party claims. No contribution notice, at [SOA.1316]
• Amending pleadings, at [SOA.1320]
• Election to move a claim from the minor civil jurisdiction, at [SOA.1324]
• Response to an originating application, at [SOA.1328]
• Discovery of documents but no interrogatories, at [SOA.1332]
• Expert reports, at [SOA.1336]
• Interlocutory applications: no second application without leave, at [SOA.1340]
• Claims: listing for directions or other hearings, at [SOA.1344]
• Originating applications: listing, at [SOA.1348]
• Mode of appearance and non-appearance, at [SOA.1352]
• Costs, at [SOA.1356]