There is a little rule in the Magistrates’ Court of South Australia that has been punching above its weight. Rule 61(2) of the Magistrates’ Court (Civil) Rules 2013 (SA) is a procedural requirement that, though once treated as a box ticking exercise, has recently been interpreted as requiring strict compliance.

Last year, the Supreme Court of South Australia handed down judgment in the case of Marmanidis v Germein & Anor. Marmanidis involved a minor civil claim arising out of a motor vehicle accident. In this claim:

  • Mr Germein issued a minor civil claim against the negligent driver of another vehicle, seeking the cost of repairing his vehicle. The Registrar served the claim form by post to the given address and service was deemed to have been effected.
  • Mr Germein obtained default judgment and then proceeded to enforce it, eventually obtaining a warrant to sell Dr Marmanidis’ property.
  • Dr Marmanidis initially buried her head in the sand and the amount being sought from her escalated from $2,335.31 up to $14,768.75 due to costs and interest. Finally, the day before the auction of her property, Dr Marmanidis made an application to the Court, on the basis that she could not recall being involved in the underlying collision and had never been served with legal process.

Ordinarily, and varying slightly depending on jurisdiction, a defendant can set aside a default judgment where they can demonstrate that they have an arguable defence and where they have an explanation for any delay.

Having heard evidence from both sides, the Magistrate found that Dr Marmanidis did not have a reasonable prospect of successfully defending the claim, nor did she have a good explanation for her delay (having been aware of the proceeding for some time, even if she had not received the claim by post). The Magistrate would not set aside the judgment.

Dr Marmanidis applied to the Supreme Court for judicial review of the decision. Of the many grounds argued by Dr Marmanidis, only one was successful. The Supreme Court found that the Magistrates’ Court had made a jurisdictional error. The error was not in the dismissal of the application, but in entering the judgment in the first place. It came to light that Mr Germein had failed to comply with rule 61(2), which requires a party requesting default judgment in those circumstances to prove to the Registrar that, at the same time as the claim was served, a copy of any relevant proof of loss was also served on.

Mr Germein did not file anything with the Court to confirm that the proof of loss had been served and therefore the Court did not have the power to enter judgment and the irregular judgment had to be set aside. Even though Dr Marmanidis had no reasonable defence, had unreasonably delayed in responding to the claim and even though the proof of loss and quantum claimed were uncontroversial, strict compliance with the rule was a necessary condition for the Court to have the power to sign the judgment.

Marmanidis v Germein & Anor

In our experience, the Magistrates’ Court of South Australia is taking this decision very seriously and moving forward, parties must strictly comply with rule 61(2), or face having their judgments set aside (or entry of those judgments refused in the first place).