ACN 115 722 248 Pty Ltd v Milligan
[2012] SASCFC 26
•23 March 2012
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Permission to Appeal)
ACN 115 722 248 PTY LTD v MILLIGAN
[2012] SASCFC 26
Reasons for Decision of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Anderson and The Honourable Justice Stanley)
23 March 2012
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - INTERLOCUTORY ORDERS AND JUDGMENTS
Application for permission to appeal to the Full Court in private – whether permission to appeal against a decision of a Judge of the Supreme Court of South Australia to not allow an appeal against a decision of a Judge of the District Court of South Australia who did not allow an appeal against a decision of a District Court Master to strike out the plaintiff’s Statement of Claim, should be granted.
Held: Application for permission to appeal to the Full Court refused.
Supreme Court Civil Rules 2006 (SA) r 267(2), referred to.
ACN 115 722 248 Pty Ltd v Milligan [2011] SADC 8, considered.
ACN 115 722 248 PTY LTD v MILLIGAN
[2012] SASCFC 26Full Court: Doyle CJ, Anderson and Stanley JJ
THE COURT: The appellant company has made a claim in the District Court for damages arising from a motor vehicle accident on 20 November 2008. The company alleges that it was the owner of a motor vehicle driven by an employee, when a truck driven by the defendant collided with the rear of the vehicle. It is the company as owner, and not the driver, that brings this action.
The defendant is represented by the Transport Accident Commission (“TAC”) as the defendant’s insurer in respect of certain of the claims by the plaintiff. At the relevant times another insurer represented the defendant in respect of other claims.
The company applied for an order the effect of which, among other things, was to deny the TAC the right to represent the defendant in the District Court proceedings.
A District Court Master refused to make the orders sought by the company. His reasons are dated 3 August 2010. He identified the orders that he refused to make as the orders applied for by paras 1, 2 and 3 in the plaintiff’s application.
In the same reasons the Master dealt with an application by the defendant to strike out the plaintiff’s proceedings for failure to comply with the District Court Civil Rules 2006 (SA). In his reasons the Master gave details of the many deficiencies in the Statement of Claim. The Master did not strike out the action. He ordered that the Statement of Claim be struck out, and that the company have permission to file an Amended Statement of Claim.
The plaintiff appealed against this decision. As the orders were interlocutory orders, the appeal was considered by a District Court Judge. The District Court Judge records in his reasons that the appeal against the order striking out the Statement of Claim was the only matter pursued before him.
The District Court Judge dismissed the appeal. He agreed with the Master’s conclusions: ACN 115 722 248 Pty Ltd v Milligan [2011] SADC 8.
The company then applied to this Court for permission to appeal against that decision. A Judge of this Court refused permission to appeal on 22 December 2011: ACN 115 722 248 Pty Ltd v Milligan [2011] SASC 239. On 18 January 2012, the Judge refused permission to appeal against that decision.
The company now renews its application for permission to appeal to the Full Court, relying on rule 267(2) of the Supreme Court Civil Rules 2006 (SA).
The Court has considered the reasons of the Master, the reasons of the District Court Judge, and the reasons of the Judge of this Court. The Court has also considered the company’s summary of argument.
The summary of argument canvasses both issues, that is, the refusal of the order denying audience to the TAC, and the order striking out the Statement of Claim.
The company’s submissions are misconceived. They contain a considerable amount of irrelevant material. The submissions, as best one can comprehend them, do not identify any error on the part of the District Court Master, the District Court Judge or the Judge of this Court.
The Master’s decision striking out the Statement of Claim was clearly correct.
Even if the District Court Judge should have dealt with the decision by the Master relating to the entitlement of the TAC to represent the defendant, permission to appeal should be refused. The District Court Master was clearly correct in refusing the order sought by the company. The Judge of this Court agreed. There is no point in granting permission to appeal to enable the re‑argument of grounds that are doomed to fail.
The Court refuses permission to appeal.
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