ACN 115 722 248 Pty Ltd v Milligan - [2011] SASC 239

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
ACN 115 722 248 PTY LTD v MILLIGAN
[2011] SASC 239
Judgment of The Honourable Justice Vanstone
22 December 2011
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS - LEAVE TO APPEAL
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 – a Master of the District Court ordered the applicant’s pleadings be struck out but gave permission for the plaintiff to re-plead its case – applicant unsuccessfully appealed to a judge of that Court – applicant sought permission to appeal to a single Judge of the Supreme Court – whether decision of judge attended by sufficient doubt to warrant re-consideration – whether substantial injustice would be effected if decision allowed to stand.
Held: application refused.
Supreme Court Rules 2006 (SA) r 280, r 288, r 292, r 50; Motor Vehicles Act 1959 (SA) s 19A; District Court Rules 2006 (SA) r 25, referred to.
Landmark Operations Ltd v J Tiver Nominees Pty Ltd [2009] SASC 185; Duke Group Ltd (In Liquidation) v Alamain Investments Pty Ltd [2006] SASC 209, applied.

ACN 115 722 248 PTY LTD v MILLIGAN
[2011] SASC 239
Civil

VANSTONE J: The applicant-plaintiff applies for permission to appeal against a decision made by a judge of the District Court dismissing an appeal against a decision of a Master of that court. The Master ordered that the plaintiff’s statement of claim be struck out because it did not comply with the rules of the Court. However, he gave leave for the claim to be re-pleaded.
The application to this Court appears to be commenced substantially out of time and so the plaintiff also makes application for an extension of time in which to make the application.
Background
The genesis of the substantive action is in a motor vehicle accident occurring in November 2008. The plaintiff’s motor vehicle was driven by a director of the plaintiff company, Mr Jordan. The plaintiff filed originating process in the Magistrates Court in January 2009 seeking from the other driver damages arising from the accident in the amount of $20,475. That action was transferred to the District Court in February 2010.
The damages sought were for loss arising from injury to Mr Jordan and for property damage, and in some cases the statement of claim as filed seems to merge the two. That led to representation of the defendant by two sets of legal advisers, because two insurance companies were involved. One firm acts for the Transport Accident Commission of Victoria (TAC). The motor vehicle driven by the defendant was registered in Victoria.
In May 2010 the defendant applied to have the plaintiff’s amended statement of claim struck out on a variety of grounds. That application was argued before Master Rice on 21 July 2010. On 3 August 2010 the Master granted the application, ordering the statement of claim be struck out. He gave the plaintiff leave to re-plead its claim within 21 days. Rather than re-pleading the claim, the plaintiff appealed against the Master’s decision. That appeal went to a judge of the District Court and was argued on 19 January 2011. By decision of 7 February 2011 it was dismissed.
By application accepted by the Registry on 13 October 2011 the appellant seeks permission to appeal against that decision. Pursuant to the exception under r 280(1)(b) Supreme Court Rules 2006 (SA) (SCR) an appeal from an interlocutory judgment of a District Court judge is to be heard by a single judge of this Court. A decision to dismiss an appeal against an interlocutory order is itself an interlocutory judgment: Duke Group Ltd (In Liquidation) v Alamain Investments Ltd [2006] SASC 209. Therefore the exception is applicable.
The filed application asserts that an application for permission was initially lodged (but not filed) on 21 February 2011. It was accepted for the purpose of review by the Registrar (as is the Court’s practice for documents lodged by self‑represented litigants) and has been “awaiting further dealing since”.
Pursuant to SCR 288(1)(a)(ii), this appeal requires permission as it challenges “a judgment given on appeal from an interlocutory judgment”. An application for permission is required to be filed within 14 days of the judgment under appeal: SCR 292(1)(b). Pursuant to SCR 50(1)(a) documents are taken to have been filed once they have been accepted by an officer of the Court at the Court Registry. It follows that the application was filed on 13 October 2011, when the documents were accepted at the Court Registry. Therefore it is made substantially out of time. Before me, Mr Jordan tendered an affidavit which sought to justify the delay. Although parts of the affidavit were subject to objection and were not admitted, the parts relevant to the delay were not the subject of objection and were admitted. It was suggested that the “Application for leave to appeal” ultimately accepted by the Registry was in all but identical terms to the one originally presented. Since there was no request to explore this matter by cross-examining Mr Jordan, it is appropriate to grant an extension of time within which to make the application, to 13 October 2011.
I proceed on the basis that permission to appeal should not be granted unless the applicant can show that the decision under appeal is attended by doubt sufficient to warrant its reconsideration by this Court and that substantial injustice will be effected if the orders are allowed to stand: Landmark Operations Ltd v J Tiver Nominees Pty Ltd [2009] SASC 185.
The grounds of the application for permission are framed in the following way:
The TAC involvement point
1.His Honour erred in fact, in finding that the issue of TAC involvement was not argued before him. The point was argued, and the plaintiff’s written submission before Master Rice relied upon the point.
2.Pursuant to section 19A of the Motor Vehicles Act, a relevant period is prescribed for interstate vehicles driving on South Australian roads. The applicant has established prima facie that section 19A excludes any involvement of TAC.
Trespass to the servant / per Quod Servitium Amasit
3.A claim for this remedy and common law cause of action is not a claim pursuant to the Civil Liability Act or a claim regulated by that Act.
4.The plaintiff’s pleadings are not inappropriate or flawed for a plea of that cause of action.
5.There is no legal impediment to a claim by the plaintiff for aggravated damages or exemplary damages.
6.His Honour erred in failing to reinstate the particulars. There was no inadequacy or deficiency in the pleading.
7.The defendants were not embarrassed as they contended.
8.The plaintiff’s particulars of claim should not have been struck out in their entirety or at all.
9.The pleading in its existing form was necessary in the context of a claim for aggravated and exemplary damages and the increased onus on a plaintiff making that claim.
Arguments upon the appeal
Upon the hearing Mr Jordan appeared for the applicant company with leave of the Court pursuant to SCR 27, that leave being confined to this application. Mr Jordan is a former practitioner of this Court.
In relation to the first issue, the central argument made by Mr Jordan is that the TAC has no involvement and no right of audience in this matter due to s 19A Motor Vehicles Act 1959 (SA). That section allows for vehicles registered interstate to be driven in South Australia in certain circumstances. Mr Jordan argues that the qualifying circumstances were not met in the case of the vehicle driven by the defendant. He puts that there is no effective insurance agreement between the defendant and the TAC. He says that flows from evidence which suggests that the vehicle driven by the defendant had been housed in South Australia for more than 90 days without there being any application for registration in South Australia.
In relation to the second issue, the applicant sought to argue that there was no defect in his pleadings.
Analysis
I deal first with the plaintiff’s argument that the TAC has no right of audience.
In this case counsel instructed by the TAC were entitled to appear for the defendant, along with counsel instructed by CGU Insurance Ltd. That was so by virtue of an order made by Master Norman in the District Court on 21 April 2010, pursuant to r 25 District Court Rules 2006 (SA), which permits joint representation of parties.
Before me the applicant again impugned the TAC’s entitlement to appear through two arguments, both of which sought to show that the respondent was not entitled to be indemnified by the TAC. First, as noted, Mr Jordan argued that the defendant’s insurance contract with TAC was affected by the defendant’s breach of s 19A Motor Vehicles Act. Additionally, he argued that, in any event, there being no claim by the plaintiff for damages for personal injury per se, there was no claim involving the TAC.
These arguments are both curious and misconceived. The entitlement of the TAC to appear in the matter and to bring an interlocutory application was not dependent on its having a contractual obligation to indemnify the defendant. It arose by virtue of the order by Master Norman. As Judge Soulio observed in argument during the appeal hearing, the entitlement of the defendant to be indemnified by the TAC is a contractual matter between those parties. The TAC’s entitlement to appear in the action is a separate matter. Master Norman’s order appears to me to be entirely appropriate in the circumstances of the case as pleaded. During the hearing in this Court Mr Jordan made no attack on that order. For these reasons this aspect of the disposition by Judge Soulio is not attended by doubt.
The other matter sought to be agitated is the order that the appellant’s pleadings be struck out. There were several reasons for that order. As to the claim for damages for “trespass to the servant”, the Master determined that it was, in part, a claim for a wrongful act per quod servitium amisit and should have been pleaded in that way. Further, he found that any claim in trespass should have been pleaded as part of a claim for aggravated and exemplary damages. In other respects the Master found that the pleading was prolix, in parts vexatious, pleaded matters no longer in dispute and was in some particulars insulting. The Master identified at some length myriad substantial defects. Detailed guidance was given as to how the matter should properly be pleaded if the plaintiff determined to file a new statement of claim.
The District Court judge considered the Master’s approach to these questions and agreed with it. It was open to him to take that view. These are, in the end, matters of practice. This is not an instance where the defects in the pleadings could be said to be at the margins. The matter has been considered by two judicial officers. Before me, no oral or written argument was put in support of the attack on the substantial decisions. In considering whether the decision occasions any injustice, it is to be emphasised that permission has been granted to the plaintiff to re-plead the claim.
Conclusion
The plaintiff has not persuaded me that the decision in the Court below is attended by any doubt, or that the decision gives rise to any injustice.
I make the following orders:
1.The time within which to file an application for permission to appeal is extended to 13 October 2011.
2.Permission to appeal is refused.