Atkins v Eastman & Co Accountants and Financial Advisors
[2021] SASCA 7
•5 March 2021
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
ATKINS v EASTMAN & CO ACCOUNTANTS AND FINANCIAL ADVISORS
[2021] SASCA 7
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Livesey and the Honourable Justice Bleby)
5 March 2021
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT - GENERALLY
This is an application for leave to appeal a decision by a Master refusing the applicant leave to file a fourth statement of claim and dismissing his claim.
Held, refusing the application for an extension of time and dismissing the appeal:
1. An order staying or dismissing an action as frivolous or vexatious or as an abuse of process, such as the order made by the Master, is interlocutory in nature. As the decision was interlocutory in nature, the appeal is properly heard by a single Judge of this Court.
2. Rule 212.3(1)(f) of the Uniform Civil Rules 2020 (SA) provides that the appellate jurisdiction of the Supreme Court may be exercised by the Court of Appeal if a Judge so orders. In the circumstances, it is appropriate that an order under that provision be made referring this matter to the Court of Appeal.
3. The applicant has not disclosed any adequate basis for an extension of time. The Master did not make any error of law or otherwise err in the exercise of her discretion.
4. The application for an extension of time is refused and the appeal is dismissed.
5. The applicant is to pay the respondent’s costs fixed in an amount of $1,500.00.
Supreme Court Act 1935 (SA) s 50(1)(b), s 50(2), s 50(4)(b); Uniform Civil Rules 2020 (SA) r 212.2(1)(a), r 212.3(1)(a), r 212.3(1)(f); Supreme Court Civil Rules 2006 (SA) s 193; Limitation of Actions Act 1936 (SA) s 48, s 45, referred to.
Re Luck (2003) 78 ALJR 177, applied.
Plenty v Attorney-General [2013] SASC 35; Proude v Visic (No 4) [2013] SASC 154; Williams v Australian Telecommunications Commission (1988) 52 SASR 215, considered.
ATKINS v EASTMAN & CO ACCOUNTANTS AND FINANCIAL ADVISORS
[2021] SASCA 7
Court of Appeal: Kelly P, Livesey and Bleby JJA
Decision
THE COURT:
This is an application for leave to appeal a decision by a Master refusing the applicant leave to file a fourth statement of claim and dismissing his claim.[1]
[1] Atkins v Eastman & Co Accountants, Reasons of Judge Bochner, Master of the Supreme Court, delivered 4 March 2020.
There is a preliminary question as to whether leave to appeal is required. By s 50(1)(b) of the Supreme Court Act1935 (SA), an appeal lies against a judgment of the court constituted of a Master. By s 50(2), an appeal against a judgment of a Master lies “if the rules so provide, to the Court of Appeal and otherwise to the court constituted of a single judge”.
By s 50(4)(b), an appeal lies only with the leave of the court “if the rules provide that the appeal lies by permission of the court”.
By rule 212.2(1)(a) of the Uniform Civil Rules 2020 (SA) (Uniform Civil Rules), the appellate jurisdiction of the Supreme Court is to be exercised by a single Judge if the appeal is against an interlocutory decision by a Master. By rule 212.3(1)(a), the appellate jurisdiction is to be exercised by the Court of Appeal if the appeal is against a final decision by a Master.[2]
[2] Presumably, a further appeal from a decision by a single Judge to the Court of Appeal would require permission, but it is not necessary to decide that in this case.
The question then is whether the Master’s decision was interlocutory or final in nature. That is to be determined by the legal rather than practical effect of the decision.[3]
[3] See for example Re Luck (2003) 78 ALJR 177, [6]-[7].
The Master made orders in favour of the respondent on its application dated 18 March 2019 by which it sought orders that the proceedings be dismissed, that judgment be entered for the defendant or that the statement of claim be struck out in full. That her Honour was intending to dismiss the proceedings rather than merely the pleaded claim is made clear by her reliance upon r 193 of the Supreme Court Rules 2006 (SA) which empowers the Court to dismiss a proceeding if the pleadings disclose no reasonable cause of action or they are otherwise frivolous, vexatious or an abuse of process.[4]
[4] Master’s Reasons [50], citing Plenty v Attorney-General [2013] SASC 35, [20] (Stanley J) and Proude v Visic (No 4) [2013] SASC 154, [20] (Blue J). The Supreme Court Rules 2006 (SA) were in force at the time of her Honour’s decision.
It has been held by the High Court that an order staying or dismissing an action as frivolous or vexatious or an abuse of process is interlocutory in nature.[5] That encapsulates what the Master did in this case. Accordingly, as the Master’s decision was interlocutory in nature, the appeal is properly heard by a single Judge of this Court.
[5] Re Luck (2003) 78 ALJR 177, [6]-[7].
Nonetheless, the applicant has brought the matter to the Court of Appeal and explicitly sought leave to appeal. By rule 212.3(1)(f), the appellate jurisdiction of the Supreme Court may be exercised by the Court of Appeal if a Judge so orders. In the circumstances, it is appropriate that an order under that provision be made referring the matter to the Court of Appeal. As this is effectively an appeal to a single Judge from an interlocutory decision of a Master, the applicant does not require leave to appeal.
The essence of the applicant’s complaint is that, from 1976, he retained the respondent to provide advice and assistance in connection with his business, for which he paid the respondent substantial sums of money. The applicant has formed the view that he paid too much interest on loans and that his tax returns were in part incorrect. The applicant claims to have sustained substantial losses and he seeks damages in an amount exceeding $13 million.
It is of the first importance to recognise that the applicant has provided no particulars of these assertions. Regardless of the cause of action relied upon, he has not explained what accounting or other error was made, still less when it was made. On the face of it he has raised widespread, general complaints about a retainer which apparently commenced nearly 50 years ago.
By the time of the hearing before the Master, the applicant had served or mentioned six iterations of his statement of claim. The Master had before her a draft fourth statement of claim. After referring to well-known authority regarding the role and purpose of pleadings,[6] the Master refused leave to file and serve the proposed pleading because it failed to disclose any reasonable cause of action, lacked sufficient material facts to allow the defendant to understand the basis of the case it was required to meet and contained material that was irrelevant, vexatious and embarrassing.
[6] Williams v Australian Telecommunications Commission (1988) 52 SASR 215 (King CJ).
The Master then addressed each of the suggested causes of action, principally negligence, breach of contract, fraud and unjust enrichment, and she explained why they were each deficiently pleaded. There were other causes of action which were rejected as being unknown to the law. For example, the applicant purported to plead causes of action by way of “unjustifiable hardship” and “injury”.
In addition, there appeared to be considerable problems with limitation provisions. The applicant provided no material facts which enabled any assessment as to whether an extension of time might be granted under s 48 of the Limitation of Actions Act 1936 (SA) (the Act). Although the applicant relied upon s 45 of the Act, and claimed that by reason of dyslexia and post-traumatic stress disorder he had a recognised “mental deficiency”, the Master doubted whether these amounted to relevant disabilities for the purposes of s 45 of the Act. She emphasised that, whatever the nature of the applicant’s disabilities, they did not prevent him from bringing any proceedings other than through a litigation guardian.
As for the proceeding more generally, the Master found that the filing of numerous pleadings which failed to disclose any cause of action amounted to an abuse of process. In particular:[7]
The plaintiff’s claim must be dismissed. Despite the many iterations of the statement of claim that the plaintiff has sought to file, the plaintiff has been unable to produce a document that identifies the causes of action that he relies on, the facts that underpin those causes of action, or the way that he says his loss is caused by the actions of the defendant. While the third statement of claim is not the document under scrutiny here, I consider that it suffers from the same defects as both the first statement of claim and the draft fourth statement of claim. Not only does the draft fourth statement of claim, and its predecessors, fail to disclose any cause of action, it amounts to an abuse of process. The repeated filing of documents which the defendant must address, but which fail to disclose any cause action is causing the defendant serious prejudice. Sufficient time and opportunity has been given to the plaintiff to file a document which would make clear to the defendant the case it has to meet. He has failed to do so. To continue to file further documents, where there appears to be no ground to believe that a suitable document will be produced, is an abuse of process.
[7] Master’s Reasons [53].
Notwithstanding that the Master accepted that she must look past the form of the document to the underlying substance, she could not discern any underlying substance which could amount to a valid cause of action that might be addressed by the respondent.
In this Court, the applicant accepted that he required an extension of time in order to pursue his appeal. As for his grounds of appeal, they are in the following terms:
·Perverted the course of Justice.
·Critical miscarriage of Justice.
·Extreme bias of the self-represented.
·Alleged Conspiracy.
As for his grounds for seeking an extension of time, he asserted ten “serious disabilities” which included dyslexia and a chronic “PTSD fear of the Courts”.
The applicant did not explain how these affected his ability to file his application within the time required by the rules of court. No medical or other evidence was specifically identified.
As for the grounds upon which leave was sought by the applicant, he asserted:
1.Clearly Justice has not been dispensed.
2.Even the Law has not been dispensed.
3.Clearly severe bias has been dispensed by the Master.
As leave is not required, we shall treat these as grounds of appeal. The last-mentioned allegation concerns, it would seem, the Master’s disclosure of the fact that she was a supporter of the JusticeNet pro bono program. Apparently, the applicant was for a time being assisted by JusticeNet. On the information made available to this Court, it does not appear that any application for disqualification on the grounds of ostensible or other bias was made. Indeed, it is extremely doubtful whether there was any basis for an application. It was not suggested, for example, that this association had, even ostensibly, any bearing on the decision made concerning any pleading drafted by the applicant.
In the circumstances, the question is whether the Master made an error of law or otherwise erred in the exercise of her discretion. In our view, the applicant has not demonstrated any error. Additionally, there is no basis disclosed for an extension of time within which to appeal. The appeal must be dismissed with costs.
The respondent submitted that the wrong name had been used and asked that its name be amended. There appears to be no reason why that order should not be made.
This case does not merely concern leave to appeal and so rule 213.5(7) does not apply. Costs should follow the event.
The orders of the Court will be:
1.Pursuant to rule 22.4(2) of the Uniform Civil Rules the respondent’s name is amended to “Eastman & Co”.
2. Pursuant to rule 212.3(1)(f) of the Uniform Civil Rules, the applicant’s appeal to a single Judge is referred to the Court of Appeal.
3.The applicant’s application for an extension of time is refused and the appeal is dismissed.
4.The applicant must pay the respondent’s costs fixed in an amount of $1,500.00.
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