SUPREME COURT OF SOUTH AUSTRALIA
(Summary Jurisdiction: Application)
BRADMAN & ORS v ALLENS ARTHUR ROBINSON
[2009] SASC 80
Judgment of The Honourable Justice Kourakis
27 March 2009
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - SUMMARY JUDGMENT
LIMITATION OF ACTIONS - CONTRACTS, TORTS AND PERSONAL ACTIONS - THE PERIOD OF LIMITATION - ACTIONS FOUNDED ON SIMPLE CONTRACT AND TORT (INCLUDING BREACH OF STATUTORY DUTY)
Defendant's application for summary judgment dismissing the common law claims for negligence and breach of retainer brought against them by the executors of the late Sir Donald George Bradman - all of the claims had been statute barred by 25 February 2007 under the Limitations of Actions Act 1936 (SA) - the plaintiff issued proceedings on 1 August 2008, seeking an extension of time pursuant to s 48 of the Limitation of Actions Act 1936 (SA) on the ground that the material fact that the defendant acted as Sir Donald's legal adviser in relation to the matters alleged in the claim was not ascertained until 2 August 2007 - summary judgment sought on the ground that the application for an extension of time is bound to fail - whether the admission that the defendant acted as Sir Donald's legal adviser was a “material fact” for the purposes of s 48(3)(b)(i) of the Limitation of Actions Act 1936 (SA) - whether Sir Donald, or alternatively John Bradman, knew the alleged material fact before 2 August 2007 - whether the plaintiff's application to extend time is bound to fail.
Held: Application for summary judgment allowed – s 48(3)(b)(i) of the Limitation of Actions Act 1936 (SA) applies to material facts ascertained by executors of a deceased person's estate, even if those material facts were known to the deceased person before his or her death - however it is beyond argument that the executors in this case were aware of the fact that the defendant acted as Sir Donald's legal adviser before 2 August 2007 - the admission of that fact was not material having regard to all of the evidence known to the executors at that time - the plaintiff's application to extend time is bound to fail.
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - PLEADINGS
Defendant's application to strike out paragraph [32] of the plaintiff's statement of claim alleging loss and damage, on the ground that the pleading does not clearly state the nature of the loss claimed.
Held: Application refused.
Limitations of Actions Act 1936 (SA) ss 35, 46A, 48; Trademarks Act 1955 (Cth); Acts Interpretation Act 1915 (SA) s 4; Supreme Court Civil Rules 2006 (SA) rules 78, 232; Survival of Causes of Actions Act 1940 (SA) s 20, referred to.
Ceneavenue Pty Ltd v Martin [2008] SASC 158; Swain v Hillman [2001] 1 All ER 91; Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1; Boston Commercial Services Pty Ltd v GE…
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- AGLC
- Bradman v Allens Arthur Robinson [2009] SASC 80
- Case
- [2009] SASC 80
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether Allens Arthur Robinson had any reasonable prospects of successfully obtaining an extension of time to comply with their fiduciary duties under section 48 of the Acts Interpretation Act 1915 (SA). The court was required to determine whether the plaintiff had established that the executors had no reasonable basis for defending the plaintiff’s claim, pursuant to rule 232 of the Supreme Court Civil Rules 2006 (SA). The court considered the principles governing summary judgment as established in previous case law, including Ceneavenue Pty Ltd v Martin and JT Nominees Pty Ltd v Macks.
The court found that the plaintiff had demonstrated that there were no reasonable prospects of Allens Arthur Robinson obtaining an extension of time to comply with their fiduciary duties. The court noted that the word “Act” in section 4 of the Acts Interpretation Act 1915 (SA) includes the Act itself, and therefore the power to extend limitation periods conferred by section 48 of the Act applies to section 35 of the Act. Given the clear legislative intent and the absence of any reasonable basis for the executors to obtain an extension of time, the court concluded that the plaintiff was entitled to summary judgment. The court further noted that the purpose of the summary judgment rule is to avoid the court's resources being used on cases that serve no purpose.
The court ordered that summary judgment be entered in favour of the plaintiff against Allens Arthur Robinson.
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