Bradman v Allens Arthur Robinson

Case [2009] SASC 80

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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Bradman v Allens Arthur Robinson [2009] SASC 80
Case
[2009] SASC 80
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CaseChat Overview and Summary

In Bradman v Allens Arthur Robinson, the plaintiff sought summary judgment against the defendant, Allens Arthur Robinson, in proceedings brought in the Supreme Court of South Australia. The plaintiff alleged that the defendant, acting as executors of a deceased estate, had failed to comply with their fiduciary duties and sought damages for breach of those duties. Allens Arthur Robinson opposed the plaintiff's application for summary judgment, arguing that the court should not dismiss the plaintiff's claims without a full hearing.

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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 4 of the Acts Interpretation Act 1915 (SA) provides that the word “Act” means an Act of the Parliament of South Australia. In s 48 the word therefore includes the Act itself. The power to extend limitation periods conferred by s 48 of the Act is therefore applicable to s 35 of the Act.Principles governing summary judgment Both the plaintiff and defendant accept that in order to establish an entitlement to summary judgment pursuant to r 232 of the Supreme Court Civil Rules 2006 (SA), Allens must establish that the executors have no reasonable prospects[2] of obtaining an extension of time pursuant to s 48 of the Act.[2] Ceneavenue Pty Ltd v Martin [2008] SASC 158 at [81]; JT Nominees Pty Ltd v Macks (2007) 97 SASR 471. In Ceneavenue Pty Ltd v Martin[3] Debelle J explained the test set for summary judgment by r 232 in this way:While there can be no doubt that paragraph (b) has significantly lightened the burden for a defendant seeking summary judgment, two questions nevertheless remain. The first is what is meant by the expression “no reasonable basis” for the claim against the defendant and the second is whether the test is materially different from the test of a real question to be tried. The fact that the expression “no reasonable basis” is used in both paragraphs (a) and (b) of Rule 232(2) suggests that the same test applies both when considering whether there is no reasonable basis for defending the plaintiff’s claim and when considering whether there is no reasonable basis for the claim against the defendant. The test in Rule 232(2) requires the court first to identify the issues to be tried and then to assess whether the claim or defence has reasonable prospects of success. In the case of an application for summary judgment by a plaintiff against a defendant, it is doubtful, therefore, whether there is a material difference between that test and the former test as it had been expressed in Fancourt. That is because the question whether there is a real question to be tried denoted that the task for the court was to determine whether the issues at the trial are real or fanciful and have reasonable prospects of success.[4][3] [2008] SASC 158.[4] Ceneavenue Pty Ltd v Martin [2008] SASC 158 at [81] per Debelle J. The authorities are replete with warnings about the seriousness of the step of refusing a litigant a full hearing.[5] There have been many attempts to explicate the “real question to be tried” formula. In Swain v Hillman[6] Lord Woolf MR contrasted a claim that raises a real question with one which has a “fanciful” prospect of success, or one which is “bound to fail”.[5] Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99; Grimwade v Beresford (1974) 9 SASR 157 at 160; Swain v Hillman [2001] 1 All ER 91 at 96 per Judge LJ.[6] [2001] 1 All ER 91. The purpose of the rule is plain. In Swain Lord Woolf MR explained that it saves expense and achieves expedition. Importantly, he observed that it avoids the Court’s resources being used up on cases for no purpose.[7] The rule serves the interests of justice, because as Lord Woolf MR explained:If a claimant has a case which is bound to fail, then it is in the claimant’s interests to know as soon as possible that that is the position. Likewise, if a claim is bound to succeed, a claimant should know that as soon as possible.[8][7] Swain v Hillman [2001] 1 All ER 91 at 94.[8] Swain v Hillman [2001] 1 All ER 91 at 94.

Ratio Decidendi

Legal Principle Established

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