Graziano v Graziano - [2008] SASC 142

SUPREME COURT OF SOUTH AUSTRALIA
(Appeals to a Single Judge: Civil)
GRAZIANO v GRAZIANO
[2008] SASC 142
Judgment of The Honourable Justice Bleby
27 May 2008
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - INTERLOCUTORY ORDERS AND JUDGMENTS
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
Appeal against decision of District Court trial judge refusing permission to amend amended statement of claim and defence to counterclaim and reply (“the pleadings appeal”) – appeal against decision of District Court trial judge to refuse to grant leave for appellant to reopen his case to call further evidence (“the reopening appeal”) – both decisions made during course of trial – evidence in trial completed but not final addresses – whether appeal against interlocutory judgment of a District Court judge lies as of right – whether either order constituted an interlocutory judgment for the purposes of District Court Act 1991 s 43(2)(b) – whether either order was a ruling made in the course of trial – pleadings appeal held to be against interlocutory judgment – extension of time sought – consideration of reasons for delay – extension of time refused – reopening appeal held not to be against interlocutory judgment – reopening appeal dismissed as being incompetent.
District Court Act 1991 (SA) s 43; Supreme Court Civil Rules 2006 (SA) r 281, 283, 5; District Court Civil Rules 1987 (SA) r 74A.04; Criminal Appeal Act 1912 (NSW) s 5F, referred to.
Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126; R v Powch (1988) 14 NSWLR 136; R v Steffan (1993) 30 NSWLR 633; Corporation of the City of Mitcham v Fusco (2001) 115 LGERA 356, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED
"interlocutory judgment"

GRAZIANO v GRAZIANO
[2008] SASC 142
Miscellaneous Appeal
BLEBY J.
Introduction

The appellant, Bruno Graziano (“the plaintiff”), is the plaintiff in an action in the District Court. The respondent is his brother, Antonio Graziano (“the defendant”) and is the defendant in the District Court action.
Among other things, the plaintiff seeks, in the District Court action, the dissolution of a partnership between the plaintiff, on the one hand, and either the defendant or the defendant and his wife, on the other hand, and the payment to him of the proceeds of a certain disability insurance policy to which the plaintiff claims to be beneficially entitled.
By his defence, the defendant pleads that the policy was held by the plaintiff and the defendant on trust for the partnership and that the proceeds were a partnership asset. He further pleads that there was an agreement between the parties in September 1999 whereby the proceeds of the insurance policy and certain other benefits were to be paid or provided to the plaintiff, as long as the plaintiff honoured certain obligations under the agreement to transfer to the defendant and his wife his entire…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] SASC 142
Decision Date: 27 May 2008

CaseChat Overview and Summary

The case of Graziano v Graziano involves an appeal against the decision of a District Court trial judge in South Australia. The appellant, Graziano, appealed against two distinct decisions made by the District Court trial judge during the course of a trial. The first decision was the refusal to permit the appellant to amend his amended statement of claim, defence to counterclaim, and reply. The second decision pertained to the refusal of the trial judge to grant leave for the appellant to reopen his case to call further evidence. Both decisions were interlocutory in nature and were made before the completion of the evidence in the trial. The appellant sought leave to appeal against these interlocutory judgments, raising questions about the scope of appeals in such circumstances.

The central legal issue before the court was whether the appeal against the interlocutory judgments of the District Court trial judge lay as of right or required leave of the court. Additionally, the court had to determine whether either of the orders constituted an interlocutory judgment for the purposes of section 43(2)(b) of the District Court Act 1991. The appellant argued that the trial judge's decisions were appealable as of right, while the respondent contended that leave was necessary and that the orders were not interlocutory judgments.

The court meticulously examined the nature of the orders and their appealability. It concluded that the appeal against the refusal to amend the pleadings was against an interlocutory judgment. Therefore, the court granted an extension of time to enable the appellant to lodge the appeal. However, the court found that the appeal against the refusal to reopen the case to call further evidence was not against an interlocutory judgment, and thus, the appeal was dismissed as incompetent. The court emphasized the importance of distinguishing between interlocutory judgments and incidental rulings made during the course of a trial, noting that only the former are appealable.

In conclusion, the court ruled that the appeal against the refusal to amend the pleadings was appealable as of right and granted the extension of time for lodging the appeal. However, the appeal against the refusal to reopen the case to call further evidence was dismissed as it did not constitute an interlocutory judgment. The court's decision highlights the nuanced distinction between interlocutory judgments and incidental rulings in the context of appeals from District Court trial judges in South Australia.

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

BLEBY J

I was informed by counsel that final addresses in the trial have not yet taken place pending the resolution of this appeal.Whether either of the orders constitutes an “interlocutory judgment” The first issue is not whether, as in many cases, each of the determinations of the trial Judge is a final judgment or an interlocutory judgement. There is no suggestion that either of the determinations is a final judgment. The question is whether each of them is an interlocutory judgment. Both determinations were made after the commencement and in the course of the trial. In Legal Practitioners Complaints Committee v A Practitioner,[3] objection was taken before a single judge that no appeal lay to the Supreme Court from a dismissal by the Legal Practitioners Disciplinary Tribunal of a charge of unprofessional conduct. The Judge determined that objection as a preliminary question and decided that the appeal was competent. His decision was drawn up as a formal order of the court and was sealed. The Complaints Committee appealed to the Full Court pursuant to leave granted by the Judge. The first question to be decided by the Full Court was whether the decision of the single Judge was a “judgment, ... order, or direction”. King CJ decided that the word “direction” added nothing to the words “judgment” and “order”. [3] (1987) 46 SASR 126. The Court unanimously held that the determination of the single Judge was an interlocutory judgment or order from which an appeal by leave lay to the Full Court. In the course of his judgment, King CJ said:A judgment or order is a judicial act which decides the question or one of the questions which is raised for decision in the particular proceedings then before the court or judge. The question decided may be the substantive question or one of the substantive questions raised in the action; or it may be the question or one of the questions raised in interlocutory proceedings taken in the course of the progress of the action. Judgments and orders on the one hand are to be distinguished from incidental rulings given in the course of hearing and determining such questions. Examples of such incidental rulings are those which relate to adjournments, the time and place of hearing, admissibility of evidence and the exclusion or otherwise of witnesses from the hearing, as well as decisions upon submissions as to matters of fact, law or procedure made during the course of a hearing. Such incidental rulings are not judgments or orders and are therefore not appealable even by leave.Into which category does the learned judge’s decision as to the competency of the appeal, fall? In the generality of cases, a ruling that an appeal is competent or that the court or judge has jurisdiction to entertain the particular appeal or application before it, is an incidental ruling on a submission made in the course of the hearing and is not made the subject of a judgment or order. It is therefore not appealable. But it may be made the subject of a judgment or order. Whether that has occurred depends upon the treatment of the matter by the court or judge. In the present case, the learned judge expressly determined the question of competency as a preliminary point separate and distinct from the other issues which fell for determination on the appeal. His intention was to decide competency as a separate issue and to make his decision upon that issue the subject of a judgment or order. He emphasised that by giving leave to appeal and indicating that he was not seized of the appeal generally. The drawing up and sealing of the order on the basis of a certificate of the judge’s associate is not, of course, decisive, but it tends to confirm the status of the judge’s decision.[4][4] Ibid 127-128.

Ratio Decidendi

Legal Principle Established

Established by: BLEBY J

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