Greene v Harte No. Scciv-00-564 - [2001] SASC 127

GREENE v HARTE
[2001] SASC 127
Full Court: Debelle, Williams & Bleby JJ

DEBELLE J. This is an appeal by leave from a decision of a judge of this Court dismissing an appeal from the decision of a magistrate refusing to strike out the respondent’s statement of claim.
The facts are recited in the reasons of the judge. There is no need to repeat them. It is sufficient for present purposes to note only the following. The appellant and respondent had lived in a de facto relationship for three years and four months. They separated on 24 January 1999. There are two children of the relationship. On 21 July 1999 the respondent commenced proceedings in the Magistrates Court claiming to recover debts incurred in the course of the de facto relationship. On the summons she described her claim as “de facto relationship” claim. On 11 August 1999 the appellant filed a defence and counterclaim. In his counterclaim the appellant alleged that following the separation the respondent had wrongfully taken and converted to her own use joint property of the relationship as well as property of the appellant.
After several adjournments a directions hearing and conciliation conference was fixed for 7 December 1999. The parties both failed to attend. The magistrate conducting the hearing made orders dismissing both the claim and counterclaim. On 29 March 2000 the respondent applied to have the action “reinstated”. In her affidavit in support, she said that she was not aware the action would be struck out if the parties failed to attend the conciliation conference and directions hearing on 7 December 1999. The application was heard on 5 April 2000. The magistrate ordered the claim to be “reinstated”. To this time both parties had been unrepresented.
The respondent decided to consult a solicitor. On 8 May 2000 her solicitor filed an application on her behalf to amend her statement of claim so as to rely on the De Facto Relationships Act 1996 and to claim a division of all property pursuant to that Act. On 17 May 2000 a magistrate allowed the respondent’s application and granted 14 days in which to file an amended statement of claim.
On 1 June 2000 the appellant applied to have the amended statement of claim struck out because it was out of time. He was relying on s 9(3) of the De Facto Relationships Act which provides that an application for division of property must be made within one year after the end of the relationship unless the court, after considering the interests of both parties, is satisfied that an extension of time is necessary to avoid serious injustice to the applicant. On 9 June 2000 a different magistrate dismissed the application. By leave, the appellant appealed against that decision.
The learned judge below noted that no application had been made by the appellant for leave to appeal from the decision of the first magistrate on 17 May 2000 allowing the respondent’s application to amend her statement of claim.…

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: [2001] SASC 127
Decision Date: 17 April 2001

CaseChat Overview and Summary

The appeal in Greene v Harte concerned a dispute between the appellant, Greene, and the respondent, Harte, over debts incurred during their de facto relationship and the division of property following their separation. The case originated in the Magistrates Court, where Harte filed a claim for debts and later sought to amend her claim to include a division of property under the De Facto Relationships Act 1996. Greene argued that Harte's amended claim was out of time and sought to have it struck out. The magistrate dismissed Greene's application, leading to an appeal by Greene to the Supreme Court. The Full Court was called upon to determine whether the magistrate's decision was correct and whether the claim was properly reinstated.

The primary legal issues before the court were whether Harte's original claim on July 21, 1999, was for a division of property under the De Facto Relationships Act and if so, whether the magistrate had the jurisdiction to reinstate the claim after it was struck out on December 7, 1999. The court also needed to consider whether an extension of time was necessary and should be granted under section 9(3) of the De Facto Relationships Act. The Full Court examined these issues in detail, concluding that the claim was indeed for a division of property and was within the time limits prescribed by the Act. Furthermore, the court held that the magistrate's reinstatement order was valid as the initial striking out order was not a final judgment and could be set aside.

The Full Court rejected Greene's arguments, finding that the judge's characterization of Harte's claim was correct and that the magistrate had the authority to reinstate the claim. The court dismissed Greene's appeal and refused leave to appeal the magistrate's orders. The Full Court emphasized the importance of resolving property disputes through negotiation or mediation rather than litigation, given the rancor and bitterness that often accompany such disputes. The judges encouraged the parties to seek a fair division of assets amicably or through professional assistance. The appeal was dismissed, and no order for costs was made.

Orders