IML P/L v International Vineyards P/L (No 3) - [2006] SASC 11

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal from a Master: Civil)
IML P/L & ORS v INTERNATIONAL VINEYARDS P/L & ORS (NO 3)
Reasons for Decision of The Honourable Justice Vanstone
19 January 2006
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PRACTICE UNDER RULES OF COURT - JUDGMENTS AND ORDERS
Application by plaintiffs for dismissal of an appeal against decision of a master - judgment entered after defence earlier struck out for failure to give adequate discovery - whether appeal properly directed to single judge - whether master's decision final - whether notice of appeal defective for additional reasons - notice so defective as to make it inappropriate to amend - Held: Appeal dismissed as incompetent.
Supreme Court Act 1935, s 50(2); Supreme Court Rules, r 3.04, r 59.06, r 106.05, r 95, r 97.11, referred to.
Carr & Anor v Finance Corportion of Australia (1981) 147 CLR 246, applied.
Keylink Physical Care Pty Ltd v Ergoline (Aust) Pty Ltd [1999] SASC 483, distinguished.
KSK Constructions Pty Ltd v East Coast Earthmoving Pty Ltd [1984] 2 Qd R 40; Industrial Mutual Liability Pty Ltd v International Vineyards Pty Ltd (No 1) [2005] SASC 153; Industrial Mutual Liability Pty Ltd v International Vineyards Pty Ltd (No 2) [2005] SASC 238, considered.

IML P/L & ORS v INTERNATIONAL VINEYARDS P/L & ORS (NO 3)
[2006] SASC 11
Appeal from a Master

VANSTONE J: The plaintiffs apply, pursuant to r 97.11, for dismissal of an appeal instituted by the second defendant.
The plaintiffs took proceedings seeking declaratory and injunctive relief arising from disputes over a joint venture agreement, entered into on 25 June 1997. The appellant, Mr Garrett, was the second defendant in that action. On 6 July 2005 Master Bowen Pain struck out Mr Garrett’s defence, pursuant to r 59.06, by reason of failure to provide proper discovery.
Rule 59.06 relevantly provides:
59.06 (1) Any party required by any Rule or order to make discovery … who fails to comply with that Rule or order, shall be liable:
(a) …
(b) if a defendant, to have the defence struck out and judgment to be entered accordingly.
In KSK Constructions Pty Ltd v East Coast Earthmoving Pty Ltd [1984] 2 Qd R 40 Thomas J held, in comparable circumstances, that since the plaintiff had been placed in a position whereby it was entitled to proceed to judgment, the court could not extend time to enable the defendant to file another defence.
No appeal against Master Bowen Pain’s decision was, ultimately, instituted.
On 5 September 2005 Master Burley heard the plaintiffs’ application to enter judgment in default of defence. That application was dealt with in open court, but on an ex parte basis.
Master Burley granted the application and on 13 October gave declaratory relief dealing with, for example, the identity of the participants in the joint venture, the identity of the shareholders, directors and secretaries of the ninth plaintiff, International Vintners Australia Pty Ltd (“International Vintners”), the validity of a purported extraordinary general meeting of International Vintners held on 18 March 2004 and of resolutions purportedly passed at that meeting; and injunctive relief in respect of Mr Garrett’s dealings with the joint venture. That relief disposed of most of the orders sought in the plaintiffs’ consolidated amended inter partes summons (FDN 54). However, Master Burley was not asked to deal with those paragraphs of the prayer for relief which sought orders, pursuant to the Trustee Act 1936, removing the first defendant, International Vineyards Pty Ltd as the bare trustee of the joint venture, and consequential orders. In respect of those paragraphs, numbered 8 to 12, Master Burley gave the plaintiffs liberty to apply.
On 17 November Mr Garrett filed a notice of appeal (FDN 120) in respect of that judgment, purporting to appeal to a single judge. I note in passing that the notice was not filed within the time limits prescribed by the rules.
The right of appeal against the decision of a master is given by s 50(2) Supreme Court Act 1935. That right of appeal is said to lie, subject to the rules of court, to a judge.
According to the rules an appeal against a “final” judgment entered on the trial or hearing of any proceedings by a master is to the Full Court. That flows from r 106.05, which provides as follows:
106.05 (1) Subject to subrule (2) below an appeal from any assessment or award of damages or any other final finding, decision, direction, award or judgment, arrived at, made, given, directed or entered on the trial or hearing of any proceedings or of any question or issues by a Master lies to the Full Court and is to be governed by Rule 95.
(2) Any appeal from a Master:
(a)in relation to an order made under the Real Property Act 1885 or under Rule 60;
(b)from an order, decision or judgment to which subrule (1) does not apply;
(c)where the parties consent to the appeal being dealt with by a single Judge is to be to a single Judge and is to be governed by Rule 97.
(3) An appeal under subrule (2) is to be instituted within 7 days of the order, decision or judgment appealed from.
It is clear that r 106.5(2)(a) does not apply and I note that the plaintiffs do not consent to this appeal being dealt with by a single judge. The question then is whether subrule (1) applies and whether Master Burley’s judgment is final.
In Carr & Anor v Finance Corporation of Australia (1981) 147 CLR 246 Gibbs CJ described the issue relevant to that question as being whether the judgment or order appealed from finally determines the rights of the parties. It was the legal effect of the judgment rather than its practical effect, which was said to be important. In my view the judgment of Master Burley was final, in the relevant sense. In respect of that part of the plaintiffs’ claim it covered, it determined the issues and brought an end to those proceedings.
That being so, the appeal is, in accordance with r 106.05, governed by r 95 and the appeal notice is defective in form.
In Keylink Physical Care Pty Ltd v Ergoline (Aust) Pty Ltd [1999] SASC 483, the Chief Justice dealt with the question of whether a statement in an appeal notice directing the appeal to a single judge rendered the notice a nullity. It was held that this was an irregularity only and could be cured by amendment.
In the present case the shortcomings of the notice include the reference to a single judge, but, additionally are more fundamental.
The notice is internally inconsistent. At one point the orders appealed from are said to be those numbered 16 to 22 in Master Burley’s orders. Yet elsewhere, the notice seeks an order that the whole of “the judgment and orders of Judge Burley be set aside”.
Of the orders to which specific reference is made, numbers 16 and 19 are directed not only to Mr Garrett, but to other parties as well. Order 20 is not directed to Mr Garrett at all. In this matter the Court has previously refused leave to Mr Garrett to represent any other party: Industrial Mutual Liability Pty Ltd v International Vineyards Pty Ltd (No 1) [2005] SASC 153; Industrial Mutual Liability Pty Ltd v International Vineyards Pty Ltd (No 2) [2005] SASC 238. Therefore Mr Garrett has no standing to appeal against the orders, insofar as they are directed against other parties. The sixth of the orders sought – that the proceedings heard on 5 September 2005 before Judge Burley be struck from the court record – and the seventh – that the first plaintiffs pay “unspecified damages” – are not orders which the Court could or would make upon this appeal.
In circumstances where the notice of appeal is so defective that it is not susceptible of relatively simple amendment, and where no application to amend is, in any event, made, I think it inappropriate to exercise the powers given in r 3.04 to validate the notice.
For these reasons I order that the second defendant’s appeal be dismissed as incompetent.