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Jones v The Barossa Council

Jones v The Barossa Council

Case [2014] SASC 2

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SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
JONES v THE BAROSSA COUNCIL & ANOR
[2014] SASC 2
Reasons for Decision of The Honourable Justice Nicholson
14 January 2014
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - IN GENERAL AND PRELIMINARY MATTERS
Referral from Registrar for direction pursuant to Rule 53 of the Supreme Court Civil Rules 2006 (SA) that he reject and refuse the filing of a proposed notice of appeal to the Full Court by an unsuccessful appellant to a single judge of this Court – whether the document, on its face, is an abuse of process.
Held: Proposed notice of appeal an abuse of process; Registrar directed to reject it for filing.
Limitation of Actions Act 1936 s48; Supreme Court Rules 2006 (SA) Rule 53, referred to.
Westwill Pty Ltd & Ors v Norman Waterhouse Pty Ltd & Anor [2009] SASC 391; Westwill Pty Ltd v Norman Waterhouse & Ors unreported District Court of South Australia, Judge Soulio (30 April 2008); Rana v Housing Trust of South Australia; Rana v Gregurev; Rana v Gregurev [2011] SASC 127; Staats v United States of America (1992) 66 ALJR 793; Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99; Re Davison (1997) 147 ALR 259; Manolakis v District Registrar (SA) (2008) 170 FCR 426; Andrew Garrett Wines Resorts Pty Ltd v National Australia Bank Ltd [2007] SASC 89; Eastman v Higgins (2007) 210 FLR 464; Bhamjee v Forsdick (No 2) [2004] 1 WLR 88; Manolakis v Director of Public Prosecutions (Cth) & Ors [2009] SASC 193; Ramsey v Skyring (1999) 164 ALR 378, considered.

JONES v THE BAROSSA COUNCIL & ANOR
[2014] SASC 2
Civil
NICHOLSON J.
Introduction

William Paul Jones has sought to file a notice of appeal to the Full Court. He wishes to appeal against the summary dismissal, by a judge of this Court, of an appeal by Mr Jones and a number of other persons and entities against a judgment in the District Court.[1] The extensive history of the matter is set out in paragraphs [2] to [15] of the judgment of Sulan J[2] which is unnecessary to repeat here.
[1] Westwill Pty Ltd & Ors v Norman Waterhouse Pty Ltd & Anor [2009] SASC 391 (Sulan J) on appeal from Westwill Pty Ltd v Norman Waterhouse & Ors, unreported District Court of South Australia, Judge Soulio (30 April 2008).
[2] [2009] SASC 391.
The proposed appeal from the judgment of Sulan J is some four years out of time. However, it would appear that the appellant may wish to rely on putative new material facts in order to ground an application for an extension of time within which to appeal. Although, even that is not clear because in the notice of appeal under the heading “Extension of time” the appellant refers to section 48(3) of the Limitation of Actions Act 1936 and it…

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.

Continue reading Jones v The Barossa Council

Details

AGLC: Jones v The Barossa Council [2014] SASC 2
Case: [2014] SASC 2
Decision Date

CaseChat Overview and Summary

William Paul Jones sought to file a notice of appeal to the Full Court against the summary dismissal by a single judge of the Supreme Court of an appeal by Jones and other parties against a judgment in the District Court. The proposed appeal was out of time, and it was unclear whether Jones sought to rely on new material facts to ground an application for an extension of time or if he was concerned about the cause of action itself being out of time. The Registrar referred the matter to the Court, seeking direction under Rule 53 of the Supreme Court Civil Rules 2006 (SA) to reject the notice of appeal on the basis that it was, inter alia, an abuse of the process of the Court.

The court considered the principles of Rule 53, which provides for the power to reject documents submitted for filing. The rule defines an abuse of process as a document containing scandalous, frivolous or vexatious matter. The purpose of the rule is to ensure the resources of the court are not exhausted by misconceived litigation and that defendants are not put to unnecessary expense and stress. The proposed notice of appeal was incoherent, lacked clarity, and did not identify relevant grounds of appeal or errors in the judgment sought to be appealed from. The document was more appropriate to a first instance determination rather than an appeal from the judgment of the single judge. The proposed notice of appeal was also not properly constituted as it was solely in the name of William Paul Jones, while the relevant parties to the judgment appealed from comprised a number of corporate entities and individual family members.

The court directed the Registrar to reject the notice of appeal on the basis that it was an abuse of the process of the Court and sent a copy of the reasons to William Paul Jones. The proposed notice of appeal was incoherent, lacked sense, and offered no relevant detail to allow the respondents to appreciate the case they would be required to meet. Any appeal based on a notice of appeal in the form of the present would be doomed to fail.

Orders