Jones v The Nominal Defendant

Case [2022] SASC 111

Supreme Court of South Australia

(Appeal to a Single Judge)

JONES v THE NOMINAL DEFENDANT

[2022] SASC 111

Judgment of the Honourable Justice Blue  

7 October 2022

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - ADMISSION OF FURTHER EVIDENCE

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS - LEAVE TO APPEAL

Appeal, seeking leave to appeal, against an order by a Judge allowing an appeal against a decision of a Master of the District Court and granting leave to the respondent to amend its defence to plead that the appellant’s own negligence caused or contributed to his fall that resulted in his injuries.

The appellant instituted an action in the District Court against the respondent claiming damages for personal injuries caused by a fall caused in turn by the negligence of the driver of an unidentified vehicle.

Despite the parties not having signed a certificate of readiness, a Master fixed a listing conference and required a certificate of readiness to be filed at least seven days before the listing conference.

At the listing conference, no certificate of readiness had been filed, but the Listing Officer nevertheless listed the action for trial. Shortly before the listing conference, the respondent’s solicitors had foreshadowed an intention to seek permission to amend the defence to plead, amongst other things, contributory negligence.

The respondent subsequently filed an application for permission to amend the defence. A Master heard argument on the application and reserved her decision.

The respondent’s solicitors subsequently sent an email to the Master’s chambers stating that the parties jointly sought an order that the trial date be vacated and the matter be referred back to the ordinary Directions List for further directions.

The Master later heard argument on the question whether special circumstances were required to be established for the application to amend the defence and if so whether they were established.

The Master dismissed the application to amend.

The respondent appealed. A Judge allowed the appeal and granted permission to amend the defence.

The appeal raises four broad issues:

1Did the Master dispense with the requirement for special circumstances, did the Master have power to do so and was it open to the Master to do so?

2Were special circumstances required to be established under the District Court Civil Rules 2006, were they established, and is it open for the respondent to contend on this appeal that they were not required or they were in fact established?

3Did the Judge err in concluding that the Master erred in exercising the discretion to refuse leave to amend the defence on the merits or err in the re-exercise of the discretion?

4Should leave to appeal be granted?

Held (granting leave but dismissing the appeal):

1The Master had power to dispense with the requirement for special circumstances (at [85]).

2It was open to the Master to dispense with the requirement…

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Jones v The Nominal Defendant [2022] SASC 111
Case
[2022] SASC 111
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CaseChat Overview and Summary

In Jones v The Nominal Defendant, the South Australian District Court dealt with an appeal against a decision denying leave to amend the defendant's pleadings to include new allegations regarding the plaintiff's fall and contributory negligence. The plaintiff, Mr Jones, alleged that he sustained injuries after falling on a curb in King William Street, Adelaide, due to the negligence of a taxi driver. The Nominal Defendant denied involvement of a taxi and the taxi driver's negligence. After the plaintiff's injuries stabilised, the parties attended a directions hearing in June 2019, where the Master ordered a listing conference and directed the plaintiff to file a trial book and certificate of readiness. The Nominal Defendant subsequently sought to amend its defence but was denied leave by the Master. The key legal issues were whether special circumstances existed to justify an interlocutory application after the matter was listed for trial and if the Master erred in her application of the rules and discretion.

The court held that the Master was not bound by the requirement for special circumstances to entertain the defendant's application to amend the pleadings. The Master considered the Uniform Civil Rules 2020 (SA), which do not mandate special circumstances for interlocutory applications after a matter has been set for trial. The Master exercised her discretion to proceed with the substantive issues of the application, despite the defendant's behaviour and tactics. The court found no error in the Master's application of the rules or her exercise of discretion, affirming the Master's decision. The appeal was dismissed, and the Nominal Defendant was not granted leave to amend its pleadings.

The final orders of the court were that the appeal was dismissed, and the Nominal Defendant was not granted leave to amend its pleadings to include the new allegations of the plaintiff's fall causation and contributory negligence. The substantive issues on the appeal were found to be without merit, and the Master's decision was upheld.

Orders

Orders of the court

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Background

Background to the litigation

I will address these questions in that order. In particular, it is convenient to consider the question of leave to appeal after considering the substantive issues on the appeal. Background On 24 July 2013 Mr Jones was crossing King William Street Adelaide (30 to 40 metres north of Wright Street) on foot, approaching the median strip from the west, when he fell onto the median strip curb, sustaining personal injuries. Mr Jones’ case is that the fall was caused by the driver of an unidentified white taxi, who had turned left into King William Street from Wright Street and accelerated into Mr Jones’ path, causing him to attempt to avoid being hit by the taxi and in doing so he fell onto the curb on the median strip. In July 2016 Mr Jones instituted an action in the District Court against the Nominal Defendant claiming damages for personal injuries caused by his fall caused in turn by the negligence of the driver of the unidentified white taxi. In February 2017 Gilchrist Connell on behalf of the Nominal Defendant filed a defence which admitted that Mr Jones was crossing King William Street but did not plead to, and thereby implicitly denied, the pleadings of the involvement of the white taxi and negligence of its driver. In June 2018 Jones Harley Toole took over the conduct of the defence from Gilchrist Connell. Mr James of Jones Harley Toole sent an email to Mr Jones’ solicitors saying that he had read and considered the file.[1][1] Evidence of this email was not adduced before the Master; was only adduced on appeal; and is subject to a relevance “objection” by the Nominal Defendant. Mr Jones’ injuries took substantial time to stabilise. It was not until April 2019 that he formulated his claim. On 20 June 2019 the parties attended a directions hearing. A certificate of readiness under rule 120A(2) of the Rules had not been completed and was not provided to the Master at that hearing. The Master was informed that the parties intended to obtain further medical evidence. The Nominal Defendant sought referral to a listing conference. Mr Jones sought an adjournment to a further directions hearing; alternatively referral to a settlement conference; and in the further alternative referral to a listing conference. The Master made the following orders:1.Noting the [plaintiff] is seeing Dr Marshall on 16/7/19 and [defendant] anticipates obtaining ADL evidence, I nevertheless fix a listing conference but the parties are to fix a trial date that accommodates those events.2.Plaintiff is to file and serve a trial book and certificate of readiness at least 7 days before the listing conference, the certificate may be qualified.3.Costs in the cause.AdjournedAdjourned to Listing Appointment , 23.07.2019 at 9:30am On 19 July 2019 the listing conference was relisted by a Master by consent to 10.15 am on 13 August 2019. Between 22 July 2019 and 6 August 2019 there were communications between the solicitors about a mediation proposed by Mr Jones. The Nominal Defendant initially agreed to mediation.[2][2] Evidence of most of these communications was not adduced before the Master; was only adduced on appeal; and is subject to a relevance “objection” by the Nominal Defendant.

Evidence

Evidence Before The Court

On 10 December 2021 the Judge delivered reasons for decision on the appeal.[5] The Judge made orders allowing the appeal and granted leave to amend the defence to make the fall causation and contributory negligence amendments. [5] The Nominal Defendant v Jones [2021] SADC 139.Evidence on appeal At the hearing of the appeal, I was informed that the case is still not ready to be listed for trial for reasons unrelated to the application for permission to amend. I received a chronology prepared by Mr Jones setting out what he contends are relevant historical events. I also received copies of some of the documentary communications referred to in the chronology. The Nominal Defendant does not oppose receipt of the chronology (or the associated documents) but contends that various events recorded in the chronology are irrelevant and invites me to give them no weight. Mr Jones submits that, with one exception, the entries in the chronology before June 2019 (other than those referring to events of which evidence had already been adduced before the Master) are relevant only to explain why stages of the litigation took so long to rebut a submission by the Nominal Defendant that Mr Jones had been dragging the litigation and are relevant only if on appeal I am called upon to exercise the discretion afresh. No issue on appeal turns on any question whether Mr Jones had been dragging the litigation and hence these entries have no evidentiary weight. The exception is an email sent by Mr James on 4 June 2018 that Mr Jones submits is relevant to alleged delay by the Nominal Defendant in seeking to amend its defence. I accept that this email has weight. Mr Jones submits that the entries in the chronology relating to communications between solicitors between June and August 2019 are relevant to the events of which evidence was adduced before the Master. I accept that these communications have weight. However, their receipt does not affect the disposition of the issues on appeal.The Rules regime Chapter 6 Part 4 of the Rules addressed listing for trial. Rule 120A applied to actions in which orders had not been made implementing a litigation plan. It relevantly provided:120A—Proceeding to trial—other cases…(2)Before the hearing of an application for an order that an action may proceed to trial, the parties are to certify to the Court in an approved form that the action is ready to proceed to trial.(3)The certificate is to consist of a check list, in an approved form, signed by the party or the party’s lawyer.(4)A party is required to review the adequacy of its pleadings before an order is made that the action be listed for trial and thereafter a party will not be permitted to amend the pleading – particularly if the amendment would cause a postponement or adjournment of the trial – unless the Court is satisfied that special circumstances exist justifying permission in the interests of justice.(5)If the Court is of the opinion that—(a) one or more of the parties are not ready for trial because of their own default; but(b) the action should nevertheless proceed to trial,the Court may, on its own initiative or on an application by a party, order that the action proceed to trial.

Decision

Reasons for decision

The third ground of appeal is not established. It was open on the evidence for the Court to dispense with the requirement for special circumstances.Decision on dispensation The Master at paragraph 56 of her reasons said that the first hurdle that the Nominal Defendant must overcome was that, the matter having been set for trial, it could only bring a further interlocutory application with the permission of the Court and where special circumstances justified its being brought (by reason of subrules 131(5) and (6) of the Rules). The Master at paragraphs 60 to 69 of her reasons rejected the Nominal Defendant’s contentions that there had been no valid dispensation by the Listing Officer of the need for a certificate of readiness. The Master at paragraph 76 of her reasons identified the special circumstances relied on by the Nominal Defendant as being the way that the matter was listed for trial. At paragraph 79, the Master concluded that there were not any special circumstances arising from the listing of the matter for trial. Although the Nominal Defendant had relied on other matters giving rise to special circumstances, it is common ground that the Master found that there were no special circumstances. The Nominal Defendant contended before the Judge on appeal that the Master dispensed with the requirement for special circumstances pursuant to rule 117(2) of the Rules. The relevant passages from the Master’s reasons are as follows:80The result of such a finding [the conclusion at paragraph 79 that there were not any special circumstances arising from the listing of the data for trial] would be that the defendant is prohibited from bringing any interlocutory application to amend [its] pleadings or for any other purpose.81It is a salutary lesson to defendants to ensure that their matter is prepared at an early stage rather than leaving it to the last minute and pursuing tactical strategies to put pressure on a plaintiff.82The DCCR apply to this application and both parties accepted that, raising no demur on 26 May 2020. However, I cannot ignore the fact that the UCR now apply and have no equivalent provision requiring there to be special circumstances to bring interlocutory applications after a matter has been set for trial. The Master set out the relevant provisions of rule 151.12 of the Uniform Civil Rules 2020 (SA) (the Uniform Rules). The Master said that she was also conscious of rule 3 of the Rules which set out the objects of the Rules. The Master then said:85I have regard to my obligations pursuant to DCCR117 and my discretion pursuant to sub-rule (2) to dispense with compliance with a rule.86It has been a close call, given the defendant’s behaviour leading up to and during the listing conference and the views that I have expressed above, but in the circumstances of this instant case, I am prepared to continue with consideration of the interlocutory application as a whole and in particular, the substantive issues raised regarding the application to amend the pleadings, as argued before me on 2 December 2019.

Ratio Decidendi

Legal Principle Established

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