Lauro v Metro Investments Holdings Pty Ltd - [2005] SADC 54

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
LAURO v METRO INVESTMENTS HOLDINGS PTY LTD & ANOR
Reasons for Decision of His Honour Judge Bright
20 May 2005
PROCEDURE
Appeal from a Master. Alleged bias. Dismissal of action for failure to comply with orders. Appeal dismissed.

LAURO v METRO INVESTMENTS HOLDINGS PTY LTD & ANOR
[2005] SADC 54

The plaintiff appeals against the orders of the Master dated 10 and 14 March 2005. For the appeal to have any meaning, I deem it to be against that of 22 March. The first order and reasons dealt with the refusal of the Master to disqualify himself from dealing with the case for bias, actual or apprehended. The second order and reasons deal with an application by the defendant to dismiss the action. The Master did not dismiss the action, but made orders in relation to the inspection by the defendants of the plaintiff’s car. The third order dismissed the action.
This claim arises out of the purchase in 1997 by the plaintiff of a motor car from the first defendant, which was built by the second defendant. It has given rise to a voluminous file. For some time the defendants have sought to inspect the car and the Master has made orders to implement that. They were not complied with. The order of 14 March set out where, when and how the inspection would take place. It also included a self executing order to the effect that, “if the plaintiff declines to produce the car”, the action stands dismissed. The car was not produced.
I turn to the appeal against the Master not disqualifying himself. I have carefully read the material in relation to that application. I have looked generally through the rest of the file. I proceed on the view that, while it is arguable that there is no power to require a Master to disqualify him or herself from hearing interlocutory matters, the better view is that there is such a power, but it is to be exercised only very sparingly. The making of decisions adverse to a party will not normally give rise to any basis to disqualify from further dealing with a case. In most cases one or more parties will suffer that fate.
The plaintiff appears in person. He is a passionate man, convinced of the rightness of his cause. He is not a lawyer and many of his documents and arguments are prolix and not always to the point. There is nothing remarkable about this; many litigants in person (and some others) behave like this. However, it makes it hard for such a litigant to appraise his or her case objectively.
In my view the orders made by the Master prior to the order appealed from appear to be routine orders designed to get the matter to trial. The Master has gone to great lengths to try to explain to the plaintiff what he needed to do at various stages. I expect he expressed himself in a forthright fashion at times. I saw nothing to indicate a closed mind or an otherwise improper attitude towards the plaintiff. All I could see was that he did not always agree with the plaintiff. I do not think a reasonable bystander appraised of the facts would apprehend that the Master was biased.
I have no doubt that the Master was correct not to disqualify himself.
I turn to the second group of orders. In the two judgments, the Master dealt extensively with the history of the matter. By order of 30 November 2004, the case was set down for trial on 9 May 2005. By that time, three orders to produce the car for inspection had not been complied with (27 April 2004, 12 October 2004, 16 November 2004). At the time of making each of those orders the plaintiff was warned that, if the car was not made available, the action could be dismissed.
At the listing conference on 30 November 2004 it was assumed that the car would be produced. There is no doubt that the requirement of the defendants to inspect it was reasonable and necessary. The orders to produce it were correct.
Unfortunately, the proposed (and mandatory) inspection did not occur, though the defendants, their lawyers and experts all attended at the arranged place. The defendants applied to dismiss the plaintiff’s action. On 8 February 2005, the Master made further orders for inspection by 24 February 2005, failing which the strike out application would be set down for argument. Inspection did not take place.
On 1 March 2005 the defendants wrote to the plaintiff proposing yet another date for inspection, but the plaintiff did not respond.
On 14 March 2005 the Master gave the plaintiff what he called his final chance to comply and ordered new arrangements in great detail. Again the defendants, their lawyers and experts attended. The car was not produced.
On 22 March 2005, inter alia, the Master ordered: “I note as a consequence of the plaintiff’s further refusal to produce his motor vehicle for inspection and pursuant to orders made on 14 March 2005 the plaintiff’s action against both defendants does stand dismissed.”
I am not sure why it was necessary to make that order. I would have thought that the self executing order for dismissal would have taken effect. However, it does eliminate some arguments. Self executing orders are sometimes criticised because they may come into effect in circumstances not foreseen when they were made. Much of the sting in that is removed by the modern power to set them aside, if appropriate. I note also the possibility of arguing that failure to produce may not amount to refusal to produce, and the order is predicated on refusal.
Given the specific order made on 22 March 2005, none of those arguments can be pursued. There is nothing inadvertent about the order of dismissal. I take the appeal to be against that order, as well as earlier orders.
There can be argument about whether a self executing order for dismissal is to be characterised as interlocutory or final. If the former, the appeal to a judge proceeds as a rehearing. If the latter, it is an appeal stricto sensu. There can be no doubt that the order eventually made was a final order. I therefore proceed on the basis that it is for the plaintiff/appellant to establish error on the part of the Master on the material then before him.
The Master was correct to order inspection from the outset. The only reasons advanced by the plaintiff for not complying related to his health. The Master noted the certificates which had been provided. Those relating to his cardiac condition and to his psychological state urged that he not be over stressed. While not adequate as they stand, I could imagine they may have been able to be supplemented with evidence that could have necessitated delays or other arrangements at trial. I cannot see how they could possibly have prevented the plaintiff from producing his car for inspection. The plaintiff also produced evidence of tooth problems necessitating surgery. Such problems could have affected the ability to produce the car on some specific occasion or occasions – but they were put forward as a general excuse for all failures, without any precise time being covered.
The plaintiff is reported to have some paranoid tendencies. He expressed the fear that, if his car fell into the hands of the defendants, they might deliberately render it dangerous. Objectively, that is not a reasonable fear and provides no reason to deny the defendants the chance to inspect. As a medical reason for failing to produce the car, the evidence is too slight and too general to amount to a complete excuse. It may well have played a part. I suspect that the Master was moved by that possibility to give the plaintiff more chances than most other litigants could have expected. The very detailed orders about the arrangements at inspection made by the Master were obviously designed to allay the plaintiff’s fears. To my mind they went to more than reasonable lengths to do that.
The only order that would have satisfied the plaintiff would, in my opinion, have been one denying the defendants the chance to inspect. Such an order would not have been just. Given the repeated failures to produce the car, I do not accept the plaintiff’s assurances that he was always willing to produce it, but, for health reasons was unable to do so.
I would have categorised the continuing failure to produce as wilful. It seems to me that the Master gave the plaintiff more chances than many others would have given him. I accept that to order dismissal of a claim is a course of last resort. I think the action could have been dismissed at an earlier stage. I do not see any error in what the Master ordered.
In case I am wrong in my view that the appeal does not proceed as a rehearing, I would note that I considered whether, even at this stage, I could grant some relief to the plaintiff. I considered adjourning the appeal for a period to see whether the order would be complied with before the adjourned date for argument. Such a step would not be relevant to a strict appeal, but might be to a rehearing.
I noted that, not only was the expense of the failed inspections and of the orders in relation to them thrown away; but so was the trial date and the costs associated with it. A new trial could not be set in less than about six months. Given that the car is in use by the plaintiff, about eight years after he bought it, it is hard to see he could establish it was not of merchantable quality. Without evidence, I can only guess at the extent of any problems – but they cannot be so great as to generate any large award.
The plaintiff referred to his horror at the escalating costs. Insofar as prejudice to the defendants could be lessened by an order that the plaintiff pay costs relating to the inspections, orders and appeals as a pre-condition to proceeding, I have reservations about his capacity to do that, but I do not have evidence about it. In a case of this nature delay in inspection is, in itself, prejudicial to the defendants.
In those circumstances, I would not, if proceeding by way of rehearing, have concluded that, despite past failures, the plaintiff should be given one more chance.
In my view, not only is no error on the part of the Master demonstrated, if I had been hearing the matter I would have come to the same decision.
The appeal is dismissed. The plaintiff is to pay the defendants’ costs of the appeal.