Lucke v Cleary & Ors

[2009] SADC 137

District Court of South Australia

(Civil: Appeal Against a Master's Decision)

LUCKE v CLEARY AND ORS

[2009] SADC 137

Reasons for Decision of His Honour Judge David Smith (ex tempore)

3 December 2009

PROCEDURE

Appeal against a decision of a Master removing caveat but granting injunction – appeal pursuant to s43 of the District Court Act 1991 and R292 of the District Court Civil Rules 2006 – discussion of nature of appeal – held whilst the hearing is still by way of rehearing it is constrained by the principles in House v The King so that the appeal court is not permitted to exercise its own discretion unless some error is demonstrated – no errors demonstrated – appeals and cross-appeal dismissed.

District Court Act 1991 s 43; District Court Rules 2006 R292, referred to.
House v The King (1936) 55 CLR 499; Jewel River Pty Ltd v Captured Pty Ltd [2009] SADC 2; Bennett v WMC (Olympic Dam Corporation) Pty Ltd [2008] SADC 42; Australian Broadcasting Corp v O’Neill (2006) 227 CLR 57, considered.

LUCKE v CLEARY AND ORS
[2009] SADC 137

1. I am here determining an appeal and cross-appeal against the decision of Master Bampton made on the 2^nd October 2009 whereby she ordered the removal of a caveat from the title of land at 22 Wingfield Street, Clovelly Park but injuncted further dealings in the land until further order or the determination of this action.

2. This appeal from the decision of the Master is pursuant to s43 of the District Court Act 1991 (SA). It is by way of rehearing. Its nature is governed by r292 of the 2006 Rules of this Court. Suffice it to say that it is no longer permissible for this Court to exercise its own discretion, to use the words in the old rule “without regard to the manner in which it was exercised in the decision, order or direction appealed against ...”. I accept what is agreed before me, namely that I am not permitted to substitute my own discretion unless some error has been demonstrated. The principles in House v The King[1] apply. I follow in this respect two decisions of this Court, namely Jewel River Pty Ltd v Captured Pty Ltd[2] and Bennett v WMC (Olympic Dam Corporation) Pty Ltd[3]. With that in mind I turn to this appeal.

   [1] (1936) 55 CLR 499 at 505.

   [2] [2009] SADC 2.

   [3] [2008] SADC 42.

3. The appeal effectively requires the consideration of not only the Reasons for Decision and Orders of the 2^nd October 2009 but also the previous two decisions of respectively the 9^th June 2009 and the 10^th September 2009.

4. I have digested the voluminous material in this case and the helpful submissions of counsel.

5. In respect of what may be characterised as matters requiring direct application of legal principles being:

   ·firstly, whether in respect of the removal of the caveat, the caveat was replaced by the Deed and whether it could be amended; and

   ·secondly, whether in respect of injunctive relief the plaintiff has made out a prima facie case in the sense required by the High Court decision in Australian Broadcasting Corp v O’Neill (2006) 227 CLR 57,

   neither the appellant’s nor the cross-appellant have demonstrated any error.

6. Likewise, there has been no demonstration of error, in respect of the discretionary decision as to the balance of convenience, namely that the inconvenience or detriment likely to be suffered by the plaintiff if the injunction were not granted, outweighs that likely to be suffered by the defendants if it were granted.

7. In all it has not been demonstrated that in the complex of decisions made by the Master which underpins her Orders there has been any of error of the type articulated in House v The King (supra).

8. Any further reasons by me will largely be a duplication of what the Master has already said.

9. Therefore I will dismiss both the appeals and the cross-appeal. I will hear counsel as to costs.