Maur v Winona Way Pty Ltd T/As Tea Tree Gully Hotel

[2012] SASC 135

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

MAUR v WINONA WAY PTY LTD T/AS TEA TREE GULLY HOTEL & ANOR

[2012] SASC 135

Judgment of The Honourable Justice Gray

6 August 2012

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - SUMMARY JUDGMENT

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - TIME

Application for summary dismissal of an appeal on the basis that it was obvious that the appeal cannot succeed - the appellant claimed damages in proceedings in the District Court - the appellant's claim was dismissed - the appellant filed a notice of appeal in the Supreme Court.

Held:  Application granted - appeal summarily dismissed - the notice of appeal was defective both in form and substance - in particular, it failed to identify any relevant ground of appeal.

Supreme Court Civil Rules 2006 (SA) r 295(1)(h), referred to.

MAUR v WINONA WAY PTY LTD T/AS TEA TREE GULLY HOTEL & ANOR
[2012] SASC 135

Civil

GRAY J.

1. This is an application for the summary dismissal of an appeal.

2. The appellant, Stephen Maur, claimed damages in proceedings against the within respondents, Winona Way Pty Ltd t/as Tea Tree Gully Hotel and Total Control Agencies Pty Ltd, in the District Court.  The trial in those proceedings proceeded before Boylan DCJ and on 15 June 2011, judgment was delivered dismissing the claim.[1]

   [1]    Maur v Winona Way Pty Ltd t/as Tea Tree Gully Hotel & Anor [2011] SADC 87.

3. On 11 April 2012, Mr Maur filed a notice of appeal in the Supreme Court.  In the notice, he described the judgment appealed from in the following terms:

   Delivers Judgment, Dismisses plaintiffs Claim. Orders that 1st Defendant to receive cost for this trial and to previously aborted Trials. Orders that 4^th Defendant to Receive cost for this Trial and the Cost for previous application.

   He indicated that the appeal was against the whole of the judgment and orders.  His grounds of appeal were stated as follows:

   A Victim of Neglicences.

   Hotel Staff Commited The Assaults of Negligences.  Injuries Ankle, Foot Knee, Leg.

   By his notice, Mr Maur sought the following orders:

   The Appellant Seek the following Orders. 

   That All the Orders Change that Claim for Damages personal injury May not Be Dismissed in the Date of 15-6-2011. 

   That the Defendants By Two pay Cost at 165,000

   That the Order Be Made, Two pay Cost.

   The Order Statement of Claim.

   The Order Negligences

4. The first respondent has sought that the appeal be summarily dismissed on the basis that it was obvious that it cannot succeed.  An affidavit filed in support of the application asserted that the appeal should be struck out on the basis that it is defective in both form and substance so as to fail to invoke the jurisdiction of the Court.  The first respondent submitted that the grounds of appeal “A Victim of Neglicences. Hotel Staff Commited The Assaults of Negligences.  Injuries Ankle, Foot Knee, Leg” do not identify any error on the part of the trial Judge and do no more than amount to a mere repetition of the plaintiff’s claims that had been dismissed by the Judge. 

5. It is to be noted that the second respondent is not a party to the application.  The Court was informed that the second respondent was deregistered in December 2011.  This would appear to be the explanation.

6. Mr Maur sought to issue an interlocutory application shortly before the hearing.  The application was in the following terms:

   The following Orders are Sought

   Compensation For payment. Damages and Costs Claim Legel Costs Loss of income and interest.

   That the orders Be Made Receive Costs By Both Respondents, Defendants

   payment By EACH Respondent The Amount $168,000.

7. An affidavit which was filed in support of the application provided:

   TAKE AN OATH Comment

   Commence Hotel Staff Security Commited The Assault of Damages 26-4-2002 April From the Tea Tree Gully Hotel North East Road.

   Hotel Staff Security Commited The,s Offences

   Negligence From the Beginning By Jumping on Left Ankle Foot, The Assault of Damages Injuries Ankle, Foot Knee, Leg.  Plaintiff A Victim of Negligences.  The following orders are sought compensation, For Payment For injurys suffered pain and Suffering, Damages and Costs Claim

   Legal Costs, Loss of income and interest

   That the orders Be Made Receive Costs By Both parties

   To The First Respondent, And Respondents, Defendants, IN Conjunction

   Winona Way PTY LTD T/AS Tea Tree Gully Hotel,

   Total Control Agencies

   Donaldson Walsh Lawyers First Respondent Kings Chambers 320 King William Street Adelaide SA. 5000.

   Patsouris & Associates 82 Halifax Street Adelaide SA 5000. Respondent Total Control Agencies PTY LTD.

   Compensations Order For the payment The Amount $168,000 By Both Respondents Parties In these matters $168,000

   payment By EACH Respondents

8. The Registry was not prepared to accept the application or the affidavit because both failed to comply with the Supreme Court Practice Directions 2006 (SA).  To my mind, both the application and the affidavit add nothing to the proceeding, do not comply and should not be received by the Registry.  However, I have had regard to those documents when addressing the application to dismiss the appeal. 

9. When the matter was called on for hearing, Mr Maur was not in attendance.  I heard submissions from counsel for the respondent.  Sometime later, Mr Maur arrived.  In the circumstances, I heard the submissions that he wished to make.  The substance of his submissions were that he was a victim and that he is entitled to compensation.  No grounds were identified to support an appeal against the judgment of the trial Judge.

10. The appeal was lodged more than nine months out of time and the judgment under appeal was delivered more than 12 months ago.  In Mr Maur’s notice of appeal, the form relevantly provides: “[If applicable] The appellant[s] seek[s] an extension of time within which to appeal, upon the following grounds:”.  Underneath, Mr Maur has written: “I Seeked Solicitors This took Time Myself to commence Notice of Appeal.” 

11. The notice of appeal is defective both in form and substance.  Of particular relevance is the failure of the appellant to identify any relevant ground of appeal.  The repeated statement that he is a victim and is entitled to compensation is not a meaningful ground of appeal.  Further, no material has been proffered to justify an extension of time.

12. Having regard to the forgoing, I order that the appeal be summarily dismissed pursuant to rule 295(1)(h) of the Supreme Court Civil Rules 2006 (SA).