McDonald v State of SA - [2014] SASC 120

SUPREME COURT OF SOUTH AUSTRALIA
(Appeals to a Single Judge: Permission to Appeal)
MCDONALD v STATE OF SA
[2014] SASC 120
Judgment of The Honourable Justice Bampton
27 August 2014
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - OTHER MATTERS ARISING BEFORE TRIAL
Application for an extension of time to request permission to appeal an interlocutory decision of a District Court Judge – District Court Judge heard appeal from decision of a District Court Master refusing permission to change name of defendant from State of South Australia to Minister for Education – District Court Judge dismissed appeal and upheld Master’s decision.
HELD: Extension of time refused as there is no merit to the proposed appeal – application dismissed.
Supreme Court Civil Rules 2006 (SA) r 280(1)(b), r 288(a)(ii), r 295(1)(a); Crown Proceedings Act 1992 (SA) s 4, s 5; Public Sector Act 2009 (SA) s 74; District Court Act 1991 (SA) s 43(2)(a), 43(2)(b), referred to.
Money Tree Management Services Pty Ltd & Anor v Deputy Commissioner of Taxation (No 3) [2000] SASC 286; Grey v City of Marion (2006) 159 A Crim R 357; Landmark Operations Ltd v J Tiver Nominees Pty Ltd [2009] SASC 185; The State of South Australia v McDonald (2009) 104 SASR 344; Director-General of Education v Suttling (1987) 162 CLR 427, considered.

MCDONALD v STATE OF SA
[2014] SASC 120
Appeal to a single Judge
BAMPTON J.

The plaintiffs seek to appeal an order of a District Court Judge dismissing their appeal from a decision of a District Court Master. The Master dismissed the plaintiffs’ application to change the name of the defendant from the State of South Australia to the Minister for Education.
By s 43(2)(a) of the District Court Act 1991 (SA), the appeal against the Master’s decision lay to a Judge of the District Court. On 22 May 2013, the District Court Judge heard and dismissed the appeal.
The notice of appeal (FDN 20) seeking to appeal the order of the District Court Judge was filed on 10 April 2014 pursuant to 6R 280(1)(b) of the Supreme Court Civil Rules 2006 (SA). As the District Court Judge’s order is an interlocutory order, pursuant to s 43(2)(b) of the District Court Act, the plaintiffs’ appeal against the order lies to a single Judge of this Court. Rule 288(a)(ii) of the Supreme Court Civil Rules provides that the plaintiffs may only pursue the appeal if the Court grants permission.
As FDN 20 was not filed within 21 days after the date of the District Court Judge’s order in accordance with 6R 281(1), the plaintiffs must obtain an extension of time pursuant to 6R 295(1)(a) to bring the application for permission to appeal.
Accordingly before the plaintiffs’ appeal can be heard they must first obtain an extension of time to bring the application…

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.

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Details

Case: [2014] SASC 120
Decision Date: 27 August 2014

CaseChat Overview and Summary

The case of McDonald v State of SA involves an application for an extension of time to request permission to appeal an interlocutory decision of a District Court Judge in South Australia. The underlying dispute concerns the refusal of a District Court Master to permit a change of the defendant's name from the State of South Australia to the Minister for Education. The District Court Judge dismissed the appeal and upheld the Master's decision, prompting the applicants to seek an extension of time to appeal that decision to the Supreme Court.

The legal issues before the court were whether there was sufficient merit in the proposed appeal to warrant an extension of time and whether any injustice would result from denying the extension. The court was required to determine if the proposed appeal had arguable merit and whether the plaintiffs would suffer any injustice if the extension was not granted.

The Supreme Court considered the arguments presented by the applicants but found that the proposed appeal against the District Court Judge's order lacked merit. The court noted that the plaintiffs were fully protected by way of recovery should they succeed in the action. The court concluded that there was no reason to doubt the correctness of the order and that the plaintiffs suffered no injustice if the order remained. The court emphasised the importance of progressing the matter to trial as soon as practicable. Therefore, the application for an extension of time was dismissed.

In conclusion, the court refused to grant an extension of time for the proposed appeal, finding that there was no merit to the appeal and that the plaintiffs would suffer no injustice if the order remained. The application was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

BAMPTON J

As noted by the Master and Judge, the plaintiffs are fully protected by way of recovery should they succeed in the action. Conclusion In conclusion, the proposed appeal against the District Court Judge’s order is not arguable. Accordingly, as there is no merit to the proposed appeal, I decline to grant an extension of time within which to request permission to appeal. It follows that if the request for permission to appeal had been instituted within 21 days of the District Court Judge’s order I would have refused permission to appeal. There is no reason to doubt the correctness of the order. In my view, the plaintiffs suffer no injustice if the order remains.[6][6] Landmark Operations Ltd v J Tiver Nominees Pty Ltd [2009] SASC 185. Finally, it is imperative that the matter be progressed to trial as soon as practicable.

Ratio Decidendi

Legal Principle Established

Established by: BAMPTON J

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