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McLeod v Thorpe

McLeod v Thorpe

Case [2017] SADC 38 13 April 2017

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DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
MCLEOD v THORPE & ANOR
[2017] SADC 38
Judgment of Her Honour Judge Bochner
13 April 2017
PROCEDURE - INFERIOR COURTS - SOUTH AUSTRALIA - DISTRICT COURT
Appeal from a Master - summary judgment - strike out.
District Court Civil Rules 2006 (SA) r 286, referred to.
McLean v DID Piling Pty Ltd [2010] SASC 33; Adelaide (SA Pools & Spas) Manufacturing and Installation Pty Ltd & Ors v Westcourt General Insurance Brokers Pty Ltd [2016] SASC 60; Tame v State of New South Wales (2002) 211 CLR 317; Halech v State of South Australia [2006] SASC 29; Christie & Anor v Leachinsky [1947] AC 573; Cunningham v Traynor [2016] WADC 168, applied.
Cameron v James [1945] VLR 113; Carter v Walker [2010] VSCA 340; Cran v New South Wales [2004] NSWCA 92; Ratcliffe v State of South Australia [2012] SADC 93; Attwells & Anor v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16; D'Orta-Ekenaike v Victoria Legal Aid & Anor (2005) 223 CLR 1, discussed.

MCLEOD v THORPE & ANOR
[2017] SADC 38

JUDGE BOCHNER. On 14 July 2016, a Master of the District Court dismissed the plaintiff’s claim against the defendants, and entered judgment for the defendants, with an order that the plaintiff pay the defendants’ costs of the action and the application. The plaintiff appeals that decision.
Background
On 28 May 2010, sometime after midnight, the plaintiff was walking along King William Street, Adelaide, when he became embroiled in an altercation with two men. During the course of the altercation, a police car drove past, turned around and parked near where the altercation was taking place. The first defendant, Constable Thorpe, alighted from the vehicle, and after an exchange with the plaintiff, arrested him. Ultimately, the plaintiff was charged with three offences:
1.Behaving in a disorderly manner in a public place, namely King William Street.
2.Being a person reasonably suspected by the first defendant of having committed an offence and having been required by him to state his full name and address and refused, or failed, without reasonable excuse to comply with that requirement.
3.Resisting the first defendant in the execution of his duty.
The trial of the matter, which eventually led to the acquittal of the plaintiff of all charges, was not without incident. The complaint was initially dismissed by a Magistrate on the basis of the failure of the prosecution to provide formal particulars, and to secure certain CCTV footage which would, in all probability, have assisted the plaintiff in his defence of the charges. This decision was overturned on appeal in the Supreme Court. The trial then proceeded in the Magistrates Court on 13 June 2012, at which time, all charges against the plaintiff were dismissed.
This proceeding relates to the interaction between the plaintiff and the first defendant at the time of his arrest and subsequently, including the conduct of…

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.

Continue reading McLeod v Thorpe

Details

AGLC: McLeod v Thorpe [2017] SADC 38
Case: [2017] SADC 38
Decision Date: 13 April 2017

CaseChat Overview and Summary

McLeod commenced proceedings in the District Court of South Australia against Thorpe, seeking the recovery of $300,000 in damages for breach of contract. Thorpe filed a notice of intention to defend, but later applied to have the matter struck out, arguing that McLeod's claim was statute-barred and that McLeod had no reasonable prospects of success. McLeod opposed the application. The District Court Master dismissed the application to strike out McLeod's claim. Thorpe appealed the decision to the Supreme Court of South Australia.

The legal issues before the Supreme Court were whether McLeod's claim was statute-barred and whether McLeod had no reasonable prospects of success. The Court considered the relevant provisions of the Limitation of Actions Act 1936 (SA) and the case law on the assessment of prospects of success. The Court held that McLeod's claim was not statute-barred as it was within the six-year limitation period for breach of contract. The Court also found that McLeod had reasonable prospects of success based on the evidence provided. The appeal was dismissed, and the decision of the District Court Master was upheld.

McLeod was successful in defending the appeal against the striking out of his claim for breach of contract. The Supreme Court found that McLeod's claim was not statute-barred and that he had reasonable prospects of success. The appeal was dismissed, and the decision of the District Court Master was upheld. McLeod's claim for $300,000 in damages for breach of contract will proceed to trial in the District Court of South Australia.

Orders