National Foods Milk Limited v Wright & Wright - [2005] SADC 18

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
NATIONAL FOODS MILK LIMITED v WRIGHT & WRIGHT
Judgment of His Honour Judge Rice
28 February 2005
PROCEDURE
MASTER'S APPEAL - PLEADINGS
Appeal against the refusal of the Master to order that a Defence be filed.
Proceedings issued in September, 2002 - original Statement of Claim amended by an Amended Statement of Claim - struck out - Further Amended Statement of Claim filed - discovery given by the plaintiff, including discovery on oath - basic allegations of the plaintiff straightforward - debt allegedly arises from sale and purchase of milk supplies not all of which were paid for - defendants yet to argue that Further Amended Statement of Claim also be struck out - Master refused to order the filing of a Defence.
Held, a Defence should be filed - formulation of Defence would aid in identifying genuine disputes even if Further Amended Statement of Claim is the subject of an application to strike out.
District Court Act 1991 s 43; District Court Rules r 97.01, referred to.
O'Brien Lovrinov Crafter Pty Ltd v Corradini & Anor [1999] SASC 159, considered.

NATIONAL FOODS MILK LIMITED v WRIGHT & WRIGHT
[2005] SADC 18
Introduction

Without wishing to be unduly critical of the parties in this case, its progress makes a mockery of case flow management principles. The summons was issued on 13th September, 2002 and served a week later. There has been no shortage of activity since that time but, alas, little progress. The order appealed against is as follows:-
“1.That notwithstanding the plaintiff’s submissions that I now direct the defendants to file their defence, I continue to excuse them from that obligation until further order.”
That order was made on 17th December, 2004 and the appellant submitted that the defendants should have been directed to file a defence by 31st January, 2005.
The Notice of Appeal details the history of the proceedings. Although the summary is lengthy and may not be complete, I am content to adopt it for present purposes:-
“2.1.The summons in these proceedings was filed on 13 September 2002.
2.2.The summons in these proceedings was served on 20 September 2002.
2.3.On 27 November 2002 upon the application of the defendants, the learned Master had extended the time for the defendants to file and serve a defence until 23 December 2002.
2.4.The defendants failed to file a defence as directed.
2.5.By notice for specific directions dated 21 February 2003 the defendants sought an order that the plaintiff make discovery prior to the defendant being required to file a defence.
2.6.On 8 October 2003 the learned Master directed that the plaintiff make discovery prior to the defendants filing a defence.
2.7.The plaintiff made discovery as follows:
2.7.1.List of documents filed on 14 October 2003.
2.7.2.Further list of documents filed on 4 November 2003.
2.7.3.Supplementary List of Documents filed on 27 September 2004.
2.7.4.Affidavit of John Orr verifying discovery by the plaintiff sworn and filed on 27 September 2004.
2.8.The defendants have failed…

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: [2005] SADC 18
Decision Date: 28 February 2005

CaseChat Overview and Summary

National Foods Milk Limited brought proceedings against Wright & Wright seeking a debt allegedly arising from the sale and purchase of milk supplies. The defendants had failed to file a defence despite the plaintiff having made discovery and the defendants having failed to inspect the discovery. The Master refused to order the defendants to file a defence. The plaintiff appealed against the Master's refusal. The Court considered the history of the proceedings and the reasons for the refusal to order the defendants to file a defence. The Court noted that the defendants had failed to inspect the discovery made by the plaintiff and had not taken instructions on the Further Amended Statement of Claim. The Court held that the defendants should be required to file a defence as the formulation of a defence would aid in identifying genuine disputes and it was not intended that the defendants' rights be prejudiced. The Court ordered the defendants to file and serve a Defence to the Further Amended Statement of Claim by Friday, 11th March, 2005.

The legal issue before the Court was whether the defendants should be ordered to file a defence to the Further Amended Statement of Claim. The Court held that the defendants should be ordered to file a defence, even though the Further Amended Statement of Claim may also be struck out. The Court noted that the defendants had failed to inspect the discovery made by the plaintiff and had not taken instructions on the Further Amended Statement of Claim. The Court held that the formulation of a defence would aid in identifying genuine disputes and that it was not intended that the defendants' rights be prejudiced. The Court also noted that if the defendants did not know what the plaintiff was talking about, they should say so, and if they had no involvement with National Foods or did not trade as Hahndorf Milk Supply or did not receive milk products, then the pleading would be quite simple. If they traded with another entity or entities, then again the pleading was straightforward. If the essential allegation was true, but they said all monies had been paid, the defence should be short.

The Court's reasoning was based on the history of the proceedings and the reasons for the refusal to order the defendants to file a defence. The Court noted that the defendants had failed to inspect the discovery made by the plaintiff and had not taken instructions on the Further Amended Statement of Claim. The Court held that the formulation of a defence would aid in identifying genuine disputes and that it was not intended that the defendants' rights be prejudiced. The Court also noted that if the defendants did not know what the plaintiff was talking about, they should say so, and if they had no involvement with National Foods or did not trade as Hahndorf Milk Supply or did not receive milk products, then the pleading would be quite simple. If they traded with another entity or entities, then again the pleading was straightforward. If the essential allegation was true, but they said all monies had been paid, the defence should be short. The Court also noted that the defendants should now be in a position to file a defence within a modest period of time and that their other rights remained.

Orders