Oxer v Astec Paints Australia Pty Ltd - [2008] SASC 64

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal from a Master: Civil)
OXER v ASTEC PAINTS AUSTRALIA PTY LTD
[2008] SASC 64
Judgment of The Honourable Justice Debelle
6 March 2008
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - AS OF RIGHT
Appeal from Master dismissing application for order that non-parties pay plaintiff’s costs – whether decision of Master is a final judgment – relevant principles – whether appeal lies to Full Court or single judge – whether permission to appeal is required – held, appeal lies to Full Court but to the extent necessary permission to appeal granted.
Supreme Court Act 1935 s 40, s 50; Supreme Court Rules R 17, R 131, R 281, R 285, referred to.
Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246; Gaskin v Heinicke [2007] SASC 256; Licul v Corney (1976) 180 CLR 213; re Land and Property Trust Co plc [1991] 3 All ER 409; Thompson v Fraser (Practice Note) [1986] 1 WLR 17, applied.
Copping v ANZ McCaughan Ltd (1995) 63 SASR 523; Donald Campbell & Co Ltd v Pollak [1927] AC 732; Emanuel Management Pty Ltd (in liq) v Fosters Brewing Group Ltd [2004] 2 Qd R 11; Jones v McKie [1964] 1 WLR 960; Knight v F P Special Assets (1992) 174 CLR 178; Wilkinson v Kenny [1993] 1 WLR 963, considered.

OXER v ASTEC PAINTS AUSTRALIA PTY LTD
[2008] SASC 64
Civil

DEBELLE J: This as an appeal from the order of a Master of this court dismissing an application by the plaintiff for an order that persons who are not parties to the action pay the plaintiff’s costs.
Mr Britten-Jones, who appeared for the respondent, contended that the appeal is incompetent in that it is an appeal against an order as to costs so that permission to appeal is required and the appellant has not obtained such permission. He calls in aid Rule 281 of the Supreme Court Rules. For the reasons which follow, I do not accept that contention.
Section 50 of the Supreme Court Act 1935 provides for appeals including appeals against a judgment of a Master of this court. It is necessary to refer only to s 50(1), (2) and (5).
50    (1)     Subject to this section –
(a)an appeal lies to the Full Court against a judgment of the court constituted of a single judge; and
(b)an appeal lies against a judgment of the court constituted of a master.
(2)     An appeal against a judgment of a master lies, if the rules so provide, to the Full Court and otherwise to the court constituted of a single judge.
(5)     The rules cannot, however, require the court’s permission for an appeal if the judgment under appeal –
(a)denies, or imposes conditions on, a right to defend an action; or
(b)deals with the liberty of the subject or the custody of an…

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.

Keep reading for free

Create a free CaseChat account to read Oxer v Astec Paints Australia Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] SASC 64
Decision Date: 6 March 2008

CaseChat Overview and Summary

Oxer v Astec Paints Australia Pty Ltd involved an appeal from a decision by a Master in the South Australian District Court dismissing an application by the plaintiff for an order that non-parties should pay the plaintiff's costs. The underlying dispute involved allegations of defective paintwork, with the plaintiff asserting that the non-parties were responsible for the defective work and should bear the costs of the litigation. The Master had ruled that the plaintiff's application was without merit and dismissed it, leading the plaintiff to appeal the decision.

The legal issues before the court included determining whether the decision of the Master was a final judgment, and if so, whether the appeal lay to the Full Court or to a single judge. Additionally, the court had to decide whether permission to appeal was required in light of the nature of the decision. The court had to examine the relevant principles governing appeals and the procedure for seeking permission to appeal from a Master’s decision.

The court held that the Master's decision was a final judgment as it resolved the plaintiff's application for costs against non-parties. It determined that the appeal lay to the Full Court, not to a single judge, due to the nature of the decision being a final judgment. The court also concluded that while permission to appeal from a Master's decision is generally required, in this case, such permission was granted to the extent necessary. The Full Court thus had jurisdiction to hear the appeal, and the plaintiff's appeal was allowed to proceed.

The final orders of the court granted the plaintiff permission to appeal the Master's decision dismissing the application for costs against non-parties, and the appeal was remitted to the Full Court for further consideration. The court's decision clarified the process and criteria for appealing from a Master's decision in South Australia, providing guidance for future cases involving similar issues.

Orders