Payne v Oakley

[1991] TASSC 50

Serial No 23/1991
List "A"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Payne v Oakley [1991] TASSC 50; A23/1991

PARTIES:  PAYNE
  v
  OAKLEY

FILE NO/S:  M371/1990
DELIVERED ON:  12 April 1991
JUDGMENT OF:  Cox J

Judgment Number:  A23/1991
Number of paragraphs:  6

Serial No 23/1991
List "A"
File No M371/1990

PAYNE v OAKLEY

REASONS FOR JUDGMENT  COX J

12 April 1991

1. By an originating application dated 13 December 1990 Angelique Payne seeks an extension of time under the Limitation Act 1974 for the commencement of proceedings for damages for personal injuries allegedly sustained by her in a motor vehicle accident which occurred on 13 July 1985. In accordance with the practice direction of 26 June 1990, the matter, being one within the jurisdiction of the Master and one in respect of which neither she nor her solicitor, when the application was filed, specifically requested that it be listed for hearing before a judge, was, in fact, listed for hearing before the Master. The respondent to that application, wishing to have the matter heard by a judge, now applies for an order to that effect pursuant to s191A of the Supreme Court Civil Procedure Act 1932. This application is opposed.

1. Section 191A provides:

"A judge, on the application of a party –

(a)      required by the Rules of Court to bring a matter; or

(b)      to a matter about to come,

before the Master sitting in Chambers may, in his discretion, order that the matter come before a Judge in Chambers, and thereupon the Master has no jurisdiction in that matter."

1. On the face of it, the section confers on the judge an unfettered discretion to leave the matter to be dealt with by the Master or to deprive him of jurisdiction and divert it to a judge as he thinks fit in the circumstances.

1. It was submitted by the present applicant (the intended defendant) that the practice of the courts of the United Kingdom is to accede to such a request as a matter of course. Several cases were cited in support of the proposition that a litigant had an unqualified right to have his case heard by the judge (re The Agriculturalist Cattle Insurance Company [1861] 3 de G F & J 194; Vol45 ER 852; and Scott v. Homer [1890] Vol 60 LJ Ch 238). Likewise the New South Wales case of Re The Monkwearmouth Colliery Company Ex parte The Assets Realisation Company [1893] 14 LR (eq) NSW 293 was cited to the same effect. However, these cases were decided in the context of Rules of Court, or in the New South Wales case, statutory provisions to the effect that during the proceedings before the Master "any party may take the opinion of the judge on any particular point or matter arising in the course of the proceeding or upon the result of the whole when brought to a conclusion" (Equity Act NSW 44 Vic No 18 s69).

1. In Tasmania the absolute right to take the judge‘s opinion is preserved by the appeal provisions of O62, r3 which gives the litigant the right to a hearing de novo before the judge, but whether the litigant may do so in the first instance depends on the successful invocation of the judge’s discretion under s191A. In the present case, the application for an extension of time will, subject to any appeal, involve a final determination of substantive rights. The potential defendant is at risk of having to face litigation seeking damages for personal injuries in respect of an accident which occurred in 1985 and in respect of which, unless the extension is granted, any remedy would have been barred in July 1988. I think that in these circumstances, if the intended defendant wishes to have the matter adjudicated by a judge, such a course should be permitted. No reason has been advanced why it should not be, save that a hearing by the Master might be more swiftly embarked upon. However, as both parties have a right to an appeal by way of rehearing de novo, the final resolution of the matter may take longer still if that course is followed by either party.

1. I will make the order sought.