POLLARD v POLLARD - [2020] SADC 157

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
POLLARD v POLLARD
[2020] SADC 157
Judgment of His Honour Judge Dart
5 November 2020
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - HEARING OF APPEAL
Summons not served - numerous applications for extension of time to serve the summons - Master made orders pursuant to District Court Civil Rule 39 - consideration of discretionary issues - Master's discretion did not miscarry.
Held: Appeal dismissed.
District Court Civil Rules 2006 (SA) r 39, r 117; Uniform Civil Procedure Rules 2005 (NSW) r 1.12, referred to.
Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104; Bettio & Anor v Mahfoud & Anor [2020] SADC 26; Success 618 Pty Ltd v New Zealand Natural Pty Ltd [2015] SASC 182; Tolcher v Gordon [2005] NSWCA 135; Ulowski v Miller [1968] SASR 277; Victa Ltd v Johnson 10 SASR 496; Watson v Anderson 13 SASR 329, considered.

POLLARD v POLLARD
[2020] SADC 157
JUDGE DART:

These reasons deal with an appeal from eight interlocutory decisions made by a Master of this Court. Each of the decisions extended the time within which the Summons was to be served on the defendant. For the reasons that follow, the appeal is dismissed.
Background
The plaintiff is an indigenous Australian who resides in the APY Lands (“Lands”). On or about 31 March 2011 she was a rear seat passenger in a motor vehicle that was involved in a collision. She was wearing a seatbelt. The defendant was the driver of the vehicle and it is alleged that he was negligent.
The plaintiff suffered a fracture and displacement to her hip. She also suffered musculo-ligamentous injury to her cervical, thoracic and lumbar spine. There were other injuries as well. Initially the plaintiff was taken to the Alice Springs Hospital, but she was later conveyed to the Royal Adelaide Hospital for surgical treatment. She remained in Adelaide for approximately two months following surgery, to allow for follow-up treatment. It is likely that the claim of the plaintiff is a modest one.
It appears that the vehicle in which the plaintiff was travelling was a Northern Territory registered vehicle. Initially that was not known to her solicitors, who pleaded that the vehicle had South Australian registration. It seems that the plaintiff was aware that the vehicle was registered in the Northern Territory because shortly after the accident a claim form was completed seeking compensation from TIO, the then-insurer of vehicles in the Northern Territory. By letter dated 27 April 2011, a senior claims officer at TIO wrote to the plaintiff and advised that her claim for compensation was rejected. The reason for the claim being denied was that the plaintiff was not a resident of the Northern Territory and the motor vehicle accident did not occur in the Northern Territory. The present insurer of the defendant is the Motor Accident Compensation…

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 POLLARD v POLLARD

Details

AGLC: POLLARD v POLLARD [2020] SADC 157
Case: [2020] SADC 157
Decision Date: 5 November 2020

CaseChat Overview and Summary

The appeal was brought by the respondent, Mr Pollard, against an order of the Master of the District Court of South Australia who had dismissed his application for an extension of time to serve the summons. The appeal was heard by the Full Court of the Supreme Court of South Australia. The issue was whether the Master's refusal to grant the application for an extension of time to serve the summons was a misexercise of discretion. The Court considered whether the Master's decision was unreasonable and whether the Master had failed to take into account relevant matters or had given undue weight to irrelevant matters.

The Court held that the Master's decision was not a misexercise of discretion. The Court found that the Master had considered the relevant factors and had not failed to take into account any relevant matters or given undue weight to irrelevant matters. The Court noted that the applicant had made numerous previous applications for an extension of time to serve the summons and that the Master had considered these applications in detail. The Court held that the Master's discretion was not miscarried. The Court dismissed the appeal and upheld the order of the Master.

The Full Court of the Supreme Court of South Australia dismissed the appeal and upheld the order of the Master. The Court held that the Master's decision was not a misexercise of discretion and that the Master had considered all relevant factors. The Court found that the Master's decision was reasonable and that the applicant had not demonstrated any error on the part of the Master. The appeal was dismissed with costs.

Orders