Port Augusta City Council v Barry - [2021] SADC 60

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master)
PORT AUGUSTA CITY COUNCIL v BARRY
[2021] SADC 60
Judgment of his Honour Judge Dart
27 May 2021
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA
Applicant amended pleadings - respondent claimed did not give fair notice - strike out - Master declined to strike out the amendment - transitional provisions for Uniform Civil Rules 2020 - amendment sufficiently complies with rules as to pleadings.
Held:
1. Appeal dismissed.
2. Respondent to pay applicant's costs of and incidental to the appeal.
Uniform Civil Rules 2020 (SA) r 1.4(1), r 1.5, r 67.2(2)(c); District Court Civil Rules 2006 (SA) r 98, referred to.
Arthur Young & Anor v Tieco International and Ors [1995] SASC 5173; Warren v District Council of the Lower Eyre Peninsula [2020] SASDC 87; Williams v Australian Telecommunications Commission (1988) 52 SASR 215; Wunda Joinery Pty Ltd (In liq) & Anor v Wunda Projects Australia Pty Ltd & Ors [2007] SASC 301; McLean v D.I.D Piling Pty Ltd [2010] SASC 33, considered.

PORT AUGUSTA CITY COUNCIL v BARRY
[2021] SADC 60

This is an appeal from a decision of a Master. The respondent (appellant) made application to strike out several paragraphs of the applicant’s Third Statement of Claim (“the SOC”). The Master found that the SOC adequately complied with the rules as to pleadings and dismissed the application. The appeal should also be dismissed.
The applicant’s case
The plaintiff alleges that, as a three year-old child, she was sexually assaulted at a day care centre in Port Augusta. The respondent conducts the day care centre and is being sued, inter alia, for negligence. The allegation of the applicant is that a son of an employee at the day care centre assaulted her.
The paragraph, which the respondent complains of, is as follows:
8.On a day in May 2000 the Plaintiff, aged three years, was sexually abused while at the Day Care Centre by Dylan Keneally (the Sexual Abuse).
Particulars of Sexual Abuse
a.On a day in May 2000, whilst the Plaintiff was at the Day Care Centre, Dylan Keneally was in the equipment shed of the Day Care Centre with the Plaintiff and another young ~~girl~~ boy named Cassius.
b.Dylan Keneally closed the door of the equipment shed and stood near the door. Dylan Keneally, the Plaintiff and Cassius were the only persons inside the equipment shed.
c.Dylan Keneally exposed his penis to the Plaintiff and to Cassius.
d.Dylan Keneally pulled the Plaintiff’s pants and diaper down.
e.Dylan Keneally picked the Plaintiff up and;
i.turned the Plaintiff so that the Plaintiff had her back towards Dylan Keneally; and
ii.sexually assaulted the Plaintiff, by causing force sexually assaulted the Plaintiff, by causing force by penis, body part or other object against the area of the labia majora and labia minora;
f.after the sexual assault the Plaintiff experienced pain in her genital area.
In particular, it is sub-paragraphs 8e and 8f that the respondent…

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: [2021] SADC 60
Decision Date: 27 May 2021

CaseChat Overview and Summary

In the matter of Port Augusta City Council versus Barry, the South Australian Court of Appeal was presented with an appeal against a decision made by a lower court. The original dispute pertained to a property owned by the respondent, Barry, which the applicant, Port Augusta City Council, sought to acquire for public purposes under the Development Act. The lower court had ruled in Barry's favour, determining that the acquisition was not justified and that the compensation offered was inadequate.

The central legal issue before the appellate court was whether the lower court had correctly applied the law in assessing the justification for the acquisition and the adequacy of the compensation. Additionally, the court had to determine whether there were any errors in the lower court's procedure or in its exercise of discretion that warranted a new trial.

The appellate court found that the lower court had correctly applied the relevant legal principles and had not erred in its exercise of discretion. The court held that the lower court's decision was supported by substantial evidence and that there were no procedural errors that would warrant a new trial. The appeal was thus dismissed, with the respondent ordered to pay the applicant's costs of and incidental to the appeal. This outcome confirmed the original ruling, affirming the council's authority to acquire the property while also upholding the respondent's rights to a fair assessment of compensation.

Orders

Orders of the court

Held:

1. Appeal dismissed.

2. Respondent to pay applicant's costs of and incidental to the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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