Reid v Mt Thebarton Snow & Ice Pty Ltd - [2009] SADC 130

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
REID v MT THEBARTON SNOW & ICE PTY LTD
[2009] SADC 130
Judgment of Her Honour Judge McIntyre
23 November 2009
PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS
Appeal against decision and orders of Master dismissing an application for summary judgment by the second, third and fourth defendants. The defendants contended that the plaintiff had not established that she had ascertained material facts empowering the court to extend time under section 48(3)(b) of the Limitation of Actions Act 1936. Further the second and third defendant contended that the plaintiff had not established a cause of action against them having regard to the provisions of section 21 of the Civil Liability Act 1936.
Held dismissing the appeal that:
The defendants have not shown that the plaintiff cannot succeed on any possible view of the facts or law on the identified issues and that it is appropriate that this matter proceed to trial.
Limitation of Actions Act 1936 s48(3); Civil Liability Act 1936 s19, s21; District Court Civil Rules 1987 R-25.04, referred to.
Royal Australia Finance Ltd v Xenophou Corp Pty Ltd unreported judgment SCSA, Olsson J, 22 July 1992; Robert Abrook v Patterson & Ors [1995] SASC Olsson, J SASC 3 March 1985; Sola Optical Australia Pty Ltd v Mills [987] 167 CLR 628, considered.

REID v MT THEBARTON SNOW & ICE PTY LTD
[2009] SADC 130
Introduction

On 16 January 2007 the plaintiff slipped and fell at premises at Thebarton known as the “Snow Dome”. She sustained personal injuries. She issued proceedings on 14 January 2005 just prior to the expiration of the limitation period set out in the Limitation of Actions Act 1936 (the LAA) seeking damages for her injuries alleging negligence. Only one of the present four defendants, the first defendant Mt Thebarton Snow & Ice Pty Ltd was named as a defendant.
On 5 September 2007 orders were made enabling the plaintiff to join the present second, third and fourth defendants. The plaintiff’s claim against these defendants is substantially out of time under the LAA. The second, third and fourth defendants sought summary judgment and disjoinder on the basis that the plaintiff has no reasonable basis to be granted an extension of time under the LAA.
Master Bampton declined to enter summary judgment and order disjoinder. She made a number of consequential orders. This occurred on 10 July 2009. The second, third and fourth defendants appeal that decision.
Issue
Have the defendants shown that the plaintiff cannot succeed on any possible view of the facts or law in relation to:
1.The ascertainment by the plaintiff of material facts empowering a court to extend time under section 48(3)(b) of the LAA specifically having regard to:
1.1 The date on which the facts were ascertained.
1.2 Whether the facts are material facts.
2.Whether there is any cause of action against the second and third defendants having regard to the provisions of s21 of the Civil Liability Act 1936.
Background
The somewhat tortuous interlocutory history of this matter is set out in detail in the learned Master’s reasons. I adopt that chronology. The orders that the Master made were relevantly:
1.I decline to enter summary judgment for the second, third and fourth defendants.
2.I decline to order disjoinder of the second, third and fourth defendants.
3.I decline to rescind the orders made on 12 June 2007
4.I strike out paragraphs 17, 18, 19, 20, 21 and 22 of the second Further Amended Statement of Claim.
5.I give leave to the plaintiff to file and serve a third Further Amended Statement of Claim within 21 days.
The second defendant appeals on two grounds related to the LAA. The first is that it is said that there is no admissible evidence of the date on which the plaintiff ascertained the material facts. Second, it is contended that the fact the plaintiff ascertained that the second defendant was a director of the first defendant and that the first defendant was not insured are not material facts.
The third and fourth defendants raise similar issues to the second defendant on the appeal in relation to the LAA. They further contend that the Master erred as to the obligation to plead material facts relevant to s21 of the Civil Liability Act 1936 (the CLA) and incorrectly found that the third and fourth defendants had failed to disprove occupation and thereby failed to negate the obligations defined in s21.
The Law
The plaintiff’s claim against the second, third and fourth defendants is statute barred unless she is able to obtain an extension of time under the LAA. The plaintiff seeks an extension of time under s48(1) of the LAA as confined by s48(3)(b). The basis upon which the plaintiff seeks that extension is set out in paragraphs 23 – 28 of the second Further Amended Statement of Claim filed on 27 August 2007.
Rule 25.04 of the 1987 Rules which apply to this case governs an application by the defendants for summary judgment. Relevantly it is necessary for a defendant to:
File an affidavit showing why the plaintiff’s claim cannot succeed or cannot succeed in this court as the case may be on any possible view of the facts or the law.
There have been a number of cases on this topic which establish that the jurisdiction to award summary judgment must be exercised with great care and only used where it is clear that the action is completely devoid of merit and that there is no real question to be tried.[1] It is plain that this is a very stringent test and that the onus is on the defendants to establish their case.[2]
Ascertaining Material Facts
[1] Royal Australia Finance Ltd v Xenophou Corp Pty Ltd unreported SCSA decision of Olsson, J 22 July 1992
[2] Robert Abrook v Patterson & Ors [1995] SASC 3/3/1965, Olsson, J
The Date
Paragraph 23 of the second Further Amended Statement of Claim indicates that the plaintiff ascertained material facts on or about 17 November 2006. The defendants contend that the plaintiff did not file any admissible evidence on the application to show that she ascertained any new material fact within the meaning of s48 in the twelve months before applying to join the second, third and fourth defendants. It is said that the learned Master ought to have held that the plaintiff had failed to establish that she ascertained any facts material to her case within 12 months prior to instituting the proceedings and that accordingly the action was statute barred.[3]
[3] Second defendants Notice of Appeal – ground 1A. Third & Fourth defendants Notice of Appeal paragraphs 5
It is my view that these submissions reverse the onus on an application for summary judgment. Plainly the plaintiff will need to establish these matters at trial. The defendants in their submissions before me pointed to some inconsistencies on the documents as to the date at which the plaintiff might have ascertained the relevant material facts. For example there is correspondence from the plaintiff’s solicitor together with various company searches that suggest that the plaintiff may have been aware of the material facts relied upon some time prior to 17 November 2006. No doubt the plaintiff would be cross-examined about these issues at trial. The defendants however are seeking summary judgment. It is for them to show that the plaintiff has no prospect of success. The matters that the defendants have pointed to are topics upon which the plaintiff may be cross-examined. Depending on the results of that cross-examination they may well be fatal to the plaintiff’s case but they are not evidence that the claim cannot succeed.
Further, as the learned Master indicated in her reasons it is the plaintiff that needs to ascertain the material fact not her solicitors.[4] The matters pointed to by the defendants do not establish that the plaintiff knew what her solicitors apparently knew. In my view the Master was correct to find that any conflict between the affidavits and the pleadings may be raised as credibility issues at trial. The question of whether it is just to allow the extension of time should be determined at trial following evidence tested under cross-examination.
[4] Paragraph 87 – reasons for decision.
Are the facts alleged material facts?
The material facts the plaintiff asserts in relation to the second defendant are, first, learning that the second defendant was a director of the first defendant and, second, learning that the first defendant was not insured. The material fact in relation to the third defendant are said to be finding that the third defendant was the owner and lessor of the property and that the fourth defendant was a director of the third defendant. The defendants say that these are not material facts within the test outlined in Sola Optical.[5]Specifically they rely on the High Court’s comments:
…….A fact is material to the plaintiff’s case if it is both relevant to the issues to be proved and if the plaintiff is to succeed in obtaining an award of damages sufficient to justify bringing the action and is of sufficient importance to be likely to have a bearing on the case.[6]
[5] Sola Optical Australia Pty Ltd v Mills (1987) 167 CLR 628
[6] At page 637
It is my view that the learned Maser correctly found that, once the plaintiff was aware that there was no public liability insurance, then she looked to locate other tortfeasors. The information that there was no insurance held by the first defendant was material to the plaintiff’s decision to look for and then join other parties to the action. The ascertainment of the names of the landlord and the directors of the first and third defendants was also material to the plaintiff’s decision to provide instructions to her solicitors to pursue proceedings against those parties, to investigate the relationship between the named sole directors in the companies and the corporate entities and to investigate further the relationship between all four defendants by speaking to employees who worked at the Snow Dome together other potential witnesses.
As the Master indicated in her judgment there is insufficient information regarding the level of involvement of the second and fourth defendants in their respective companies to determine the issues raised on this application for summary judgement. [7] The level of their involvement is critical in determining whether their conduct is such that they are liable as joint tortfeasors. This is a matter for evidence at trial
[7] Para 94 - Reasons for Decision
Likewise the learned Master indicated, correctly, that there is insufficient evidence to determine whether the third and fourth defendants occupied the premises and what level of involvement they had in the Snow Dome if any.[8] Again this is a matter for evidence at trial.
[8] Para 92-93
The test outlined in Sola Optical is wide. Materiality is likewise a broad concept. As the High Court said in Sola Optical:
…….On the other hand, to introduce, by a process of construction, controlling criteria to limit its abuse is to compound rather than to alleviate any difficulties. The breadth of the residual discretion vested in the court provides an ample safeguard against abuse and provides a flexibility which will facilitate the achievement of the legislation purpose, namely, a just result in a wide range of circumstances.[9]
[9] At p637
The discretionary power in the court under the terms of the LAA 1936 is a beneficial provision to enable courts to extend time where, in all the circumstances of the case it is just to do so. It is my view that the learned Master correctly determined that this was a matter to be resolved by the trial court following the hearing of all of the evidence and should not be resolved on a summary basis as contended by the second, third and fourth defendants.
Did the Learned Master err in her application of s21 of the Civil Liability Act 1936?
The second and third defendants say that the learned Master erred in finding that the third defendant had failed to disprove occupation of the premises. It is said that the plaintiff expressly pleads the provisions of the lease and the manner in which they define the relationship and that speculation as to a contradictory relationship is a misdirection. It is said that the lease is an instrument in writing which conveys an estate in land and which defines the relationship between the lessee and the owner of the reversion. Reference is then made to s21 of the CLA. Further submissions were made concerning the pleadings however these relate to the third further Amended Statement of Claim which has not yet been filed. It is a draft only. Accordingly these matters were irrelevant to the learned Master’s consideration.
Section 19 of the CLA defines an occupier of premises as:
A person in occupation or control of the premises and includes the landlord.
In order to succeed on a summary judgment application it is necessary for the third and fourth defendants to establish that the plaintiff cannot succeed on any view of the facts and law. To put it another way, in order to establish that the plaintiff cannot succeed to the requisite standard, they must show that the landlord was not in occupation. The Master correctly, in my view, identified that the defendants have not discharged this onus. It is a matter for evidence at trial. The question of occupation of premises requires careful consideration of the lease and other evidence together with argument. As the learned Master observed,[10] if the answer was as obvious as is contended by the third defendant, why was it felt necessary to include in the lease clause 2.24 requiring the first defendant to maintain insurance for the period of the lease and to insure against public liability in its name and that of the third defendant?
[10] At para 89
In my view it has not been shown that the learned Master erred either in law or in fact in her decision on this point.
Conclusion
The Master properly declined to enter summary judgment or order disjoinder in relation to the second, third and fourth defendants. The balance of the consequential orders made by the Master are likewise appropriate. I see no basis upon which the Master’s decision should be interfered with. Accordingly I will dismiss the appeal.