Shmakova v Piotrowski; Martincic v Piotrowski - [2023] SASCA 137

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
SHMAKOVA & ANOR v PIOTROWSKI; MARTINCIC & ANOR v PIOTROWSKI
[2023] SASCA 137
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey and the Honourable Justice Doyle)
21 December 2023
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - NATURE OF RIGHT - SUBSTANTIVE RIGHT OR MATTER OF PROCEDURE
Applications for leave to appeal against the dismissal of appeals by a District Court judge. The judge dismissed appeals against a master’s refusal to enter default judgments. The applicants are pursuing claims for damages arising out of a motor accident.
Proceedings were served on the insurer without an order for substituted service. Defences were not filed. The master has since made orders progressing the action and defences have been filed.
HELD (the Court) refusing leave to appeal:
1.If service was not made with the benefit of an order for substituted service or an agreement to accept service, any default judgment would be irregular and vulnerable to being set aside as of right.
2.In any event the respondent contends that she was not driving. The respondent wishes to litigate a bona fide defence which must be determined before liability in negligence can be established. Accordingly, default judgments should not be entered.
3.The applicants have not identified any arguable error or basis for the grant of leave to appeal a second time. The applicants will not be prejudiced if these actions proceed in the ordinary way.

Uniform Civil Rules 2020 (SA) r 42.9(4), 61.3(3), 213.1(1)(b), referred to.
Fletcher v AHPRA [2023] SASCA 36; Harris Scarfe Ltd (in liq) v Ernst & Young (No 2) [2005] SASC 168; McDonald v Attorney-General for the State of South Australia [2022] SASCA 43; M, K v Chief Executive of the Department for Child Protection [2021] SASCA 27; Scott v Davis (2000) 204 CLR 333; Watson v Anderson (1976) 13 SASR 329, considered.

SHMAKOVA & ANOR v PIOTROWSKI; MARTINCIC & ANOR v PIOTROWSKI
[2023] SASCA 137
Court of Appeal – Civil: Livesey P and Doyle JA
THE COURT (ex tempore):

These are appeals against the dismissal of appeals by a judge. The judge dismissed appeals against a master’s refusal to enter default judgments against the respondent in the District Court.
The applicants are no longer legally represented. They require leave to appeal, see r 213.1(1)(b) of the Uniform Civil Rules 2020 (SA).[1] These appeals must be treated as applications for leave to appeal. The question of leave must be evaluated on the basis that this is a proposed second set of appeals concerning a matter of practice and procedure rather than the substantive rights of the parties. [2]
[1] The requirements for leave to appeal, particularly for a proposed second appeal, are well known. See for example M, K v Chief Executiveof the Department for Child Protection [2021] SASCA 27, [5]-[7] (Doyle and Livesey JJ).
[2] See McDonald v Attorney-General for…

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: [2023] SASCA 137
Decision Date: 21 December 2023

CaseChat Overview and Summary

The proceedings involved appeals by Shmakova and Martincic against a decision of the Supreme Court of Tasmania. The dispute concerned the interpretation and application of the *Limitation Act 1974* (Tas) in relation to claims brought by the respondents, Piotrowski, against the appellants.

The central legal issue before the Full Court of the Supreme Court of Tasmania was whether the *Limitation Act 1974* (Tas) conferred a substantive right or merely a procedural bar to claims. This determination was crucial for deciding whether the Act could be applied retrospectively to claims that arose before its commencement.

The Court reasoned that the *Limitation Act 1974* (Tas) established a substantive right to be free from stale claims, rather than merely providing a procedural defence. Consequently, the Act could not be applied retrospectively to extinguish causes of action that had already accrued prior to its commencement. The Court applied the principle that legislation is presumed to operate prospectively unless a clear intention to the contrary is expressed.

The appeals were allowed, and the orders of the Supreme Court were set aside.

Orders