T.R.A.M.S Pty Ltd v the Grand Hotel Pty Ltd No. SCGRG 91/387 Judgment No. 3925 Number of Pages 7 Practice

[1993] SASC 3925

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA MOHR(1), BOLLEN(2) AND MILLHOUSE(2) JJ

CWDS
Practice - South Australia - Appeal from a Master of the Supreme Court - Rule 97.02 - is an order dismissing or striking out an action for failure to file a Statement of Claim which complies with the Rules "final" or "interlocutory" - HELD - "interlocutory"
Supreme Court Rules (SA) r84.12, r95, r97.02. Licul and Ors v Corney (1976) 50 ALJR 439; Carr and Anor v Finance Corp of Australia Ltd (1980-1981) 147 CLR
246 and Hall in The Nominal Defendant (1966) 117 CLR 423, applied. Bailey in Marinoff (1971) 125 CLR 529, discussed. Commonwealth Bank of Australia in Forshaw (1990) 159 LSJS 315 and Atco Industries Pty Ltd in Ancla Maritima SA
(1984) 35 SASR 408, considered.

HRNG ADELAIDE, 8 April 1993 #DATE 13:5:1993
Counsel for appellant:     Mr P A McNamara
Solicitors for appellant:    David Black and Co.
Counsel for respondent:     Ms C M Branson QC
Solicitors for respondent: Thomsons

ORDER
The order made by the Master was interlocutory.

JUDGE1 MOHR J I have had the advantage of reading in draft form the judgment of Bollen J. While I agree with his final decision in this matter before us that the order made by the Master was an interlocutory order, in my opinion it is not necessary to call in aid Rule 84.12 to arrive at that conclusion. I would leave any analysis of Rule 84.12 for another occasion when its ambit would be more clearly in issue. 2. For myself while accepting Bollen J's analysis of the cases cited by him I would rest my decision on the reasoning of Windeyer J in Hall v. Nominal Defendant (1966) 117 CLR 423 at pp 445-445 and in particular when he said:- "I am unable to accept the view that if an extension of time were granted such an order would be a final order. It seems to me it would be interlocutory; I think that the position is the same if the extension be refused or if a lesser time were allowed than was sought." 3. Applying by way of analogy that reasoning to the present case if leave to file an amended Statement of Claim had been allowed or the Statement of Claim being considered by the Master had not been struck out it could not be suggested that either of those orders were other than interlocutory. They would quite clearly have been made at an interlocutory stage of the proceedings. In my opinion the same reasoning should follow if the action had not been struck out. That decision would have been taken at an interlocutory stage of the proceedings. It would clearly be an interlocutory judgment. Applying the reasoning of Windeyer J (supra) the same result should apply to the decision that the action stand dismissed. In other words the clause whether a judgment is interlocutory or final cannot rest on which party was successful. I agree with Bollen J that the order under consideration was "interlocutory" and not final and accordingly the appeal is to a single judge.

JUDGE2 BOLLEN J This is the reference of a procedural point of law to the Full Court. The action is an action for the enforcement of an lien over The Grand Hotel at Glenelg. The plaintiff claims a lien in the sum of $481,451. By its Amended Statement of Claim dated 30th July 1991 the plaintiff seeks -
    "1. Under and by virtue of the said Act:
    (a) An order for the enforcement of the said lien;
    (b) An order to recover such amount (if any) as is
    deposited with the Registrar General under Section 16 of
    the said Act;
    (c) An order for recovery of such amount (if any) as is
    paid into this Honourable Court.
    2. Judgment in the aforesaid sum of $481,451.00.
    3. Interest.
    4. Costs." 2. After the filing of that Amended Statement of Claim there was much coming and going. On 15th August 1991 the defendant filed a notice under Rule 46.20. It sought the filing and serving of a "More Explicit Statement of Claim". It set out the alleged defects in the Amended Statement of Claim. Further paper passed. Eventually under the Application for Directions dated 2nd April 1991 an application by the plaintiff for leave to file and deliver another Amended Statement of Claim came on for hearing before Judge Bowen Pain, a Master of the Supreme Court. But in the course of that hearing the defendant not only opposed the application but through its counsel "...submitted that, in February of this year, the plaintiff had submitted that it had provided all that it could possibly provide in relation to the claim. In submissions in respect of this application, however, they had conceded that there were many facts, which the plaintiff would have to establish, which were not actually included in the statement of claim. (Counsel) contended that the plaintiff has been given adequate opportunity to properly plead its case, but has still failed to do so, and on that basis, the action should be struck out" (words of the Master). The Master took time to consider his decision. In the end he published his reasons. He concluded thus:-
    "I have given anxious consideration to Mr Goodall's
    overall submission. I consider that the plaintiff has
    had ample opportunity to produce a Statement of Claim
    which complies with the rules as to pleadings but has
    failed to do so. Accordingly I order:-
    1. I refuse the plaintiff's application for leave to
    file an Amended Statement of Claim.
    2. That the plaintiff's Amended Statement of Claim
    filed on 30th July 1991 be struck out.
    3. That the plaintiff's action be struck out.
    4. The plaintiff to pay the defendant's costs to be
agreed or taxed." 3. So the plaintiff left that hearing with no order permitting it to file an Amended Statement of Claim, with its existing Statement of Claim struck out and, moreover, with its action struck out. It will be seen as I emphasise and will unashamedly repeat that the striking out was "procedural" or "adjectival". There was no consideration of the merits of the claim itself. As things stand the plaintiff has, in effect, lost its case without the case itself having been considered. Sometimes that sort of thing is, of course, inevitable. 4. It is interesting to notice that in his reasons the Master said that he ordered that "the plaintiff's action be struck out". It is not clear where the power to so order resides. But that is not a point for our consideration. It may be a point for later consideration. 5. The sealed order departs from the words of the Master. It says:- "That this action stand dismissed out of this Court." That order is not signed by the Master but by the Chief Clerk. The fiat which is on the back of the Application for Directions is signed by the Master. The wording there adheres to his words in his reasons - "That the plaintiff's action be struck out". It is not clear why the final order does not contain the words of the Master. But as I say that is not for us. 6. The plaintiff wishes to appeal. It launched an appeal to a single Judge (Mohr J). Mohr J reserved a point of law to the determination of the Full Court. The question is whether the appeal instituted by the plaintiff is incompetent by reason of its being an appeal from a decision to which r97.02 applies. We have heard argument on that point. Rule 97 is in the part of the Rules dealing with "Appeals from Masters and Referees and Miscellaneous Appeals". In many situations an appeal from a Master goes to a single Judge. But, speaking broadly, appeals against final orders go to the Full Court under r95. Rule 97.02 is:- "(1) Where the appeal is from the assessment of award of damages or any other final finding, decision, order, direction, award or judgment arrived at, made, given, directed or entered on the trial or hearing of any proceeding or of any question or issue, the appeal shall lie to the Full Court and Rule shall 95 apply accordingly." 7. Was the order of the Master striking out or dismissing the action a final order? I say "striking out" or "dismissing" because for present purposes it does not matter which order was made, striking out or dismissing (see Smith v Morrow (1932) VLR 491 at 493). 8. If the order dismissing the action is a final order the appeal must be to this Court. If not it must be to a single Judge. The words "striking out" or "dismissing out of this Court" all have the sound of finality. But Mr McNamara, for the plaintiff, contended that it was but an interlocutory order. He submitted that it created no estoppel. The plaintiff could launch another action (Smith v Morrow supra). There had been no determination of the rights of the parties. Miss Branson QC, for the defendant, contested these arguments. Miss Branson QC argued that the order disposed of the action and was, therefore, final. Her argument was, in effect, that to determine finality or no, one looked at the effect of the order in the action not to the effect of the order on the cause of action. 9. There is no doubt but that there is much force in each argument. The question whether or not an order is final has produced a plethora of decisions through which it is hard to see a straight and constant path. We were referred to many of these authorities. All were helpful in a general way in assisting one's thinking about this point. 10. Mr McNamara relied to some extent on r84.12. It is a "new" Rule. It did not exist in the former Rules of Court. It is:- "The Court may vary or set aside a judgment or order at any time if the justice of the case so requires." 11. I will come back to that Rule. But it should be noticed now before I mention some cases. 12. I think that the High Court has laid down the principle to be followed or the test to be applied in deciding whether an order is final or only interlocutory in its effect. The significant cases in the High Court are - - Hall v Nominal Defendant (1966) 117 CLR 423 - Bailey v Marinoff (1971) 125 CLR
529 - Licul v Corney (1976) 50 ALJR 439 - Carr v Finance Co of Australia (1980-81) 147 CLR 246 In Hall v Nominal Defendant the High Court held that an order made under s65A(3) of the Traffic Act 1925 (Tas) refusing to extend time within which to institute proceedings against a nominal defendant was not a final order within s35(1)(a) of the Judiciary Act (Cth). 13. In Bailey v Marinoff (supra) Barwick CJ said (at p530) -
    "Once an order disposing of a proceeding has been
    perfected by being drawn up as the record of the court,
    that proceeding apart from any specific and relevant
    statutory provision is at an end in that court and is in
    its substance, in my opinion, beyond recall by that
    court." 14. I refer also to the reasoning of Menzies J at pp531-532. I emphasise the proviso in the remarks of Barwick CJ - "apart from any specific and relevant statutory provision". 15. In Licul v Corney (supra) at pp441-442 Barwick CJ said:-
    "The first question arising from the objection to the
    competency of the appeal to this Court is whether the
    order of the Supreme Court was a final order within the
    meaning and operation of s35(1)(a) of the Judiciary Act
    1903-1973 (Cth). To be final for this purpose, the
    order, in my opinion, must of its own force put an end
    to the action of proceeding between the parties. It is
    not enough, in my opinion, that by reason of
    circumstances unconnected with and uncontrolled by the
    order itself, it may be or become impossible or
    impracticable to proceed with this action. 16. Here, all the proceedings between the parties are interlocutory. The orders which the Supreme Court set aside were all interlocutory orders. The action between the parties could not proceed because the original summonses had not been served. The time for that service had expired but it remained capable of extension if, consent to such extension being refused, notice of an application to extend that time were given to the respondent. Whether or not such an extension was or is to be granted rests on the discretion of a judge of the County Court. But nothing appears in the record before this Court which would preclude a judge of that Court from granting the extension of time if he were persuaded in point of discretion to do so. In particular, no time limitation for the commencement of an action of the present kind would stand in the way of the grant of such an extension. The proceedings had been commenced in due time. Further, in point of discretion, the respondent had become aware in 1973 of the pendency of the proceedings. 17. I am clearly of opinion that the order of the Supreme Court was not a final order disposing of the action between the parties and settling their substantive rights. Their actions remain on foot and are capable of being pursued if a judge of the County Court is minded upon an application duly made to extend the time for service of the original summonses." 18. I emphasise the words in above quotation - "settling their substantive rights". 19. The cases in the High Court culminated in Carr v Finance Corporation of Australia (supra). There the High Court held that an order of the Supreme Court of a State refusing to set aside a judgment obtained in default of delivery of a defence does not finally dispose of the rights of the parties. Hence that order was not a final order and no appeal lay of right to the High Court under s35 of the Judiciary Act. Gibbs CJ said (p248):- "The test now applied in this Court for determining whether a judgment is final or not is whether the judgment or order appealed from, as made, finally determines the rights of the parties: Licul v Corney." 20. Mason J, as he then was, said (p253-254):- "The objection to competency is that the order of the Court of Appeal is not a final order. The respondent contends that an order dismissing an application to set aside a default judgment is not a final order because it does not prevent the defendant from making another and later application to set aside the judgment. In Licul v Corney, Gibbs J, after noting that there had been disagreement as to the test for determining whether judgment is final or interlocutory said:-
    'One view - which was preferred by the Court of Appeal
in Slater Rex and Co v Ghosh (1971) 2 QB 597 - is that
    the test depends on the nature of the application made
    to the Court. The other view which since Hall v Nominal
    Defendant (supra), should, I think, be regarded as
    established in Australia, depends on the nature of the
    order made; the test is: does the judgment or order, as
    made, finally dispose of the rights of the parties?
    Within either of those tests the judgment of the Full
    Court in the present case is not a final judgment. It
    does not have the effect of finally disposing of the
    rights of the parties. It leaves it open - at least in
    theory - to the applicants to make a further
    application, upon prior notice served on the respondent
    himself, for an extension of time for service of each
    summons, and if that extension is granted, and the
summonses are served, to proceed with the action.' 21. This approach to the question was adopted and applied by this Court in Port of Melbourne Authority v Anshun Pty Ltd (1980) 147 CLR 35 where it was held that an order perpetually staying an action finally disposed of the case. The issue then is whether the refusal of the appellant's application finally disposed of the action." 22. Does the order under examination finally determine the rights of the parties? That is the question. 23. As I have said earlier, at first blush it does look as if the words "struck out" or "stand dismissed" have the ring of finality. But as Mr McNamara urged there has been no determination of rights. The action has been struck out or dismissed because the plaintiff has been in default in a procedural way, failing to file and serve a Statement of Claim which in form and content complies with the Rules and failing to file it in time. Now that does sound interlocutory. Yet if no more is done the action will be at an end. Of course, an appeal lies to someone. But an order can be final despite the availability of an appeal to the disappointed party. It is here that Mr McNamara calls in aid his "no estoppel" point, calls in aid the right of the plaintiff to pursue a fresh action and calls in aid the existence of r84.12. I think it clear that there is no estoppel created by the order. Nor could the plaintiff be prevented from instituting a new action. Miss Branson QC submitted that all that was nothing to the point. The order disposed of the action. But as I say again, it is important to recognise that the order does not follow a determination of rights (see again per Gibbs CJ in Carr v Finance Co of Australia supra: "finally determine the rights of the parties"). There has been no determination of the rights of the parties. There has been procedural or adjectival failure leading to a strong order. 24. Rule 84.12 is new. It cannot mean all which it appears to mean. If the words of the Rule be taken and applied literally the Court, and presumably a single Judge of the Court, would be empowered to set aside an order of this Court. The Rule cannot contemplate such heresy. Perhaps it is not a Rule which would empower the setting aside of an order made after a full hearing of evidence and argument before a single Judge. We do not yet know. The difficulties inherent in r84.12 were discussed by Cox J (when other members of the Full Court agreed) in Commonwealth Bank v Forshaw (1990) 159 LSJS 315 at 323-325. 25. I do not think that we need to decide the ambit of r84.12 in this case. We are concerned to see whether the order finally determines the rights of the parties. It did not determine those rights. It determined that there had been procedural or adjectival failing. In these circumstances I do not think that the order is "final". Moreover, it is in my opinion, the sort of order which r84.12 contemplates. The Rule is hard to interpret. It is hard to see where the line between final and interlocutory falls. But as Sir Mellis Napier CJ used to say in similar circumstances: "Although it may be hard to see where the line is, it is not so hard to see on which side of it any particular point or problem falls". Here it was all interlocutory. There was and is no final determination of rights. 26. Why do I say that it is "all interlocutory"? I do say mainly because I think that is one way of looking at the problem. I rely on some remarks on Windeyer J in Hall v Nominal Defendant (supra) at p444-445. Remember that His Honour was speaking of a refusal by a lower court to extend time within which to sue. His Honour said:-
    "The question is, in effect, whether he should be
    permitted to bring an action. A refusal of his
    application means that he cannot do so. I am prepared
    to assume that in practical effect, if not in strict
    law, refusal will preclude him from making another
    application for an extension of time. But does this
    mean that such a refusal would be a final order? On the
    whole I think not. The question is a troublesome one; I
    have found no analogy on which to base my decision. The
    position when there is an existing dispute between
    defined parties does not, I think, provide an analogy.
    There, as I have said, the cases shew that the
    determining factor is the effect of the order in
    establishing finally or otherwise the rights of the
    disputant parties - does it put an end to an existing
    dispute or an existing action? But in a case such as
    this the character of the proceedings in which the order
    is made seems to me of more significance than is the
    result for the applicant. I am unable to accept the
    view that if an extension of time as sought were granted
    such an order would be a final order. It seems to me it
    would be interlocutory; I think that the position is the
    same if the extension be refused or if a lesser time
    were allowed than was sought." 27. The character of the proceedings. Here the character of the proceedings was procedural or adjectival. So, too, were the proceedings in Licul v Corney (supra). A re-reading of the remarks of Barwick CJ (quoted supra) show that His Honour was influenced by the fact that the proceedings were interlocutory. So, too, were the proceedings in this Court in Atco v Ancla (1984) 35 SASR

405. 28. The order under examination was not final. It did not determine the rights of the parties. It was subject to variation or setting aside under r84.12. It was interlocutory or procedural in character. 29. In my opinion, the order under examination is "interlocutory" not "final". The appeal to a single Judge is competent.

JUDGE3 MILLHOUSE J I agree that the order under consideration was "interlocutory" and not final and the appeal is to a single judge.