Ward v Motor Vehicle Accident Commission

[2008] SASC 346

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

WARD v MOTOR VEHICLE ACCIDENT COMMISSION & ANOR

[2008] SASC 346

Judgment of The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice White

12 December 2008

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - INTERLOCUTORY ORDERS AND JUDGMENTS

Applicant sought permission to appeal against decision of single Judge in Supreme Court refusing permission to appeal against a decision of a District Court Judge affirming the decision of a Master of the District Court - Master of District Court appointed Public Trustee Applicant's litigation guardian - Applicant's father opposed order and sought order that he or another family member be appointed Applicant's litigation guardian - whether judgment of single Judge is a judgment given on appeal from an interlocutory judgment requiring grant of permission to appeal to the Full Court - whether permission to appeal to Full Court should be granted.

Held: Judgment given by single Judge a judgment given on appeal from an interlocutory judgment - grant of permission to appeal required for appeal to Full Court - proposed appeal raises no issue of principle and has no reasonable prospect of success - permission to appeal to Full Court refused.

District Court Civil Rules 2006 r 79, r 79(3); District Court Act 1991 (SA) s 43(2); Supreme Court Civil Rules 2006 r 281(a), r 282(2), r 291, referred to.

WARD v MOTOR VEHICLE ACCIDENT COMMISSION & ANOR
[2008] SASC 346

Full Court:      Doyle CJ, Duggan and White JJ

1. THE COURT:      Mr Ward has applied for permission to appeal to the Full Court against a decision by a single Judge of this Court.  Mr Ward argues that his appeal does not require a grant of permission.  However, if permission is required, he seeks that permission.

2. It is appropriate to outline the procedural background to the proposed appeal.

3. Ms Melina Highfold Ward is Mr Ward’s daughter.  On 21 October 2001 she suffered personal injury when a motor car struck her.  The driver of the motor car was insured by the Motor Vehicle Accident Commission (“the MVAC”).  Ms Ward was then nine years of age.

4. Ms Ward suffered significant personal injuries.  The circumstances of the injury were such that one would anticipate a claim by Ms Ward against the driver of the motor car for damages for injuries.

5. In January 2008 the MVAC brought proceedings in the District Court against Ms Ward.  Proceedings by Ms Ward against the driver had not been instituted at this time.  The MVAC said that it anticipated a claim in due course by Ms Ward.  It said that it had been unable to persuade Ms Ward to instruct solicitors to make a claim, and had been unable to obtain information that it wanted about the extent of her injuries and about her recovery.  The MVAC applied for an order for the preservation of, and for access to, documents relating to the potential claim.

6. The material before the District Court Master in connection with the application by the MVAC caused the Master to consider whether he should make an order appointing a suitable person to be Ms Ward’s litigation guardian. The power to appoint a litigation guardian is conferred by r 79 of the District Court Civil Rules 2006 (SA).  The Master raised the question of exercising this power, of his own initiative.  Rule 79(3) enables a court to appoint a litigation guardian on its own initiatives.

7. The Master proceeded to deal with the application by the MVAC for the preservation of documents, and for the making available of those documents.

8. On a subsequent occasion, after hearing from Public Trustee, Mr Ward and counsel representing an interested party, the Master made an order under r 79(3) appointing Public Trustee as the litigation guardian of Ms Ward. That order was opposed by Mr Ward. The Master indicated that he was prepared to review that order in due course.

9. Mr Ward then filed affidavit material.  In due course the Master heard Mr Ward and other interested parties on three separate occasions.  Mr Ward argued that he or a member of the family of Ms Ward should be the litigation guardian.

10. The Master ultimately ordered that Public Trustee continue to be the litigation guardian.  It is apparent from the Master’s detailed reasons that he considered all of the factual and legal arguments that were advanced.

11. It is apparent that a factor affecting the Master’s decision was the circumstance that although more than six years has passed since Ms Ward was injured, she did not have legal representation and it appeared that, unless a litigation guardian were appointed, her legitimate interest in a claim for damages might be prejudiced.

12. Mr Ward appealed against that decision. By s 43(2)(a) of the District Court Act 1991 (SA), that appeal lay to a judge of the District Court. On 3 September 2008 a District Court Judge heard and dismissed the appeal.

13. Mr Ward then appealed to the Supreme Court. By s 43(2)(b) of the District Court Act, that appeal lay to a single judge, assuming that the judgment was an interlocutory judgment.  By r 281(a)(ii) of the Supreme Court Civil Rules 2006 that appeal was subject to a grant of permission.

14. A Judge of this Court duly heard Mr Ward’s application for permission to appeal. The Judge considered the matters of fact and matters of law raised by Mr Ward’s argument. The Judge held that permission to appeal was required, the judgment of the District Court Master and of the District Court Judge being correctly described as an interlocutory judgment. The Judge held that there was power for the District Court Master to make the order under r 79 in connection with the application by the MVAC for the preservation of evidentiary material. The Judge held that the order related to that application, and also to any claim that Ms Ward might make for damages in the future. The Judge considered as well the arguments advanced by Mr Ward against the merits of the appointment. The Judge found that no error of fact or law had been identified, and accordingly held that permission to appeal should be refused. Accordingly, the Judge refused permission to appeal.

15. Mr Ward has now appealed to the Full Court.  He argues that an appeal lies as of right, but if permission to appeal is required, he applies for that permission.

16. Mr Ward initially sought permission to appeal from the single Judge, making that application orally.  The Judge referred the application to the Full Court, pursuant to r 282(2)(b).

17. His proposed appeal has been considered by the Court comprised of Doyle CJ, Duggan and White JJ.  For that purpose the Court has referred to the reasons of the District Court Master, the reasons of the District Court Judge and the reasons of the single Judge of this Court.  The Court has also considered a detailed written submission by Mr Ward.

18. The Court is of the opinion that permission to appeal is required, on the basis that the judgment given by the single Judge of this Court is a judgment given on appeal from the interlocutory judgment:  see r 281(a)(ii) of the Supreme Court Civil Rules 2006 (SA).

19. The Court has considered Mr Ward’s application for permission to appeal, exercising the power conferred by r 291 of the Supreme Court Civil Rules 2006 (SA).

20. The Court is of the opinion that permission to appeal should be refused, exercising the power conferred by r 291(3)(a).  It appears that the single Judge has considered the arguments of fact and of law advanced by Mr Ward.  It is to be noted that the single Judge heard oral submissions by Mr Ward, as well as considering the relevant written material.

21. There is no reason to doubt the correctness of the single Judge’s decision that the District Court Master had power, in the circumstances, to appoint a litigation guardian.  Nor is there any reason to doubt the single Judge’s conclusion that there is no procedural error or deficiency in the proceedings before the Master.  Nor has any arguable error been identified in the reasons of the single Judge relating to the merits of the decision to appoint a litigation guardian.

22. The Court is unanimously of the opinion that there were ample grounds to support the decision that the Master made.  As the proposed appeal raises no issue of principle, and has no reasonable prospect of success, permission to appeal is refused.

23. The Court joins with the single Judge in urging Mr Ward to assist Public Trustee to advance Ms Ward’s interests by assisting Public Trustee in preparing, formulating and submitting an appropriate claim for compensation to the MVAC, and by instituting proceedings should that be necessary.  As the single Judge pointed out, the appointment of Public Trustee does not in any way detract from Mr Ward’s rights and interests as a parent of Ms Ward, other than in relation to the proceedings in question.