Weir v Weir (No 2)

[2008] SADC 115

District Court of South Australia

(Civil: Application)

WEIR v WEIR (NO 2)

[2008] SADC 115

Reasons for Decision of His Honour Judge David Smith (ex tempore)

9 September 2008

PROCEDURE - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE

Application pursuant to Rules 84.12 and 3.04(f) to set aside judgment arising from an appeal from a Master’s decision – in the judgment the District Court Judge held plaintiff remained statute barred by reason of failure to comply with extension of time provisions in the Limitations of Actions Act – within a month of District Court judgment being handed down, decision of single Justice of the Supreme Court, to the contrary, handed down – application to set aside made on the basis of conflict. 

Discussion of:

- whether justice requires the setting aside of the District Court judgment

- whether doctrine of stare decisis requires that the District Court be bound by the decision of a single Justice of the Supreme Court

- whether application to set aside, given apparently unfettered discretion in the language of in particular Rule 84.12, could be used to circumvent the normal appeal process.

Held – application dismissed - Rules 84.12 and 3.04(f) are to be read subject to the specific legislative framework for appeals.

Limitations of Actions Act 1936 (SA) r 3.04(f) and r 84.12, referred to.
Weir v Weir [2007] SADC 113; Jones v Griggs [2007] SADC 394; Mohtar v Mohtar & Seputis (1988) 146 LSJS 377; Cavanagh-Lang v O'Callaghan & Ors [2000] SASC 187; O'Sullivan v Farrer (1989) 168 CLR 210 at 216), considered.

WEIR v WEIR (NO 2)
[2008] SADC 115

Judge Smith
Civil

EXTEMPORE DECISION.

1. This is an application by the plaintiff in this action, pursuant to r3.04(f) and 84.12 for me to set aside my own judgment in this matter.

2. On 31 October 2007 in a considered decision I allowed an appeal by the defendant from a decision of the Master and held, in particular that the plaintiff’s claim remained statute barred because she had not complied with the extension of time provisions in the Limitations of Actions Act 1936 (SA) (see Weir v Weir [2007] SADC 113).

3. Within one month of my decision on 21 November 2007, Her Honour Justice Nyland sitting as a single Justice in the Supreme Court delivered a conflicting decision (see Jones v Griggs [2007] SASC 394).

4. It is this conflict which forms the basis of this application.  The plaintiff’s counsel resisted the suggestion made by me at the beginning of argument, namely, that by entertaining this application I was effectively sitting on an appeal against my own decision. 

5. I set out hereunder the rules of court relied upon by the plaintiff. 

6. Rule 3.04(f) provides that the court may “…correct, revoke or vary any order by a subsequent order…”

7. Rule 84.12 provides that the court may “…vary or set aside a judgment or order at any time if the justice of the case so requires…”

8. The plaintiff relied primarily on r84.12 and contended that the sole criteria for setting aside a judgment is the interests of justice.  In particular, counsel for the plaintiff, Mr O’Loughlin, argued that the plaintiff’s proceedings were baulked by my decision which is in conflict with a decision of a higher court.  This, he said, was a most unusual circumstance and therefore I should invoke r84.12 and set aside my decision in deference to the judgment of the Supreme Court.  I was referred to a number of decisions including Mohtar v Mohtar & Seputis (1988) 146 LSJS 377 and Cavanagh-Lang v O’Callaghan & Ors [2000] SASC 187.

9. The defendant’s counsel, Mr Britten-Jones, made three arguments in response. 

10. First he submitted that “…justice of the case…” did not require that the judgment be set aside, and he offered a number of reasons for that submission which involved a qualitative comparison of the two judgments.  I specifically mention only that he correctly pointed out that her Honour Justice Nyland, in concluding that the plaintiff qualified for an extension of time, did not rely solely on the plaintiff having ascertained facts material to the claim after the institution of the proceeding, (see s48(3)(b)(i) of the said Act), but also relied on conduct and representations of the defendant in the course of the matter (see s 48(3)(b)(ii) of the said Act). 

11. Secondly he submitted that the doctrine of stare decisis did not require that the District Court be bound by decisions of a single Justice of the Supreme Court. 

12. Finally he submitted that rr84.12 and 3.04(f) were not intended to provide an alternative to the normal appeal process but rather such rules were intended to provide a “speedy…summary…slip rule…” style power to set aside a judgment entered regularly but as a result of some accident, oversight or misunderstanding.

13. I am reluctant for obvious reason to embark upon any exercise involving a comparison of the two judgments in order to test what justice might dictate.  Further, whilst I agree with counsel’s point about the doctrine of stare decisis, it does not really dispose of the matter because, to state the obvious, even if bound by Jones v Griggs (supra), my decision in Weir v Weir (supra) was earlier in time and therefore clearly not per incuriam.

14. It is sufficient for me to conclude that r84.12, which became the focus of the plaintiff’s argument, even given the unfettered discretion its language confers on the court, was neither intended to, nor should it be used to, circumvent the normal appeal processes.  Notwithstanding the unconstrained language of r84.12, it is always the case that the context, scope, intent and the purpose of such subordinate legislation confines even the most generously framed discretion (see O’Sullivan v Farrer (1989) 168 CLR 210 at 216). There is in the District Court specific legislation which provides an exhaustive legislative framework for all manner of appeals. The general terms of r84.12 are to be read subject to those specific provisions. Accordingly I would reject this application on that basis alone. The plaintiff should challenge the decision the usual way by an appeal.

15. I note that any appeal against my decision is out of time.  However, I would think that given the circumstances of this matter, and in particular the conflict between this court and the single Justice decision of the Supreme Court, that the plaintiff would have no difficulty obtaining both leave and an extension of time in which to agitate on appeal what is an important point. 

16. I therefore dismiss the application. 

17. Further, I understand that the plaintiff has applied to a Master of this Court to amend her original pleadings to include reliance on facts which came to her attention before the issue of the proceedings.  That application is about to be ruled on by the Master.  Perhaps the plaintiff should first await the outcome of that application before taking any further steps.  The defendant is to have the costs of and incidental to this application.