WILTSHIRE-SMITH v Samuels - [2007] SADC 27

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
WILTSHIRE-SMITH v SAMUELS
[2007] SADC 27
Judgment of Her Honour Judge Simpson
16 March 2007
PROCEDURE - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE - ACTIONS TO REVIEW OR SET ASIDE JUDGMENT
Appeal from decision of a Master refusing an extension of time within which to bring application to set aside judgment in default of appearance at trial - delay of over two months - no or no adequate explanation given for delay - consideration given to the fact that the appellant allowed time to elapse, to the desirability of finality of judicial determinations and to justice as between the parties - Held: no extension of time to bring application should be granted - application to set aside judgment should be refused in any event - appeal dismissed.
District Court Act 1991 s 43; (1992) DCR 3.04(d), 6.02, 75.14, 75.15; (2006) DCR 17, 292, referred to.
Hughes v National Trustees Executors & Agency Co Of Australasia Ltd [1978] VR 257; Shocked and another v Goldschmidt and others [1998] 1 All ER 372; Watson v Anderson [1976] 13 SASR 329, applied.

WILTSHIRE-SMITH v SAMUELS
[2007] SADC 27

This is an appeal, filed on 11 December 2006, from a decision of a Master delivered on 27 November 2006. The learned Master refused to grant an extension of the time for an application to be brought by the appellant to set aside judgment entered against him on 15 May 2006, in default of his appearance at the trial on 1 May 2006. The Master would have in any event dismissed the application to set aside the judgment. The reasons for the learned Master’s decision were posted to the parties on 29 November 2006.
The appeal is brought pursuant to section 43 of the District Court Act 1991, which relevantly provides
(1)A party to an action may, in accordance with the rules of the appellate court, appeal against any judgment given in the action.
(2)The appeal lies—
(a)     in the case of a judgment given by a Master or the Court constituted of a Master—to the Court constituted of a Judge;
(b)     in the case of an interlocutory judgment given by a Judge—to the Supreme Court constituted of a single Judge;
(c)     in any other case—to the Full Court of the Supreme Court.
District Court Rule 17 (2006) provides for an appeal from a judgment of a Master to the court constituted of a Judge. Pursuant to District Court Rule 292 (2006), the appeal is to be by way of rehearing and amongst other things, the court may draw inferences of fact, amend or set aside the judgment or orders appealed from and give any judgment the justice of the case requires.
The plaintiff filed a summons and statement of claim on 4 March 2004, in which she sought an order against the first defendant for specific performance or, in the alternative, damages for breach of an agreement between…

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: [2007] SADC 27
Decision Date: 16 March 2007

CaseChat Overview and Summary

The appeal was brought by Wiltshire-Smith against a decision made by a Master of the Supreme Court, who had refused an extension of time for Wiltshire-Smith to bring an application to set aside a judgment in default of appearance at trial. The judgment in default had been entered following a delay of over two months without any adequate explanation provided for the delay. The appeal centred on the Master's decision to deny the extension of time and to refuse the application to set aside the judgment.

The legal issues that the court had to decide were whether the Master was correct in refusing the extension of time and whether the Master was correct in refusing the application to set aside the judgment. The court had to consider the reasons for the delay in bringing the application, the conduct of the appellant in allowing the time to elapse, and the desirability of finality of judicial determinations and justice as between the parties.

The court found that the Master was correct in refusing the extension of time and in refusing the application to set aside the judgment. The court held that the appellant had allowed the time to elapse without any adequate explanation and that it was important to maintain the finality of judicial determinations and to ensure justice as between the parties. The court considered that the appellant's delay was significant and that it would not be just to grant the extension of time or to set aside the judgment. The appeal was dismissed.

No further orders were made by the court.

Orders