Badcock v Channel Seven Adelaide Pty Ltd - [2008] SADC 138

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
BADCOCK v CHANNEL SEVEN ADELAIDE PTY LTD & ORS
[2008] SADC 138
Judgment of Her Honour Judge McIntyre
21 October 2008
PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS
Appeal against decision and orders of Master staying the action for non-compliance with discovery orders - Respondent seeks to have the appeal dismissed as incompetent under DCR97.07 and further seeks indemnity costs - Held:
1. Declining to dismiss appeal as incompetent - the amended notice of appeal complied with DCR97.02.
2. Dismissing appeal - the Master made orders giving the appellant/plaintiff the opportunity to comply with discovery orders previously made. These were reasonable and appropriate orders. the appellant has failed to establish any basis upon which these orders should be interfered with.
3. Appellant ordered to pay party/party costs of the appeal in any event including costs associated with the filing of an amended notice of appeal.
District Court Rules 1987; Rules 12.06, 97.03, 97.07, 3.01, 3.04, 59.06, 3.05, 58, 58A, 58A.03, 58A.04, 58.06, 58A.07, 97.02(1)(b), 58.07(1), referred to.
LePoidevin Industries Pty Ltd v Mid North Animal & Plant Control Board unreported judgment S3122 Olsson, J; Kadlunga Propretors v Electricity Trust of South Australia (1985) 39 SASR 410; Baulderstone Hornibrook Engineering Pty Ltd v Dare Sutton Clarke Pty Ltd [2000] SASC 78; Casley-Smith v F S Evans & Sons Pty Ltd (No 6) (1989) 148 LSJS 483 at 487; Colgate Palmolive Co & Anor v Cussons Pty Ltd (1993) 118 ALR 248 , considered.

BADCOCK v CHANNEL SEVEN ADELAIDE PTY LTD & ORS
[2008] SADC 138

This is an appeal from a judgment of a Master delivered on 5 August 2008. The appellant is the plaintiff in the action and the respondents are the defendants. This matter is governed by the 1987 District Court Rules (“DCR”).
Preliminary matters
The reasons for decision of the Master were posted to the parties on 5 August 2008. Under DCR 12.06 they are deemed to have been received in the normal course of post.
The notice of appeal was filed in the District Court on 28 August 2008.
Under DCR 97.03 the appellant had fourteen days within which to appeal. The appeal was therefore lodged out of time. When this was pointed out to the appellant he sought an extension of time. After a brief adjournment, he provided written submissions and tendered correspondence in support of that application. It appears the reason for the delay in instituting the appeal was the appellant’s mistaken belief that his appeal should be lodged in the Supreme Court of South Australia. He filed the notice of appeal in that Court’s Registry on 20 August 2008.
The respondent did not assert prejudice by reason of the lateness in the filing and service of the appeal but contended that the notice of appeal was incompetent in both form and substance.
The notice of appeal did not comply with the DCR. In part this was because of the misconception about the Court in which the appeal should be lodged and in part it was a drafting issue. The defects could not be remedied by simple amendment – wholesale redrafting was required.
I granted the appellant an extension of time within which to file and serve an amended Notice of Appeal until 10 October 2008. He complied with this order. The respondent contends that the amended notice of appeal is also deficient both as to form and substance and seeks to have the appeal dismissed as incompetent under DCR 97.07. The matter proceeded to argument before me on 16 October 2008 both on the procedural issue and on the substance of the appeal.
Background
The self-represented appellant commenced these proceedings on 2 May 2003. This action has a lengthy interlocutory history that is set out accurately and thoroughly in the reasons of the learned Master. I will not repeat it here. The hearings of particular relevance to this matter were those held on 14 February 2008 and 17 April 2008.
On 14 February 2008 the appellant was, amongst other things, directed to file and serve a hard copy inventory identifying each document or group of documents he proposed to tender or rely upon at the trial by reference to a matter in issue in the pleadings.
On 17 April 2008 the Master made the following orders:
1. I am satisfied that the plaintiff has not complied with order 3 referred to on 14 February 2008. It is brought to the plaintiff’s attention that his discovery is far too wide and appears to be oppressive and in its present state is causing actual prejudice to the defendant. The plaintiff is to provide to the Court and to the defendant by 23 May 2008 a hard copy inventory identifying individual documents or group of documents by reference to specific subject matter (relating to particular pleadings) which he proposes to tender or rely upon at the trial.
1. The defendant is thereafter in the event that it accepts compliance with the above order to file and serve a response by 20 June 2008. If the defendant asserts non-compliance by the plaintiff, it is at liberty to issue and serve such application as it sees fit returnable to the next hearing.
1. Registry to provide copies of these orders to the parties.
1. Plaintiff to pay costs of the defendant of today in any event.
1. Plaintiff is warned that notwithstanding that he is a litigant in person he is expected to comply with the Court’s Discovery Rules and Orders and that if his discovery continues to be oppressive his claim is stayed or struck out.
The decision of the Master that is the subject of appeal relates to an application of the respondents dated 27 May 2008 seeking an order that the action be dismissed or, in the alternative, set aside or stayed for non-compliance with the orders made on 14 February 2008 and 17 April 2008. The application relied on DCR 3.01, 3.04 and 59.06. It was supported by an affidavit of Mr Moritz sworn on 27 May 2008. Also relevant were the affidavits of Mr Moritz sworn on 3 April 2008 and 14 July 2008. The appellant filed an affidavit in response sworn by him on 14 July 2008.
The learned Master heard the application on 14 July 2008. The appellant appeared in person and Mr Moritz appeared for the respondents. The Master determined the matter on 5 August 2008. He declined the application by the respondents to dismiss the action but stayed the action until the appellant complies with the orders of 17 April 2008.
The Master’s conclusions can be summarised as follows:
·The appellant’s initial discovery was seriously defective. The discovery is too wide, appears to be oppressive and causes actual prejudice to the respondents.
·Both the respondents and the Court advised the appellant of the defects on a number of occasions.
·The Appellant did not comply with the orders for discovery made on 14 February 2008.
·His discovery remained defective on 17 April 2008. On this occasion clear and specific orders were made concerning the provision of an inventory identifying documents or groups of documents and linking them to specific issues in the pleadings.
·The appellant disregarded the order in that he has neither complied with it nor sought an extension of time. Further he has not appealed it.
·Without compliance by the appellant with the order the respondents will suffer actual prejudice.
The Master considered that the time had come for the appellant to comply with the orders but declined to dismiss the proceedings as sought by the respondents. Rather he stayed the proceedings noting that the appellant could apply to lift the stay upon producing evidence of proper compliance with the orders of 17 April 2008.
The orders he made were as follows:
Summary of orders
1.     I stay the plaintiff’s claim.
2.     I fix a Directions Hearing on Tuesday 28 October 2008 at 10 am when I will consider any application by the plaintiff to remove the stay or any application by      the defendant to strike out the proceedings.
3.     I will also hear from the parties on that occasion as to the costs of the argument.
The orders were designed to give the appellant a further opportunity to comply with the orders of 17 April 2008. The appellant has chosen not to do so but instead to bring this appeal.
Is the Appeal Incompetent?
The amended notice of appeal was filed, pursuant to leave, on 10 October 2008. The appeal is stated to be against part of the orders of Master Norman posted to parties on 5 August 2008 and specifically order 1 “I stay the plaintiff’s claim.”
The grounds of appeal are:
1.     The learned Magistrate erred when ordering a stay of the plaintiff’s claim                    pursuant to Rule 3.01 & Rule 59.06 upon the basis of the      plaintiff’s
               non-compliance with Rule 58 or 58A.
2.     The learned Master erred when ordering a stay of the plaintiff’s claim pursuant to Rule 3.05 & Rule 59.06 upon the basis of non-compliance of the plaintiff’s discovery with Rule 58 or 58A.
3.     The learned Master erred when ordering a stay of the plaintiff’s claim upon
                the allegations of contravention of the plaintiff’s manual and electronic discovery           of District Court Rules 58 or 58A.
4.     The learned Master erred when ordering a stay of the plaintiff’s claim based based                upon the defendants’ allegation of a failure of the plaintiff to comply with                 Rule 58A.03 or 58A.04 or 58.06 or 58A.07 without first considering the   nature and extent of the plaintiff’s discovery.
5.     The learned Master erred when ordering a stay of the plaintiff’s claim based                 upon the defendants’ complaint pursuant to Rule 59.06 of an alleged non-                compliance of the plaintiff.
6.     The learned Master erred discretionally when ordering a stay of the plaintiff’s               claim without being fully appraised of the defendants’ objection to the plaintiff               electronic discovery as opposed to the defendants to the plaintiff’s manual                  discovery.
In the alternative
7.     The learned Master erred when ordering a stay of the plaintiff’s claim   pursuant to Rule 3.01 or 3.04 without first validating the defendants’ submissions               or the plaintiff’s discovery list and supplementary discovery list in accordance with               Rule 3.04 (c).
8.     The learned Master erred discretionally by ordering a stay of the plaintiff’s                   claim without first considering the bona fides of the plaintiff’s discovert   correspondence to the legal representatives for the defendants.
The respondent contends that the appellant has not complied with the provisions of DCR 97.02 in that the contents of the notice of appeal are inadequate. The key area of default is stated to be DCR 97.02(1)(b) which requires that the grounds of appeal are set out in sufficient detail to enable the Judge to know what points are being relied on in support of each ground. The respondent contends that the appellant has not identified any grounds of appeal and that nothing has been put before the court to challenge the basis of the appealed decision.
The appellant’s grounds of appeal are repetitive, demonstrate a misunderstanding of the basis for the orders of the learned Master and in some respects are factually incorrect. The appeal is however appropriately brought under the DCR in the correct jurisdiction and provides sufficient detail to enable me to ascertain the general nature of the appellant’s appeal. The gravamen of the appellant’s grounds of appeal appear to be that he had complied with the relevant DCR relating to discovery and therefore the Master should not have ordered a stay. In those circumstances I consider that there has been compliance with DCR 97.02 and I decline to dismiss the appeal as incompetent. Further I do not consider that the notice, whilst undoubtedly defective, is so deficient as to constitute an abuse of process requiring dismissal.[1]
[1] Le Poidevin Industries Pty. Ltd. v Mid North Animal & Plant Control Board - Unreported Judgment No S3122 Olsson J.
The Appeal
The appellant provided two documents comprising lengthy written submissions. He addressed these in oral argument. In summary the appellant contends that he has made proper discovery and, in particular that:
·He complied with the orders on 14 February 2008 by filing a supplementary list of documents on 19 March 2008.
·He wrote to the respondents’ solicitors on 20 March 2008 seeking to resolve issues of discovery and to have the matter set down for trial.
·At the time of the orders made on 17 April 2008, he had fulfilled his discovery obligations and the Master made these orders despite his compliance with the orders of 14 February 2008 and on the basis of misleading submissions by the respondents.
·There was no point filing a further list of documents because he had complied with the rules relating to discovery of documents and with the orders of Master Norman.
·The stay ordered on 5 August 2008 by Master Norman was based upon the incorrect and misleading allegations of the defendants of non-compliance.
His submissions raise a number of other issues
·Electronic disks are permitted by the rules and it would be unreasonable and oppressive for the respondents to demand listings of the documents due to the volume of these documents.
·The respondent’s reluctance to address the volume of the discovered documents is a relevant factor in assessing their application.
·The respondent’s application is an abuse of process because the real purpose of the application is to cause delays.
·The costs to the respondent of reviewing the documents are insignificant in relation to the costs borne by him.
These submissions misunderstand the basis of the orders made by Master Norman and the nature of discovery required by the Rules. DCR 58A.03 states:
The parties must discover in their list of documents, but discover only, the documents which are or have been in their possession, custody or power which are directly relevant to any issue arising under the pleadings.
Rule 58.07(1) provides that:
The documents shall be listed in numbered order with a concise description of each document, or, if that is sufficient for identification, each bundle of documents.
Documents should be identified with sufficient precision to enable enforceable orders to be made for their individual production[2]. Where there are numerous documents of one class they can be described as a bundle but the description must be adequate, for example by reference to category, period of time, general nature, to enable enforceable orders to be made for the production of the bundle of documents.[3]
[2] Kadlunga Proprietors v Electricity Trust of South Australia (1985) 39 SASR 410
[3] Baulderstone Hornibrook Engineering Pty Ltd v Dare Sutton Clarke Pty Ltd [2000] SASC 78
The appellant has filed two lists of documents in this matter. The first dated 13 September 2007 (FDN 67) and the second on 19 March 2008 (FDN74). Both lists of documents comprise, folders, boxes of documents, videocassette tapes, books, diaries, DVDs and CDs. The electronic discs themselves contain many thousands of documents. Many of the documents were not identified on the list and descriptions do not correspond properly with the material produced.[4]
[4] Affidavit of Mr Moritz sworn on 12 February 2008
Whilst the appellant asserted before me that all of the documents he has discovered are relevant to his action, the lists he has filed appear to contain a great many irrelevant documents. The learned Master illustrated this proposition at paragraph 79 of his reasons. The Master found on the basis of the evidence before him that:
the plaintiff had purported to discover an enormous volume of documentation which comprised documents which were not relevant, let alone directly relevant, and were so wide that it caused oppression to the defendant.[5]
[5] Paragraph 65
I agree with the Master. My own perusal of the two lists of documents filed by the appellant confirms this view. It is clearly inappropriate for the defendant to be obliged to deal with this large volume of inadequately described material in an effort to ascertain what might be directly or even indirectly relevant to the appellant’s case.
The appellant argued before me that it was oppressive to him to have to properly identify documents as ordered by Master Norman. This submission overlooks the fact that this is his case and that these are his documents. The onus is upon him to produce a list of documents in compliance with the proper orders of the Master made in accordance with the DCR. It does not lie with him to say that this is oppressive.
The appellant has made no effort to comply with the orders of Master Norman on 17 April 2008. In submissions before me he maintained an assertion that he had complied with the orders by filing his list of documents on 19 March 2008. Manifestly this is not so. In effect he is seeking to appeal the orders made on 17 April 2008 saying they should not have been made.
He asserts that Master Norman was somehow misled, by the respondents, into making the orders on 17 April 2008. This is clearly not the case. The Master’s reasons for the decision that is the subject of appeal indicate that he gave careful consideration to all of the evidence before him and to the submissions of both parties prior to making those orders. In my view there was ample basis upon which the Master could be satisfied that that list of documents filed on 19 March 2008 was insufficient to satisfy the orders made on 12 February 2008. The appellant’s position that it was sufficient in effect represents a wilful refusal to accept and to comply with the orders made by Master Norman on 17 April 2008. The true position was made plain to the appellant on that occasion and, as observed by Master Norman in his reasons of 5 August 2007, to all intents and purposes he simply disregarded the order as if it had not been made notwithstanding a clear warning that he was at risk of having his claim stayed or struck out.
It is my view that the respondents have acted appropriately in seeking proper discovery. They are not to be criticised for refusing to deal with the enormous volume of discovered documents. The respondent’s application dated 27 May 2008 was in no way an abuse of process as is contended by the appellant. The appellant had failed to comply with the orders made by Master Norman on 14 February 2008 and on 16 April 2008. The respondent was entitled, under the terms of the Masters orders, to issue the application dated 27 May 2008.
Conclusion
The Master made orders that provided the appellant with the opportunity to comply with the orders made on 14 February and 17 April 2008. His claim has been stayed to enable proper compliance. He has been warned that if he does not comply he can expect that the action will be struck out. It is my view, that in all the circumstances, these were reasonable and proper orders and I see no basis upon which this decision should be interfered with.
Interlocutory application
The appellant also filed an interlocutory application on 5 September 2008 seeking similar orders to those sought in the notice of appeal together with orders seeking referral of certain matters to the Supreme Court of South Australia. I will dismiss that part of the application relating to the appeal for the reasons outlined above. Neither the application nor the affidavit filed in support of the application set out the grounds upon with the matter should be transferred to the Supreme Court. The issue was not addressed in argument before me. I have some doubt as to whether there is jurisdiction to do as the appellant apparently seeks. In any event, given the stay remains in place I will not deal further with this issue but rather will refer this matter to the Master.
Costs

The respondent seeks orders that the appellant pay costs of and incidental to the appeal on an indemnity basis pursuant to Rule 101.01. DCR 101 vests discretion in the Court as to what costs orders ought to be made in a particular case. The discretion must be exercised judiciously. Generally costs would be awarded on a party/party basis. There must be special or unusual features to justify the departure from that practice.[6] In Colgate Palmolive Co & Anor v Cussons Pty Ltd[7] Shepherd J considered the principles relating to an award of indemnity costs. He set out a number of principles relating to the exercise of the discretion.[8] The list is not exhaustive and it is plain that the categories are not closed.
[6] Casley-Smith v FS Evans & Sons Pty Ltd (No 6) (1989) 148 LSJS 483 at p487
[7] (1993) 118 ALR 248
[8] Page 256 - 257
The features that the respondent relies upon are:
·The defects as to form and substance and incompetence of the appeal.
·The fact that the appeal is a severable and discrete element of this action.
·The undue prolongation of this matter caused by the plaintiff’s mishandling of it.
·The plaintiff’s failure to comply with previous costs orders inter alia made payable forthwith.
·The plaintiff’s improper purpose in issuing and pursuing these proceedings. The respondents say the appellant’s ongoing and significant failure to address the Rules and orders of this Court is clear evidence of this.
Whilst I have some sympathy for the position of the respondents given the length of these proceedings and the unsatisfactory manner in which the appellant has conducted them; the purpose of an award of costs is to compensate not to punish.[9] I do not consider that the behaviour of the appellant in bringing this appeal or in conducting the appeal was so unreasonable that it merits the making of an indemnity costs order. Accordingly, I award the respondent it’s costs of the appeal on a party/party basis in any event.
[9] Patrick v Capital Finance Corp Pty Ltd (2004) 211 ALR 272
Accordingly, I award the respondent its costs of the appeal, including those associated with the filing of an amended notice of appeal, on a party/party basis in any event.