Hanna v Flinders University - [2024] SASCA 127

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
HANNA v FLINDERS UNIVERSITY
[2024] SASCA 127
Judgment of the Court of Appeal
(The Honourable President Livesey and the Honourable Justice Bleby)
28 October 2024
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS - LEAVE TO APPEAL
This is an application for leave to appeal from a decision of a single judge of this Court refusing, in all but one respect, leave to appeal from a decision of a magistrate on an interlocutory application for further and better discovery.
The notice of appeal against that refusal of leave raises four grounds concerning ‘errors of law’, ‘procedural unfairness’, ‘factual errors’, and ‘incorrect application of discretion’. Broadly speaking, these errors go to the applicant’s substantive dispute against the respondent university for having wrongfully rejected her post-graduate scholarship application. She contends error insofar as the undiscovered documents are relevant to that substantive dispute.
Held (by the Court) refusing leave to appeal:
1.The orders appealed against concern matters of procedure; there is no determination of the applicant’s substantive rights that causes her irreparable prejudice.
2.No question of general importance or significance arises on the application. There is no apparent reason to doubt the correctness of the primary judge’s decision.

Harris Scarfe Limited (Receivers and Managers Appointed) (In Liquidation) v Ernst & Young (No 2) [2005] SASC 168, applied.
Atkins v Australian Broadcasting Corporation [2024] SASCA 96, considered.

HANNA v FLINDERS UNIVERSITY
[2024] SASCA 127
Court of Appeal – Civil: Livesey P and Bleby JA

THE COURT: This is an application for leave to appeal from a decision of a single judge of this Court. The judge refused leave to appeal from a decision of a magistrate on an interlocutory application for further and better discovery, in all but one respect.
The applicant’s Statement of Claim asserts causes of action in negligence, negligent misrepresentation, breach of statutory duty and breach of contract. In essence, the applicant asserts that the respondent university wrongfully rejected a scholarship application for a two-year period, on account of which she has suffered loss. The complaints made about the conduct of the respondent within each asserted cause of action are numerous.
The application for further and better discovery comprised 22 paragraphs, each describing a category of documents. The magistrate addressed each in turn. She ordered the respondent to make discovery of three categories of documents. She refused the balance of the application, primarily on the basis that the documents described were not relevant.
The judge approached the application for leave to appeal against that decision by reference to the various causes of action. On the claims of breach of statutory duty, he observed that the claims did not clearly identify what act or omission the respondent engaged in which led to a breach of duty. He noted that many of the categories of documents sought related to those claims. These categories extended to eligibility criteria, applications made for postgraduate studies, the ranking system, and successful and unsuccessful applications.
The judge held that absent any particularisation of the breach of statutory duty, it was open to the magistrate to find that the applicant was making a general inquiry into the discretion of tertiary institutions to accept and reject applications. He held that the magistrate correctly refused discovery of those categories. He accepted an undertaking by the respondent to ensure that any category of documents that the magistrate said should be discovered would be, as well as any available documents showing tracked changes with dates of changes in eligibility criteria.
The judge referred to the well-accepted principles relating to an application for leave to appeal against an interlocutory judgment on a question of practice and procedure:
The principles governing the grant of leave are well known and not in dispute. In short, a prospective applicant seeking leave to appeal must demonstrate that the judgment sought to be appealed is attended with sufficient doubt to warrant its reconsideration on appeal or raise issues of principle or general importance or occasions a substantial injustice.
(Footnote omitted)
The judge was not satisfied that there was any question of importance involved in the application. He considered that there was nothing more than the applicant’s assertions as to systemic problems in the respondent university. Her claim was limited to wrongs she asserted were done to her. The judge refused leave to appeal on all categories of claim except in respect of one category (Category 18) relating to the breach of contract claim, which he considered was relevant to the quantum of damages if the applicant were to succeed in establishing a breach of contract.
The application for leave to appeal
The applicant’s Notice of Appeal is lengthy. It is divided into four categories of complaint, being:
A.errors of law;
B.procedural unfairness;
C.factual errors; and
D.incorrect application of discretion.
The applicant essays numerous complaints under each of these headings. Under the heading ‘errors of law’, the Notice of Appeal develops a number of substantive arguments in support of the applicant’s assertion of statutory duties owed to her by the respondent, and her assertion that the various categories of documents are thereby relevant. In this regard, paragraph 5 refers to her submissions dated 19 January 2024. These grounds appear, in essence, to reagitate her substantive complaints.
Under the heading ‘procedural fairness’, the applicant complains that the judge ‘failed to hear the argument in relation to each of the document categories in the Applicant’s claim to decide on their relevance’. This was not the primary judge’s task. The task was to determine whether this was an appropriate case for a grant of leave, which involved some assessment of the prospects of success. The judge addressed those prospects compendiously but accurately. The difficulty, as the judge found, lay with the amorphous nature of the pleading and the applicant’s failure to particularise her case. Otherwise, the applicant complains that the judge did not consider her submissions and ‘selectively determined’ the relevance of the Category 18 documents while failing to discuss the relevance of other documents.
Under the heading ‘factual errors’, the Notice of Appeal develops a litany of complaints about the reasoning of the primary judge that are not limited to factual errors.
With respect to the paragraphs under the heading ‘incorrect application of discretion’, it is difficult to discern the asserted errors other than an outcome error in the refusal of the application. The complaints under this heading also effectively assert, again, that the judge did not consider the ‘relevant factors’ comprehensively.
This Court considers applications for leave to appeal by reference to the interests of justice and three, inter-related questions:[1]
(1)whether the decision is attended with sufficient doubt to warrant its reconsideration on appeal;
(2)whether the decision raises an issue of principle or general importance; and
(3)whether allowing the decision to stand would work a substantial injustice to the applicant.
[1] For example, Atkins v Australian Broadcasting Corporation [2024] SASCA 96 at [24]-[25] (Livesey A/CJ and Stein AJA).
The Court will be slow to grant leave to appeal against interlocutory orders that do not determine substantive rights. Discovery is a matter of practice and procedure. As Bleby J observed in Harris Scarfe Limited (Receivers and Managers Appointed) (In Liquidation) v Ernst & Young (No 2):[2]
What is a common thread running through the cases, however, is that there is a general unwillingness to grant leave to appeal from interlocutory orders which do not either directly or by their practical effect finally determine the substantive rights of a party. The Court should be slow to encourage unnecessary, costly and time consuming appeals having the effect of unduly disrupting the orderly conduct of litigation, particularly litigation of a complex nature such as this.
[2] [2005] SASC 168 at [14].
Having perused the pleadings and the applicant’s arguments in support of discovery of the categories of documents that she seeks, there is no apparent reason to doubt the correctness of the primary judge’s decision. The judge’s criticism of the claim as amorphous and poorly particularised is justified. The supposed relevance of the categories of document that the applicant seeks is denied by the want of particularisation. This is particularly so by reason of the failure of the applicant to plead adequately the statutory duty or duties relied upon.
We agree with the primary judge’s conclusion that the appeal before him raised no question of general importance. The Notice of Appeal before this Court does not do so either. Finally, we are not satisfied that a refusal of leave would work any substantial injustice against the applicant.
Other matters
As the respondent has noted, the applicant’s written submissions in support of her application seek to raise issues concerning the magistrate’s former association with the firm representing the respondent in the action. It appears that the applicant applied to disqualify the magistrate on this basis. That is not the concern of this application, which is concerned only with the question of leave to appeal from the decision of the single judge on the first instance application for leave to appeal.
Conclusion
The application for leave to appeal is dismissed. The respondent provided short written submissions opposing the grant of leave. The applicant must pay the respondent’s costs of the application.