Howley v Ghan

Case [2019] SASC 4

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Civil)

HOWLEY v GHAN

[2019] SASC 4

Judgment of The Honourable Justice Hinton

25 January 2019

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - INDEMNITY COSTS - PARTICULAR CASES - ABUSE OF PROCESS

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - COSTS

Mr Howley instituted proceedings in the Magistrates Court against Dr Ghan seeking damages in the amount of $100,000 and other relief. On 22 June 2018 Mr Howley’s particulars of claim were struck out and he was given the opportunity to re-plead. Mr Howley subsequently filed amended particulars of claim.

On 3 August 2018 the amended particulars of claim were also struck out and Mr Howley’s action was dismissed.  Dr Ghan applied for his costs to be determined on an indemnity basis. That application was made on the grounds that the claim enjoyed no prospects of success, was scandalous and was persisted with despite Dr Ghan’s solicitors warning Mr Howley that costs would be sought if he did so. The Magistrate who dismissed Mr Howley’s claim awarded Dr Ghan costs fixed in the sum of $500.

Mr Howley appealed against the dismissal of his claim and the striking out of his amended particulars of claim. Dr Ghan appealed against the costs order made in his favour.

Held:

1.       Dismissing Mr Howley’s appeal; the Magistrate was right to conclude that the amended particulars of claim did not disclose a cause of action and did not comply with the requirements of the Magistrates Court (Civil) Rules 2013 (SA).

2.       Allowing Dr Ghan’s  appeal; the Magistrate provided no reasons for the costs order she made where a prima facie basis for an award of indemnity costs existed.

Magistrates Court Act 1991 (SA) ss 8(1), 37(1), 38(5); Magistrates Court (Civil) Rules 2013 (SA) rr 2, 3(1), 24(1), 70(1), 86, 106(1); Supreme Court Civil Rules 2006 (SA) rr 53, 90(2), 98, 99, referred to.
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; Police v Pericic (2008) 100 SASR 141, applied.
Bruce v Oldhams Press Ltd [1936] 1 KB 697; Cox v Journeaux (No 2) (1935) 52 CLR 713; Jeffery Pty Ltd & Katauskas v SST Consulting Pty Ltd (2009) 239 CLR 75; Rayner v Pethick [2006] SASC 70; Resi Corporation v Munzer [2016] SASCFC 15; Staats v The United States of America (1992) 66 ALJR 793; Union Bank of Australia v Harrison, Jones & Devlin (1910) 11 CLR 492; Westwill Pty Ltd v The Barossa Council [2016] SASC 189, considered.

HOWLEY v GHAN
[2019] SASC 4

Magistrates Appeal

HINTON J:

Introduction

  1. On 23 April 2018 Mr Howley instituted proceedings in the Magistrates Court against Dr Francis…

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Howley v Ghan [2019] SASC 4
Case
[2019] SASC 4
Decision Date

CaseChat Overview and Summary

The case of Howley v Ghan involved a claim by Mr Howley against Dr Ghan, alleging that Dr Ghan had shared information about his medical condition with others, including Dr Asz, without his consent. The Magistrate struck out and dismissed Mr Howley's claim, finding that the facts material to the claims were not pleaded. Mr Howley appealed to the Supreme Court of South Australia, challenging the Magistrate's decision on various grounds, including the adequacy of the reasons provided and the failure to give reasons for the decision.

The primary legal issues for the court were whether the Magistrate had erred in law by failing to provide adequate reasons for the dismissal of the claim and whether the claim should have been struck out as an abuse of process. The court also considered whether Mr Howley's claim could be seen as a breach of confidence or a breach of privacy, though it was noted that the relevant facts for such claims were not pleaded. Additionally, the court addressed the question of whether indemnity costs should be awarded to Dr Ghan, given the nature of the appeal and the conduct of Mr Howley.

The Supreme Court found that the Magistrate had not erred in law and that the reasons provided were adequate. The court upheld the Magistrate's decision to strike out and dismiss the claim, noting that the relevant facts necessary for a breach of confidence or privacy claim were not pleaded. The court further held that the appeal was without merit and that indemnity costs should be awarded to Dr Ghan. The appeal was dismissed, and Mr Howley was ordered to pay Dr Ghan's costs of the appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Taken at its highest, counsel submitted that Mr Howley’s claim might be thought as one asserting a breach of confidence or a breach of privacy as Mr Howley alleged that Dr Ghan had shared information about his medical condition with others, including Dr Asz, without his consent. However, even if that were the case the facts material to such claims were not pleaded. As such, the Magistrate was correct to strike out and dismiss Mr Howley’s claim.c. Analysis and conclusion Rule 24(1)(b) MCCR provides that in a general jurisdiction claim, as Mr Howley’s claim was, pleadings must comply with the SCCR except that a claim under s 588FF of the Corporations Act 2001 (Cth) must not attach an affidavit nor liquidators report. Rule 90(2) SCCR states that a pleading is a formal statement of the basis of a party’s case filed in the court. Rules 98 and 99 SCCR provide:98—General rules of pleading(1) A pleading—(a) must be in an approved form; and(b) must—(i)if the party is represented by a solicitor whose name appears on the Court’s record as the solicitor representing the party—be endorsed with a certificate by the solicitor certifying that the pleading has been prepared in accordance with the party’s instructions and conforms with these rules; or(ii)if the party is not represented by a solicitor—be signed by the party.(2) A pleading—(a) must be as brief as the nature of the case allows; and(b) must state only material facts and matters relied on and not the evidence or arguments by which the facts and matters are to be proved; and(c) must not contain matter that is—(i)scandalous; or(ii)evasive or ambiguous; or(iii)frivolous or vexatious; or(iv)an abuse of the process of the Court in some other respect.(d) must plead such facts and matters as give fair notice of the party’s case at trial.(3)If a claim or defence is based wholly or in part on a document or conversation, the effect rather than the actual words of the document or conversation should be pleaded unless there is good reason to state the actual words.Exception—In a case of defamation, it is necessary to plead the words alleged to give rise to the defamation and, if a defamatory innuendo is alleged to arise from the words or the circumstances in which they were used, the defamatory innuendo as well.(4)If a question of liability has been decided by agreement between the plaintiff and the defendant, a party relying on the agreement must refer to the agreement and its effect in the relevant pleading but not the facts and matters giving rise to the question except to the extent necessary to describe the effect of the agreement.(5)It is not necessary to identify a person referred to in a pleading by the person’s full name—any conventional form of identification that identifies the person with reasonable particularity is sufficient.(6)Allegations of fact in a pleading must be mutually consistent.(7)However, a party may make inconsistent allegations of fact in the alternative.(8)If a party makes a claim or defence that assumes the fulfilment of a condition precedent, the party is taken to allege fulfilment of the condition precedent without specifically pleading it.99—Requirements for statement of claim(1)A statement of claim—(a) must state the name of each cause of action; and(b) must state the basis of each cause of action (including reference to any statutory provision on which the plaintiff relies); and(c) must contain a short statement of the material facts and matters on which each cause of action is based; and(d) must state any remedy for which the plaintiff asks; and(e) if the plaintiff seeks an ancillary remedy (such as an extension of a period of limitation or a temporary injunction)—must state the nature of the remedy and the basis on which it is sought.(2)If the plaintiff relies on separate causes of action, the statement of material facts and matters must differentiate between—(a) facts and matters that are common to both or all causes of action; and(b) facts and matters that are relevant only to a particular cause of action.(3)If a plaintiff claims damages for personal injury, the statement of claim must state—(a) the general nature of the injury and any resulting disability; and(b) the general nature of treatment received; and(c) the general effect of the injury and any resulting disability on the plaintiff's—(i)capacity to work; and(ii)enjoyment of life; and(d) the kinds of economic and non-economic loss suffered by the plaintiff, (but is not to contain details of treatment and loss that are required for the statement of loss).

Ratio Decidendi

Legal Principle Established

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