McDonald v State of South Australia - [2013] SASC 36

SUPREME COURT OF SOUTH AUSTRALIA
(Appeals to a Single Judge: Civil)
MCDONALD v STATE OF SOUTH AUSTRALIA
[2013] SASC 36
Reasons for Decision of The Honourable Justice Nicholson
19 March 2013
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - OTHER MATTERS
PROCEDURE - INFERIOR COURTS - SOUTH AUSTRALIA - DISTRICT COURT
Appeal against a decision of a District Court Judge who dismissed an appeal against a Master’s refusal to allow the appellant to file a proposed amended statement of claim and against a decision of the Judge to dismiss the appellant’s action.
Held – Appeal as to the refusal to allow the filing of the proposed amended statement of claim dismissed; appeal against dismissal of the action allowed; the appellant is to be allowed a further opportunity to replead subject to conditions; matter remitted to a District Court Master to make directions as to its further conduct.
Freedom of Information Act 1991 s50; Limitation of Actions Act 1936 s37, s48; Workers Rehabilitation and Compensation Act 1986 s54, referred to.
McDonald v The State of SA [2012] SADC 54; State of South Australia v McDonald (2009) 104 SASR 344; Home Office v Harmon [1983] 1 AC 280; Taylor v Director of the Serious Fraud Office (1999) 2 AC 177; Distillers Co (Biochemicals) Ltd v Times Newspapers [1975] QB 613; Morgan v Mallard [2000] SASC 445; Esso Australian Resources Ltd v Plowman (Minister for Energy and Minerals) (1995) 183 CLR 10; Crest Homes plc v Marks [1987] AC 829; Morgan v Mallard [2001] SASC 364; Weldon v Neale (1887) 19 QBD 394; Holpitt Pty Ltd v Varimu Pty Ltd (1991) 103 ALR 684, considered.

MCDONALD v STATE OF SOUTH AUSTRALIA
[2013] SASC 36
Appeals to a Single Judge

NICHOLSON J: Francis Thomas McDonald, who acts on his own behalf, has appealed from a decision of a Judge of the District Court dismissing Mr McDonald’s action as plaintiff, in District Court proceedings no. 29 of 2005. According to the notice of appeal, Mr McDonald appeals against the two orders made by the Judge on 7 August 2012 being:
(i)that the action of the first plaintiff in action no. 29/2005 be dismissed; and
(ii)the defendant state is to have the costs of the appeal and the cross-appeal to be taxed or agreed.
In order to better understand the nature of Mr McDonald’s appeal, a little background needs to be explained. On 11 July 2011 a Master of the District Court published reasons for his decision to refuse an application by Mr McDonald (referred to in the proceedings as the first plaintiff) and his son Brennan McDonald (referred to in the proceedings as the second plaintiff)[1] for leave to file a proposed amended Statement of Claim. On 11 November 2011, the Master published amended reasons. The burden of the Master’s determination, as amended, was that, had the proposed amended pleading been filed, the Master would have struck out numerous paragraphs relating to Brennan McDonald’s claim and virtually all of the paragraphs relating to the case pleaded by Mr McDonald. However, the Master excluded from those paragraphs, bearing on Mr McDonald’s putative claim found not to be in a form suitable for filing, three proposed paragraphs, namely paragraphs 379 to 381. His Honour granted leave to file Mr McDonald’s proposed statement of claim but only as based on paragraphs 379 to 381.
[1] As has been identified in earlier decisions there is some inconsistency in the manner by which the two plaintiffs have been described in the Court records. The claim was originally instituted in the name of Brennan McDonald with Mr McDonald as his next friend. However, after Mr McDonald was joined as plaintiff in his own right, he came to be referred to as the first plaintiff with Brennan McDonald as the second plaintiff.
Mr McDonald appealed from the Master’s decision to refuse leave and the defendant cross-appealed complaining of the Master’s refusal to “strike out” proposed paragraphs 379 to 381. This appeal and cross-appeal to a Judge of the District Court was heard on 16 November 2011 with judgment being determined on 20 April 2012. There was no appeal from the Master’s determination concerning Brennan McDonald’s claim. It will be of assistance, at this point, to repeat the Judge’s potted history of the proceedings.[2]
These proceedings commenced on 12 January 2005. The claim related to events at the Paringa Park Primary School during the period of 1997-2000. At the time, the proceedings were issued in the name of son, Brennan McDonald, with this plaintiff, the father, as his next friend. As the Master put it, the Statement of claim alleged the defendant was negligent, in breach of duty of care, was deceitful and defamed the son and caused him psychological injury, loss of dignity and reputation and discrimination in relation to his education.
Then followed a long history of interlocutory hearings relating to the pleadings. The Master also notes that, by August 2009, ten versions of the plaintiffs’ claims had been filed or lodged for consideration. By orders dated 27 August 2009, the Master struck out various of the pleadings and the claim of the first plaintiff (the father). The Master ordered that further particulars be supplied with respect to certain paragraphs and that an Amended Statement of Claim be filed on or before 6 November 2010. An appeal to Judge Nicholson was allowed in limited respects but otherwise dismissed.
On 3 November 2010, the plaintiffs filed a Proposed Amended Draft Statement of Claim, referred to by me as the Proposed Claim. This is the document about which the appeal and cross-appeal related (although the latter is restricted to paragraphs 379-381 and Document 16).
[2] [2012] SADC 54 at [3]-[5].
In his reasons published on 20 April 2012 the Judge dismissed Mr McDonald’s appeal and allowed the defendant’s cross-appeal such that paragraphs 379 to 381 of the proposed claim were also “struck out”.
No further appeal to this court was, at that stage, pursued by Mr McDonald. However, various interlocutory matters were dealt with before the Master over the ensuing months. In time, the defendant brought an application, consequential on the reasons delivered on 20 April 2012, for an order that Mr McDonald’s claim should now be dismissed on the basis that no cause of action had been disclosed. The latest order of the Master had left Mr McDonald’s allegation of defamation, based on so called “document 16” (paragraphs 379 to 381) as being the only remaining basis for any claim. However, that basis was “struck out” following the successful cross-appeal. Counsel for the defendant put the following submission to the Judge during argument on 7 August 2012.
It follows in our submission that there is nothing left of the first plaintiff, Mr Francis McDonald’s statement of claim. As a result, both of the Master’s decision and your allowance of the cross-appeal of the defendant, it follows therefore in our submission also on the basis that the Master gave a decision saying that he wasn’t going to allow any further amendments after all this time, and the number of amendments that had been put forward, it follows that the action of the first plaintiff in action no. 29 of 2005 should be dismissed.
After hearing from the parties the Judge rejected submissions put by Mr McDonald and made the orders set out at the beginning of these reasons and with respect to which Mr McDonald has now appealed.
Strictly the Notice of Appeal only seeks to challenge the order, made on 7 August 2012, dismissing Mr McDonald’s action. However, during the hearing of submissions to this Court, it was conceded by counsel for the defendant that the appeal should be read and dealt with as if it embraced an appeal from the Judge’s earlier decision on 20 April 2012. Nevertheless, the appeal has been brought by and relates only to Mr McDonald’s claim. Whether or not the appeal heard by the Judge from the Master included those aspects of the proposed pleading relating to Brennan McDonald’s claim, there has been no appeal to this Court by Brennan McDonald with respect thereto.[3]
[3] Whilst not a matter for determination by this Court, it would seem that Brennan McDonald is now of age and any litigation on his part should no longer be conducted with the assistance of a next friend.
At the hearing of the appeal to this Court Mr McDonald wished to expand the appeal further. To understand Mr McDonald’s concern here and the reason why I ruled against further expanding the appeal to this Court I need to set out a little more of the history of the matter. In earlier iterations of the plaintiff’s Statement of Claim Mr McDonald has asserted various causes of action or complaints in the nature of conclusions under headings such as statutory negligence, negligence at common law, deceit and conspiracy. Various pleadings alleging claims of this nature have been struck out in the past on the basis that they failed to comply with the pleading rules.
As a consequence, Mr McDonald attempted to file in the present appeal proceedings an interlocutory application together with an affidavit in support to which was attached a substantial number of exhibits. The interlocutory application sought an order for “a stay on these proceedings” with respect to which, after some discussion with Mr McDonald at the commencement of the appeal, I ascertained or at least reached the view that Mr McDonald was seeking an adjournment of the appeal. Other orders sought in the interlocutory application were in the following terms.
The Plaintiff requests an inquiry should take place into the misfeasance of public officers in this case and how the hearings in the District Court have been handled by the Crown Solicitor and the Master of the District Court.
If His Honour does not support the Orders requested at number one above then the Plaintiff in this case request that he be allowed to Amend the Statement of Claim of 3 November 2010 and use the same facts and evidence in case No 29 of 2005 to show that the public officers breached the tort of misfeasance in public office by abusing their power and office and intentionally caused injury or harm or loss to the Plaintiffs through their illegal and unlawful targeted malice and did so with a reckless indifference of how their acts would impact on the plaintiffs and their family.
The Plaintiff requests that those public officers who are vicariously liable for their acts and omissions which injured the Plaintiffs should be listed as separate defendants along with the State.
The last District Court Judge who dealt with Mr McDonald’s pleading matters prior to the proposed amended Statement of Claim, the subject of this appeal, was myself when I was sitting as a Judge of the District Court. On 5 July 2010, I dismissed an appeal, from the Master, who had struck out substantial aspects of Mr McDonald’s then Statement of Claim. However, I did allow Mr McDonald’s appeal in some quite limited respects. There was no appeal by Mr McDonald from that judgment of mine. As a consequence, I took the view on hearing the present appeal that to the extent that Mr McDonald was wishing to re-agitate matters already dealt with during the long passage of this matter through the District Court such would involve a reconsideration of matters either finally dealt with by me with respect to which there had been no appeal or matters finally dealt with by the Master with respect to which there had been no appeal. Whether or not Mr McDonald might be entitled to seek leave to appeal out of time from any of these earlier decisions, it would be entirely inappropriate for any of these matters to be dealt with as part of the present appeal.
At the hearing of the appeal I made a ruling directing the Registrar, pursuant to Supreme Court Rule 6R 53, to reject Mr McDonald’s interlocutory application and affidavit in support for filing, on the grounds that it was an abuse of process. However, I did permit Mr McDonald to pursue, by way of oral application, his proposed order 1 in the sense that I heard from Mr McDonald on the issue of whether or not the appeal listed before me should be adjourned.
Essentially, Mr McDonald wanted the appeal to be adjourned because he was in the process of seeking permission from a Master of this Court, as he put it, to have the whole of his dealings with respect to the District Court, the Supreme Court, the Workers Compensation Court, together with other functionaries such as the Solicitor-General made the subject of a judicial review.[4] According to Mr McDonald it would give rise to a waste of time and judicial resources to proceed at this stage with the appeal presently listed before the Court. I ruled against the application for an adjournment of the appeal. After a short break at mid-morning I proceeded to hear Mr McDonald’s submissions and those of counsel for the defendant with respect to the appeal itself.
[4] As it happens, Mr McDonald’s application was for permission pursuant to 6R 200(1) to proceed with judicial review of a particular decision of the Workers Compensation Tribunal. That application for permission was refused by a Master of this Court on 4 December 2012. I heard an appeal from that decision and in reasons delivered today have dismissed the appeal.
Mr McDonald’s notice of appeal to this Court asserts the following grounds of appeal.
1.    Failure of the court to observe natural justice:
The District Court has breached the rules of nemo iudex in causa sua and audi alteram partem in dealing with the Tort of Defamation in case No 25 of 2005 which has prejudiced the self litigant FRANCIS MCDONALD and denied him natural justice in his claim of defamation.
2.    Failure of the court to observe the rule of law:
The District Court failed to uphold the Tort of Defamation and the Statutory Defamation Act 2005 when it was shown in legal argument in court that the contents of written material distributed to third parties by the defendant contained malicious statements, that were inspired by hatred, spite, revenge or loathing and were distributed with the intention to cause harm to the plaintiff’s good name and reputation.
3.    Failure of the court to observe due process:
The District Court breached the Court Rules by not keeping proper records of court transcripts in the action No 29 of 2005 which has prejudiced the First Plaintiff FRANCIS MCDONALD.
4.    Failure of the court to observe judicial process:
The District Court breached the Court Rules by showing unfair bias to the defendant in allowing them to have the First Plaintiffs claim in defamation to be dismissed on spurious legal grounds.
5.    Maladministration by the court in handling the file in the above case:
The District Court breached its duty to keep an accurate record of the court file in case No 29 of 2005 and this was detrimental to the First Plaintiff’s claim in defamation.
I agree with the submission of the respondent that Mr McDonald’s notice of appeal provides no detail as to the parts of the Judge’s reasons said to be in error. Furthermore, it does not identify any particular error alleged to have been made or the basis for any asserted error by the Judge. Mr McDonald in his written materials and oral submissions at the hearing of the appeal was only interested in pressing his view of the merits of his various claims. He would seem to have no appreciation of his obligation to comply with the procedural requirements of the Rules and, in particular, the rules of pleading, so that his opponent receives fair notice of the claim it is required to answer. Mr McDonald, in his written materials and oral submissions, has not identified a basis for any of the five grounds of appeal nor has he demonstrated that the Master or the Judge below erred in refusing leave to file the proposed amended statement of claim.
Whether or not the Judge was correct to strike out Mr McDonald’s proceedings is another issue to which I will return. Nevertheless, and staying with the pleading determinations for the present, an appeal by way of re-hearing requires that I reach my own view, independent of that of the Master or the Judge, on the issue of whether or not leave to file the proposed statement of claim should have been granted.
The Master in his reasons of 11 November 2011 dealt at some length with the law relating to the legal basis for the various objections relied on by the defendant. The Master then reviewed all of the proposed paragraphs in contention against this legal background. Paragraphs [84] to [124] of the Master’s judgment relate to the claim by Brennan McDonald and are not the subject of appeal. Paragraphs [125] to [256] of the Master’s judgment relate to Mr McDonald’s claim.
I have reviewed paragraphs 224 to 270 (Part 6) of the proposed statement of claim which purport to plead a claim in negligence. I agree with the Master that, on their face, they disclose no proper cause of action. They do not identify the nature of a relationship that gives rise to a duty of care in negligence or one that would survive the terms of s54(1) of the Workers Rehabilitation and Compensation Act 1986.[5] They also fail to identify and properly particularise the content of the duty said to be owed and the nature of any breach or breaches. The Master noted that a number of these pleadings mirrored earlier versions previously struck out.
[5] Cf; State of South Australia v McDonald (2009) 104 SASR 344 at [180]ff.
In Part 7 of the proposed statement of claim (paragraphs 271 to 384) Mr McDonald purports to plead a claim against the State of South Australia, as defendant, in defamation. I have reviewed these paragraphs together with the reasons of the Master and also those of the Judge insofar as his Honour dealt with these proposed paragraphs.
Leaving aside various paragraphs of a general, introductory and linking nature Mr McDonald’s claim in defamation relies on 17 specified documents said to have been published by or on behalf of agents of the defendant and to be defamatory of him. The defendant in arguing its “strike out” case raised four basic objections all of which, with some exceptions, were alleged to apply to each of the 17 documents.
The first objection was to the effect that certain documents had came into the possession of Mr McDonald by way of discovery or subpoena in other proceedings[6] or in the present proceedings but at a time when Mr McDonald was not yet a party. Accordingly, Mr McDonald’s attempt to use the document breached the common law implied undertaking not to use material obtained during legal proceedings for a collateral purpose.[7] A party may seek to be released from this implied undertaking if they can show “special circumstances”.[8]
[6]    In particular, the Supreme Court proceedings in respect of which Mr McDonald was successful at first instance but unsuccessful on appeal, State of South Australia v McDonald (2009) 104 SASR 344.
[7]    Home Office v Harmon [1983] 1 AC 280; Taylor v Director of the Serious Fraud Office (1999) 2 AC 177; Distillers Co (Biochemicals) Ltd v Times Newspapers [1975] QB 613; Morgan v Mallard [2000] SASC 445; Esso Australian Resources Ltd v Plowman (Minister for Energy and Minerals) (1995) 183 CLR 10.
[8]    Crest Homes plc v Marks [1987] AC 829.
The second objection was to the effect that a number of the documents had come into Mr McDonald’s possession as a result of an application under the Freedom of Information Act 1991. Section 50 of that Act provides as follows.
(1)If access to a document is given pursuant to a determination under this Act, and if the person by whom the determination is made honestly believes, when making the determination, that this Act permits or requires the determination to be made—
(a)     no action for defamation or breach of confidence lies against the Crown, an agency or an officer of an agency, by reason of the making of the determination or the giving of access; and
(b)     no action for defamation or breach of confidence in respect of any publication involved in, or resulting from, the giving of access lies against the author of the document or any other person by reason of the author or other person having supplied the document to an agency or Minister.
(2)Neither the giving of access to a document pursuant to a determination under this Act nor the making of such a determination constitutes, for the purposes of the law relating to defamation or breach of confidence, an authorisation or approval of the publication of the document or its contents by the person to whom access is given.
Sub-section 50(1)(b) has been held to apply according to its terms.[9]
[9]    Morgan v Mallard [2001] SASC 364.

The third ground relied on by the defendant was that each of the documents was published on an occasion of qualified privilege. Whilst the Master accepted this, he held that because, in each case, Mr McDonald had pleaded express malice the defence of qualified privilege remained a triable issue. The Master refused to strike out any of the defamation pleadings and associated documents on the basis of this third ground.
The fourth ground relied on by the defendant was that the plea of defamation in reliance on each of the documents was, in each case, out of time and statute barred. His Honour was not satisfied that any of the proposed amendments fell within Rule 53.03(c).[10] Rule 53.03(c) is a response to the common law rule in Weldon v Neale.[11] A new cause of action, otherwise out of time, may be added if it arises out of the same or substantially the same facts pleaded for the original case of action. I agree with the Master’s reasons for his conclusion that defamation claims based on each of the documents relied on (apart from document 16) as proposed in the statement of claim of 3 November 2010 ordinarily would be statute barred by s37 of the Limitation of Actions Act 1936. I agree that they do not arise out of the same or substantially the same facts as previously pleaded such that the power to permit amendment under Rule 53.03(c) is not available. It was on this basis, there being no application by Mr McDonald for an extension of time pursuant to s48 of the Limitation of Actions Act that all of the defamation pleadings (apart from that based on document 16) were struck out.
[10] The plaintiffs’ proceedings are governed by the 1992 District Court Rules.
[11] (1887) 19 QBD 394.
The pleadings based on documents 2, 3, 4, 5, 6, 7, 8, 9, 11, 12 and 15 were struck out by the Master on the basis of the defendants first (collateral purpose) second (FOI) and fourth (out of time) objections. I agree with the Master’s reasons in these respects. However, in each case the document in question came into Mr McDonald’s possession in two capacities; in circumstances impressed with the implied undertaking not to use the document for a collateral purpose and as a result of a Freedom of Information application. The former is not an absolute bar to an entitlement to use the document. Notwithstanding that the document also came into Mr McDonald’s possession following a Freedom of Information application, he still would be entitled to seek a release from the implied undertaking so as to be permitted to make a collateral use of the document as supplied to him in his other capacity.[12] It does not appear that Mr McDonald has had an opportunity to be heard on this question of whether he might be released from this implied undertaking.
[12] Morgan v Mallard [2001] SASC 364.
In addition, whilst the fourth objection to Mr McDonald’s reliance on this group of documents is sound, it also fails to take account of the fact that Mr McDonald has not been heard on the question of whether or not an extension of time pursuant to s48 of the Limitation of Actions Act might be warranted.
The pleadings based on documents 1 and 10 were struck out by the Master solely on the basis that the claim was out of time and statute barred. Again, Mr McDonald has not had an opportunity to be heard on any application for an extension of time.
The pleadings based on document 13 were struck out upon acceptance of the defendants first, second and fourth objections and the observations already made with respect to other documents in this category apply. However, the Master also struck out the pleadings based on document 13 on the ground that no publication of the relevant material has been pleaded. I agree with the Master’s reasons here. Lack of publication is fatal to the claim.
The pleadings based on document 14 were struck out by the Master on the basis of objections one and four. I make the same observation concerning objection four as previously made. However, I disagree with the Master’s reasoning concerning objection one. Document 14 is a letter addressed to Mr McDonald and was received by him in that capacity. It is alleged that the letter was published by or on behalf of the defendant to others at a later time and it is this that forms the basis of Mr McDonald’s allegation of defamation. The letter also came into Mr McDonald’s possession at a later time in circumstances which, ordinarily, would attract the common law implied undertaking. However, I fail to see how this should prevent Mr McDonald from making use of the letter given that it had already come into his possession at an earlier time.
Mr McDonald’s pleadings based on document 16 were not struck out by the Master. However, the Judge did strike them out when the defendant cross-appealed on the basis that nothing about the document, express or implied, could be characterised as defamatory and that no malice sufficient to exclude the otherwise available defence of qualified privilege could be demonstrated. I have reviewed paragraph 380 of the proposed pleading and the Judge’s reasons. I agree that the aspect of document 16 identified and complained of by Mr McDonald in paragraph 380 is not capable of being found defamatory and should be struck out for this reason. It is not necessary for me to form a final view about the additional ground relied on by the defendant – absence of any basis for the plea of malice.
The pleading based on document 17 was struck out because document 17 is a letter authored by Mr McDonald and, in the circumstances as pleaded, cannot be characterised as defamatory. I agree with the Master’s reasoning.
I agree with the Master and the Judge, for the reasons they gave, that Mr McDonald’s pleading of his claims in defamation should be struck out. However, to this point the pleadings based on documents 2, 3, 4, 5, 6, 7, 8, 9, 11, 12 and 15 fail only because they are statute barred and arise out of circumstances where Mr McDonald cannot proceed without an order of the Court through which the documents were obtained releasing him from his implied undertaking. The pleadings based on documents 1, 10 and 14 fail solely on the basis of being statute barred. The pleadings based on documents 13, 16 and 17 fail for other reasons and cannot be resurrected.
The Master’s orders of 11 November 2011 together with the Judge’s orders on 20 April 2011 dismissing the appeal from the Master and allowing the defendant’s cross-appeal should remain undisturbed. To this extent the appeal to this Court is dismissed. However, additional considerations apply with respect to Mr McDonald’s appeal against the order dismissing the proceedings brought in his name made by the Judge on 7 August 2012. Whether or not proceedings should be dismissed or a plaintiff given a further opportunity to plead a case essentially involves an exercise of discretion.
The Judge provided no reasons for his ex tempore exercise of the discretion to dismiss. It was put to the Judge by counsel for the defendant that the Master had previously indicated that no further opportunity to replead would be allowed. One must have significant sympathy for this position given that the proposed statement of claim has now passed through more than ten versions. Nevertheless, this, on its own, is not necessarily sufficient to justify shutting a litigant out of a potential claim. In addition, the Judge observed during argument that he had taken the view that Mr McDonald’s claim in defamation had “no substance”. This may simply have been a reference to the various grounds (summarised above) relied on by the Master for striking out the defamation claims. However, if it was intended to refer to the question of whether or not the various defamation pleadings disclose a reasonable cause of action in defamation, this is an issue that was not decided by either the Master or the Judge.
In the circumstances, I am of the view that Mr McDonald ought to be given a further opportunity to replead his claim in defamation. However, this cannot take place unless and until he were to be relieved of his implied undertaking in respect of the documents caught by it. In order to effect this he would need to bring an application in the proceedings in which the implied undertaking was given,[13] that is, the present District Court proceedings with respect to some of the documents and the proceedings in this Court which resulted in the dismissal of his claim[14] with respect to other documents.
[13] Morgan v Mallard [2000] SASC 405 at [115]; Holpitt Pty Ltd v Varimu Pty Ltd (1991) 103 ALR 684.
[14] (2009) 104 SASR 344.
In addition, in the event that Mr McDonald were to become entitled to rely on the documents presently subject to the implied undertaking and to replead, he should be allowed also to plead material facts in support of an application for an extension of time pursuant to s48 of the Limitation of Actions Act and to make such an application.
It may be that Mr McDonald would not succeed in being relieved of his implied undertaking in respect of some or all of the documents. It may be that any application for an extension of time under s48 might fail. It may be that if, in time, Mr McDonald were to replead the defendant again would seek to strike out on the basis that no reasonable cause of action is disclosed or for want of proper particulars or for some other failure to comply with the pleading rules. These are all matters about which I have and express no view other than to note that Mr McDonald’s proven incapacity to comply with pleading rules to this point is not a cause for optimism.
The appeal from the Judge’s orders made on 7 August 2012 is allowed and the first order, as identified in paragraph [1] above, is set aside. The second order is varied to now read: “the defendant State is to have the costs of the appeal and the cross-appeal to be taxed or agreed excluding the costs of and incidental to the argument on 7 August 2012”. The matter is to be remitted to a District Court Master so that directions for the future conduct of the matter consistent with these reasons can be formulated.
Mr McDonald should be allowed some time to take such steps as may be open to him to put himself in a position to be entitled to replead the defamation claims, in the event he still wishes to do so. It will be a matter for the Master in the first instance as to how much time is to be allowed and as to any other conditions to be imposed.
Having allowed the appeal against the dismissal of Mr McDonald’s action in District Court proceedings No 29 of 2005, Mr McDonald should be allowed a further opportunity to plead his case in full, that is, not restricted just to the defamation allegations but also raising such other causes of action that any material facts Mr McDonald relies on and properly pleads will support.
However, Mr McDonald ought to be aware that in order to successfully plead his case he will need to make wholesale changes to that which he has proffered to this point. I risk speaking out of turn here. Nevertheless, Mr McDonald should understand that, based on the history of his previous attempts, this task is very likely to be beyond him in the absence of legal assistance. I remind Mr McDonald of this again now because this is likely to be the last opportunity he will be given to plead his case.
I make the following orders.
(1)The appeal against the orders of the Judge made on 20 April 2012 dismissing Mr McDonald’s appeal and allowing the defendant’s cross-appeal from the Master is dismissed.
(2)The appeal against the first order of the Judge made on 7 August 2012 that the action of the first plaintiff (Mr McDonald) in District Court action No 29 of 2005 be dismissed is allowed and that order is set aside.
(3)Subject to order (4) the appeal against the second order of the Judge made on 7 August 2012 dealing with costs is allowed.
(4)The defendant is to have its costs of the appeal and cross-appeal from the Master to the District Court Judge to be taxed or agreed excluding the costs of and incidental to the hearing and orders made on 7 August 2012.
(5)The matter is remitted to a Master of the District Court for directions to be made as to the future conduct of the matter. Such directions are to be consistent with these reasons.
I will hear the parties on the question of the costs of this appeal.