Morgan v Mallard

Case [2001] SASC 364

MORGAN  v  MALLARD
[2001] SASC 364

Full Court:  Mullighan, Bleby and Wicks JJ

  1. MULLIGHAN J                 I agree with the orders proposed by Bleby J and with the reasons which he has given.

    BLEBY J

    Background

  2. The present respondent was at all material times an employee of the WorkCover Corporation.  He and his wife brought an action against the present appellant for damages for defamation based on a letter which the appellant had written to the WorkCover Corporation on 1 November 1994.  Those proceedings were heard in the Magistrates Court in 1996, and resulted in a judgment for damages in favour of the respondent (but not his wife) in the sum of $10,000.  The appellant appealed to this Court against that decision, but the appeal was dismissed.

  3. During the course of those proceedings the respondent’s solicitor filed and served a list of documents in which he gave discovery of a letter dated 3 November 1994 from the respondent to the WorkCover Corporation, which he had written at the request of the Corporation in response to the allegations of the appellant contained in her letter of 1 November 1994.

  4. On 12 October 1999 the appellant, who is unrepresented, commenced proceedings against the respondent in the District Court.  The particulars of claim were amended at least twice by filing amended particulars on 17 November 1999 and 6 December 1999.

  5. In those proceedings the appellant claimed damages for defamation against the respondent based on his letter to the WorkCover Corporation dated 3 November 1994.  She also claimed damages for perjury against the respondent based on the evidence he gave at the trial in the Magistrates Court in his action against the appellant.

  6. In his defence, the respondent admitted authorship of the letter, admitted a number of imputations pleaded by the plaintiff, denied that the words were misleading, malicious, dishonest and deceitful and pleaded qualified privilege.  In relation to the evidence he gave at the trial, he pleaded that, in so far as the evidence was complained of as being defamatory, it was given on an occasion of absolute privilege.  In so far as it was the basis of any claim for perjury, he pleaded failure to comply with the conditions set out in s 36 of the Wrongs Act 1936 and that the proceedings were an abuse of process, because they amounted to a collateral attack on the decision of the Magistrates Court in the earlier proceedings.

  7. By application filed on 23 November 1999 the respondent applied for an order striking out those parts of the Statement of Claim which did not relate to the claim for defamation.  In the alternative he sought an order that the action be dismissed on the ground that it was an abuse of process.  It appears that the written application was directed to the version of the Statement of Claim filed on 17 November 1999.

  8. A Master of the District Court held, correctly in my view, that no action lies at common law for perjury: Cabassi v Vila

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Morgan v Mallard [2001] SASC 364
Case
[2001] SASC 364
Decision Date

CaseChat Overview and Summary

The case of Morgan v Mallard was an appeal against an order which dismissed the appellant's action for defamation. The appeal was heard in the Supreme Court of Victoria. The respondent, Mallard, had written a letter to the WorkCover Corporation, which was then obtained by the appellant, Morgan, under the Freedom of Information Act 1991. Morgan sought to use this letter as evidence in her defamation action against Mallard, but Mallard argued that the Freedom of Information Act prevented Morgan from using the letter in this manner.

The legal issues in this case centred around whether the Freedom of Information Act 1991, s 50(1)(b) prevented Morgan from using the letter in her defamation action against Mallard. The court needed to determine whether the letter was protected under s 50(1)(b) of the Act, and if so, whether there were any circumstances in which Morgan could use the letter in her action. The court also needed to consider whether Morgan could apply to the Magistrates Court for leave to use the letter in her defamation action.

The court held that the letter was protected under s 50(1)(b) of the Freedom of Information Act 1991 because it was produced by reason of the author having supplied it to the WorkCover Corporation. However, because the letter was also supplied to Morgan in her capacity as a litigant in the Magistrates Court, she may be able to use it either with the consent of Mallard or by leave of the Magistrates Court. The court concluded that the order of the single Judge dismissing the appeal must be confirmed. However, Morgan was still able to apply to the Magistrates Court to seek leave to use the letter in her defamation action. The court also noted that if Morgan was successful in obtaining leave from the Magistrates Court, it would be appropriate for the stay to be lifted unless justified for some other reason.

The court dismissed the appeal from the single Judge but ordered that Morgan be at liberty to apply to the District Court to revoke the stay and to apply for further directions as to the pleading of her action limited to a cause of action in defamation based on the letter of Mallard to WorkCover Corporation dated 3 November 1994. The court also limited the time within which Morgan could make such an application to the District Court to a period of three months from the date of this judgment. The court ordered that Morgan pay Mallard's costs of this 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

MULLIGHAN J WICKS J
In this case, to the extent that the letter in question has been produced to the appellant under the provisions of the Freedom of Information Act 1991, s 50(1)(b) would prevent her from using it for the purpose of maintaining the present action for defamation. That is because it is the subject of protection under s 50(1)(b) as a document produced by reason of the author having supplied it to WorkCover Corporation. However, because it was also supplied to her in a different capacity, as a litigant in the Magistrates Court, she may be able to use it either with the consent of the respondent or by leave of that Court.Conclusion It follows that the order of the single Judge dismissing the appeal to him must be confirmed. That is not to say that the appellant is unable to make an application to the Magistrates Court to seek the leave of that Court to use the document for the purposes of the present action. I have already set out what the Judge said about the approach that might be taken by the Magistrate if such an application were made. The only qualification I would add to that is that although the Magistrate might have regard to the fact that the plaintiff obtained or was able to obtain a copy of the letter under the Freedom of Information Act, he would also have regard to the fact that that in itself would not assist the plaintiff in being able to use it in her present action. As the single Judge pointed out, there are decisions which suggest that a document which is discovered in proceedings may become the subject of a counterclaim in those proceedings without obtaining the leave of the Court: Allstate Life Insurance Co v ANZ Banking Group Ltd (1995) 57 FCR 360; Eckert v National Australia Bank Ltd (1997) 191 LSJS 221. Like the Judge below, I express no opinion on the correctness of those decisions. They have not been the subject of argument before us. But if they are correct, they would have allowed the appellant to bring her present proceedings for defamation by way of counterclaim in the Magistrates Court proceedings. The Magistrate will no doubt take that into account if an appropriate application is made by the appellant. The single Judge merely dismissed the appellant’s appeal, but that appears to have been on the assumption that the proceedings should be stayed pending the result of any application to the Magistrates Court, and I agree that that is what should happen. Nevertheless, the effect of the Master’s order and that of the subsequent orders on appeal is that the whole of the Statement of Claim be struck out. If the appellant applies to the Magistrates Court and obtains leave to use the letter for the purpose of the District Court action, it would be appropriate for the stay to be lifted unless justified for some other reason. It would also be inappropriate for the Statement of Claim to be struck out, depending on which Statement of Claim the Master’s order referred to. The appropriate order is to dismiss the appeal from the single Judge but to order that the appellant be at liberty to apply to the District Court to revoke the stay and to apply for further directions as to the pleading of her action limited to a cause of action in defamation based on the letter of the respondent to WorkCover Corporation dated 3 November 1994. In view of the fact that there have already been many delays in pursuing what is now a very old action, I would limit the time within which the appellant could so apply to the District Court to a period of three months from the date of this judgment. That should give her enough time to make any application she may need to make to the Magistrates Court and, if successful, then to apply to the District Court. In view of the fact that the appellant has failed in her appeal and that only the reasoning has been slightly altered, and in view of the fact that the appellant could have taken up at any time the single Judge’s suggestion that she apply to the Magistrates Court, I would order that she pay the respondent’s costs of this appeal.

Ratio Decidendi

Legal Principle Established

Established by: MULLIGHAN J, WICKS J

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