Morgan v Mallard No. Scgrg-00-970

MORGAN V MALLARD

[2000] SASC 445

Miscellaneous Appeal (Civil)

1................ LANDER J....... The plaintiff to proceedings in the District Court has filed a Notice of Appeal against an order made by a Judge of the District Court dismissing an appeal from a decision of a Master of that Court.

The plaintiff is unrepresented. On 12 October 1999 she commenced proceedings against the defendant in the District Court. In her Particulars of Claim which are annexed to the summons she claimed that on 1 November 1994 she wrote a letter “to lodge an official disclosure of public interest, according the provisions of the Whistle Blower Protection Act (WPA) 1993”.
She asserts that in a letter dated 3 November 1994 the defendant gave a written response to the “responsible officer” of the “appropriate authority” in defence of allegations submitted by the plaintiff to the defendant’s employer.
She then pleads the defendant falsely and maliciously wrote and published of the plaintiff the words contained in that letter of 3 November 1994.
There is no need, in these reasons, to refer to the terms of the letter. The plaintiff then pleads that the letter in its natural and ordinary meaning contains a number of imputations which the plaintiff identifies in those particulars of claim. Next, she pleads, that in Action No. 95/18167 “taken out by the Defendant and his wife, the Defendant and his wife mislead the Courts and lied on oath.” She concluded her claim in the following terms:
“16... By reason of the publication of the letter of the 3rd of November, 1994, and by misleading the Courts in Action No. 95/18167 the Plaintiff has been injured in her character and has suffered emotional stress and has suffered damages and financial loss.”
The defendant entered an appearance and at the same time delivered a request for further and better particulars seeking a more explicit Statement of Claim.
On 17 November 1999, the defendant made an application to the court for an order that the plaintiff file a more explicit Statement of Claim in accordance with the request made on 27 October 1999.
The application sought, in the alternative, an order striking out those paragraphs of the Particulars of Claim which addressed the claim of misleading the court. No application was made in relation to the claim based on defamation.
The plaintiff responded to that application by filing an amended Particulars of Claim.
She pleaded, in the amended Particulars of Claim in relation to the claim based on defamation:
“4.1.. All statements made about the Plaintiff in the letter dated 3/11/94 were misleading, malicious, dishonest and deceitful and intended to cause injury and harm to the Plaintiff, and hinder a full and proper investigation into Defendant’s wife’s affairs.”
In the amended Particulars of Claim she identified the misleading evidence given by the defendant in court and she pleads the falsity of that evidence.
She then referred to decisions of Mr Hiskey SM and Prior J and Olsson J of this Court apparently in connection with those earlier proceedings.
Her Particulars of Claim asserts that the defendant was guilty of perjury. She claims that the perjury was motivated by the defendant’s desire to protect his wife from investigation for suspected fraud and to advance his case in the proceedings against her.
She claims that by reason of the publication of 3 November 1994 and by “misleading the Courts in Action No. 95/18167 the Plaintiff has been injured in her character and has suffered emotional stress and has suffered damages and financial loss.”
She pleads in paragraph 17 the injury and loss which she has suffered.
“17... Injury and loss suffered by the Plaintiff resulted in the following damages:
a)Denial of natural justice in the form of a full and proper investigation of her Public Interest Disclosure (PID’s)
b)Denial of natural justice in the form of proper protections for making her PID’s
c)the rejection of claims for compensation for injuries sustained by the Plaintiff and her son, after the lodgment of her PID’s.
d)the destruction/loss of paperwork from her WorkCover file
e)the disarray of documentation on her WorkCover file so as to cause administrative hardship
f)denial of documentation under Discovery and Freedom of Information, to obstruct effective defence from the Defendant’s private Defamation action.
g)the malicious and intensive investigation of the Plaintiff and her son for alleged fraud, without proper cause
h)the loss of investment property following the loss of Defamation action by the Plaintiff
i)protracted and expensive, ongoing litigation involving the Plaintiff, in her attempts to clear her name
j)financial loss exceeding $52,000 during the Defamation actions and appeals and legal advice thereafter
k)loss of employment opportunity
l)loss of health
m)loss of good name and reputation within the community and before the legal system
n)loss of Superannuation entitlements to the amount of approximately $14,000
o)loss of income and interest on investments
And the Plaintiff claims costs for damages and interest and future loss of earnings in the sum of $500,000.”
On 23 November 1999, immediately after the plaintiff filed her amended Particulars of Claim the defendant made a further application seeking the following orders:
“1..... An order striking out paragraphs 5 to 16 of the Amended Particulars of Claim on the basis that they do not disclose any cause of action.
2.In the alternative an order that the plaintiff’s action be dismissed on the grounds that it is an abuse of process.
3...... An order that the plaintiff do provide security for costs of the action.”
Paragraphs 1 to 4 of the plaintiff’s Particulars of Claim deal with the claim in defamation. The remaining paragraphs (except the prayer for relief) deal with the plaintiff’s claims arising out of the allegation that the defendant misled the court.
At the same time as the defendant made that application he filed a defence in which he admits the plaintiff’s letter to WorkCover Corporation.
He also admits that he wrote the letter referred to in paragraphs 2 and 3 of the plaintiff’s amended Particulars of Claim.
Moreover, except for two of those imputations, he admits the imputations pleaded by the plaintiff.
He denies that the words were misleading, malicious, dishonest and deceitful and intended to cause injury.
He pleaded that the words in the letter were published on an occasion of qualified privilege and gives particulars of that occasion.
His particulars are consistent with the plaintiff’s plea in that he says that he wrote the letter complained of in response to the letter written by the plaintiff to the Chief Executive Officer of WorkCover Corporation and in his own defence.
In relation to the previous action he said that the words complained of were published by him when giving evidence before the Adelaide Magistrates Court in proceedings No. 18167 of 1995 in proceedings in which he and his wife were plaintiffs and the present plaintiff was a defendant.
He pleads that those words were published on an occasion of absolute privilege.
Next he pleads that in so far as the plaintiff’s claim is based upon perjury the claim is barred by the provisions of s 36 of the Wrongs Act 1936. In that regard he claims that no action lies at the suit of the plaintiff because he has not been convicted of perjury; he has not been found guilty of contempt of court on the grounds of having committed perjury; and he has not been committed for trial on a charge of perjury; s 36 Wrongs Act.
Next he pleads that the plaintiff’s proceedings are an abuse of process in that they amount to a collateral attack on the decision of the Adelaide Magistrates Court in proceedings No. 18167 of 1995.
The defendant’s defence, and perhaps also the application, brought yet another amended Particulars of Claim which was filed on 6 December 1999.
Unfortunately each of the two amended Particulars of Claim, and even more so in the second of them, the plaintiff’s claims become less understandable.
The fact is her original Particulars of Claim conforms more closely with the rules of pleadings than the two amended Particulars of Claim.
In her further amended Particulars of Claim the plaintiff has asserted that in early January 1995 she received a letter from the defendant and his wife’s solicitor requesting an apology regarding her letter of 1 November 1994. She refused to apologise and proceedings were issued against her claiming $30,000.
She further pleads that she was unaware that the WorkCover Corporation had released her letter to the defendant in circumstances in which her identity was revealed. She was also unaware that the defendant had responded to her letter of 1 November 1994 in a misleading, mischievous and defamatory manner.
The further amended Particulars of Claim drew an amended defence.
In the amended defence the defendant denies those allegations. It may be understood that he denies that she was unaware of that matter.
Notwithstanding the amended Particulars of Claim, indeed probably because of it, the defendant pursued the application of 23 November 1999.
The defendant’s application of 23 November 1999 was supported by an affidavit of the defendant’s solicitor sworn on 22 February 2000.
In that affidavit the defendant’s solicitor deposed to filing and serving a list of documents in Action No. 18167 of 1995 in which his client discovered the letter of 3 November 1994 to WorkCover Corporation and that on 9 February 1996 a copy of the letter was provided to the plaintiff’s then solicitors.
The matter came on for hearing on 29 February 2000 and the Master delivered his reasons on 24 May 2000.
In his reasons he addressed the application as an application under r 46.18 of the District Court Rules and specifically did not invoke the powers under r 3.01.
The Master discussed the previous proceedings. In those previous proceedings the present defendant had been had been plaintiff. He and his wife sued the present plaintiff for defamation for the publication of her letter of 1 November 1994. She pleaded by way of defence that the letter was published on an occasion of qualified privilege. The Magistrate found that the publication was an occasion of qualified privilege but he found that the occasion was lost because she had been actuated by malice. He succeeded in that claim and was awarded damages of $10,000. His wife failed in her claim. The present plaintiff appealed to this Court from that decision but the appeal was dismissed. The application for leave to appeal was heard by Prior J and the appeal by Olsson J.
The Master then noticed that the subject matter of this claim for defamation had been discovered in the previous proceedings. He said that these proceedings should have been brought by way of counterclaim in the previous Magistrates Court proceedings; “so closely related was the defendant’s subject letter to the earlier correspondence between the plaintiff and the Chief Executive Officer.”
He held that the defendant’s letter to the Chief Executive Officer “was no doubt written in circumstances of qualified privilege”. He said:
“The suggestion made by the plaintiff that the defendant was motivated by express malice seems preposterous to me in the circumstances; but I must remind myself that this is not a matter that I am able to or should canvas in ruling upon this application. It is a matter that will have to be resolved by the trial judge - it was not resolved in the Magistrates Court proceedings.”
He held that no action lay at common law for perjury; Cabossi v Vila (1990) 64 CLR 130. He further concluded that the plaintiff could not satisfy the conditions for the statutory claim for damages for perjury provided for in s 36 of the Wrongs Act.
He applied the principles in Port of Melbourne Authority v Anshun Pty Ltd (1980) 147 CLR 589 and concluded that the action in libel should be stayed.
He adjourned the application to enable the plaintiff to file and affidavit setting out any special circumstances which she relied upon to explain her failure to counterclaim for damages for defamation in the Magistrates Court proceedings. He also directed that she should file a draft proposal for amendments to her Particulars of Claim. He indicated that the amended Particulars of Claim should not include an action for damages for perjury because the statutory claim could not be made out.
In response to that invitation the plaintiff filed an affidavit in which she said that she was represented by solicitors in the earlier proceedings in the Magistrates Court proceedings but she was not given advice that she was entitled to counterclaim in respect of the defendant’s letter of 3 November 1994. She also complied with the Master’s directions by filing a further proposed Particulars of Claim.
The Particulars of Claim limit the plaintiff’s claim to libel. The Particulars of Claim conform generally with the rules as to pleadings.
The matter was adjourned for further hearing.
In the interim the defendants’ solicitors filed yet another affidavit exhibiting a letter dated 12 November 1996, from the plaintiff’s former solicitors to the defendants’ solicitors, in which they claimed that the defendants’ letter of 3 November 1994 was defamatory of the plaintiff and seeking an apology and a withdrawal of all allegations contained in the letter.
The matter came on again on 7 August 2000. On that day, without giving further reasons, the Master struck out the Statement of Claim and stayed the proceedings permanently.
He ordered the plaintiff to pay the costs of and incidental to the application.
The plaintiff appealed from that decision to a judge of the District Court and who in extempore reasons agreed with the Master in the application of the principles in The Port of Melbourne Authority v Anshun Pty Ltd (supra) to this case and dismissed the appeal.
The plaintiff has now appealed to this Court against the decision of the Judge dismissing the appeal from the Master.
In my opinion, the appeal is not competent.
An appeal from an interlocutory decision of the District Court does not lie as of right to this Court.
Appeals from interlocutory decisions are governed by r 96A.02 of the Supreme Court Rules which requires a party who is dissatisfied with an interlocutory decision to obtain a certificate from a judge of the District Court or alternatively leave of this Court.
No certificate has been obtained so leave is necessary. The criteria for obtaining leave is, in my opinion, the satisfaction of the matters in r 96A.02(1); Finemores (No. 3) Pty Ltd v Evans (1998) 199 LSJS 34.
However because the order is for a stay of proceedings the matters in r 96A.02(1)(b) must be modified.
In my opinion, this is a matter which involves a point of law of difficulty which justifies it being reviewed on an interlocutory appeal.
I would grant leave to appeal.
There is no doubt, in my opinion, that the decision of the Master in respect of the causes of action (if more than one) raised by the plaintiff, except the cause of action in libel, was correct. The plaintiff’s Particulars of Claim, in my opinion, in respect of those other causes of action disclosed no cause of action.
On the other hand, in my opinion, and I do not think I am differing from the Master or the Judge in this respect, I believe the proposed pleading does disclose a cause of action in defamation. The pleading, in my opinion, as I have said, mainly conforms with the rules as to pleadings.
The appropriate decision, in my opinion, was to strike out this Statement of Claim as it stood in its second amended form before the Master. The only question that needed to be resolved was whether, in the circumstances of this case, the plaintiff should or should not be given an opportunity to re-plead the cause of action in defamation because that cause of action was known to her at the time that the previous proceedings were heard in the Magistrates Court.
As I have already said, the previous proceedings involved a claim for defamation by this defendant against this plaintiff claiming that the letter she wrote on 1 November 1994 was defamatory of him. Her defence was that the letter was written on an occasion of qualified privilege. He pleaded, in his reply, that she was actuated by malice.
His letter of 3 November 1994 to the Chief Executive Officer of WorkCover Corporation was not relevant to any issue in the claim brought by this defendant against this plaintiff. It was neither relevant to the issue of whether or not he had been defamed or the issue raised by her of qualified privilege or the further issue of malice raised in his reply.
In the claim brought by this defendant against this plaintiff in those proceedings that letter was simply not relevant.
She could, subject to another point to which I will shortly refer, have claimed by way of counterclaim against him that his letter to the Chief Executive Officer defamed her. It was certainly open to her to bring proceedings by way of counterclaim on that letter.
In this Court the Supreme Court Act 1935 itself refers to counterclaims; s 23.
A counterclaim is in fact a separate action. This Court permits a counterclaim to be heard at the same time as the original claim. Rule 48.01 permits a party wherever a party has a claim against the plaintiff which does not amount to a set-off, to instead of bringing an action, make a counterclaim in respect of that claim.
That it is a separate proceeding is illustrated by r 48.03 which allows the Court to proceed with a counterclaim notwithstanding that judgment is given for the plaintiff in the action, or that the plaintiff’s action is stayed, discontinued or dismissed.
The Magistrates Court Act 1991 is silent on the question of counterclaim but, of course, s 49 of the Act allows the Court to make Rules of the Court regulating the practice and procedure of the Court; s 49(1)(c).
Rule 2(1) of the Magistrates Court (Civil) Rules 1992 provides:
“Action or claim means an action or claim (at law or inequity), defence, counterclaim, set-off, interpleader action, third or subsequent party action or claim and any other originating application or appellate action or claim within the jurisdiction of the Civil Division of the Court.”
There are no separate rules relating to counterclaims except those rules relating to the jurisdiction of the Court where the counterclaim, which is intended to be filed, is not within the jurisdiction of the Court.
In my opinion, a counterclaim in the Magistrates Court, like in the Supreme Court is a separate action.
Necessarily therefore it is a separate cause of action.
In this case the present plaintiff’s claim is based upon a separate publication. If she had counterclaimed in the previous proceedings the matter would have been dealt with entirely separately. No doubt the present defendant in these proceedings would have pleaded that the publication was on an occasion of qualified privilege and the present plaintiff in these proceedings would have pleaded that the then plaintiff was actuated by malice.
The counterclaim would be the mirror of the claim but it would have involved a consideration of a different occasion of qualified privilege and different circumstances relating to malice.
If the counterclaim had been raised in the first proceedings it would not have affected in any way the judgment of the claim. It simply would not have been relevant in those proceedings.
There is no risk that by reason of not having raised that matter in the first proceedings a conflicting judgment could be brought about.
In Port of Melbourne Authority v Anshum Pty Ltd at 603 the High Court held that a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment.
In this case there is no risk of that. If the plaintiff, in these proceedings, succeeds that would not be in any way in conflict with the judgment of the Magistrates Court. Both parties could have defamed each other. Both could have written their letters on occasions of qualified privilege. Both could have been actuated by malice.

If a party fails to raise a matter which is so closely connected with the subject matter of an earlier action in circumstances where it would have been expected that it would be relied upon as a defence to a claim and as a basis of recovery that party will be estopped from later raising that defence; Port of Melbourne Authority v Anshun Pty Ltd.
Again that is not the case here. This is a counterclaim in the true sense.
It cannot be assumed, as it was by the Master and the Judge, that the principles in Port of Melbourne Authority v Anshun Pty Ltd necessarily apply to counterclaims.
In Tanning Research Laboratories Incv O’Brien (1990) 169 CLR 332 at 346 Brennan and Dawson JJ said:
“A plaintiff who has an adjudicated cause of action which can be enforced only in fresh proceedings (Duedu v Yiboe [1961] 1 WLR 1040 at 1046) cannot be precluded from taking fresh proceedings merely because he could have and, if you will, should have counterclaimed on that cause of action in a forum chosen by the opposite party in proceedings in which the opposite party sued him. We do not read the majority judgment in Port of Melbourne Authority v Anshun Pty Ltd as holding the contrary, except on a case where the relief claimed in the second proceeding is inconsistent with the judgment in the first: see especially at pp 599-601.”
See also the decision of Sandtara Pty Ltd v Abigroup Ltd (1997) 42 NSWLR 5 at 7.
In my opinion, both the Master and the Judge were wrong for the reasons they gave to refuse to allow the plaintiff in these proceedings to file fresh Particulars of Claim. As I have already remarked those Particulars of Claim seem to conform with the rules according to pleadings.
It was also an error, in my opinion, for the reasons given by the Master and the Judge on appeal to stay for all time the plaintiff’s proceedings on the basis that her cause of action in defamation should have been advanced in the previous proceedings before Mr Hiskey SM.
However that does not mean this appeal should be allowed. There was one point not taken by the defendant before the Master, the District Court Judge or indeed initially on this appeal.
I raised with the plaintiff who, as I say, was unrepresented and counsel for the defendant, whether the plaintiff was entitled to rely upon a document which she had obtained by discovery in earlier proceedings for a claim of defamation in these proceedings.
After raising the matter and indicating to the parties and counsel the authorities which I believed were relevant I adjourned the matter to allow the parties to consider their position.
In the meantime defendant’s counsel provided me with a further written submission. The defendant now argues that the action should be stayed for the reason that the use of the document in these proceedings would breach the rule that discovered documents may not be used for any collateral or ulterior purpose. The plaintiff, however, did not respond to the invitation to make further submissions on this point. Instead she furnished a letter making further submissions on the Port of Melbourne Authority v Anshun Pty Ltd point.
She did, however, mention in that communication that she had obtained the defendant’s letter of 3 November 1994 under the Freedom of Information Act 1991 as well as by way of discovery in those initial proceedings. She has not however indicated when she received the document under that Act.
She also sought the adjournment of her appeal for a period of three months. She forwarded a medical certificate from a Dr Pritchard who said that the plaintiff was grieving and extremely depressed because of the suicide of her son in May this year. She was also grieving for the death of her sister and nephew last year.
The doctor indicated that a three month postponement of these cases would be beneficial to the plaintiff.
Of course I have the greatest sympathy for the plaintiff and would wish to avoid her any further stress.
On the other hand this is her action and her appeal and the defendant requires some consideration.
She did not attend on the adjourned hearing apparently relying on her written communication to secure an adjournment for three months. That was an assumption she was not entitled to make. On receipt of her communication my associate wrote to her advising the matter would be listed as scheduled and that any application for an adjournment should be made at that time.
I am not prepared to adjourn the appeal for a period of three months in circumstances where the only issue before the Court is a matter of legal principal.
It would be unfair to the defendant, who has already been put to considerable cost in these proceedings, to be put to the further cost of an adjournment especially when I am reasonably confident of the decision which I am about to announce.
The subject matter of the cause of action is the defendant’s letter of 3 November 1994 to the Chief Executive Officer of WorkCover which was obtained by the plaintiff on discovery in the previous proceedings.
There is no doubt that when a party obtains discovery from another party in litigation there is obligation upon that party not to use the documents discovered for any collateral or ulterior purpose unless the party who gives discovery consents, or the party to whom discovery is given obtains the leave of the Court.
As Lord Denning put it in Riddick v Thames Board Mills Ltd [1977] QB 881 the party seeking discovery “gets it on condition that he will make use of them only for the purposes of that action and no other purpose.”
In Harman v Secretary of State for the Home Department [1983] 1 AC 281 the House of Lords approved of the decision by the Court of Appeal in England in Riddick v ThamesBoard Mills Ltd (supra) and in particular the dictum of Lord Denning MR in that case, and the principle enunciated by Jenkins J in Alterskye v Scott [1948] 1 All ER 469 at 470 where in referring to the obligations upon the party to litigation who has obtained discovery his Lordship said:
“The implied undertaking, under which a party obtaining discovery is, not to use documents for any collateral or ulterior purpose”.
There is no doubt that the implied undertaking has been accepted in Australia. In Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 Mason CJ (Dawson and McHugh JJ agreeing) said at 32:
“In relation to documents produced by one party to another in the course of discovery in proceedings in a court there is an implied undertaking, springing from the nature of discovery, by each party not to use any document disclosed for any purpose otherwise that in relation to the litigation in which it is disclosed.”
The facts in the Riddick v Thames Board Mills Ltd are very similar to those in this case.
In that case the plaintiff brought proceedings in relation to defamation on a memorandum which had been discovered in previous proceedings between the parties where the plaintiff had sued the defendant for wrongful arrest and false imprisonment. The earlier proceedings had been settled.
Lord Denning said at 896:
“On the one hand discovery has been had in the first action. It enabled that action to be disposed of. The public interest there has served its purpose. Should it go further so as to enable the memorandum from April 16, 1969, to be used for this libel action? I think not. The memorandum was obtained, by compulsion. Compulsion is an invasion of a private right to keep one’s documents to oneself. The public interest in privacy and confidence demands that this compulsion should not be pressed further than the course of justice required. The court should, therefore, not allow the other party - or anyone else - to use the documents for any ulterior or alien purpose. Otherwise the courts themselves would be doing an injustice. Very often a party may disclose documents, such as inter departmental memoranda, containing criticisms of other people or suggestions of negligence or misconduct. If these were permitted to found actions of libel, you would find that an order for discovery would be counter-productive. The inter-departmental memoranda would be lost or destroyed or said never to have existed. In order to encourage openness and fairness, the public interest requires that documents disclosed on discovery are not to be made use of except for the purposes of the action in which they are disclosed. They are not to be made a ground for comments in the newspapers, nor for bringing a libel action, or for any other alien purpose. The principle was stated in the work of the highest authority 93 years ago by Bray J., Bray On Discovery, 1st ed. (1885), p 238:
.................. “A party who has obtained access to his adversary’s documents under an order for production has no right to make their contents public or communicate them to any stranger into the suit: ... nor to use them or copies of them for any collateral object ... If necessary an undertaking to that effect will be made a condition of granting an order: ...
Since that time such an undertaking has always been implied, as Jenkins J said in Alterskye v Scott [1948] 1 All ER 469, 471. A party who seeks discovery of documents gets it on condition that he will make use of them only for the purpose of that action, and no other purpose.”
The Court of Appeal concluded that the plaintiff was not entitled to use the memorandum as the basis of an action for defamation.
I think the rule is that a party is not entitled, without leave of the Court, to use a document discovered in one proceedings in subsequent proceedings.
It would seem to be the rule, however, that a plaintiff may use a document which has been discovered by a defendant for the purpose of adding causes of action based on that discovered document. That is not considered to be a collateral or ulterior purpose.
More recently there are decisions which suggest that a document which is discovered could become the subject matter of a counterclaim; All State Life Insurance Co v ANZ Banking Group (1995) 57 FCR 360; Eckert v National Australia Bank (1997) 191 LSJS 221.
If those decisions are correct, and I pass no opinion on their correctness, the plaintiff, in these proceedings, could have used the letter as the subject matter of a counterclaim in the previous proceedings without first obtaining the consent of the defendant in these proceedings or leave of the Court.
However, she could not still, in my opinion, use that letter as the subject matter of this claim without obtaining consent of the now defendant (which is unlikely to be given) or the leave of the Court.
She has not sought the leave of this Court. It would not have been appropriate for her to seek leave of this Court to rely upon the document discovered in the earlier proceedings. Where a party wishes to be relieved of the implied undertaking relating to a discovered document that party must file an application in the proceedings in which the implied undertaking to the Court was given; Holpitt Pty Ltd v Varimu Pty Ltd (1991) 103 ALR 684.
It will be for Mr Hiskey SM in the Magistrates Court to determine whether or not the plaintiff should be released from her implied undertaking. In doing so he will have regard to the fact that the plaintiff may have been able to bring these proceedings by way of counterclaim without leave. No doubt Mr Hiskey SM will also have regard to the fact, if it be the fact, that the plaintiff obtained a copy of this document under the Freedom of Information Act. He will also have regard to the fact that considerable time has passed since the proceedings were heard before him.
In the end he will have to determine whether or not leave should be granted in accordance with the principles in Crest Homes PLC v Marks [1987] AC 829.
It is not for me, of course, to make any comment upon whether or not the plaintiff should or should not be given leave if she makes such an application.
It follows therefore that these proceedings should be stayed but for reasons different than those given by the Master and the Judge of the District Court on appeal.
In my opinion, it would be appropriate simply to dismiss the appeal and that will be the order of the Court.

[2000] SASC 445

21 December 2000