Morgan v WORKCOVER - [2007] SADC 116

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
MORGAN v WORKCOVER
[2007] SADC 116
Judgment of His Honour Judge Nicholson
2 November 2007
PROCEDURE
Appeal from decision of a Master striking out an affidavit and ordering that it be uplifted from the court file pursuant to r83.11 of the District Court Rules - appeal dismissed.
Police v Cadd (1997) 69 SASR 150 at 159; O'Brien Lovrinov Crafter Pty Ltd v Corradini [1999] SASC 159; Transeast Pty Ltd v Commonwealth Bank (1990) 157 LSJS 447 at 450; Rossage v Rossage [1960] 1 All ER 600 at 602; Buzzacott v Morgan (No 2) [1999] SASC 562 at [46]-[47]; Belcar Pty Ltd v Premier Automotive Group Pty Ltd [2007] SASC 240 at [23], referred to.

MORGAN v WORKCOVER
[2007] SADC 116
Introduction

This is an appeal by the plaintiff, Ms Morgan, from a decision made by a Master on 19 September 2007 whereby, his Honour, pursuant to rule 83.11 of the District Court Rules, struck out the plaintiff’s affidavit sworn on 25 July 2007 (FDN61) and ordered, inter alia, that it be taken off the file and be returned to the plaintiff. Throughout this judgment I will refer to the appellant as the plaintiff and to the respondent corporation as the defendant.
The appeal has been instituted pursuant to s43(2)(a) of the District Court Act 1991 and District Court Rule 97.01. Such an appeal is by way of rehearing. I am to consider the matter afresh based on the material properly before the Master together with such further relevant evidence properly admitted on the appeal. For reasons which will become apparent, I do not need, in this case, to consider the nature of the appropriate test for the admission of further evidence. Whilst I am to give appropriate weight to the decision of the Master, I must reach my own conclusions on the material before me and where the exercise of any discretion is involved I am free to exercise that discretion afresh.[1]
[1] See generally, Police v Cadd (1997) 69 SASR 150 at 189; O'Brien Lovrinov Crafter Pty Ltd v Corradini [1999] SASC 159; Transeast Pty Ltd v Commonwealth Bank (1990) 157 LSJS 447 at 450.
Background
The background to this matter is set out at some length in the reasons for the earlier decisions of Tilmouth J dated 25 July 2006, [2006] SADC 80 and of the Master dated 21 May 2007 and in the reasons of the Master relevant to the determination presently under appeal. I do not take the time to set out that background again other than to observe that the matter has had a long and complex history with very many interlocutory arguments, the majority dealing with issues of discovery.
The decision of the Master, the subject of the present appeal, came about in the following circumstances.
On 21 May 2007 the Master made orders, inter alia, requiring the defendant to make further discovery and for the defendant’s discovery in the action to be verified on oath. On 18 July 2007, in purported compliance with those orders, the defendant caused its employee, Philomena Anne Scanlon, to swear an affidavit which was filed on 25 July 2007.
Also on 25 July 2007, the plaintiff filed and served an application headed:
Application for appropriate consequences for failure of defendant to make full discovery of documents as ordered (yet again) by [the learned Master] on 21 May 2007.
This application sought orders or directions to the following effect:
(i)that the defence in the action be struck out … for the defendant’s failure to comply with its obligation to discover documents …;
(ii)that Philomena Anne Scanlon be made available for cross-examination [on her affidavit];
(iii)that the defendant produce for the plaintiff’s inspection all twenty boxes of [various allegedly relevant documents];
(iv)that the chief executive officer of the defendant be imprisoned for contempt of court in failing to ensure that the defendant complied with the various orders for discovery;
(v)that the defendant suffer whatever other “serious consequences” for failing, to comply with its obligations that the court may have had in mind on 2 December 2005.
In support of that application the plaintiff filed and served an affidavit sworn by her on 25 July 2007.
The matter came before the Master on 1 August 2007. At this hearing his Honour received and entertained an oral application by the defendant to strike out the plaintiff’s affidavit filed in support of her application. His Honour heard lengthy argument from both the defendant and the plaintiff that same day. As I have indicated, his Honour allowed the defendant’s application and struck out the whole of the affidavit, essentially on the ground that the material contained therein was irrelevant. His Honour also found that the affidavit contained scandalous and oppressive matter within the meaning of those terms as used in r83.11.
On 3 October 2007, the plaintiff filed a notice of appeal from this decision. Under the paragraph headed “grounds for the appeal”, the plaintiff has set out twenty nine numbered paragraphs spanning almost twelve pages. Paragraphs 1 to 5 inclusive might be regarded as containing grounds of appeal although, they also comprise comment and argument. Paragraphs 6 through to 29 essentially comprise comment and argument. Most, if not all, of the comment and argument contained in paragraphs 1 to 29 of the notice of appeal is directed to the plaintiff’s claim against the defendant the subject of the proceedings and the plaintiff’s allegations as to the inadequacy of the defendant’s discovery. The material bears little relevance to the question of whether or not the affidavit of the plaintiff, filed on 25 July 2007, falls foul of r83.11.
In the notice of appeal the plaintiff seeks ten separate orders. Only the first order sought is pertinent to this appeal. Whilst that proposed order contains irrelevant comment, it does seek “that the plaintiff’s affidavit of 25 July 2007 be put on file as it contains the truth …”. The other orders as sought in paragraphs 2 to 10 either repeat the orders sought in the plaintiff’s “application for appropriate consequences …” filed on 25 July 2007 referred to above or comprise new requests.
Throughout these proceedings the plaintiff has acted on her own behalf. In these circumstances and without objection from the defendant, I decided to treat the notice of appeal as containing both grounds of appeal and written submissions on appeal. In addition, I heard oral submissions from both parties when the appeal was called on for argument before me.
The appeal
The plaintiff did not file an appeal book as required by Practice Direction 11. Nevertheless, the written materials relevant to the appeal were readily identified. In considering the appeal, I have had regard to the following written materials:
(i)the plaintiff’s application dated 25/7/07;
(ii)the plaintiff’s affidavit sworn 25/7/07 filed in support;
(iii)the transcript of the argument before the Master on 1/8/07;
(iv)the plaintiff’s notice of appeal;
(v)a further affidavit sworn by the plaintiff on 3/10/07; and
(vi)an outline of submissions provided by the defendant together with the authorities referred to therein.
As to the plaintiff’s affidavit of 3/10/07, the defendant did not object to me reading and having regard to it for the purposes of this appeal. I have done so. Apart from this, neither party sought to adduce additional evidence on the appeal.
In the plaintiff’s submissions and in her written material before the court, as identified above, the plaintiff tended to focus on asserted inadequacies in the defendant’s discovery. She also argued at length that the allegations about the conduct of the defendant and its employees and advisers that she made in her affidavit of 25 July 2007 were true and should not be struck out for that reason.
The plaintiff did raise two discreet grounds of appeal in the notice of appeal but neither were pursued in oral submissions before me. The first was that the Master had demonstrated bias throughout his conduct of the proceedings, favourable to the defendant, and against the plaintiff. Near the beginning of the hearing before the Master, the plaintiff was specifically asked if she wished to make an application that the Master disqualify himself on this basis, given that any such application would need to be heard before his Honour heard the defendant’s application seeking to strike out the affidavit. The plaintiff declined to make such an application. She conceded that this was so before me and did not seek to press the matter on appeal. Given that this allegation has not been pursued I do not propose to consider it further.
In any event, the plaintiff has argued her case afresh before me and in this respect I have had the advantage of reading the transcript of the submissions put below both by the plaintiff and the defendant as well as hearing their submissions put to me. As such, I am in a position to and will decide the matter afresh on the material before me.
The other discreet ground of appeal is that the plaintiff was given insufficient notice of the defendant’s oral application to strike out her affidavit in circumstances where there was no urgency or justification for this. Related to this ground are assertions that the plaintiff was given no opportunity to research the law, to fully consider the matter and to seek legal advice and that there was a disparity as to the amount of time allowed to each of the parties in presenting argument before the Master. This ground also was not pursued during oral submissions before me. In any event, the plaintiff has now had adequate time in which to do these things at least in order to prepare for and present her argument on the appeal. Given that I am to decide the matter afresh on appeal, and given my view as to the strength of the defendant’s argument, I am not persuaded that the plaintiff has been prejudiced by the fact that the defendant’s application was made orally and without notice before the Master.
I turn now to the merits of the appeal. I accept that material in the affidavit in question which is otherwise relevant, ordinarily, will not be struck out simply because it is also scandalous. The following passage from Rossage v Rossage [1960] 1 All ER 600 at 602 is regularly cited with approval:[2]
It is quite clear that we cannot strike out matters in a pleading or an affidavit simply because they are scandalous because scandalous matter may be relevant and may be the very matters which have to be investigated by the court. If, however, the matters are plainly irrelevant, as they are here, there is no doubt that the court can strike them out, either by virtue of its inherent power or by virtue of the power contained in the rules …
[2] See for example Buzzacott v Morgan (No 2) [1999] SASC 562, Bleby J at [46]-[47].
As Bleby J noted in Buzzacott v Morgan (No 2) [1999] SASC 562 at [47]:
The question [under r83.11] really becomes whether the affidavits, or portions of affidavits, are relevant.
I am prepared to assume, without deciding, that the reference in r83.11 to “irrelevant” matter does not require a finding that the material in the impugned affidavit has to be “directly relevant” rather than simply “relevant” in order for it to survive an attack based on r83.11[3]. For present purposes, the plaintiff’s affidavit has to contain relevant material in the sense that it must be of some evidentiary value to, in this case, the application filed on 25 July 2007, which the affidavit purports to support. In other words, the question I ask myself is, does the affidavit contain material which will assist the court, from an evidentiary perspective, in deciding whether or not to make the orders as sought in the plaintiff’s application of 25 July 2007.
[3] Compare Belcar Pty Ltd v Premier Automotive Group Australia Pty Ltd [2007] SASC 240 particularly at [23] and the discussion of the meaning of the word "relevant" as used in the rules concerning pre-action discovery.
I turn then to the affidavit. The Master’s decision to strike it out in full, based on lack of relevance, was not the function of any exercise of discretion. The question of whether or not a putative item of evidence is relevant or irrelevant is a question of law; at this level, discretionary considerations do not arise. Equally, the task of the court on appeal here involves no exercise of a discretion; rather the task before it is to give independent consideration to the material before the Master so as to decide whether the order appealed from should stand.
I have reviewed each of the sixteen paragraphs in the affidavit. I have considered each paragraph as to any potential evidentiary value it may have in justifying the making of any of the orders sought in the application of 25 July 2007. In my opinion, each paragraph contains only commentary and/or unsubstantiated conclusions. Each is irrelevant to and provides no assistance with respect to the plaintiff’s application and should be struck out for this reason alone. Furthermore, the affidavit does not identify any factual material relevant to the issues ultimately in contention between the parties.
I have reviewed the learned Master’s reasons at [29] to [52] inclusive where he makes specific findings as to the nature of the content and the irrelevance of each such paragraph. I adopt his reasons in this respect in their entirety. There is nothing to be gained by me setting them out again or paraphrasing them in this judgment.
In addition, a substantial number of the paragraphs contain what, in my view, is not only irrelevant but also scandalous and abusive material as to which no admissible evidentiary foundation is provided. Parts of paragraphs 4, 10, 11, 12, 13, 14 and 15 fall within this category. In these circumstances, I agree with the Master’s orders that, in addition to striking out the affidavit in its entirety, it is to be taken off the file and returned to the plaintiff.
Of course, as the Master has already made plain to the plaintiff, she is not to be denied an opportunity of having her application filed on 25 July 2007 (FDN60) heard and determined. Nor is she to be denied the opportunity of placing on the court file admissible material in support of that application. Whilst I make no finding in this respect, I observe that the plaintiff may be able to use some of the material in her affidavit of 25 July 2007 and in the notice of appeal by way of submission on the hearing of her application. However, before doing so, the plaintiff would need to identify and present evidentiary material relevant to and in support of the application and which provides a proper basis for any such submissions. In this respect, I also adopt and commend to the attention of the plaintiff, paragraphs [55] to [57] of the Master’s reasons.
The appeal is dismissed and I will hear the parties on the issue of costs.