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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] SADC 116
Decision Date: 2 November 2007

CaseChat Overview and Summary

This case involves an appeal by Ms Morgan against a decision of a Master to strike out an affidavit sworn by her and order it to be uplifted from the court file. The appeal was heard in the District Court of South Australia. The legal issues the court was required to decide included whether the affidavit was relevant, and whether the Master's decision to strike out the affidavit was justified. The court held that the affidavit was irrelevant and contained scandalous and oppressive matter. The appeal was dismissed, and the plaintiff was advised to present admissible material in support of her application.

In reaching this decision, the court considered the material before the Master and gave appropriate weight to the Master's decision. The court held that the question of whether a putative item of evidence is relevant or irrelevant is a question of law, and that the task of the court on appeal involves independent consideration of the material before the Master. The court reviewed each paragraph of the affidavit and found that each contained only commentary and/or unsubstantiated conclusions, and was irrelevant to the plaintiff's application. The court also found that a substantial number of the paragraphs contained scandalous and abusive material for which no admissible evidentiary foundation was provided. In these circumstances, the court agreed with the Master's orders to strike out the affidavit in its entirety, take it off the file, and return it to the plaintiff. However, the court noted that the plaintiff was not to be denied an opportunity of having her application heard and determined, and that she may be able to use some of the material in her affidavit by way of submission on the hearing of her application, provided she presented admissible material in support of her application.

Orders