Morgan v WorkCover Corporation

Case [2013] SASC 47

SUPREME COURT OF SOUTH AUSTRALIA

(Appeals to a Single Judge: Civil)

MORGAN v WORKCOVER CORPORATION

[2013] SASC 47

Judgment of The Honourable Justice Stanley

10 April 2013

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - SECURITY FOR COSTS

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS

Interlocutory application by the respondent seeking orders for the dismissal of two appeals and an application for permission to appeal brought by the appellant – the first appeal is from a District Court judgment dismissing the appellant’s claim for breach of statutory duty under the Workers Rehabilitation and Compensation Act 1986 (SA), the Whistleblowers Protection Act 1993 (SA) and the Freedom of Information Act 1991 (SA) – the second appeal and application for permission to appeal are from an interlocutory judgment of this Court requiring the appellant to provide security for costs of the first appeal – in the alternative, the respondent seeks an order that the second appeal be struck out.

Held: appellant’s application for permission to appeal from the orders of Vanstone J on 17 October 2012 is dismissed, the appellant’s appeal from the orders made by Vanstone J on 17 October 2012 is dismissed – the appellant has failed to identify any error of law or principle made by the learned judge, or any failure by the learned judge to consider some relevant matter or the consideration of irrelevant matters or mistaking of facts -  the learned judge correctly identified the test to be applied in determining whether an order for security is appropriate.

In respect of the first appeal, it is not appropriate at this stage to dismiss the appeal without first affording the appellant the opportunity to provide the security ordered – the application is not dismissed at this stage.

Supreme Court Civil Rules 2006 (SA) r 295, r 232, r 288; Workers Rehabilitation and Compensation Act 1986 (SA) s 112; Whistleblowers Protection Act 1993 (SA) s 4, s 5, s 10; Freedom of Information Act 1991 (SA), referred to.
Purins v Alpine Constructions Pty Ltd [2008] SASC 11; House v The King (1936) 55 CLR 499; Dagenham Nominees Pty Ltd v Shanks (2011) 110 SASR 577, applied.
Morgan v WorkCover Corporation [2012] SASC 190; Morgan v WorkCover Corporation [2012] SADC 63; Archer v Woodhead Australia Pty Ltd Unreported, Lander J, 29 March 1995, discussed.
Levy v Bablis [2012] NSWCA 77; Citicorp v Cirillo (2003) 228 LSJS 132; Diakos v Mason [2010] SASC 108; McVicar v S & J White Pty Ltd (2006) 245 LSJS 177, considered.

MORGAN v WORKCOVER CORPORATION
[2013] SASC 47

Civil

STANLEY J:

Introduction

  1. This is an interlocutory application by the respondent seeking orders for the dismissal of two appeals and an application for permission to appeal brought by the appellant.  The first appeal is from a District Court judgment dismissing the appellant’s claim for damages for breach of…

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Morgan v WorkCover Corporation [2013] SASC 47
Case
[2013] SASC 47
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CaseChat Overview and Summary

In the matter of Morgan v WorkCover Corporation, the respondent, WorkCover Corporation, filed an interlocutory application seeking the dismissal of two appeals and an application for permission to appeal brought by the appellant. The first appeal concerns a District Court judgment dismissing the appellant’s claim for breach of statutory duty under various acts, while the second appeal and application for permission to appeal stem from an interlocutory judgment requiring the appellant to provide security for the costs of the first appeal. The respondent alternatively sought an order to strike out the second appeal.

The court was required to decide whether it was appropriate to grant the respondent's application for dismissal of the appeals and the application for permission to appeal. This involved examining whether the appeals had any prospect of success, and if the appellant was required to provide security for the costs of the appeals. The court also had to consider the principles governing the granting of security for costs, particularly in light of the appellant's impecuniosity.

The court reasoned that it would be premature to dismiss the appeals without first allowing the appellant an opportunity to provide the security ordered. The court found that the appellant had not identified any error of law or principle made by the learned judge, nor any failure by the judge to consider relevant matters. The court upheld the learned judge's identification of the test for determining the appropriateness of an order for security of costs, noting that while impecuniosity can be a special circumstance, it does not automatically lead to the exercise of the court’s discretion in favour of granting security for costs. The court concluded that it was not appropriate to dismiss the appeals at that stage without first allowing the appellant to provide the required security. Consequently, the court dismissed the appellant’s application for permission to appeal and the appeal from the orders of Vanstone J, but refrained from making the order sought by the respondent without first affording the appellant a reasonable opportunity to provide security and, if necessary, to be heard further.

Orders

Orders of the court

Held: appellant’s application for permission to appeal from the orders of Vanstone J on 17 October 2012 is dismissed, the appellant’s appeal from the orders made by Vanstone J on 17 October 2012 is dismissed – the appellant has failed to identify any error of law or principle made by the learned judge, or any failure by the learned judge to consider some relevant matter or the consideration of irrelevant matters or mistaking of facts - the learned judge correctly identified the test to be applied in determining whether an order for security is appropriate.

In respect of the first appeal, it is not appropriate at this stage to dismiss the appeal without first affording the appellant the opportunity to provide the security ordered – the application is not dismissed at this stage.

Background

Background to the litigation

This is an interlocutory application by the respondent seeking orders for the dismissal of two appeals and an application for permission to appeal brought by the appellant. The first appeal is from a District Court judgment dismissing the appellant’s claim for damages for breach of statutory duty. The second appeal and the application for permission to appeal are from an interlocutory judgment of this Court requiring the appellant to provide security for costs of the first appeal. In the alternative, the respondent seeks an order that the second appeal be struck out. Background This matter has a lengthy history. In 1993 the appellant brought a claim under the Workers Rehabilitation and Compensation Act 1986 (SA). The appellant was acquainted with a Mr Mallard, a senior employee of the WorkCover Corporation. On 1 November 1994 the appellant wrote to Mr Lew Owens, then the Chief Executive Officer of the WorkCover Corporation. That letter contained allegations concerning the conduct of Mr Mallard. On receipt of the letter, Mr Owens sought an explanation from Mr Mallard of the allegations set out in the appellant’s letter. He provided a copy of the appellant’s letter to Mr Mallard for that purpose. In August 1995 Mr Mallard and his wife brought action in the Magistrates Court against the appellant claiming damages for defamation. They alleged the letter was defamatory. On 12 September 1995 the appellant wrote a further letter to WorkCover in which she repeated the allegations she had made against Mr Mallard. Mr and Mrs Mallard amended their claim to include an allegation that they were defamed by the letter of 12 September 1995. This action went to trial before Mr Hiskey SM. The learned magistrate found for Mr Mallard. He found that the November 1994 letter and the September 1995 letter were defamatory of Mr Mallard and that in publishing them, the appellant was actuated by malice. He awarded damages in the sum of $10,000. The appellant appealed the learned magistrate’s judgment. That appeal was dismissed by Olsson J. In 2000 the appellant commenced proceedings against the respondent, WorkCover Corporation, in the District Court. In this action the appellant claimed the respondent had breached statutory duties of confidentiality she alleged were owed to her pursuant to s 112 of the Workers Rehabilitation and Compensation Act, the Whistleblowers Protection Act 1993 (SA) and the Freedom of Information Act 1991 (SA). Those breaches were alleged to result from the publication of her letters of November 1994 and September 1995 to Mr Mallard. She claimed that the letters were protected as public interest disclosures and/or confidential communications. Those proceedings followed a tortuous interlocutory path before coming to trial before Judge Griffin in January 2012. The trial occupied 11 hearing days over more than three weeks due to adjournments granted to the appellant at various times. On 11 May 2012 Judge Griffin dismissed the appellant’s claim.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I am not prepared to grant the respondent’s application at this juncture. In my view, it would be premature to do so without first affording the appellant the opportunity to provide the security ordered. I do not dismiss the application at this stage, but refrain from making the order sought by the respondent without affording the appellant a reasonable opportunity to provide security and, if necessary, to be heard further. Conclusion I make the following orders:1.The appellant’s application for permission to appeal from the orders made by Vanstone J on 17 October 2012 is dismissed. 2.The appellant’s appeal from the orders made by Vanstone J on 17 October 2012 is dismissed. I will hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

On the hearing of the application, the appellant, who was self-represented, sought to traverse the lengthy history of the litigation involving not only the respondent, but also Mr Mallard. She appeared unable to understand or direct her submissions to the principles which decide an appeal from a discretionary judgment. Attempts to direct her attention to the identification of a relevant error in the reasons or order of Vanstone J were largely unsuccessful. Consideration I consider this is an appropriate case to exercise the power conferred pursuant to 6SCR 295(1)(g). I consider it is obvious that the appeal from the orders of Vanstone J cannot succeed. The appellant has failed to identify any error of law or principle made by the learned judge. Further, she has failed to identify any instance of the learned judge failing to consider some relevant matter or considering some irrelevant matter or mistaking the facts. Neither has she satisfied me that the order for the provision of security for the costs of the appeal from the District Court judgment in the sum of $6,000 is so obviously wrong that although no error can be identified, I should be satisfied that the exercise of the discretion must have miscarried. The learned judge correctly identified the test to be applied in determining whether an order for security of costs of an appeal is appropriate.[10][10] Morgan v WorkCover Corporation [2012] SASC 190 at [12]. 6SCR 295(1)(g) provides:[T]he Court may, in special circumstances, order that security be given for the costs of an appeal. Impecuniosity can amount to a “special circumstance” per se. In Archer Pty Ltd v Woodhead Australia Pty Ltd[11] Lander J said:[12]The impecuniosity of an appellant may constitute a special circumstance leading the court towards ordering security, in that it is a circumstance which may deprive or delay a respondent receiving his costs of the appeal, if the appeal fails, which costs a successful respondent can usually expect he will actually receive. In an appellate situation, a respondent seeking security is in a stronger position than a defendant at first instance, to the extent that he has a decision in his favour, which is presumed to be right until displaced. However, impecuniosity may not conclude the matter. Considerations of possible frustration of an apparently genuine appeal or concerning the subject matter of the appeal, such as appeals involving matters of great moment or the liberty of the subject, may provide reasons to refuse an order. The foregoing observations are made not to circumscribe the discretion, but in order to indicate its width. [11] Unreported, Lander J, 29 March 1995.[12] Unreported, Lander J, 29 March 1995 at 5. The operation of this rule was considered by Blue J in Dagenham Nominees Pty Ltd v Shanks.[13][13] (2011) 110 SASR 577. His Honour considered that the correct approach to the application of 6SCR 295(1)(g) is that:[14]1.impecuniosity of the appellant (at least in the case where the appellant is a company) can suffice to enliven the discretion of the court; 2.the mere fact that the appellant is impecunious does not mean that the discretion ought to be exercised in favour of granting security for costs (in the same manner as pursuant to s 1335).[14] (2011) 110 SASR 577 at 586 [54].