Morgan v WorkCover Corporation of South Australia - [2011] SASC 113

SUPREME COURT OF SOUTH AUSTRALIA
(Appeals to a Single Judge: Civil)
MORGAN v WORKCOVER CORPORATION OF SOUTH AUSTRALIA
[2011] SASC 113
Judgment of The Honourable Justice Gray
21 July 2011
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - INTERLOCUTORY ORDERS AND JUDGMENTS
Appeal against order of a Judge of the District Court dismissing an appeal from a Master of the District Court - conditional appeal - where permission to appeal required - whether any question of general principle arises - whether substantial injustice would be caused for the plaintiff if the decision on appeal remained undisturbed.
Held: permission to appeal refused. Conditional appeal lapses.
District Court Act 1991 (SA) s 43(2)(b); Supreme Court Civil Rules 2006 (SA) r 288, referred to.
Ward v Motor Vehicle Accident Commission [2008] SASC 346; BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 756; Glenauchen Pty Ltd v Circuit Finance Pty Ltd [2001] SASC 61; Citicorp Australia v Cirillo [2000] SASC 374; AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, considered.

MORGAN v WORKCOVER CORPORATION OF SOUTH AUSTRALIA
[2011] SASC 113
Civil
GRAY J.

This is an appeal from an order of a Judge of the District Court dismissing an appeal from a Master of the District Court. The Master dismissed an application of Angela Mary Morgan, the plaintiff and appellant, to strike out paragraphs of a defence and for further and better discovery. The appeal to the Judge of the District Court was unsuccessful.
Section 43(2)(b) of the District Court Act 1991 (SA) provides for a right of appeal from the District Court to this Court:[1]
[1]    See further Ward v Motor Vehicle Accident Commission [2008] SASC 346.
(1)A party to an action may, in accordance with the rules of the appellate court, appeal against any judgment given in the action.
(2)     The appeal lies—
(a)     in the case of a judgment given by a Master or the Court constituted of a Master—to the Court constituted of a Judge;
(b)     in the case of an interlocutory judgment given by a Judge—to the Supreme Court constituted of a single Judge;
(c)     in any other case—to the Full Court of the Supreme Court.
(3)The appeal lies as of right, or by permission, according to the rules of the appellate court but, in the case of an appeal against a final judgment of the Court in its Administrative and Disciplinary Division, permission is required to appeal on a question of fact.
…
Rule 288(a)(ii) of the Supreme Court Civil Rules 2006 (SA) provides that an appeal from an interlocutory order is subject to a grant of permission:
(1)Subject to any statutory provision to the contrary, an appeal to the Court lies by permission of the Court if—
(a)     the judgment subject to the appeal is—
(i)    an interlocutory judgment of the Court given by a Judge; or
(ii)    a judgment given on appeal from an interlocutory judgment; or
(iii)a judgment given by a single Judge on appeal from a Magistrate sitting in the Youth Court, or
(b)     the appeal is limited to a question about costs.
(2)If the appellant commences an appeal before obtaining permission to appeal, the appeal is conditional on permission to appeal being granted and, if permission is refused, the appeal lapses.
…
Ms Morgan has proceeded as though she has an appeal as of right. In my view, the appeal is against an interlocutory judgment. The appeal is conditional. As a consequence of rule 288, Ms Morgan may only pursue the within appeal following a grant of permission.
In the circumstances I permitted Ms Morgan to make an oral application for permission to appeal. This course was not opposed by WorkCover Corporation, the defendant and respondent.
In BHP Petroleum Pty Ltd v Oil Basins Ltd[2] Fullagar J of the Victorian Supreme Court addressed the practice in that State on an application for leave to appeal:
As this is an application for leave to appeal from interlocutory orders, the authorities show that this Court should address itself to two questions, as follows: (1) whether the correctness of the orders of Murray J is attended with sufficient doubt to warrant their being reconsidered on appeal; and (2) whether substantial injustice will be caused to the applicant (OBL) if the orders of Murray J stand: see, for example Niemann v Electronic Industries Ltd [1978] VR 431, at p 433, per McInerney J, and at pp 441-2, per Murphy J. At p 441, Murphy J said, inter alia: “If the order was correct then it follows that substantial injustice could not follow. If the order is seen to be clearly wrong, this is not alone sufficient. It must be shown, in addition, to effect a substantial injustice by its operation.”
[2] BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 756, 758.
The Victorian practice has been followed in this State. An example is to be found in Glenauchen Pty Ltd v Circuit Finance Pty Ltd where the Full Court observed:[3]
The court's practice has been to grant leave to appeal only if a question of general principle arises. The court will usually consider whether there is reason to doubt the correctness of the decision under consideration. However, in the end the court must act as the interests of justice require.
[3] Glenauchen Pty Ltd v Circuit Finance Pty Ltd [2001] SASC 61, [3]; see also Citicorp Australia v Cirillo [2000] SASC 374, [6].
The circumstances giving rise to Ms Morgan’s claim occurred in or about 1994 and 1995. These proceedings were issued more than a decade ago. Ms Morgan’s complaints stem from an alleged disclosure of confidential information. It is asserted that the disclosure was in breach of the Workers Rehabilitation and Compensation Act 1986 (SA), the Freedom of Information Act 1991 (SA) and the Whistleblowers Protection Act 1993 (SA). It is further alleged that WorkCover was negligent with respect to the disclosure of the confidential information. By its defence, WorkCover admits the disclosure of the information said to be confidential but denies that any breach of statute or other breach of duty occurred. The proceedings arising from Ms Morgan’s complaints have a long, complex and not uncomplicated history. These matters are now listed for trial in January 2012.
The District Court Master rejected the application to strike out the impugned paragraphs of the defence. The Master concluded that the defendant was entitled to plead the impugned matters and that each could be fairly addressed at trial.
The District Court Judge on the appeal addressed the appeal concerning the strike out application:
During the course of submissions today during the appeal Ms Morgan did not vigorously pursue her appeal in respect of Master Norman’s failure to strike out paragraphs of the defence. She seemed now to be – content is probably the wrong word – but prepared to have those matters agitated at the trial of this action. A trial date is yet to be set, over a decade after the first proceedings were instituted in this Court.
In Ms Morgan’s written outline of argument in support of the conditional appeal to this Court, she seeks an order that the “defense [sic] be struck out”. There does not appear to be any attempt to pursue the particular matters argued before the District Court Master. As I understand it, Ms Morgan asserts, inter alia, that WorkCover engaged in inappropriate conduct in this litigation by failing to comply with orders of the Court as to discovery and in other litigation by misleading judicial officers and that as a consequence the defence should be struck out. Ms Morgan’s broader attack in this Court is without substance. In my view, her complaints do not provide a basis to strike out the defence – they are matters, if relevant, that can be determined at trial.
The Master in careful reasons traced the history of the proceedings and in particular the many past applications concerning discovery. The Master then addressed each category of document sought by the plaintiff and rejected each application. His reasons demonstrate that no point of principle arose for consideration. The Master applied well recognised principles when addressing the applications for discovery.
The Judge on appeal rejected the submissions of Ms Morgan and reached the conclusion that not only would he not interfere with any of the Master’s orders, but considered it appropriate to confirm those orders. The Judge reasoned:
When dealing with each paragraph of the relief sought by Ms Morgan, Master Norman identified the documents or classes of documents sought and gave his reasons for refusing to order discovery of them.
He found, in summary, all of the documents or classes of documents sought to have either been discovered or (if they ever existed in some other form) cannot be found.
Master Norman declined to make orders in respect of each paragraph of the plaintiff’s application whereby further discovery was sought, and he set out his reasons for declining to make further orders in respect of any of them.
In some he noted that discovery had already been made. In others he determined that the documents sought to be discovered were not relevant to any issue joined between the parties in the statement of claim and the defence.
It was submitted by Ms Morgan during the course of the appeal before me that whilst she did not blame Master Norman, she thought that he was just sick of this litigation and did not want to make any further orders concerning discovery. Further, that he was determined to see the matter go to trial rather than taking the time to read her documents to deal satisfactorily and properly with the applications made by her that he require the defendant to make further discovery on a variety of points.
Master Norman has set out in great detail the history of the interlocutory proceedings in this action. The early history discloses that many of the plaintiff’s applications for further and better discovery were successful and that the defendant has been required by the court to make further and better discovery on many occasions and to produce witnesses to be cross-examined on their affidavits.
Master Norman has carefully, when dealing with each category of documents sought, set out the background to each such document or each such category of documents. He has referred in detail to documents that relate to each category of further documents sought by Ms Morgan. He has inspected documents and made findings as to the relevance of certain of those inspected documents. As to others he was satisfied that the defendant has made full and proper discovery earlier than the applications.
It does not seem to me that Master Norman has ‘just got sick’ of this action, in the sense that he has failed properly to identify the issues that he had to decide in the two applications and properly to consider them and decide them.
I am not satisfied that any error in Master Norman’s reasons has been identified by the plaintiff. I do not consider, as submitted by Ms Morgan in her Notice of Appeal, that ‘Master Norman’s decision essentially rewards the defendant for its own misconduct in allowing it to continue to conceal documents that it should have discovered more than 10 years ago …’. I do not consider, having read Master Norman’s fulsome reasons for decision, that her comment is any way justified or justifiable.
Both the Master and the District Court Judge made reference to caseflow management considerations and in particular to the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University.[4] These were relevant considerations. Given the lengthy history of the proceedings, it was important that the matter be progressed to trial as soon as practicable.
[4] AONRisk Services Australia Ltd v Australian National University (2009) 239 CLR 175.
Before this Court, when asked about her underlying cause of action giving rise to the interlocutory disputation and asked about what relief she ultimately sought, Ms Morgan expressed that she wanted a full scale public inquiry into the conduct of WorkCover and others. However, this appeal concerns an order from a Judge of the District Court dismissing an appeal from an interlocutory order of a Master of the District Court, dismissing an application to strike out paragraphs of the defence and to make further and better discovery in what appears to be a cause of action in alleged negligent misstatement and a series of alleged breaches of statutory duty. Prima facie, there appears to have been exhaustive searches made in relation to the documents which Ms Morgan seeks to have discovered. If Ms Morgan wishes to pursue further the matters to which she says those documents relate, it is open to her to seek to subpoena documents and call witnesses in the trial in the primary action. The trial Judge can make a determination as to these matters.
Ms Morgan has failed to satisfy me that any question of general principle arises in the conditional appeal. I do not consider there is reason to doubt the correctness of the decision of the District Court Judge. I consider there is no reason to doubt the correctness of the decision of the Master. I do not consider that any substantial injustice would be caused for the plaintiff if the order of the District Court Judge remains. The effect of that order is to dismiss the appeal from the Master. Ms Morgan’s claim should proceed to trial as presently pleaded and with discovery as made.
Conclusion
In these circumstances permission to appeal is refused and, in accordance with rule 288 of the Supreme Court Civil Rules, the conditional appeal lapses.