Smith v the State of South Australia & Anor No. Scciv-01-1155

SMITH v THE STATE OF SOUTH AUSTRALIA and THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
[2001] SASC 356
Application for Leave to Appeal
Nyland J

This is an application for leave to appeal against the order of a District Court Judge delivered on 25 July 2001. On that date, the Judge dismissed an appeal by the applicant against the order of a District Court Master delivered on 18 May 2001. The Master had considered an application by the applicant in which he sought to amend his further amended Statement of Claim by making allegations against the defendants on the following topics:
1.By adding a charge of denial of natural justice against Ms J Tiddy (the Commissioner for Equal Opportunity).
2.A claim with respect to Ms Tiddy’s failure to have the initial complaints from the Equal Opportunity Commission adopted by the complainant.
3.The Ombudsman’s breach of s 18 of the Ombudsman Act 1972 (SA).
4.The Attorney-General’s breach of his duty of care towards the plaintiff.
5.Bias shown by the Human Rights and Equal Opportunity Commission (“HREOC”) towards the plaintiff.
6.HREOC’s breach of s 26 of the Sex Discrimination Act 1984 (Cth).
The orders made by the Master were as follows:
“1.   The plaintiff’s application to amend the proceedings is refused for the reasons given.
2.     The defendants’ respective applications to dismiss the actions are refused.
3.     Leave for the plaintiff to redraw the statement of claim in accordance with the particular paragraph have been allowed as referred to in the conclusion above.
4.     No other amendments are to be made.
5.     No general leave is given to the plaintiff to amend the statement of claim except insofar as incidental references are required to take account of a sub paragraph deleted within existing claims.
6.     The amendments to be made within 21 days.
7.     The defendants are to file defences to the claims for a further 14 days.
8.     I refer this matter to a listings conference to be held in 6 weeks with a view to this matter coming on for trial at the earliest possible opportunity thereafter.
9.     Costs – in respect of the plaintiff’s application to amend the proceedings, the plaintiff is to pay the defendants’ costs of and incidental to the applications.
10. In respect of the costs of the defendants’ unsuccessful application, they to pay the plaintiff’s costs.
11. Liberty to apply.
12. This matter is adjourned until Friday, 25 May 2001 at 9.30am for further directions.”
The Judge delivered ex tempore reasons for dismissing the appeal. Those reasons are relatively brief, but essentially the Judge indicated that there had not been anything put before him which led him to believe that there was any error in the approach taken by the Master.
The applicant did not apply to the Judge for leave to appeal against his order of dismissal. The application is therefore made pursuant to SCR 96A.02, which provides as follows:
“(1)Unless a Judge of the District Court has certified that the proposed appeal involves:
(a) a point of law of difficulty or importance which justifies it being reviewed on an interlocutory appeal; or
(b) a point of sufficient importance in the proceedings to warrant it being reviewed on an interlocutory appeal without waiting for the final judgment in the action,
any appeal against an interlocutory judgment under Section 43(2)(b) of the Act is subject to leave being obtained from the Court.”
On the hearing of the application, the applicant appeared in person. There was no appearance by the defendants. The applicant indicated that he had served the application upon the Australian Government Solicitor (“AGS”) acting on behalf of the defendants. Accordingly, before proceeding to hear argument in the matter, I caused an inquiry to be made from AGS as to the question of representation. I was then advised that the defendants did not wish to be heard with respect to the application. I therefore proceeded to deal with the application on an ex parte basis.
The matters which give rise to the proceedings instituted by the applicant in the District Court have their genesis in proceedings before the Equal Opportunity Commission. It is unnecessary to canvass those matters in any detail in these reasons, but it appears that the applicant was the subject of a complaint of sexual harassment by a former employee in about the month of September 1993. It was alleged that he had acted in a manner contrary to s 28B of the Sex Discrimination Act 1984 (Cth).
The matter eventually came before HREOC on 29 August 1995. The applicant at that time was represented by counsel. The HREOC found the complaint was substantiated. The Commission ordered the applicant to pay compensation in the amount of $1,000 and the applicant agreed to make a formal apology to the complainant.
As I understand the matter, following that hearing, the applicant made allegations of misconduct against the investigating officer to the Ombudsman, the Premier and the Attorney-General. He now seeks damages by reason of the failure of the defendants properly to investigate the sexual harassment complaint against him and for his need to defend the complaint and for losses flowing therefrom which includes loss of rental property, sale of property, legal costs and the like.
The detailed history of the litigation before the District Court is set out in the reasons for the decision of the Master. On the hearing of the application for leave, although maintaining his objection to the orders made by the Master, the applicant did not take issue with the history of the matter as set out in that document under the heading “Chronology of significant interlocutory proceedings”. The matters appearing thereunder demonstrate that there has been a plethora of applications by the applicant for the amendment of his statement of claim. In para 47 of his reasons the Master indicated this was the eighth attempt at amending the statement of claim. Inevitably this has created a problem with getting the pleadings in proper order for trial. The Master indicated that the problems with respect to the pleadings had been compounded by the fact that the applicant had treated the grant of leave as to specific matters on earlier occasions as an entitlement to amend at large, and had thereby included the addition of further particulars with no prior notice given to the defendants and without leave of the court. In addition he had included matters previously struck out. Inevitably this has led to a great deal of confusion and accordingly it is not surprising that the Master commented in his reasons (at para 59):
“It is extraordinarily wasteful amount of time and effort, in fact, to go back and compare the various Statements of Claim to which leave has been granted. As a result of my detailed review of the action, I have decided to review the Statement of Claim along with the proposed amendments and determine if any of the proposed amendments or any parts of the existing Statement of Claim should be allowed to stand.”
On the hearing of the application for leave to appeal the applicant submitted that in the course of making his various orders, the Master had over-ruled a decision made by a Judge of the District Court on 25 March 1999 as the Master had disallowed para 3 of the statement of claim as irrelevant although the Judge had previously allowed it to stand.
The applicant further maintained on the application for leave that he had been denied natural justice on the hearing of the appeal as he had been deprived of the opportunity to make submissions with respect to three of the matters which were included in his notice of appeal.
The transcript of the hearing before the Judge indicates that the applicant’s submissions primarily canvassed his complaint about the failure properly to investigate matters. At the conclusion of his submissions he said:
“In the first stage the investigatory stage I say that natural justice should have been allowed and wasn’t. That is basically what I say here.”
The Judge then indicated that he did not consider it necessary to call on the respondents to make any submissions and proceeded to deliver extempore reasons for dismissing the appeal.
The Judge then proceeded to consider the application by the respondents for costs of the appeal, at which point the transcript records the following exchange (at p 3):
“MR SMITH:              You just heard me on the natural justice issue. What about the other three issue in my appeal?
HIS HONOUR:           I gave you the opportunity to say what you wanted to say about the appeal.
MR SMITH:                Sorry, I misunderstood.
HIS HONOUR:           Look Mr Smith, I asked you what you wanted to say on the appeal. You said what you wanted to say and I have now ruled on it. I’m not going to reopen it. The issue, at the moment, is why should I not order that you pay the costs of this appeal? The usual rule is that costs follow the event, so if you lose the appeal, you pay the costs of it.
MR SMITH:                Fair enough.”
There was no further discussion and the Judge then proceeded to finalise the question of costs.
The three matters which the applicant maintains he was unable to argue before the Judge appear to be those matters set out in the notice of appeal under the headings of “Misfeasance”, “Paragraphs of the claim disallowed”, and “Extra Heads of Damage”.
In the course of hearing the argument on the application for leave, I therefore invited the applicant to put the submissions that he maintained he had not been able to put before the Judge. He had considerable difficulty in so doing, however, and primarily repeated complaints about the failure of the Equal Opportunity Commissioner to investigate the matter. The applicant eventually agreed that the matter about which he was primarily concerned was the disallowance by the Master of para 3 of his statement of claim as irrelevant. He continued to maintain this over-ruled the earlier decision of a Judge that the paragraph be allowed to stand.
In view of the number of amendments which have taken place in the pleadings in this matter, it is of little assistance, in my view, to compare the various documents. The Master approached the matter very carefully and considered the whole history of the matter. This included the reasons of the Judge who had considered earlier amendments. The Master undertook a detailed analysis of all of the pleadings in an endeavour to ensure that the matter was in order to proceed to trial. The Judge hearing the appeal from the Master considered that no error had been demonstrated by the Master in the approach that he took. This matter is due to be heard in the District Court on 19 November 2001. It is clearly desirable that it proceed on that date.
Having had regard to all of the submissions put to me by the applicant, and having considered the state of the pleadings, I am not persuaded that there is any basis upon which it is appropriate to grant leave against the order of the Judge dismissing the appeal from the Master.
The application is therefore refused.

[2001] SASC 356

30 October 2001