Streaky Bay Marine Products Pty Ltd v Minister for Agriculture Food & Fisheries for the State of SA (No 2) - [2007] SADC 78

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
STREAKY BAY MARINE PRODUCTS PTY LTD & ORS v MINISTER FOR AGRICULTURE FOOD & FISHERIES FOR THE STATE OF SA & ORS (No 2)
[2007] SADC 78
Decision of His Honour Judge Lovell
26 July 2007
PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - RULES OF COURT
Permission to Appeal - Criteria for granting permission - Permission refused.
District Court Act 1991 (SA) s 43(2)(b); Supreme Court Civil Rules 2006 r 281(a)(ii) & 6 SCR 281, referred to.
Harris Scarfe Ltd (Receivers & Managers Appointed) (In Liquidation) & Ors v Ernst & Young & Ors (No 2) [2005] SASC 168, applied.
Mitropoulos v Hancock Corporation Pty Ltd [2007] SASC 43; Skinner & Anor v Harnas [2007] SASC 215; Andrew Garret Wine Resorts Pty Ltd & Anor v National Australia Bank (No 3) [2005] SASC 171; Niemann v Electronic Industries Ltd [1978] VR 431; Mitropoulos v Hancock Corporation Pty Ltd [2006] SASC 379; Woods Bagot Pty Ltd & Ors v Stapledon & Anor [2005] SASC 346, considered.

STREAKY BAY MARINE PRODUCTS PTY LTD & ORS v MINISTER FOR AGRICULTURE FOOD & FISHERIES FOR THE STATE OF SA & ORS (No 2)
[2007] SADC 78
Background

On 28 March 2007 I delivered judgment in an appeal by the Defendants from a decision of Master Bampton relating to pre action discovery. On the 24^th July 2007 date I made orders as follows:
1.     The appeal be dismissed.
2.     The appellants pay the respondents’ costs of the appeal.
3.Pursuant to DCR 60.01(1) (b), order that the defendants file and serve a list of documents within 14 days, disclosing whether the documents sought in paragraph 4 of the plaintiffs’ amended inter partes summons are in their possession, custody or power, specifying each document for which legal or public interest privilege is claimed.
4.     The plaintiffs are to pay the defendants’ costs in complying with this order.
5.The costs of and incidental to this action are reserved to the trial judge pending finalisation of any subsequent proceedings.
6.     Liberty to apply.
The Defendants seek permission to appeal the decision.
An appeal against the decision of a District Court Judge is to a single judge of the Supreme Court, because the decision is an interlocutory judgment: see s 43(2)(b) of the District Court Act 1991 (SA).
The 2006 Civil Rules apply in this matter. An appeal from a judge of this Court requires a grant of permission because it is an appeal from a judgment given on an appeal from an interlocutory judgment: r 281(a)(ii) of the Supreme Court Rules.[1]
[1] Mitropoulos v Hancock Corporation Pty Ltd [2007] SASC 43
Criteria for permission
Permission is not defined in the Rules. The Oxford Dictionary defines “permit” as including “giving leave”. It appears that there is no practical difference between leave and permission. The cases that establish the general criteria for leave to appeal under the old rules would therefore be applicable to the new rules.
With the change in rules there are now significant differences in procedure when appealing from an interlocutory judgment decided in the District Court.
If the interlocutory judgment is by way of an appeal from a District Court master then permission is required. An interlocutory judgment of the District Court that is not an appeal from a District Court master does not require leave. Under the 1987 Rules both situations would have required either a certificate from a District Court judge or leave from a single judge of the Supreme Court.
Under the 1987 Rules the criteria that a District Court judge was to apply when considering whether to grant a certificate to appeal were contained within Rule 96A.02. Whilst a District Court judge was not giving leave in those circumstances a certificate acted as a substitute for leave. No such procedure or criteria is to be found in the new Rules. 6 SCR 281 now requires permission to be obtained; the new Rule is silent as to the criteria to be applied.
It is well settled that the Full Court when considering a question of permission (leave) to appeal will only grant permission in cases where the decision of the single judge is wrong or attended with sufficient doubt to warrant its reconsideration on appeal or has the effect of working a substantial injustice on the applicant.[2] Those cases only relate to the granting of permission (leave) by the Full Court. Such criteria however may present difficulties to a single judge who determined the issue and then faces an application for permission to appeal from that decision. For example it seems extremely unlikely that a party could obtain leave from the judge on the ground that the decision was wrong.
[2] Skinner & Anor v Harnas [2007] SASC 215; Andrew Garret Wine Resorts Pty Ltd & Anor v National Australia Bank (No 3) [2005] SASC 171 per Gray J
In Niemann v Electronic Industries Ltd[3] Murphy J alluded to the problem. In relation to this issue he stated:
It also seems to me important to note that the judge who makes the interlocutory order or judgment may be in a different position, when considering whether to grant leave to appeal from his order or judgement from that in which the Full Court finds itself when considering a similar application.
He has tried the case, whatever it may be. He has made the interlocutory order or given the interlocutory judgment. He could not be expected, when considering whether or not to grant application for leave to appeal, to say that his order or judgment was clearly wrong and that substantial injustice would follow if it went undisturbed. If those criteria had in all cases to be established, leave would never be granted by the primary judge.
In practice, he may consider (1) whether the issue raised is one of general importance or whether it simply depends upon the facts of the particular case; (2) whether there are involved in the case difficult questions of law, upon which different views have been expressed from time to time or as to which he has been “sorely troubled”; (3) whether the order made has the effect of altering the substantive rights of the parties or either of them; and (4) that as a general rule there is a strong presumption against granting leave to appeal from interlocutory orders or judgments which do not either directly or by their practical effect finally determine any substantive rights of either party.
[3] [1978] VR 431
When the matter comes before the Full Court on a motion for leave to appeal from the interlocutory order or interlocutory judgment it seems to me that different considerations should apply.[4]
[4] at page 441
In Harris Scarfe Ltd (Receivers & Managers Appointed) (In Liquidation) & Ors v Ernst & Young & Ors (No 2)[5] Bleby J considered the issue. He stated at paragraph 13, after considering Niemann’s case:
However, that approach presents an unresolved anomaly that a leave application will be decided according to different criteria depending on whether application is made to the judge who determined the issue or whether application for leave is made to the Full Court. The anomaly may become more pronounced where, as in this Court, if leave has been refused by a single judge, a fresh application may be made to the Full Court: r 94.02, Supreme Court Rules. Perhaps all this merely indicates that the approach must always remain flexible according to the nature of the case and the issues at stake, and that no universal rule can be applied.
[5] [2005] SASC 168
The approach of Bleby J, with respect, is a sensible one. Whilst his Honour was dealing with an application under the 1987 Rules, his observations would be applicable to the new rules as well i.e. the approach must remain flexible according to the nature of the case. Indeed for a Full Court to consider the decision to be “wrong” it must have gone through the process of considering that the decision “was tended with sufficient doubt to warrant a reconsideration on appeal”. After hearing argument it may consider the decision wrong and thus grant leave. It may be that there is little practical difference between the two approaches. The factors mentioned in Niemann may well be of assistance in determining the question of whether a reconsideration of the matter was appropriate.
Bleby J in Harris Scarfe Ltd (Receivers and Managers Appointed) (In Liquidation) & Ors v Ernst and Young & Ors (No 2)[6] suggested that a primary judge was capable of viewing the decision objectively and determining whether it is one which might have been determined differently either because it involved a difficult and complex question of law or because it turned on a controversial point of law the subject of varying or conflicting interpretations.[7] As a practical matter His Honour was considering the type of factors mentioned in Niemann. I respectfully agree with and adopt the approach taken by His Honour.
[6] (supra)
[7] at para 16.
The final matter that an appeal court would consider is whether the result would work a substantial injustice on the applicant if unreversed. A judge who heard the matter could also determine that issue.
Further whilst the 1987 Rule obliged a District Court judge to consider specific criteria (R 96A.02) when considering whether to grant a certificate to appeal a Supreme Court judge had to apply the test set out above for “leave”. The 2006 Rules draw no such distinction. That would suggest that the test for permission to appeal to be applied by a District Court judge (and indeed a Supreme Court judge) who heard the matter and the Appeal Court should be the same (as far as possible) under the 2006 Rules.
Discussion
What is clear from the authorities is that there is a general unwillingness to grant leave to appeal from interlocutory orders, which do not, whether directly or by their practical effect, finally determine the substantive rights of a party.
In this case what is being sought is a second appeal from a master of the District Court on a question of practice and procedure that does not determine the substantive rights of the parties. Such an appeal will be rarely entertained by a superior court.[8]
[8] Mitropoulos v Hancock Corporation Pty Ltd [2006] SASC 379; Woods Bagot Pty Ltd & Ors v Stapledon & Anor [2005] SASC 346
The grounds to be argued if permission is given were identified by Mr Holland during the application as:
a. Where an Application for Discovery before Action is made by multiple proposed plaintiffs against multiple proposed defendants and where the said proposed plaintiffs are likely to have different actions against difference proposed defendants should the Court require:-
i.each of the proposed plaintiffs to particularise the nature of each alleged cause of action against each proposed defendant?
ii.in the event of an Order for Discovery being made that each of the proposed defendant provide separate lists of documents to each proposed plaintiff.
b. Whether there was sufficient evidence before the Court to support the Statement of the Court in paragraph 19 of the Judgment that:-
“….that the Warrants were validly issued has been made an issue”.
Ground a (i) does not involve a difficult or complex question of law nor is the law involved controversial to the extent that it is subject to varying or conflicting interpretations. Indeed it is not really a question of law. There is no doubt that a court, if the circumstances of the case require it, could order a party to file a draft statement of claim. That was not in issue on the appeal. The question to be decided on the appeal was should one be ordered on the facts of this particular case. When articulated as such, the question of whether a statement of claim(s) should be ordered is a question of discretion depending on the facts of the particular case. That is not a point of law. The result will not work a substantial injustice on the Defendant if left unreversed.
Further, the documents sought were particularised in paragraph 4 of the Application (Judgment paragraph 7). Which Defendant may have to discover the various documents is simply a practical matter that, if necessary, could be the subject of a further application for directions before the Master. The Defendants are all represented by the one solicitor and counsel. They clearly have a common interest in the proceedings. In any event it seems likely that the First Defendant may well have an overarching obligation to discover all of the documents.
Ground b was only faintly argued by Mr Holland. True it is that the Defendant takes the position that the execution of the warrants (if found proved) outside their terms does not go to the legality of their issue. That however is not the point in paragraph 19 of the Judgment. That the Plaintiff put in issue the legality of the warrants cannot be disputed. Paragraph 19 of the Judgment simply goes to that issue. On the face of the warrants themselves there is potentially a problem with whether the issuing Justice of the Peace complied with the governing legislation. That question is one of the actual issue of the subpoenas, not the execution of them. To obtain pre action discovery of the documents considered by the Justice of the Peace relating to the issue of the subpoenas the matter only has to be arguable. This is not a ground that would meet any of the criteria as set out above.
I therefore refuse permission to appeal.
I will hear the parties as to any consequential orders