[2025] SADC 31

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (AUXILIARY MASTER RODER) CIV- 23-011139 Appellant/Second Respondent: POLICE ASSOCIATION OF SOUTH AUSTRALIA Counsel: MR C JACOBI - Solicitor: LIESCHKE & WEATHERILL First Respondent: SAMANTHA STRANGE Counsel: MR M MANETTA - Solicitor: DEWAR LEGAL BARRISTERS & SOLICITORS Second Respondent/Third Respondent: POLICE ASSOCIATION OF SOUTH AUSTRALIA SECRETARY BERNADETTE ZIMMERMAN Counsel: MR A HILLARY - Solicitor: WEARING & BLAIRS Third Respondent/Appellant: POLICE ASSOCIATION OF SOUTH AUSTRALIA PRESIDENT MARK CARROLL Counsel: MR P CAMPBELL - Solicitor: HWL EBSWORTH LAWYERS Hearing Date/s: 22/10/2024 File No/s: CIV-24-006072 / CIV-24-006084 B DISTRICT COURT OF SOUTH AUSTRALIA (Civil: Appeal Against a Master) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. POLICE ASSOCIATION OF SOUTH AUSTRALIA v STRANGE & ORS; POLICE ASSOCIATION OF SOUTH AUSTRALIA PRESIDENT MARK CARROLL v STRANGE & ORS [2025] SADC 31 Judgment of his Honour Judge Dart 31 March 2025 APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA Application for pre-action discovery - Master allowed the application - appeal - submission that no cause of action could possibly exist - discretion requires no order to be made even if a cause of action may exist - order too wide in any event. Held: 1. The order for discovery of documents in relation to category 6 is set aside. 2. The appeals are otherwise dismissed. 3. The appellant in each appeal is to pay the first respondent’s costs on the standard costs basis. Uniform Civil Rules 2020 (SA) rr 144, 213.1A, 217.10 and 242.2; Fair Work Act 1994 (SA) s 127, referred to. Strange v Police Association of South Australia & Ors Reasons for Decision of District Court Auxiliary Master Roder of 7 June 2024 (CIV-23-011139); Lifeplan Australia Friendly Society Pty Ltd & Anor v Ancient Order of Foresters in Victoria Friendly Society Ltd [2013] SASC 5; Gerard -- 1 of 12 -- Industries Pty Ltd v Wee (1986) 43 SASR 562; Belcar Pty Ltd v Premier Automotive Group Australia Pty Ltd [2007] SASC 240; Chiropractic & Osteopathic College of South Australia Inc v Struthers & Ors (1981) 97 LSJS 49, considered. -- 2 of 12 -- POLICE ASSOCIATION OF SOUTH AUSTRALIA v STRANGE & ORS; POLICE ASSOCIATION OF SOUTH AUSTRALIA PRESIDENT MARK CARROLL v STRANGE & ORS [2025] SADC 31 1 These reasons deal with two appeals from a decision made by an Auxiliary Master. Both appeals arise out of the same decision but each has a different appellant. In the first appeal (CIV-24-006072), the appellant is the Police Association of South Australia (“the Association”). In the second appeal (CIV-24-006084), the appellant is the former President of that Association, Mr Mark Carroll (“the President”). The first respondent in each appeal, as applicant, sought and obtained orders for pre-action discovery. Both appeals should be dismissed. Background 2 In broad terms, the first respondent alleges that she was bullied by the President at a time she was the Vice-President of the Association. The relationship of the parties was set out by Auxiliary Master Roder (“the Master”) in his reasons where he said:1 The applicant, who had been an elected member of the Committee of Management of the first respondent, the Police Association of South Australia, was in early 2021 elected to the position of Deputy President of that association. The applicant resigned from that position on 21 May 2021. As I have said, PASA is the first respondent. At the time of the hearing and the time of the events in question - the second respondent was the Secretary of PASA and the third respondent was the President. The President, Deputy President and Secretary were all members of the CoM. Put in general terms, the applicant complains of alleged conduct of the third respondent in the course of proceedings of the CoM. She says that that conduct “forced” her to resign and she also complains of subsequent conduct, relating primarily to an investigation into the circumstances of her resignation. (footnotes omitted) 3 After the first respondent left the Committee, she commenced defamation proceedings against the President. In turn, the President commenced defamation proceedings against the first respondent. The pair ultimately settled the two proceedings and executed a deed of settlement. The President says that the terms of the deed of settlement have an effect on the application for pre-action discovery. 4 After the first respondent made the bullying allegations, a meeting of members of the Association was called. It is not clear that the meeting had a sufficient coram but certain nonetheless recommendations were made to investigate the allegations. 5 The Committee of the Association emailed members saying that they would be conducting an investigation in relation to the allegations. That email said the 1 Strange v Police Association of South Australia & Ors, Reasons for Decision of District Court Auxiliary Master Roder of 7 June 2024 (CIV-23-011139), at [2]. -- 3 of 12 -- [2025] SADC 31 2 members would be provided with terms of reference of the investigation. The members have never received the terms of reference. Mr Murphy of O’Connor Marsden was appointed to conduct the investigation. It is a firm that specialises in probity reports. The Association wrote to the President setting out a number of allegations. 6 Some months later, the Committee decided to remove Mr Murphy as the person conducting the investigation and appointed a barrister from Victoria. This is one of the matters of concern to the first respondent. Her view is that the investigation into the bullying allegations was interfered with. That is not a matter that can be explored, either on this appeal or on the application before the court. The Association has never provided a copy of the final report to the first respondent. The legal position 7 The first respondent sought a wide range of documents from the Association and the President. An applicant first needs to establish an entitlement to an order. Relevant for present purposes is the following rule: 242.2—Order (1) The Court may make an order under subrule (2) if satisfied that— (a) the applicant may have a good cause of action against another person; (b) the person against whom the order is sought may be in possession or custody of, or have power over, evidentiary material or information relevant to the possible cause of action; and (c) the applicant requires discovery or production of relevant evidentiary material or information to— (i) decide whether a cause of action exists; (ii) decide against whom the claim lies; or (iii) formulate the claim properly. 8 The rule in relation to pre-action discovery is an important one. There is usually commercial and reputational risk involved in commencing civil proceedings. The rule provides a mechanism where a party, who believes she may have a cause of action, can explore that cause of action, within the scope provided for by the rules. Generally speaking, therefore, it is appropriate to encourage the use of the rule, rather than to discourage it, as it allows for informed decisions to be made before proceedings are commenced. 9 The present rule is, in all material respects, the same as the equivalent rule in the 2006 Supreme Court Civil Rules. In relation to that rule, in Lifeplan Australia -- 4 of 12 -- [2025] SADC 31 3 Friendly Society Pty Ltd & Anor v Ancient Order of Foresters in Victoria Friendly Society Ltd, the Honourable Justice White said the following:2 As already seen, r 32 vests the Court with a discretionary power which may be exercised in anticipation of an action. Before the discretion may be exercised, the Court must be satisfied, on an objective consideration, of two conditions: first, that the applicant may have a good cause of action and, secondly, that it requires further information for at least one of the purposes stated in subr (1). That requires an applicant to place before the Court satisfactory evidence to establish the two preconditions enlivening the discretion. It may be that a favourable exercise of the discretion will usually follow once these two preconditions have been established but that should not be assumed. … It is, however, necessary to keep in mind that an exercise of the powers under r 32 involves a coercive intrusion into the right, which the subjects of the order otherwise have, to keep their documents and information to themselves. … … An understanding of the intrusive effect of an order for pre action disclosure is, to my mind, important in construing and understanding the application of r 32. The rule has a number of features which reflect that understanding. First, the investigative powers may be exercised only if the Court is satisfied that the plaintiff may have a good cause of action and requires further information for at least one of the three enumerated purposes. Those purposes do not include the enabling of plaintiffs to assess their chances of proving the proposed causes of action or to obtain evidence to assist in proving the proposed claims. (footnote omitted) 10 There is a two-step process involved in exercising the discretion provided for in the rules. The first is to be satisfied that an applicant may have a good cause of action. The second is for the court to be satisfied that documents are required for one or more of the three stated purposes. 11 There is some case law in relation to the first step. In Gerard Industries Pty Ltd v Wee3 White J was considering the operation of the pre-action discovery rule contained in the 1947 Supreme Court Rules. His Honour said:4 There must be some grounds for making the application; there must be some foundation for the belief that discovery is necessary; speculation and hope and unwarranted suspicion are not enough; and busybodies on fishing expeditions ought to be discouraged. But as Lord Denning said, it is not necessary to show as a condition precedent to an order, that one has a good cause of action already, that is, without the benefit of the information which is sought by the discovery. Such a view would defeat the object of the legislation in England and of the rules here. 2 [2013] SASC 5 at [16], [18], [21]-[22]. 3 (1986) 43 SASR 562. 4 (1986) 43 SASR 562 at 568. -- 5 of 12 -- [2025] SADC 31 4 12 In Belcar Pty Ltd v Premier Automotive Group Australia Pty Ltd5 Judge Burley dealt with the issue of satisfaction as to a cause of action. His Honour said:6 A useful purpose is to be served by allowing pre-action discovery where there is doubt that a claim may be maintained. In my opinion, to meet the objectives of the rule, the bar should not be set too high. Nevertheless, as I have said earlier in these reasons, a respondent to an application should not be subjected to the process and a subsequent order if the claimed entitlement is based largely on surmise, speculation or conjecture. (See Gerard Industries v Wee (supra) and Rush v Commissioner of Police (2006) 150 FCR 165) 13 It can be seen that the test for determining whether a party may have a good cause of action is not particularly onerous. Nonetheless, it is a test that must be satisfied to permit the making of an order for discovery. 14 Assuming the first step is satisfied, the court then moves on to the purpose for which the documents are sought. An applicant must require discovery for one of the three purposes set out in 242.2(1)(c) of the rule. That is a limitation on the exercise of the court’s discretion. It is only able to make an order for discovery if the documents are required for one of the three nominated purposes. 15 Ordinarily, discovery is limited to documents relevant to issues joined on the pleadings. Fishing is not permitted. The pre-action discovery rule is really only dealing with fishing. An applicant is looking for documents to confirm or strengthen a suspected cause of action. The three purposes provided for in the rule put a limit on the scope of the fishing exercise that may be permitted. The grounds of appeal 16 There are two notices of appeal. Save for one paragraph, the grounds of appeal are identical. The grounds of appeal of the Association say that the Master erred as follows:7 1. determining that Ms Strange had a good cause of action so as to enliven the power to order that there be (pre-action) discovery pursuant to UCR 242.2, by finding that: a. it was at least arguable that there was a contract arising between the Association and Ms Strange as a member of the Association (and erred in concluding that principles governing bodies incorporated under the Associations Incorporation Act 1985 (SA) apply to a body established under the Fair Work Act 1994 (SA): [85]): [92]; and, b. terms could be implied into the Rules of the Association, and by it the contract arising by reason of membership: [94] and [95]; and, c. despite the “exact term or terms” not being identified, there could be implied terms which would give rise to the basis for the proposed claim by Ms Strange: [96]; and, 5 [2007] SASC 240. 6 [2007] SASC 240 at [50]. 7 FDN 1 Grounds of appeal in CIV-24-006072. -- 6 of 12 -- [2025] SADC 31 5 d. a contended tort of deliberate infliction of mental harm provides a good cause of action at all, or in these circumstances: [92]. 2. in the alternative if there is a good cause of action, in determining that the discretion ought be exercised to require production, and specifically erred in: a. finding that the proposed claim was “relevantly different” to the claim previously litigated by Ms Strange; and b. not finding (or addressing) that Ms Strange having previously brought proceedings and having settled by deed those proceedings and all claims against Mr Carroll could not now proceed on the basis contended now to allege vicarious liability of the Association; c. not finding that the proposed claim could exclusively and properly be brought in the SAET under s 127 of the Fair Work Act (which course Ms Strange had contemplated and eschewed). 3. in the further alternative, that the effect of order 1-3 by effect of the scope of categories 3 and 4 of Ms Strange’s application, requires the production of documents irrelevant to her identified causes of action. 17 The President has one additional ground of appeal which is that, because of the deed of settlement containing a release, the first respondent is not entitled to commence proceedings against him. The deed may be pleaded as a bar in any claim that might be brought against him. 18 Reduced to simple propositions then the appellants say the Master erred in finding that the first respondent may have a good cause of action or in the alternative, even if she did have a good cause of action, the discretion should have been exercised adversely to the first respondent and no order should have been made. The last point is that the orders, in any event, are broader than would be justified under the application. The approach of the appellants 19 The Master at first instance noted that the appellants had taken an adversarial approach to the application. That approach continued on the appeal. It is clear that the appellants do not wish to be obliged to provide any documents to the first respondent. 20 In my experience that is not the usual approach to an application for pre-action discovery. Most applications of this type ultimately resolve by the making of consent orders. There are often legitimate differences between the parties as to the nature and scope of documents to be provided. They resolve by discussion. It is not often the case that there is a dispute about whether an applicant may have a cause of action. 21 This matter stands out because it is attacked by the appellants at a fundamental level, questioning whether or not the first respondent may have a -- 7 of 12 -- [2025] SADC 31 6 good cause of action. The approach is that no cause of action could possibly exist, or in the event that it did, there were viable defences. 22 The approach adopted by the appellants, with respect, seems to be the approach that would more usually be adopted on an application for summary judgment pursuant to UCR 144. The strength of a cause of action and the validity of the defences are legitimate matters on summary judgment. They are not usually relevant matters on an application for pre-action discovery. 23 The approach carries over into the notice of appeal. The first sentence of paragraph 1 of the notices of appeal complains that the Master erred by finding the first respondent had a good cause of action so as to enliven the power to make pre-action discovery. With respect, that misstates the position. The Master found that the first respondent “may have a good cause of action”. He did not find, and did not need to find, that she did have a good cause of action. The rule is intended to provide a prospective litigant with documents to assess whether she does in fact have a good cause of action. May have a cause of action 24 The parties agree that, in the main, this is not a House v The King type appeal. The appeal is by way of rehearing.8 The determination of whether an applicant may have a cause of action is evaluative. 25 I agree with the appellants that the proposed causes of action of the first respondent are not as clear as they could be. It may simply be that that is the nature of an application such at this. It could also be that the first respondent has not clearly stepped through the factual matters that might make up a cause of action. 26 The argument before the Master related, in the main, to a cause of action in contract. It arises from the Full Court decision of Chiropractic & Osteopathic College of South Australia Inc v Struthers & Ors.9 The matter involved a dispute between members and an incorporated association. King CJ said: … On the analogy of the principles applied in the cases under the Companies Act, it seems to me that upon incorporation, each member of the Association and the body corporate enter into a contract with each other in terms of the Rules and that thereafter there is not only a binding legal relationship between the members inter se but also between each member and the incorporated association. … 27 The Police Association is an incorporated association. The appellants dispute that any contract exists or at least any contract in the form asserted by the first respondent. On an application of this type, the court should, consistent with the above authority, proceed on the basis that there may be a contractual relationship between the first respondent, as a member or former member, and the Association. 8 UCR 217.10. 9 (1981) 97 LSJS 49. -- 8 of 12 -- [2025] SADC 31 7 28 The next question is whether there was a breach of contract which would entitle the first respondent to bring a contractual claim to enforce compliance with the rules of the Association. The first respondent says that there was a breach of clause 5.4 of the constitution which is in the following terms: 5.4 POWER TO REMOVE MEMBERS OF THE COMMITTEE OF MANAGEMENT 5.4.1 A Member of the Committee may be removed from their office or position if they are found to have been guilty of: 5.4.1.1 Misappropriation of the funds of the Association; or 5.4.1.2 A substantial breach of the Rules of the Association; or 5.4.1.3 Gross misbehaviour; or 5.4.1.4 Gross neglect of duty. 5.4.2 An allegation reported to the Committee under this Rule shall: 5.4.2.1 be in writing and shall be forwarded to the President or the Secretary who shall notify the person reported of the details as alleged; and 5.4.2.2 if the reported allegation concerns the President and the Secretary then the Deputy President or Vice President shall be so advised. 5.4.3 The person against whom the allegation is made shall be given not less than fourteen (14) days notice in writing of the time and place of the Committee meeting at which the report is to be tabled and considered and shall be invited to attend such meeting and be heard, but shall not be entitled to vote at such meeting. 5.4.4 Subject to the following procedure the Committee, by a simple majority, may in their discretion suspend from office any person reported under this rule pending its determination of the allegation. 5.4.5 A decision to suspend shall be notified to all Delegates of the Association at a meeting of Delegates called as soon as practicable for this purpose and the decision of the Committee must be endorsed by a simple majority of Delegates present before consideration of the removal of the Member from the Committee. 5.4.6 The removal of a Member from the Committee shall not be confirmed until after the result of a secret ballot to be conducted forthwith after the Delegates meeting of all Members of the Association approving the Committee's decision to suspend. 5.4.7 If the majority of Members fail to endorse the suspension by the Committee, the suspension shall be null and void. 29 The first respondent made a complaint against the President pursuant to clause 5.4.2. The contractual argument is that the operation of the clause attracted -- 9 of 12 -- [2025] SADC 31 8 a requirement to apply the rules of natural justice and procedural fairness in dealing with the complaint. It might be thought that clause 5.4.3 supports that proposition. 30 The first respondent says that the interference by the Committee into the independent inquiry being undertaking by Mr Murphy was a breach of the rules of natural justice and procedural fairness. She was a member at the time the investigation commenced. She asserts that she had a right in contract to ensure that a proper investigation of the allegations was carried out and that this did not occur. 31 In response, the appellants say no contract arises and that further, even if it did, the exclusive jurisdiction to deal with the dispute lies with the SAET. This arises from s 127 of the Fair Work Act 1994 (SA) which provides as follows: 127—Orders to secure compliance with rules etc (1) SAET (constituted as the South Australian Employment Court) may, on the application of a member of an association registered under this Part or a person who has been expelled from membership of such an association, order the association or specified officers of the association— (a) to carry out an obligation imposed by the rules of the association; (b) to make good any contravention of, or failure to comply with, the rules of the association; (c) to carry out consequential or related directions SAET thinks necessary or desirable in the circumstance. (2) An association or other person who fails to comply with an order of SAET under this section is guilty of an offence. Maximum penalty: $1 250. (3) SAET (constituted as the South Australian Employment Court) may, on application by a member of an association registered under this Part or a person who has applied for membership of such an association, declare a rule of the association to be invalid on the ground that the rule is inconsistent with this Act. (4) SAET may adjourn proceedings on an application under subsection (3) for a period, and on terms and conditions, SAET considers appropriate, to give the association an opportunity to alter its rules. 32 The Master generally adopted the approach that it is not necessary on an application for pre-action discovery to consider the existence or strength of a defence. I think that is the appropriate approach. The purpose of the rule is to permit a prospective litigant to explore the possibility that she may have a good cause of action. It is in the nature of the application that the suspected cause of action will likely be imperfectly formed as at the time of the application. It is simply not possible to explore the strength of a defence on an application when the nature and form of the cause of action is not fully known. It would defeat the purpose of the rule to do so. -- 10 of 12 -- [2025] SADC 31 9 33 I think that the proposed cause of action arises above surmise, speculation or conjecture. There is a possibility that the cause of action exists. That is enough. 34 On the appeal of the President, the additional ground is that because of the deed of settlement no cause of action could be brought against him. That appears to be a strong argument. It is not strictly relevant, however, on the question of pre-action discovery. He was the President of the Association at the relevant time. It may be that he still has documents in his possession. A party directed to make discovery of documents in his possession need not be a party against whom a cause of action can be pursued. Put simply, person A may have documents sought under the rule by person B to see if they have a cause of action against person C. The deed of settlement has little impact on the question of whether the former President should be directed to make discovery. If he files an affidavit saying he has no documents, so be it. 35 The next question relates to the exercise of discretion on finding that a party may have a good cause of action. In the Lifeplan authority referred to above, it was said that if the relevant criteria is established it might be expected the discretion would be exercised in favour of an applicant. It also said that the rule should be applied beneficially and in a way that assists the achievement of its purpose. 36 I note the comments of the Master who said:10 Complying with an order for pre-action discovery can be inconvenient – and often uncomfortably so – but the potential of avoiding unnecessary actions and the costs to the parties and to the administration of justice are often sufficient to warrant the order. The appropriate order for compensation is not a complete balm, but does address some of the problems. I note that in this case none of the documents sought appear to be of a personal nature or otherwise intrusive in respect of the respondents’ affairs. (footnotes omitted) 37 The discretionary issues against the making of an order, put by the appellants, are not sufficient to justify a refusal of the application. They are, to some extent, a restatement of the grounds for saying no cause of action could exist. In the usual case if the criteria in the rules are established, an order will follow. 38 The final issue relates to the breadth of the order for discovery made by the Master. The order was as follows: 1. PASA CoM's Terms of Reference/s relating to the member-funded independent investigation into bullying complaints against the Third Respondent that was provided to Mr Kieran Murphy, OCM. 10 Strange v Police Association of South Australia & Ors, Reasons for Decision of District Court Auxiliary Master Roder of 7 June 2024 (CIV-23-011139), at [21]. -- 11 of 12 -- [2025] SADC 31 10 2. The 'letter of allegation' sent to the Third Respondent, and his legal representative/s, in/or about February 2022 by independent investigator Mr Kieran Murphy, OCM. 3. 3. The correspondence tabled by Deputy President Wade Burns, at a meeting of PASA CoM on Thursday 24 March 2022, which led to the removal of Mr Kieran Murphy, OCM, as the independent investigator. (PASA Reference CR 095/2022) 4. 4. Full disclosure of information supplied to Mr Eugene White (including but not limited to the Terms of Reference, witness statements and all correspondence between any interested/involved party). 5. 5. The full findings of the report of Mr Eugene White relating to all complaints investigated. 6. 6. A copy of the Third Respondent's contract of employment relative to his role as PASA Chief Executive Officer. 39 The appellants say that even if the making of the order was justified, the terms of the order are too broad. After the hearing of the appeal, the Association, at my request, provided further written submissions on the scope of an order that would be appropriate and I have considered those submissions. 40 Looking at the orders made by the Master, orders 1 to 5 are appropriate. They relate to the possible cause of action. Order 6 is not relevant to the possible cause of action in contract. 41 I note that little attention was given to the question of leave to appeal. In the usual case, leave is required.11 I am satisfied that the substance of this appeal was, in any event, such as to warrant a grant of leave. 42 The orders of the court will be: 1. The order for discovery of documents in relation to category 6 is set aside. 2. The appeals are otherwise dismissed. 3. The appellant in each appeal is to pay the first respondent’s costs on the standard costs basis. 11 UCR 213.1A. -- 12 of 12 --