McDonald v Attorney-General for the State of South Australia - [2023] SASCA 132

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
MCDONALD & ANOR v ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA
[2023] SASCA 132
Judgment of the Court of Appeal
(The Honourable President Livesey and the Honourable Justice Doyle)
30 November 2023
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FOR BIAS IN JUDICIAL PROCEEDINGS
The applicants, Mr and Mrs McDonald, seek leave to appeal from an ex tempore decision of Bampton J given on 9 June 2022 refusing their application that she recuse herself.
The respondent, the Attorney-General, filed an interlocutory application seeking that the applicants’ notice of appeal be struck out.
By a second notice of appeal filed on 20 April 2023 the applicants also seek leave to appeal from the refusal by Bampton J on 27 March 2023 to entertain a second application to recuse herself, together with her direction to the Registrar to decline to accept two further affidavits for filing in connection with that application.
The Court held (refusing leave to appeal, with costs):
1.It is not reasonably arguable that the judge acted with ostensible bias in refusing to go behind the decision of the Full Court in State of South Australia v McDonald (2009) 104 SASR 344 and in her management of the hearing of the vexatious litigant proceedings.
2.The proposed grounds of appeal are not reasonably arguable and do not raise any matters of general principle or importance.
3.The applicants have not shown that there will be any substantial injustice caused to them were the decisions below left to stand.

Supreme Court Act 1935 (SA) s 39; Uniform Civil Rules 2020 (SA) rr 213.1, 214.2, referred to.
DT v Chief Executive of the Department for Child Protection [2021] SASC 138; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Kowalski v Mitsubishi Motors Australia Staff Superannuation Pty Ltd & Anor [2017] SASCFC 175; M, K v Chief Executive of the Department for Child Protection [2021] SASCA 27; McDonald & Anor v State of South Australia & Ors; McDonald & Anor v Attorney-General for the State of South Australia [2022] SASCA 81; McDonald v Attorney-General for the state of South Australia [2022] SASCA 43; McDonald v South Australia [2013] SASC 31; McDonald v State of South Australia [2014] SASC 120; McDonald v State of South Australia [2015] SASCFC 15; Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; R v Rich (Ruling No 21) [2009] VSC 32; South Australia v McDonald (2009) 104 SASR 344; Southern Wire v Clover Communications [2023] SASCA 18; State of South Australia v McDonald (2009) 104 SASR 344; Wyness v Roennfeldt [2023] SASCA 77, considered.

MCDONALD & ANOR v ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA
[2023] SASCA 132
Court of Appeal – Civil: Livesey P and Doyle JA
THE COURT:

The applicants, Mr and Mrs McDonald, seek leave to appeal from an ex tempore decision of Bampton J on 9 June 2022 refusing their application to recuse herself.
The respondent, the Attorney-General, has filed an interlocutory application seeking that the applicants’ notice of appeal be struck out.
By a second notice of appeal filed on 20 April 2023 the applicants seek leave to appeal from the refusal by Bampton J on 27 March 2023 to entertain a second application to recuse herself, together with her direction to the Registrar to decline to accept two further affidavits for filing in connection with that application.
For the following reasons, permission to appeal should be refused, with costs.
Background
The proceedings have a long and difficult history, spanning more than a decade and a half and a large number of actions and hearings. It is not necessary to recount the entirety of that history. For present purposes, however, it is useful to provide a brief summary of the litigation relevant to the current appeal.
Mr McDonald was a teacher appointed by the Minister for Education under the Education Act 1972 (SA). His employment was terminated. He made a claim against the State of South Australia for breach of his employment contract. The trial judge found there was an implied term of mutual trust and confidence in the contract, which had been breached. The judge also found that the implied contractual duty of care had been breached. Damages were awarded for loss of earnings.
The State of South Australia successfully appealed that decision.[1] Mr McDonald sought leave to appeal the Full Court’s decision to the High Court, which application was refused on 12 February 2010.[2]
[1] State of South Australia v McDonald (2009) 104 SASR 344.
[2] McDonald v South Australia [2010] HCATrans 25 (French CJ and Kiefel J).
Subsequent to this refusal, Mr McDonald sought to pursue a claim for damages for injuries he alleges arose out of his employment. In those proceedings, Bampton J refused an extension of time within which to seek permission to appeal from an order of a District Court Judge.[3] The District Court Judge had dismissed an appeal from a decision of a District Court Master who refused an application to change the name of the defendant from the State of South Australia to the Minister for Education. The applicants contended that there was fresh evidence which showed that this decision of Bampton J was “plainly wrong and should be set aside”.
[3] McDonald v State of South Australia [2014] SASC 120, which decision was upheld in McDonald v State of South Australia [2015] SASCFC 15 (Gray, Sulan and Nicholson JJ).
On 7 September 2021, the Attorney-General commenced proceedings against Mr and Mrs McDonald, seeking that they be declared vexatious litigants pursuant to s 39(1) of the Supreme Court Act 1935 (SA) and the inherent power of the Court (the vexatious litigant proceedings).
The Attorney-General filed an interlocutory application in the vexatious litigant proceedings, seeking orders staying the (then) extant proceedings instituted by Mr and Ms McDonald, and an interlocutory injunction restraining them from filing any further proceedings without first obtaining the leave of the Court. On 4 March 2022, Bampton J granted an interim injunction pending the determination of the Attorney-General’s application for an interlocutory injunction.
Mr and Mrs McDonald filed an appeal from those orders. On 5 May 2022, on the application of the Attorney-General, the Court of Appeal struck out certain paragraphs of the notice of appeal as an abuse of process, and otherwise refused leave to appeal.[4] The allegations of bias against Bampton J raised by Mr and Mrs McDonald in that appeal were held to be not properly before the Court of Appeal, as the issue of disqualification had not been raised before her Honour.
[4] McDonald v Attorney-General for the state of South Australia [2022] SASCA 43 (Livesey P and Bleby JA).
On 8 June 2022, Mr and Mrs McDonald filed an interlocutory application seeking orders that Bampton J recuse herself from hearing the vexatious litigant proceedings. On 9 June 2022, her Honour dismissed that application and extended the interim injunction ordered on 4 March 2022. It is this decision which is the subject of the first proposed appeal.
On 23 June 2022, Bampton J heard and determined the Attorney-General’s interlocutory application for an interlocutory injunction. On that date, her Honour ordered that Mr and Mrs McDonald be prohibited from filing documents in any extant proceedings (other than in the vexatious litigant proceedings and the then extant appeal) or commencing new proceedings pending the final determination of the vexatious litigant proceedings.
On 15 July 2022, Mr and Mrs McDonald filed an appeal from the orders made by Bampton J on 23 June 2022. That appeal was heard on 12 August 2022.[5] The Court of Appeal delivered ex tempore reasons, dismissing the appeal.[6] Significantly, Mr and Mrs McDonald did not agitate any issue concerning the recusal of Bampton J in that appeal.
[5] Together with appeal CIV-22-2819, being the appeal against orders made by David JA summarily dismissing Supreme Court Action CIV-20-6239.
[6] McDonald & Anor v State of South Australia & Ors; McDonald & Anor v Attorney-General for the State of South Australia [2022] SASCA 81 (Livesey P, Doyle and Bleby JJA).
The vexatious litigant proceedings were heard on 27 February 2023. Following that hearing, on 28 March 2023 Bampton J heard further submissions from the applicants, after which her Honour made orders refusing permission for the applicants to file their proposed second application for her Honour to recuse herself. In the course of argument on 28 March 2023, Bampton J refused to entertain that application because it “traverses matters that have been finally determined by the court and … it is vexatious and an abuse of process”. Her Honour directed the Registrar not to receive the two further affidavits filed in support of that application because they had been filed without leave, contrary to the order made by way of injunction on 23 June 2022.[7]
[7] These were, however, admitted into evidence on the vexatious litigant proceedings.
The second proposed appeal is concerned with the orders and directions made on 28 March 2023.
Bampton J has not yet delivered judgment in the vexatious litigant proceedings.
The application for leave to appeal
By their notice of appeal dated 12 October 2022, the applicants challenge the decision of Bampton J on 9 June 2022 declining to recuse herself. They rely upon 18 grounds of appeal, most of which are expressed in lengthy and discursive terms, and which, in combination, are nine pages in length.
By their notice of appeal dated 20 April 2023, the applicants challenge the decision of Bampton J made on 28 March 2023 to dismiss the further application to recuse herself and directing the Registrar to decline to receive two further affidavits filed in support. This notice sets out 61 paragraphs, again expressed in lengthy and discursive terms spanning 7 pages. Apart from arguing their substantive case for relief, the applicants complain about the way in which Bampton J conducted the vexatious litigant proceedings.
As the second application essentially traverses the territory addressed by the first, it is generally sufficient to address these as the one application.
Leave is required pursuant to r 213.1(1)(a) of the Uniform Civil Rules, as the appeal is against an interlocutory decision. The applicants also require an extension of the time within which to press the first appeal.
By application dated 25 October 2022, the Attorney-General sought an order striking out the applicants’ first notice of appeal pursuant to r 212.5, on the basis that it fails to comply with the Uniform Civil Rules and is otherwise an abuse of process.
Pursuant to r 214.2(1), an appeal must be instituted by filing a notice of appeal that, among other requirements, sets out the grounds of appeal. Bare assertions of errors are not generally sufficient for this purpose. Rather, the grounds of appeal must identify particular errors in the reasoning or conclusions of the primary judge that are capable of being corrected on appeal.
At a hearing on 28 October 2022, orders were made requiring the applicants to file any evidence and submissions in opposition to the Attorney-General’s application to strike out the notice of appeal.
Having read the voluminous grounds of appeal, together with the written submissions of both parties, it is apparent that the applicants’ grounds of appeal and submissions are largely concerned with the applicants’ attempts to reagitate unsuccessful arguments previously made in their various pieces of litigation. The grounds of appeal are not concerned with the merits of the rulings of Bampton J on 9 June 2022 and 28 March 2023; much less do they identify any specific errors in the reasoning or conclusions of her Honour.
On one view, the applicants’ notices of appeal should be struck out for non-compliance with what is required of a notice of appeal. However, we have determined that the more efficient and appropriate course is to consider the merits of the applications for leave to appeal, in so far as that can be identified, and deal with the matters in that way.
The question whether leave to appeal from an interlocutory decision should be granted depends upon consideration of the following:[8]
1.whether the decision is attended with sufficient doubt to warrant its reconsideration on appeal;
2.whether the decision raises an issue of principle or general importance; and
3.whether allowing the decision to stand would work a substantial injustice.
[8] Wyness v Roennfeldt [2023] SASCA 77 at [29] (Livesey ACJ and Bleby JA); Southern Wire v Clover Communications [2023] SASCA 18 at [53] (Livesey P and Bleby JA); M, K v Chief Executive of the Department for Child Protection [2021] SASCA 27 at [7] (Doyle and Livesey JJA).
The applicants’ grounds of appeal refer primarily to adverse interlocutory decisions made by her Honour in the vexatious litigant proceedings as evidence of actual bias. The grounds assert that the applicants have been denied procedural fairness as a result of the alleged bias.
An allegation of actual bias should not be lightly made and there is a high bar in making good such an allegation.[9] Any allegation must be distinctly made and clearly proved.[10] Bias cannot be inferred simply from a previous adverse finding against a party.[11]
[9] DT v Chief Executive of the Department for Child Protection [2021] SASC 138 at [38] (Parker J).
[10] R v Rich (Ruling No 21) [2009] VSC 32 at [7] (Lasry J).
[11] Kowalski v Mitsubishi Motors Australia Staff Superannuation Pty Ltd & Anor [2017] SASCFC 175 at [13] (Nicholson J).
To establish actual bias, it is necessary to establish that the judicial officer is so committed to a particular outcome that it will not be altered regardless of the evidence or submissions presented.[12]
[12] Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] (Gleeson CJ and Gummow J), [127] (Kirby J).
The applicants do not point to any evidence of such an approach in their complaints against Bampton J. Certainly, the allegations made by the applicants are neither “distinctly made” nor “clearly proved”. Actual bias is not made out.
The applicants have also failed to demonstrate apprehended bias. The test for whether a judicial officer should disqualify themselves for apprehended bias requires consideration of whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”.[13]
[13] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
To establish apprehended bias, the applicants would need to identify the matter that might lead her Honour to decide the case other than on its merits, and to articulate the logical connection between that matter and the derivation from the course of deciding the matter on its merits.[14]
[14] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
We are not persuaded that a fair-minded lay observer, who was fully abreast of the facts and context of this matter, would conclude that Bampton J could not bring an impartial mind to the making of decisions whilst the matter was under her supervision.
It is not reasonably arguable that her Honour’s refusal to go behind the ruling made by the Full Court in 2009 reveals bias, as distinct from recognising the need to observe the requirements of stare decisis.[15] It is not reasonably arguable that her Honour’s delivery of the judgment in McDonald v South Australia [2014] SASC 120 or her interlocutory decisions in and conduct of the vexatious litigant proceedings suffice to establish an apprehension of bias.
[15] South Australia v McDonald (2009) 104 SASR 344 at 349 [2] (Doyle CJ, White and Kelly JJ).
We consider that a properly informed reasonable observer would apprehend that her Honour ruled as she did for sound reasons based on her detailed consideration and understanding of the matter, having had proper regard to the interests of justice.
Neither actual nor apprehended bias are made out. The proposed appeals are without merit; the decisions sought to be appealed are not attended by sufficient doubt to warrant their reconsideration on appeal.[16]
[16] Whilst it is open to question whether the direction that two affidavits not be received for filing is open to be appealed, we have proceeded on the basis that an appeal lies subject to leave, see McDonald v South Australia [2013] SASC 31 at [6]–[7] (Sulan J).
The proposed grounds do not raise any matters of general principle or importance. Nor do we consider that there would be any substantial injustice to the applicants were the decisions below left to stand. In this respect, it is significant that the applicants have already pursued an earlier appeal in these proceedings without raising their allegation of bias. Finally, should there be any material error made in the vexatious litigant proceedings then the applicants will have recourse to whatever appeal rights are recognised by s 50 of the Supreme Court Act 1935 (SA).
Leave to appeal must be refused.
The orders of the Court are:
1.The application for leave to appeal dated 12 October 2022 is dismissed.
2.The application for leave to appeal dated 20 April 2023 is dismissed.
3.The applicants must pay the respondent’s costs of the applications to strike out the notice of appeal and the applications for leave to appeal to be agreed or taxed.