McDonald v Attorney-General for the State of South Australia - [2022] SASCA 43

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
MCDONALD & ANOR v ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA
[2022] SASCA 43
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey and the Honourable Justice Bleby)
5 May 2022
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS - LEAVE TO APPEAL
The respondent seeks a declaration that the applicants be declared vexatious litigants. By Notice of Appeal dated 24 March 2022, the applicants sought to appeal against three orders made by a judge of this Court in the course of the vexatious litigant proceedings. There was an interlocutory order staying a number of the applicants’ actions, an interim injunction preventing the applicants from filing any documents in extant proceedings or from commencing new proceedings, and an order limiting the applicants’ written submissions to five pages.
By interlocutory application dated 11 April 2022, the respondent sought orders that various paragraphs of the applicants’ Notice of Appeal be struck out and that the question of leave be determined on the papers. The applicants filed an interlocutory application on 12 April 2022 opposing the respondent’s application.
Held (per the Court):
1. The interlocutory application dated 12 April 2022 is dismissed.
2.On the application dated 11 April 2022, the respondent’s contentions should be accepted, and the specified paragraphs struck out as an abuse of process.

3. Leave to appeal is otherwise refused.
4.The applicants must pay the respondent’s costs of the applications and the application for leave to appeal, certified fit for counsel.

Education Act 1972 (SA); Supreme Court Act 1935 (SA) ss 39, 50; Uniform Civil Rules 2020 (SA) rr 34.1, 212.5, 213.1; Workers Rehabilitation and Compensation Act 1986 (SA) s 54, referred to.
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; Coles Myer Ltd v Bowman [1996] 1 VR 457; Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; DT v Chief Executive of the Department for Child Protection [2021] SASC 138; Harris Scarfe Limited (Receivers and Managers Appointed) (In Liquidation) & Ors v Ernst & Young & Ors (No 2) [2005] SASC 168; Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126; McDonald v State of South Australia [2014] SASC 120; McDonald v State of South Australia [2015] SASCFC 15; Niemann v Electronic Industries Ltd [1978] VR 431; State of South Australia v McDonald (2009) 104 SASR 344; State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40; UBS AG v Tyne (2018) 265 CLR 77, considered.

MCDONALD & ANOR v ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA
[2022] SASCA 43
Court of Appeal – Civil: Livesey P and Bleby JA

THE COURT (ex tempore): The Attorney-General seeks a declaration that the applicants be declared vexatious litigants.[1] The hearing of that application has not been set down. On 9 June 2022 the application will be reviewed, including whether the interim injunction referred to below should remain in place.
[1] In action CIV-21-010182.
By Notice of Appeal dated 24 March 2022, the applicants appeal against orders made by Bampton J on 4 March 2022 being:
1.a stay of actions CIV-21-007810, CIV-21-0011585 and CIV-21-012132 until further order by Bampton J;
2.an interim injunction that, pending the determination of the Attorney-General’s interlocutory injunction application in action CIV-21-010182, the applicants are prohibited from filing any documents in any extant proceedings or from commencing new proceedings, save in CIV-21-010182 or the proposed appeal against the decision of David JA made in CIV-21-006239; and
3.the order that the applicants file and serve a written outline of no more than five pages by close of business on 20 May 2022.
Although leave to appeal is not sought, it is clear that the orders under appeal are interlocutory in nature. By s 50(5)(c) of the Supreme Court Act 1935 (SA) no leave to appeal is required where the Court “grants or refuses relief in the nature of an injunction”. That means that no leave is required to pursue appeal ground 2. Otherwise, as appeal grounds 1 and 3 are against interlocutory orders they require leave to appeal, see r 213.1(1)(a) of the Uniform Civil Rules 2020 (SA) (UCR).
Accordingly, apart from appeal ground 2, the appeal should be treated as an application for leave to appeal.
In addition to the Notice of Appeal, the Court has before it two applications. The first is dated 11 April 2022 by which the Attorney-General seeks a striking‑out of those three paragraphs of the Notice of Appeal that relate to the interim injunction, pursuant to rr 34.1 and 212.5(2)(b) of the UCR. The Attorney-General asks that the application and any question of leave be determined on the papers. We shall return to that aspect of the application.
By the second application dated 12 April 2022 the applicants seek an order that the paragraphs targeted by the Attorney-General’s application “remain and the respondent’s request for their orders … [be] disallowed and struck out” [sic]. The applicants also request that leave to appeal be determined “on the errors of law and errors of jurisdiction and breaches in practice and procedures mentioned in the appeal”.
The applicants go on to refer to what is said to be “new, fresh, and compelling evidence that has come to light” concerning decisions in “State of SA v McDonald [2009] SAST 344” [sic] and in McDonald v State of South Australia [2015] SASCFC 15 and in the “Lunn J lost appeal and the Tilmouth J lost appeal …” [sic]. The applicants assert that the Court failed in its function, being the proper administration of justice, and failed “to uphold the integrity of the judicial system and to serve the interest of justice”.
It is convenient to deal with these in reverse order.
Respectfully, there is no point in the applicants’ interlocutory application. It simply advocates against the Attorney-General’s application and in favour of the appeal. Accordingly, it is appropriate to dismiss that application.
The Attorney-General’s application seeks an order striking out three paragraphs of the Notice of Appeal relating to the interim injunction because the applicants do not identify any appealable error concerning the grant of the interim injunction. In any event these paragraphs seek to vary the terms of the interim injunction so as to enable the applicants to file a second Notice of Appeal in actions where the appeals have already been concluded following hearings before the Full Court which entered final orders.[2]
[2] See State of South Australia v McDonald (2009) 104 SASR 344 and McDonald v State of South Australia [2015] SASCFC 15.
In our view, the Attorney’s contentions should be accepted, and the specified paragraphs struck out as an abuse of process. Rare cases apart, there can be no second appeal to the Court of Appeal against decisions of the Full Court.
It is now convenient to address whether leave to appeal should be given.
It is appropriate to provide a very brief, no doubt simplistic, summary of the litigation involving the applicants. That litigation now spans more than a decade and a half and a very large number of actions and hearings. In State of South Australia v McDonald,[3] the Full Court allowed the appeal, overturning a decision which had been made in favour of Mr McDonald, who had been appointed as a teacher by the Minister for Education under the Education Act 1972 (SA). Mr McDonald made a claim for breach of his employment contract.
[3] State of South Australia v McDonald (2009) 104 SASR 344.
The trial Judge found that there was an implied term of mutual trust and confidence which had been breached and that an implied contractual duty of care had also been breached. Damages for loss of earnings were awarded. The Full Court rejected the contention that an implied term of mutual trust and confidence formed part of the contract of employment.[4] In any event, there was no breach.[5] In addition, the Full Court found that the Minister did not breach the implied duty to take reasonable care to protect the applicant against foreseeable injury.[6]
[4]     State of South Australia v McDonald (2009) 104 SASR 344, [269]-[271] (Doyle CJ, White and Kelly JJ).
[5]     State of South Australia v McDonald (2009) 104 SASR 344, [272]-[273] (Doyle CJ, White and Kelly JJ).
[6]     State of South Australia v McDonald (2009) 104 SASR 344, [387] (Doyle CJ, White and Kelly JJ).
Although the applicant cross-appealed, seeking damages for non-economic loss, this claim was barred by s 54 of the Workers Rehabilitation and Compensation Act 1986 (SA).[7]
[7] State of South Australia v McDonald (2009) 104 SASR 344, [401], [404] (Doyle CJ, White and Kelly JJ).
It is not presently necessary to traverse the litigation which has followed. There are a great many actions and issues raised. So far as is presently relevant, the applicants maintain that there is new, fresh evidence since 2013 which shows the decision of Justice Bampton in McDonald v State of South Australia [2014] SASC 120 was “plainly wrong and should be set aside”. In addition, the applicants complain that an earlier decision of Judge Tilmouth was “a personal decision and not a judicial decision which meant it was not open to Appeal in the first instant but could have been reviewed” [sic].
Whilst we can understand why the Attorney-General sought a determination on the papers, we have determined that there should be a hearing in open court for two reasons. First, the background to this litigation is sufficiently complex that the Court was assisted by the submissions of the parties. A number of questions were answered. Second, and as importantly, Mr McDonald preferred to put submissions orally as well as in writing and he wanted the Court to consider what he claimed was fresh evidence.
The rulings by Bampton J which are the subject of this appeal were designed to facilitate the hearing of the vexatious litigant application made pursuant to s 39 of the Supreme Court Act 1935 (SA).
Orders numbered 1 and 2 ensure that there will be no further litigious activity pending the determination of the s 39 application. The Attorney-General initially sought similar orders by way of interlocutory injunction in September 2021. Order number 3 is in the nature of an incidental direction, and it is debateable indeed whether it comprises a judgment or order capable of being appealed under s 50 of the Supreme Court Act 1935 (SA).[8]
[8] DT v Chief Executive of the Department for Child Protection [2021] SASC 138, [62] (Parker J), citing Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126.
A reading of the voluminous grounds of appeal demonstrates that the applicants are not concerned with the merits of the orders made by Bampton J on 4 March 2022. Rather, they are concerned to agitate the merits of their various actions and contentions. It is not presently necessary to consider the merits of those questions because the effect of the orders made by Bampton J ensures that, one specified matter aside, there will merely be a temporary halt to the various litigation mounted by the applicants until the Attorney-General’s interlocutory injunction application is determined and, if that remains, until the vexatious litigant declaration is determined.
As for whether leave to appeal should be granted, this Court acts in the interests of justice, and by reference to three inter-related questions:
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 to the applicant.
There is a particular reluctance to grant leave to appeal where the impugned orders do not affect the substantive rights of the parties:[9]
What is a common thread running through the cases, however, is that there is a general unwillingness to grant leave to appeal from interlocutory orders which do not either directly or by their practical effect finally determine the substantive rights of a party. The Court should be slow to encourage unnecessary, costly and time consuming appeals having the effect of unduly disrupting the orderly conduct of litigation …
[9] Harris Scarfe Limited (Receivers and Managers Appointed) (In Liquidation) & Ors v Ernst & Young & Ors (No 2) [2005] SASC 168, [14] (Bleby J), citing Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; Niemann v Electronic Industries Ltd [1978] VR 431; Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40; Coles Myer Ltd v Bowman [1996] 1 VR 457.
As was explained in UBS AG v Tyne, the “timely, cost effective and efficient conduct of modern civil litigation takes into account wider public interests than those of the parties to the dispute”.[10] We emphasise the interlocutory nature of the orders and the evident good sense in putting a halt to most of the litigation involving the applicants until it is determined whether a vexatious litigant declaration should be made pursuant to s 39 of the Supreme Court Act 1935 (SA).
[10] UBS AG v Tyne (2018) 265 CLR 77, [38] (Kiefel CJ, Bell and Keane JJ).
In all of these circumstances, it is difficult to see how the making of the orders the subject of this appeal has caused the applicants any injustice. There is no reason to doubt the correctness of any of the orders made and leave must be refused. Had it been necessary to determine the appeal, the appeal would have been dismissed as it is without merit.
For completeness, we mention that the applicants raised whether Bampton J should have disqualified herself from sitting. As no application to that effect was made to her Honour, we do not regard that issue as before us today.
The orders of the Court are:
1.The application dated 12 April 2022 is dismissed.
2.On the application dated 11 April 2022, paragraphs 3 (Part 1) and 6 and 7 (Part 3) of the Notice of Appeal are struck out.
3.Leave to appeal is otherwise refused.
4.The applicants must pay the respondent’s costs of the applications and the application for leave to appeal, certified fit for counsel.