McDonald v Attorney-General for the State of South Australia - [2021] SASCA 57

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
MCDONALD & ANOR v ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA & ORS
[2021] SASCA 57
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Lovell and the Honourable Justice Doyle)
10 June 2021

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS - LEAVE TO APPEAL
Application for leave to appeal.
The applicants commenced the proceedings the subject of this appeal by way of originating application and statement of claim, seeking, inter alia, to set aside the perfected orders made by this Court in earlier proceedings based on allegations of fraud.
Two interlocutory applications were filed in the proceedings, one being an application by the first, second and third respondents, seeking orders for summary judgment, dismissal or strike out of the proceedings, as well as an order dispensing with the requirement that the respondents file a defence pending the hearing and determination of the application. At a directions hearing, Hughes J made timetabling orders in respect of both applications, and made the dispensation order sought.
The applicants filed a notice of appeal challenging the dispensation order made by Hughes J, which included an application for leave to appeal.
Held (by the Court), refusing the application for leave to appeal:
1. No error has been identified in the decision of Hughes J.
Uniform Civil Rules 2020 (SA) r 1.5, referred to.
McDonald v South Australia [2017] SASCFC 146; Harris Scarfe Ltd (In Liq) v Ernst & Young (No 2) [2005] SASC 168; Commonwealth v Saadat (2019) 134 SASR 184; Draoui v Le [2021] SASCA 33, considered.

MCDONALD & ANOR v ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA & ORS
[2021] SASCA 57

Court of Appeal – Civil: Kelly P, Lovell and Doyle JJA

THE COURT: These reasons address an application for leave to appeal filed by the applicants (Mr Francis McDonald and Mrs Rhoda McDonald).[1]
[1] While both Mr and Mrs McDonald are applicants in this matter, these reasons generally refer to Mr McDonald only, as he filed the relevant documentation and has appeared on behalf of both applicants.
By way of very brief background, the applicants have pursued extensive litigation relating to Mr McDonald’s former appointment as a teacher.[2]
[2] See the summary of the history of this litigation in McDonald v South Australia [2017] SASCFC 146 at [2]-[20].
The proceedings the subject of this appeal were commenced by way of originating application and statement of claim filed on 11 December 2020. The named respondents are the Attorney-General, SAICORP, the Minister for Education, Ms Colleen Braddick and Mr Michael Mills. The applicants seek to set aside the perfected orders made by this Court in earlier proceedings, based upon allegations of fraud. The proceedings also seek other relief. The application included an endorsement requiring a response from the respondents within 14 days from service of the application.
On 6 January 2021, the applicants filed an application (FDN 13) seeking to restrain two named solicitors from the Crown Solicitor’s Office from acting on behalf of the respondents in this matter. The matter was listed for a directions hearing before Hughes J on 22 January 2021.
Late in the day on 21 January 2021, the respondents served Mr McDonald with an application (FDN 15), seeking orders dismissing the applicants’ claim, ordering summary judgment against the applicants, or striking out the claim, on the bases that the applicants’ claim is frivolous, vexatious, an abuse of process and does not disclose any reasonable cause of action. The application also sought an order dispensing with the requirement that the respondents file a defence pending the hearing and determination of the application.
Soon after the commencement of the hearing before Hughes J on 22 January 2021, her Honour made reference to Mr McDonald’s application to restrain the two solicitors from the Crown Solicitor’s Office and the fact that prior to her appointment as a judge of this Court, she had been the Crown Solicitor. Her Honour added that “I think that that need not trouble us today because we are only talking about procedural directions so that the applications can be heard, I wouldn’t expect that I would be hearing your application.”
In response to this, Mr McDonald said “[o]kay, that’s fine, I take that on board.” While Mr McDonald then made reference to an alleged conflict of interest, it is apparent from the context that he was referring to his allegation in support of FDN 13 that the two solicitors from the Crown Solicitor’s Office had a conflict that prevented them from acting in the proceedings by reason of their involvement in various allegedly fraudulent events. While Mr McDonald did, as the hearing unfolded, and as mentioned below, put submissions in opposition to the procedural course that Hughes J proposed to adopt, Mr McDonald did not ever make any formal application that Hughes J recuse herself on the grounds of an apprehension of bias, or otherwise oppose her conducting the directions hearing.
Mr McDonald contended that her Honour should not entertain the respondents’ application given its late timing, and maintained that the respondents were out of time to file a defence. In both respects, he pointed to the 14 day endorsement on the originating application. Over Mr McDonald’s objection, Hughes J made timetabling orders in respect of both applications. Her Honour also made an order dispensing with the requirement that the respondents file a defence until further order of the Court. And her Honour adjourned the matter to the chamber list in not less than 28 days. The matter has since been managed by another judge of this Court.
On 26 March 2021, Mr McDonald filed a notice of appeal challenging the dispensation order made by Hughes J on 22 January 2021. The notice includes an application for leave to appeal, and an application for an extension of the time within which to bring the appeal.
The appeal was listed in the callover before Livesey JA on 16 April 2021. On that occasion, his Honour invited any responding submissions from the Crown within seven days, but otherwise indicated that the Court would proceed to consider and determine the question of leave to appeal on the papers. His Honour indicated that if the Court subsequently decided to proceed with an oral hearing, perhaps before two judges, then the parties would be informed.
We mention in passing that, on 7 May 2021, Mr McDonald attempted to file a notice of appeal challenging Livesey JA’s ‘decision’ that the matter not be called on until the question of leave to appeal from Hughes J had been decided. The notice of appeal included an application for leave to appeal. The Chief Justice directed that the Registry reject this purported notice of appeal on the ground that it was an abuse of process. His Honour explained that it was an abuse of process because the management of the callover of the Court of Appeal and the selection of the matters to be listed is not an appealable decision.
Application for leave to appeal Hughes J’s dispensation order
In determining whether to grant leave to appeal, the Court must consider both (a) whether the decision sought to be impugned is attended by sufficient doubt to warrant it being reconsidered on appeal, and (b) whether allowing the decision to stand would result in substantial injustice to the applicant.[3]
[3] Harris Scarfe Ltd (In Liq) v Ernst & Young (No 2) [2005] SASC 168 at [4]-[11]; Commonwealth v Saadat (2019) 134 SASR 184 at [50]-[52]; Draoui v Le [2021] SASCA 33 at [60].
It is unfortunate that the first, second and third respondents only filed their interlocutory application that is FDN 15 on the eve of the directions hearing before Hughes J. However, her Honour did not determine the substantive issues the subject of that application; she merely put in place a timetable for their determination at a future hearing. This was a course open to her Honour, and indeed was an entirely sensible and sound course to adopt. Further, having adopted this course, and given the nature of the issues to be determined at that future hearing, it made practical sense to dispense with the requirement that the respondents file any defence in the interim.
It is important that judges be afforded significant flexibility and latitude in their management of civil litigation. This is consistent with, and indeed required by, the object of the Uniform Civil Rules 2020 (SA).[4] The orders made by Hughes J reflected a sensible and sound manner of addressing the various issues agitated during the hearing on 22 January 2021. Certainly it cannot be said that they represented an unreasonable exercise of her Honour’s case management discretion. Mr McDonald has not identified any basis upon which to doubt the correctness of the decision he seeks to challenge.
[4] Uniform Civil Rules 2020 (SA), r 1.5.
Further, and in any event, it cannot be said that to allow the decision of Hughes J to stand would cause Mr McDonald substantial injustice. The present appeal raises a matter of mere practice and procedure. For obvious reasons, the Court is generally reluctant to grant leave to appeal in such matters.
To the extent that Mr McDonald relies upon a failure by Hughes J to recuse herself on the grounds of apprehension of bias, we do not think this complaint has merit in circumstances where Mr McDonald did not ever press an application below to that effect. Further, and in any event, given that the matter is now being managed by another judge of this Court, Mr McDonald is in a position to revisit the procedural progress of the matter if he wishes to. In those circumstances, it is difficult to see how this Court declining leave to appeal would occasion him any substantial injustice.
This is not an appropriate matter in which to grant leave to appeal. The application for leave to appeal should be refused. It is thus not necessary to address the application for an extension of time.
Conclusion
For the reasons set out, the application for leave to appeal from the order made by Hughes J is refused.