McDonald v Attorney-General for the State of South Australia (No 2) - [2021] SASCA 146

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
MCDONALD & ANOR v ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA & ORS (No 2)
[2021] SASCA 146
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Doyle and the Honourable Justice Bleby)
9 December 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 seeking to set aside perfected orders of this Court based upon allegations of fraud.
In those proceedings, the first, second, and third respondents filed an interlocutory application seeking, inter alia, summary judgment and the applicants filed an interlocutory application for the primary judge to recuse herself based on a familial relationship between the primary judge and another retired judge of this Court.
The primary judge refused to recuse herself and reserved judgment on the respondents’ interlocutory application. The applicants then filed a number of further interlocutory applications and a notice to produce. The primary judge made orders on those interlocutory applications, dismissing two and ordering that the applicants pay the respondents’ costs of those applications on a party/party basis, amending hearing transcript where consistent with audio from that hearing on one, and reserving determination of the notice to produce and remaining four to be made at the same time as judgment on the respondents’ interlocutory application.
The applicants seek leave to appeal those orders.
Held, per the Court, refusing the application for leave to appeal:
1. The applicants have not made out any basis for leave to appeal.
McDonald v Attorney-General for the State of South Australia [2021] SASCA 57; McDonald v South Australia [2017] SASCFC 146, considered.

MCDONALD & ANOR v ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA & ORS (No 2)
[2021] SASCA 146
Court of Appeal – Civil: Lovell, Doyle and Bleby JJA

THE COURT: The applicants (Mr Francis McDonald and Ms Rhoda McDonald) seek to appeal certain orders made by a judge of this Court on 13 August 2021. As these orders were interlocutory in nature, the applicants require leave to appeal.
Background
The general nature of these proceedings has been set out elsewhere, and need not be repeated.[1] In short, the applicants seek to set aside perfected orders made by this Court in earlier proceedings, based upon allegations of fraud.
[1] McDonald v Attorney-General for the State of South Australia [2021] SASCA 57 at [2]-[3], referring to McDonald v South Australia [2017] SASCFC 146 at [2]-[20].
On 21 January 2021, the first, second and third respondents filed an interlocutory application (FDN 15) seeking, amongst other things, summary judgment of the proceedings brought by the applicants.
On 24 June 2021, the applicants filed an interlocutory application for the primary judge to recuse herself (FDN 61). On 28 June 2021, the applicants filed a revised version of that recusal application (FDN 62). The central basis for the recusal application was the familial relationship between the primary judge and another (now retired) judge of this Court.
On 2 July 2021, the primary judge heard argument on the recusal application and declined to recuse herself, stating:
I understand your submissions Mr McDonald, but at this stage I decline to recuse myself and I’ll provide reasons for my decision at the time of judgment on the interlocutory application. So I’ll hear from the Crown now as to their interlocutory application.
On the same day, the primary judge heard argument, and then reserved judgment, on the respondents’ interlocutory application for summary judgment.
Three weeks later, on 22 July 2021, the applicants filed an interlocutory application seeking an order “informing the Applicants if [the primary judge] has made or has not made a judicial decision to recuse herself”, or, in the alternative, a “personal decision” not to recuse herself (FDN 66).
On 23 July 2021, the primary judge made orders in chambers confirming that she had declined to recuse herself, and indicating that reasons would be provided at the time of judgment in the application for summary judgment (being the application in respect of which her Honour had earlier reserved judgment).
The applicants subsequently filed an assortment of six interlocutory applications (FDNs 69, 71, 74, 78, 81 and 84). The applications were accompanied by a number of affidavits, and were listed for consideration by the primary judge on 13 August 2021. The applicants also filed a notice to produce (FDN 77).
At the hearing on 13 August 2021, the primary judge made the following orders in relation to the applicants’ further interlocutory applications:
1. I dismiss the interlocutory application FDN 66 and 71.
2.The amendments to the Court transcript sought by the First Applicant in interlocutory application FDN 78 are to be made in accordance with the First Applicant’s Affidavit, FDN 80 in so far as they are consistent with the audio of the hearing on 2 July 2021.
Any corrections that are not clearly audible will not be made to the Court transcript but will be taken into consideration by her Honour when considering the Applicants’ submissions.
3.Determinations of the interlocutory applications FDN 69, 74, 81 and 84 and notice to produce FDN 77 are to be handed down at the same time as judgment reserved on 2 July 2021 is handed down.
4.The Applicants are to pay the Respondents’ costs of and incidental to the interlocutory applications FDN 66 and 71 on a party/party basis.
The applicants seek leave to appeal these four orders. 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.[2] For obvious reasons, the courts have demonstrated a reticence to grant leave to appeal against interlocutory decisions that relate to matters of practice and procedure.
[2] McDonald v Attorney-General for the State of South Australia [2021] SASCA 57 at [12].
Consideration
The applicants’ grounds of appeal are discursive and difficult to pin down. The most convenient and appropriate manner of addressing the complaints raised by the applicants is to address the four orders made, and the challenges made to each.
Order 1: dismissal of FDNs 66 and 71
Order 1 involved a dismissal of two interlocutory applications (FDNs 66 and 71).
As set out in the background section of these reasons, FDN 66 involved an application for an order that the primary judge inform the applicants whether she had made a judicial decision, or personal decision, not to recuse herself. The primary judge having said during the hearing on 2 July 2021 that she declined to recuse herself, there was no basis for this application. To the extent that there was any requirement for this to be formalised in an order, the judge did so on 23 July 2021. It follows that, quite apart from the lack of merit in the challenge to the order, there is no utility in the proposed appeal. Refusing leave to appeal will not result in any substantial injustice to the applicants.
FDN 71 involved an application to adduce fresh evidence consisting of a statement of claim. While there are some circumstances in which a pleading might be received in evidence, the applicants have not identified any proper basis for the receipt of the statement of claim as fresh evidence in the present case, let alone any substantial injustice occasioned by the refusal of the application to rely upon this fresh evidence.
Order 2: transcript corrections
FDN 78 involved an application to make various transcript corrections. In Order 2, the primary judge dealt with this application by ordering that the corrections be made insofar as they were consistent with the audio of the hearing on 2 July 2021. Further, in relation to those that were not clearly audible in the recording, her Honour did not refuse to make them, but rather indicated that she would take them into consideration when addressing the applicants’ submissions.
This was an appropriate manner in which to deal with FDN 78. Even if, as the applicants suggest, her Honour initially indicated that she would make the corrections sought, we see no difficulty with her Honour ultimately proceeding in the manner set out in Order 2.
Further, and in any event, even if there were merit in the challenge, and the order was one properly the subject of an appeal, no substantial injustice has been demonstrated. Her Honour has not refused to make any of the requested transcript corrections; let alone any which it has been established ought to have been made and were of significance.
Order 3: determination of other applications
In Order 3, the primary judge indicated that she would determine the balance of the interlocutory applications, and the notice to produce, at the same time as she delivered judgment in relation to the applications reserved on 2 July 2021.
The applicants seek to challenge this order on the basis that the applications and notice to produce relate to matters that were relevant to the determination of the issues reserved on 2 July 2021. They contend that procedural fairness required that these applications be determined ahead of the application for summary judgment reserved on 2 July 2021.
It may be accepted that, if successful, these applications and the notice to produce might be productive of information or evidence that the applicants would rely upon in support of their defence of the summary judgment application. But it does not follow that there was any error in the primary judge deferring her determination of these matters until she ruled on the summary judgment application. If her Honour were to dismiss the applications and notice at that time, then no difficulty would arise. If her Honour were to determine that there was merit in one or more of the applications, or the notice to produce, then this may have the consequence that her Honour will be required to defer determination of the summary judgment application. Whilst the latter would be an unfortunate consequence of deferring determination of the applications and notice to produce, it does not follow that her Honour erred in proceeding this way. It may well be that her Honour considered that she was not in a position to assess the true significance of some of the information or evidence sought to be obtained through the applications and notice to produce until she has given further consideration to the summary judgment application.
In the circumstances described, the applicants have not established either the requisite merit or the risk of injustice to justify a grant of leave to appeal against Order 3.
Order 4: the costs of FDNs 66 and 71
In Order 4, the primary judge ordered that the applicants pay the costs of the applications which were dismissed in Order 1 on a party/party basis. This was an orthodox application of the general rule that costs follow the event. Having rejected the challenge to Order 1, there is no independent basis for impugning this order.
Conclusion
For the reasons set out, the applicants have not made out any basis for leave to appeal. The complaints sought to be raised by the applicants do not have sufficient merit to warrant consideration by the Court of Appeal. Further, and in any event, it has not been established that allowing the impugned orders to stand would result in any substantial injustice to the applicants.
The application for leave to appeal is refused, and the purported appeal is dismissed.