McDonald v Attorney-General for the State of South Australia (No 2)

The applicants, McDonald and others, sought leave to appeal four interlocutory orders made by a primary judge in the Supreme Court of South Australia. The dispute concerned various procedural applications made by the applicants, including requests for the primary judge to declare whether she had made a personal decision not to recuse herself, to adduce a statement of claim as fresh evidence, to make transcript corrections, and the determination of other applications. The Attorney-General for the State of South Australia was the respondent.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether to grant the applicants leave to appeal the four interlocutory orders. In determining this, the Court was required to consider whether the decisions under challenge were attended by sufficient doubt to warrant reconsideration on appeal and whether allowing the decisions to stand would result in substantial injustice to the applicants. The Court also noted the general judicial reticence to grant leave to appeal against interlocutory decisions concerning practice and procedure.

The Court reasoned that the applicants had not established a sufficient basis for leave to appeal. Regarding the dismissal of applications concerning recusal and the adducing of fresh evidence, the Court found no merit and no substantial injustice would arise from refusing leave. Similarly, the order for transcript corrections was deemed appropriate, and even if there were merit in challenging it, no substantial injustice was demonstrated. The costs order was considered an orthodox application of the general rule that costs follow the event, and as the challenge to the underlying dismissed applications failed, this order was also unassailable. Consequently, the Court concluded that the applicants' complaints lacked sufficient merit and did not demonstrate substantial injustice, thus refusing the application for leave to appeal.