McDonald v Attorney-General (SA) - [2024] SASCA 144

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
MCDONALD & ANOR v ATTORNEY-GENERAL (SA)
[2024] SASCA 144
Decision of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice Bleby)
13 December 2024
COURTS AND JUDGES - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - GENERALLY
In June 2024, the appellants lodged an appeal against vexatious litigant orders, prohibiting them from instituting further proceedings without the permission of the Supreme Court, and permanently staying existing proceedings. The Judge found that the appellants had persistently instituted vexatious proceedings within the meaning of s 39 of the Supreme Court Act 1935 (SA).
The appellants had requested that the appeal be heard by judges from interstate. On being advised of the composition of the coram for the appeal hearing in February 2025, the appellants applied for orders that Livesey P, Doyle and Bleby JJA not sit on their appeal.
Held (the Court) dismissing the application:
1.The application and supporting affidavit do not demonstrate what might lead the coram or any member of it to resolve the appeal other than on its legal and factual merits.
2.The appellants do not identify what the logical connection may be between that matter and the apprehended deviation from deciding the case on its merits, and whether it may be reasonable for that apprehension to arise from the perspective of a fair-minded lay observer.
3.In so far as reliance is placed on the family relationship between a member of the Court and a member of the Full Court that decided the appellants’ case in 2009, any objection on that basis has long since been waived, and the appeal concerns whether orders were properly made under s 39 of the Supreme Court Act 1935 (SA), and not whether the decision made by the Full Court in 2009 was correct.

4. The question of costs should be referred to the Court of Appeal.
Supreme Court Act 1935 (SA) s 39, referred to.
Attorney-General (SA) v McDonald & Anor [2024] SASC 67; Charisteas v Charisteas (2021) 273 CLR 289; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; McDonald v Attorney-General (SA) (No 2) [2021] SASCA 146; McDonald v Attorney-General (SA) [2021] SASCA 57; McDonald v Attorney-General (SA) [2022] SASCA 43; McDonald v Attorney-General (SA) [2023] SASCA 132; McDonald v South Australia [2022] SASCA 81; McDonald v State of South Australia [2016] SASCFC 39; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419; Re JRL; Ex parte CJL (1986) 161 CLR 342; State of South Australia v McDonald (2009) 104 SASR 344; Vakauta v Kelly (1989) 167 CLR 568, considered.

MCDONALD & ANOR v ATTORNEY-GENERAL (SA)
[2024] SASCA 144
Court of Appeal – Civil: Livesey P, Doyle and Bleby JJA
THE COURT:
Introduction

On 24 May 2024, Bampton J found that Mr and Mrs McDonald had persistently instituted vexatious proceedings within the meaning of s 39 of the Supreme Court Act 1935 (SA) and that it was appropriate to order that they be prohibited from instituting further proceedings without the permission of the Supreme Court.[1] Bampton J ordered that proceedings already instituted by them should be permanently stayed.
[1] Attorney-General (SA) v McDonald & Anor [2024] SASC 67.
On 13 June 2024, Mr and Mrs McDonald filed an appeal against those orders. The appeal has been managed at callovers before Judges of the Court of Appeal.[2]
[2] McDonald & Anor v Attorney-General, ruling of Bleby JA delivered on 11 October 2024 (ex tempore).
The appeal has been listed for hearing on 6 February 2025.
Mr and Mrs McDonald earlier indicated that they objected to all members of the Supreme Court sitting on their appeal and that they required that judges be allocated from interstate. They were advised at a hearing that judges would not be allocated from interstate and that, once the coram had been determined, they would be advised who comprised the coram so that they could consider whether they wished to object.
The objection to the coram
On 26 November 2024, Mr and Mrs McDonald were advised that the coram would comprise Livesey P, Doyle and Bleby JJA. They were given until 4 December, and then until 9 December 2024, to provide written submissions limited to no more than four pages outlining any objection they may have to any member of the coram sitting on their appeal.
On 9 December 2024, Mr and Mrs McDonald made an application for orders that Livesey P, Doyle and Bleby JJA not sit on their appeal, supported by an 11‑page affidavit. The affidavit is in truth a written submission.
The affidavit takes the form of the identification of any case in which Livesey P, Doyle JA or Bleby JA have sat in a matter involving Mr and Mrs McDonald. Although Lovell JA will not be sitting on the appeal, the affidavit also suggests that he should not sit.
It is fair to describe the affidavit as identifying why Mr and Mrs McDonald regard each of the decisions they mention as having been wrongly decided, rather than why the judges mentioned should not sit on the forthcoming appeal.[3]
[3] McDonald v State of South Australia [2016] SASCFC 39; McDonald v Attorney-General (SA) [2021] SASCA 57; McDonald v Attorney-General (SA) (No 2) [2021] SASCA 146; McDonald v South Australia [2022] SASCA 81; McDonald v Attorney-General (SA) [2022] SASCA 43; McDonald v Attorney-General (SA) [2023] SASCA 132.
Although the actual bias of Bampton J is often mentioned, it is not suggested that any of the coram for the appeal is actually biased.[4]
[4] See, for example, Mr McDonald’s affidavit dated 9 December 2024, page 9, [2] and [3].
The submissions made by Mr and Mrs McDonald are exemplified by the following passage concerning the decision of Livesey P and Doyle JA in McDonald v Attorney-General (SA):[5]
It has become very a familiar theme when the Appellant presents an Appeal documents it is scrutinised and nit-picked over by judicial officers to see if the Appellant has used the correct forms or breached any rules. If the Appellant gets over this hurdle then the target becomes his style of writing and true to form that is exactly the approach taken by Livesey and Doyle JJ when examining the Appellants Notice of Appeal requesting to recuse Bampton J. The purpose of this approach is to belittle and diminish the content of the Appeal because it is not written in an abbreviated style or code officials prefer The cost of this approach is the individual rights, the constitutional rights and rights in equity which the Appellant had when he filed his original bill in equity and judicial reviews are lost and forgotten about which is contrary to natural justice and the rules in equity law.
[5] McDonald v Attorney-General (SA) [2023] SASCA 132, referred to on page 9 at [1] of Mr McDonald’s affidavit dated 9 December 2024.
No real attempt has been made to address the requirements for a disqualification or recusal application.
Resolution of the application
This application has been considered in accord with the decision of the High Court in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[6]
[6] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419 (QYFM).
As was earlier explained in Re JRL; Ex parte CJL, the requisite test is concerned with whether the circumstances give rise to a reasonable apprehension that the judge or judges might not decide a case impartially and without prejudice, rather than whether the judge or judges may decide the case adversely to a party.[7]
[7] Re JRL; Ex parte CJL (1986) 161 CLR 342, 352 (Mason J). Followed in QYFM, [328] and [330].
The application and supporting affidavit do not demonstrate what matter might lead the coram, or any member of it, to resolve the appeal other than on its legal and factual merits, what the logical connection may be between that matter and the apprehended deviation from deciding the case on its merits, and whether it may be reasonable for that apprehension to arise from the perspective of a fair‑minded lay observer.[8]
[8] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [8]; Charisteas v Charisteas (2021) 273 CLR 289, [11]; QYFM.
Insofar as reference is made to the fact that these various proceedings involving Mr and Mrs McDonald commenced with a decision of the Full Court over which Doyle CJ presided,[9] and Doyle JA is a son of Doyle CJ, that issue was apparent to Mr and Mrs McDonald some considerable time ago and has never previously been made the subject of objection.[10]
[9] State of South Australia v McDonald (2009) 104 SASR 344.
[10] See, for example, McDonald v State of South Australia [2016] SASCFC 39 (Sulan, Lovell and Doyle JJ).
Any right to object on that basis has long since been waived.[11] In any event, it is difficult to see how the requisite apprehension could arise in respect of this matter where the decision to be made by the Court of Appeal in February 2025 concerns whether orders were properly made under s 39 of the Supreme Court Act 1935 (SA), and not whether the decision made by the Full Court in 2009 was correct.
[11] Vakauta v Kelly (1989) 167 CLR 568; Police (SA) v Mahon (2022) 141 SASR 374.
Conclusion
The application to disqualify dated 9 December 2024 must be dismissed. The question of costs should be referred to the Court of Appeal.