McDonald v Attorney-General (SA)

Case [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

  1. On 24 May 2024, Bampton J found that Mr and Mrs McDonald had persistently instituted vexatious proceedings within the…

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AGLC
McDonald v Attorney-General (SA) [2024] SASCA 144
Case
[2024] SASCA 144
Decision Date

CaseChat Overview and Summary

The applicant, McDonald, sought the disqualification of the judges of the Court of Appeal of South Australia from hearing an appeal concerning orders made under section 39 of the *Supreme Court Act 1935* (SA). The Attorney-General (SA) was the respondent. The dispute centred on whether the judges held an apprehended bias that would prevent them from impartially determining the appeal.

The primary legal issue before the Court of Appeal was whether the judges were disqualified from hearing the appeal due to an apprehended bias. This required the court to consider whether a reasonable and informed person would apprehend that the judges might not bring an impartial mind to the issues before them, particularly in light of previous decisions or involvement in related matters.

The Court of Appeal reasoned that any right to object on the grounds of apprehended bias had been waived by the applicant. Furthermore, the court found that the apprehension of bias was unlikely to arise in this specific matter. This was because the appeal concerned the propriety of orders made under section 39 of the *Supreme Court Act 1935* (SA) in 2025, rather than a review of the correctness of a decision made by the Full Court in 2009. The court applied the principles of apprehended bias, considering the nature of the decision to be made and the applicant's conduct.

The application to disqualify the judges was dismissed. The question of costs was referred to the Court of Appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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