McDonald v Attorney-General (SA) (No 2) - [2025] SASCA 1

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
MCDONALD & ANOR v ATTORNEY-GENERAL (SA) (No 2)
[2025] SASCA 1
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice Bleby)
9 January 2025
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).
In December 2024, 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. This application was dismissed on 13 December 2024.
In January 2025, the appellants filed a second application seeking the disqualification of the coram for the appeal hearing on 6 February 2025.
Held (the Court) dismissing the application:
1.In large measure this second application repeats the earlier application and the ruling made in December 2024 applies to this application. The application does 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.Chief Justice Kourakis was not involved in the allocation of judges to the coram for the appeal hearing in February 2025, nor has he been allocated to the present coram.

Supreme Court Act 1935 (SA) ss 9A, 39, referred to.
McDonald & Anor v Attorney-General (SA) [2024] SASCA 144; State of South Australia v McDonald (2009) 104 SASR 344, considered.

MCDONALD & ANOR v ATTORNEY-GENERAL (SA) (No 2)
[2025] SASCA 1
Court of Appeal – Civil: Livesey P, Doyle and Bleby JJA
THE COURT.
Introduction

This is the second application by Mr and Mrs McDonald, the appellants, to disqualify the present coram from sitting on the appeal listed for hearing on 6 February 2025.
The earlier application was dismissed in mid-December 2024.[1]
[1] McDonald & Anor v Attorney-General (SA) [2024] SASCA 144.
This application is dated 24 December 2024, and attempts were made to file it this week. Although the application was regarded by Registry as technically deficient, the Court accepted it for filing. The application is made without reference to the ruling made a few weeks ago. It is necessary to read this ruling together with that earlier ruling.
The second disqualification application
Indeed, in large measure this 19-page application simply repeats the earlier application, essentially complaining about what are claimed to be incorrect and adverse decisions by members of the coram in various previous cases. Many of these were concerned with earlier attempts by the appellants to re-litigate the decision of the Full Court in State of South Australia v McDonald.[2] The ruling made in December 2024 accordingly applies to this second application,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] SASCA 1
Decision Date: 9 January 2025

CaseChat Overview and Summary

This matter concerned an application for the disqualification of the coram of the Supreme Court of South Australia, comprising Livesey P, S Doyle and Bleby JJ, from hearing an appeal. The application was brought by the applicant, McDonald, against the Attorney-General (SA).

The central legal issue before the Court was whether there was a reasonable apprehension of bias on the part of the coram, or any of its members, such that they should be disqualified from determining the appeal. This required the Court to consider the principles governing the disqualification of judges for apprehended bias.

The Court concluded that the applicant had not demonstrated any basis for a reasonable apprehension of bias. It noted that the Chief Justice had not been involved in the allocation of judges to the coram, nor had any other factor been presented that would suggest the coram or its members would resolve the appeal otherwise than on its legal and factual merits. Accordingly, the application for disqualification was dismissed. The question of costs was reserved 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

Chief Justice Kourakis has not been allocated to the present coram and has not been involved in the allocation of any judges to that coram.Conclusion This application does not demonstrate what might lead the coram or any member of it to resolve the appeal other than on its legal and factual merits. The second disqualification application must be dismissed. The question of costs should be reserved to the Court of Appeal.

Ratio Decidendi

Legal Principle Established

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