McDonald v Attorney-General (SA) (No 3) - [2025] SASCA 42

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
MCDONALD & ANOR v ATTORNEY-GENERAL (SA) (No 3)
[2025] SASCA 42
Decision of the Court of Appeal (ex tempore)
(The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice Bleby)
17 April 2025
PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - VEXATIOUS LITIGANTS, PROCEEDINGS AND RELATED MATTERS - VEXATIOUS LITIGANT
On 9 April 2025, this Court heard argument concerning the appellants’ appeal against the vexatious litigant declaration and orders made by the primary judge on 24 May 2024.
On 14 April 2025, the appellants made two urgent applications in the appeal proceedings, where the first asked for what was described as an “URGENT stay on the reserved judgment decision” and the second sought urgent judicial review.
The judicial review application was misconceived. It is well established that the Supreme Court has no power to exercise judicial review over the decisions of its own judges. Accordingly, a judge of the General Division gave the Registrar a direction that the documents be rejected for filing under r 32.4 of the Uniform Civil Rules 2020 (SA).
What was left is the possibility that the stay application should be viewed as another bias application, or an application for a rehearing given procedural unfairness, which the appellants wanted addressed urgently by the Court of Appeal, before reasons were delivered. The matter was referred to this Court accordingly.
HELD (the Court): dismissing the urgent applications for disqualification, rehearing and a stay:
1.No basis for a finding of bias (whether actual or ostensible) has been made out.
2.In so far as complaints are made about the conduct of the appeal hearing, Mr McDonald’s complaint is effectively that he was not permitted to address, in an open-ended fashion, the very many arguments he wished to put as to why earlier decisions affecting the appellants should be set aside as wrong and unjust.
3.The appellants were not permitted to go behind the many decisions which have been made over a period of around 20 years and press what amounted to a series of de facto appeals. To confine the oral argument in that way did not involve a denial of procedural fairness, especially where extensive written submissions and over 130 grounds of appeal articulated the challenges the appellants wished to mount.
4.There is no utility in ordering a stay.
5.Judgment will now be delivered in the appeal against the vexatious litigant declaration and orders made under s 39 of the Supreme Court Act.

Supreme Court Act 1935 (SA) ss 6A, 39; Uniform Civil Rules 2020 (SA) r 32.4, referred to.
Choi v Secretary, Department of Justice and Communities (2022) 405 ALR 714; McDonald & Anor v Attorney-General (SA) (No 4) [2025] SASCA 43; McDonald v Attorney-General (SA) [2024] SASCA 144; McDonald v Attorney-General (SA) (No 2) [2025] SASCA 1; McDonald v Supreme Court of South Australia and Anor [2019] SASC 201; Penson v Titan National Pty Ltd [2015]…

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 42
Decision Date: 17 April 2025

CaseChat Overview and Summary

The Supreme Court of South Australia, constituted by Livesey P, S Doyle and Bleby JJ, considered urgent applications by a party seeking the disqualification of the judicial panel, a rehearing of proceedings, and a stay of judgment. These applications were brought on grounds of alleged bias, both actual and ostensible, and claims of procedural unfairness.

The central legal issues before the Court were whether there were sufficient grounds to disqualify the judges from hearing the appeal, whether a rehearing was warranted due to alleged bias or procedural unfairness, and whether a stay of proceedings should be granted. The Court was also to deliver judgment on the substantive appeal concerning a declaration that the applicant was a vexatious litigant and orders made under section 39 of the *Supreme Court Act 1935* (SA).

The Court reviewed the materials presented and concluded that there was no basis for the applications for disqualification, rehearing, or a stay. The Court found that the grounds of bias and procedural unfairness were not substantiated, and therefore, these applications were dismissed. The Court determined that there was no utility in ordering a stay of proceedings.

Consequently, the urgent applications for disqualification, rehearing, and a stay were dismissed. The Court proceeded to deliver judgment on the appeal against the vexatious litigant declaration and the associated orders made under section 39 of the *Supreme Court Act 1935* (SA).

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

The Court has reviewed the materials on that basis. For the reasons just given, in so far as the application comprises an application that the coram be disqualified and there be a rehearing, whether on the grounds of bias (whether actual or ostensible) or for procedural unfairness, there is no basis for it and that application must be dismissed. There is no utility in ordering a stay.Conclusion The urgent applications for disqualification, rehearing and a stay are dismissed. Judgment will now be delivered in the appeal against the vexatious litigant declaration and orders made under s 39 of the Supreme Court Act 1935 (SA).

Ratio Decidendi

Legal Principle Established

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