McDonald v Attorney-General (SA) (No 4)
[2025] SASCA 43
•17 April 2025
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
MCDONALD & ANOR v ATTORNEY-GENERAL (SA) (No 4)
[2025] SASCA 43
Judgment of the Court of Appeal
(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 the application of the Attorney-General (SA) (the vexatious litigant application), on 24 May 2024 Mr and Mrs McDonald (the appellants) were declared to have persistently instituted vexatious proceedings. The primary judge made the following associated orders pursuant to s 39(1) of the Supreme Court Act 1935 (SA) (the Supreme Court Act):
(a) that each of Mr and Mrs McDonald is prohibited from instituting further proceedings in a prescribed court without permission of the Supreme Court, and
(b) that proceedings already instituted by each or both of them are permanently stayed.
These orders do not prohibit the filing of a notice of appeal against the declaration and orders.
The Attorney did not argue that the appellants’ initial proceedings in 2004, the appeal to the Full Court in 2009, or the application for special leave to appeal to the High Court were vexatious. The Attorney did not rely on a number of Federal or High Court proceedings, nor attempts to file proceedings, save that these were relevant to the exercise of discretion under s 39 of the Supreme Court Act.
On 13 June 2024, the appellants filed a notice of appeal, relying on a written argument dated 2 December 2024 (exceeding 25 pages) and an amended notice of appeal dated 3 December 2024 (which contained over 130 separate grounds of appeal). Whether in these materials or during oral argument, the appellants devoted almost no attention to whether the primary judge made any material error of fact or law, or whether her exercise of discretion miscarried, having regard to the requirements of s 39 of the Supreme Court Act.
Rather, the appellants demonstrated a stubborn determination to reagitate the various issues they have raised in the course of what the primary judge described as “an extraordinary number of proceedings” over a period exceeding 20 years. The appellants relied on a five-volume core appeal book and, in addition, a seven-volume supplementary appeal book which it was said demonstrated that earlier decisions were wrong. In addition, the appellants maintained that the primary judge was actually biased and that they did not accept the rulings made by the present coram that they were not disqualified on account of ostensible bias.
The primary judge reviewed 25 proceedings and found that 24, where both appellants were involved in 12, satisfied the requirements of s 39 of the Supreme Court Act. Her Honour considered then exercised her discretion in favour of making a declaration and orders. There were a number of applications made in the course of the appeal proceedings, some which had been ruled on and some which were yet to be ruled on.
HELD (the Court) refusing leave to appeal in so far as it was required, and dismissing the appeal with costs:
1.Whether what may be described as the qualifying criteria at the first stage of s 39(1) of the Supreme Court Act have been satisfied must be determined according to the “correctness standard”, whereas whether there was an error made in the exercise of the discretion at the second stage, once the qualifying criteria are made out, must be determined according to the principles described in House v The King. [196]
2.When addressing the first stage of an application under s 39 of the Supreme Court Act, the court is not undertaking an appeal under s 50 of the Supreme Court Act, and it does not go behind the earlier decisions. It is not reviewing whether the “proceedings” relied on by an applicant are affected by material error. Rather, the court is concerned with whether those proceedings are “vexatious” in the sense defined by s 39 of the Supreme Court Act. [33]
3.The first stage of the s 39 vexatious litigant application was satisfied and, as for the second stage, it was open to the primary judge to proceed to make the declaration and orders she made under s 39 of the Supreme Court Act. The exercise of discretion was neither unreasonable nor unjust. [200]
4.The allegations of bias and procedural unfairness concerning the primary judge and the coram are rejected. [30]-[31], [49]-[50]
5.The need to preserve scarce judicial and public resources is particularly clear in a case such as this case. The appellants’ conduct during the course of these appeal proceedings has only reinforced the need for the vexatious litigant declaration and orders to be made. [201]-[203]
6.Rulings made regarding the reserved applications and reserved costs. [190]-[193]
Supreme Court Act 1935 (SA) s 39; Workers Rehabilitation and Compensation Act 1986 (SA); Supreme Court Act 1986 (Vic) s 21; Supreme Court Act 1970 (NSW) s 84; Evidence Act 1995 (NSW) s 91, referred to.
Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353; Attorney-General (SA) v Burke (1997) 190 LSJS 28; Attorney-General (SA) v McDonald & Anor [2024] SASC 67; Attorney-General (NSW) v Mohareb [2016] NSWSC 1823; Attorney-General (NSW) v Bar Mordecai [2005] NSWSC 142; Attorney-General (NSW) v Croker [2010] NSWSC 942; Attorney-General (New South Wales) v Martin [2015] NSWSC 1372; Attorney-General (NSW) v Wilson [2010] NSWSC 1008; Attorney-General (Vic) v Horvath [2001] VSC 269; Attorney-General (Vic) v Whittingham [2021] VSC 91; Blair v Curran (1939) 62 CLR 464; Clone Pty Ltd v Players Pty Ltd (In Liq) (2018) 264 CLR 165; Commonwealth Bank of Australia v Barker (2014) 253 CLR 169; Commonwealth Bank of Australia v Heinrich [2003] SASC 322; Commonwealth Bank v Heinrich (No 2) [2003] SASC 436; Coulton v Holcombe (1986) 162 CLR 1; DJL v Central Authority (2000) 201 CLR 226; D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; Ebert v Venvil [2000] Ch 484; Fokas v Mansfield as Trustee of the Bankrupt Estate of Maria Fokas (No 2) [2020] FCA 30; Gallagher v The Queen (1986) 160 CLR 392; Gallo v Attorney-General (Vic) (unreported, 4 September 1984); Garrett v Federal Commissioner of Taxation [2015] FCA 117; Georganas v Barkla [2021] SASC 47; Hamod v New South Wales [2011] NSWCA 375; Hoysted v Federal Commissioner of Taxation (1925) 37 CLR 290; Jackson v Goldsmith (1950) 81 CLR 446; Kay v Attorney-General (Vic) [2000] 2 VR 436; Keane v Woolworths Group Ltd (No 4) [2024] SASCA 113; Kowalski v Mitsubishi Motors Australia Pty Ltd (2011) 198 FCR 153; McDonald & Anor v Attorney-General (SA) (No 3) [2025] SASCA 42; McDonald & Anor v The State of South Australia [2015] HCASL 118; McDonald & Anor v State of South Australia (No 2) [2015] SASC 188; McDonald & Anor v State of South Australia [2016] SASCFC 39; McDonald & Anor v The State of South Australia ; McDonald & Anor v State of South Australia (No 3) [2016] SASC 79; McDonald & Anor v State of South Australia (2017) SASCFC 146; McDonald & Anor v Attorney General for the State of South Australia [2023] SASCA 132; McDonald & Anor v Attorney-General (SA) [2024] SASCA 144; McDonald & Anor v Attorney-General (SA) (No 2) [2025] SASCA 1; McDonald & Anor v Attorney General for the State of South Australia & Ors [2021] SASCA 57; McDonald & Anor v Attorney General for the State of South Australia & Ors (No 2) [2021] SASCA 146; McDonald and Anor v State of South Australia & Others [2022] SASC 17; McDonald & Another v Attorney General for the State of South Australia [2022] SASCA 43; McDonald & Another v The State of South Australia & Others [2022] SASCA 81; McDonald & Ors v The Minister for Education and Child Development & Ors [2017] HCASL 1; McDonald v Attorney-General for the State of South Australia [2023] SASCA 132; McDonald v Attorney-General (SA) [2024] SASCA 144; McDonald v Attorney-General (SA) (No 2) [2025] SASCA 1; McDonald v Department of Education and Children’s Services (South Australian Workers Compensation Tribunal, unreported ruling dated 11 March 2011); McDonald v Department of Education and Children’s Services [2011] SAWCT 18; McDonald v Department of Education and Children’s Services [2011] SAWCT 36; McDonald v South Australia [2010] HCATrans 25; McDonald v State of South Australia [2011] FCA 297; McDonald v State of South Australia (2008) 172 IR 256; McDonald v The Workers Compensation Tribunal (SASC, Judge Withers, 4 December 2012); McDonald v South Australia (District Court of South Australia, Auxiliary Master Norman, 11 July 2011); McDonald v The State of SA [2012] SADC 54; McDonald v State of South Australia [2013] SASC 36; McDonald v State of South Australia [2014] SASC 120; McDonald v State of South Australia [2015] SASCFC 15; McDonald & Anor v State of South Australia; McDonald & Ors v Minister for Education and Child Development & Ors (No 3) [2015] SASC 141; McDonald v The State of South Australia [2018] HCASL 43; McDonald v State of South Australia [2011] FCA 297; McDonald v State of South Australia [2011] FCA 1251; McDonald v Federal Court of Australia [2017] FCA 1216; McDonald v Colbran [2019] FCA 1937; McDonald v South Australia (Supreme Court of South Australia, Slattery AJ, 11 January 2018); McDonald v Registrar [2021] SASC 57; McDonald v State of South Australia [2018] SASC 41; McDonald v State of South Australia (No 2) [2018] SASC 57; McDonald v Supreme Court of South Australia and Anor [2019] SASC 201; McDonald v Registrar of the Supreme Court (Supreme Court of South Australia, Judge Bochner, 16 September 2022); McDonald v Workers Compensation Tribunal [2013] SASC 34; McFarlane v The King [2023] SASCA 123; Mickelberg v The Queen (1989) 167 CLR 259; Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438; Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154; Muriniti v Lawcover Insurance Pty Ltd [2022] NSWSC 90; O’Brien v Komesaroff (1982) 150 CLR 310; Orr v Holmes (1948) 76 CLR 632; Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; Re F (2001) 161 FLR 189; Ratten v The Queen (1974) 131 CLR 510; State of South Australia v McDonald (2009) 104 SASR 344; Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125; Thomson v Tremco Pty Limited [2019] QCA 18; UBS AG v Tyne (2018) 265 CLR 77; Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan and Meakes (1931) 46 CLR 73, considered.
MCDONALD & ANOR v ATTORNEY-GENERAL (SA) (No 4)
[2025] SASCA 43Court of Appeal – Civil: Livesey P, S Doyle and Bleby JJA
THE COURT:
Introduction
On the application of the Attorney-General (SA) (the vexatious litigant application), on 24 May 2024 Mr and Mrs McDonald (the appellants) were declared to have persistently instituted vexatious proceedings.[1] The primary judge made the following associated orders pursuant to s 39(1) of the Supreme Court Act 1935 (SA) (the Supreme Court Act):
(a) that each of Mr and Mrs McDonald is prohibited from instituting further proceedings in a prescribed court without permission of the Supreme Court, and
(b) that proceedings already instituted by each or both of them are permanently stayed.
These orders do not prohibit the filing of a notice of appeal against the declaration and orders.
[1] Attorney-General (SA) v McDonald & Anor [2024] SASC 67, [179] (Bampton J) (Reasons).
On 13 June 2024, the appellants filed a notice of appeal. Ultimately, the appellants relied on a written argument dated 2 December 2024 (which exceeds 25 pages) and an amended notice of appeal dated 3 December 2024, which contains over 130 separate grounds of appeal.
Whether in these materials or during oral argument, the appellants devoted almost no attention to whether the primary judge made any material error of fact or law, or whether her exercise of discretion miscarried, having regard to the requirements of s 39 of the Supreme Court Act. Rather, the appellants demonstrated a stubborn determination to reagitate the various issues they have raised in the course of what the primary judge described as “an extraordinary number of proceedings” over a period exceeding 20 years.
In one way or another, these issues have all concerned the long-standing grievances they hold about the circumstances in which Mr McDonald’s employment as a high school schoolteacher came to an end nearly 25 years ago. Since then, they have persistently litigated a range of issues, particularly concerning the identity of Mr McDonald’s employer. Clearly, the appellants are angry. As Mr McDonald explained during the appeal:[2]
LIVESEY P: This is all going to breach?
MR MCDONALD: Yes. This is all going to a contract of employment and the employer varying that contract under the statutory framework that he was employed at. And what this did is it went right to the root of the contract. It destroyed the contract and the contractual relationships. I was treated - I was discriminated against because I was - what shall we say - I was a migrant, I wasn't good enough, even with my qualifications. And my qualifications are equal to any of the guys sitting here today. I know that Doyle J there got himself a [degree] down the road there at [Adelaide], and he did a double degree in law with that. I know that Bleby J’s a smart guy here. He did a double degree down there, and he also did a postgraduate PhD at the University at Cambridge. Doyle J went to Oxford. Good on Doyle J. I would love to have got there myself, but I never got there. I didn't have the finances, and I didn't come from a privileged family. In fact, I came from a very poor working-class family. My father was a window cleaner. And I left school at 14 years of age, had to take over his window cleaning when I left school.
My father came back in the window cleaning business when I was 17 and I had to go and work in the woollen mills. I was in there for two years and I thought this is going to kill me, I’ve got to do something with my life, so I went and knocked on the door of that local high school and asked if I could come to school. I wanted to learn, and they let me in, and I sat in with all the third and fourth-year kids and I got through some O levels at the end of the year. I wanted to go back there and do some higher, he says I can’t, ‘You have to go to Edinburgh to a proper place because they’re taking people like at your age’. So, I went off there. When I went there, I didn't even know what a university was. Didn't even know what a university was. I ended up with qualifications that I could have got into Edinburgh University, which was in the top hundred in the world. And as I say, as I went down to there. Now, I never got the benefit of my qualifications, you guys have really got the benefit of your qualifications, your annual income is about 300,000, Anderson J’s on about 600,000 a year. My income for the last 21 years has been below 20,000 a year. That's what I got from my qualifications …
[2] Transcript 9 April 2025, 29.10-30.37.
Mr McDonald later referred to his bankruptcy proceedings, and his view that all he has left is his “good name” and that is what the Crown now wishes to take from him. Mr McDonald’s anger and frustration is both palpable and perhaps understandable. His capacity to produce written material and recall detail is, respectfully, remarkable.
However, when viewed as a whole, the appellants’ conduct during the course of the 25 proceedings reviewed by the primary judge (and during these appeal proceedings) has demonstrated that, unless restrained, they will continue to persistently institute proceedings to agitate issues which have been finally resolved against them across a large number of courts and tribunals. Those proceedings will, in consequence, likely be vexatious. They have, by their re-litigation and conduct, demonstrated the need for a vexatious litigant declaration and orders to be made.
For the reasons that follow, the appellants’ appeal and their reserved applications must each be dismissed with costs.
These reasons are set out as follows:
Relevant background
Vexatious litigant applications
Observations regarding the appeal
The reasons of the primary judge
The 25 particular proceedings and associated litigation
Conclusions regarding the particular proceedings
The appellants’ notice of appeal
Other matters – interlocutory applications on appeal
Leave to appeal
The determination of the appeal
Conclusion
Annexure 1 – Proceedings relied on by the Attorney-General
Annexure 2 – Interlocutory Applications on Appeal
Relevant background
The appellants’ determination to re-litigate past issues and proceedings because they regard the decisions made in those proceedings as wrong and unjust, whilst perhaps in a sense understandable, necessarily conflicts with the principle of finality:[3]
A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances. That tenet finds reflection in the restriction upon the reopening of final orders after entry[4] and in the rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud.[5] The tenet also finds reflection in the doctrines of res judicata and issue estoppel. Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding.[6] It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in the later proceeding could have been raised in an earlier proceeding.[7]
The principal qualification to the general principle that controversies, once quelled, may not be reopened is provided by the appellate system. But even there, the importance of finality pervades the law. Restraints on the nature[8] and availability of appeals, rules about what points may be taken on appeal[9] and rules about when further evidence may be called in an appeal (in particular, the so-called “fresh evidence rule”)[10] are all rules based on the need for finality. As was said in the joint reasons in Coulton v Holcombe:[11] “[i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial.”
(Original citations.)
[3] D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, [34]-[35] (Gleeson CJ, Gummow, Hayne and Heydon JJ)
[4] DJL v Central Authority (2000) 201 CLR 226.
[5] DJL v Central Authority (2000) 201 CLR 226, 244-245 [35]-[38].
[6] See, eg, Hoysted v Federal Commissioner of Taxation (1925) 37 CLR 290; Blair v Curran (1939) 62 CLR 464; Jackson v Goldsmith (1950) 81 CLR 446; Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353.
[7] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
[8] Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan and Meakes (1931) 46 CLR 73.
[9] Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; O’Brien v Komesaroff (1982) 150 CLR 310; Coulton v Holcombe (1986) 162 CLR 1.
[10] Orr v Holmes (1948) 76 CLR 632; Ratten v The Queen (1974) 131 CLR 510, 516-517 (Barwick CJ); Gallagher v The Queen (1986) 160 CLR 392; Mickelberg v The Queen (1989) 167 CLR 259.
[11] Coulton v Holcombe (1986) 162 CLR 1, 7.
Some of the background to this long-running series of cases will be recounted. It is not necessary to address all of it. A broad overview is sufficient.
After a career during the 1990’s and early 2000’s as a public high school teacher, in 2003 Mr McDonald’s employment ended and he sued for breach of contract and breach of a contractual duty of care to provide him with safe systems of work and a safe workplace. He also brought a negligence claim seeking damages for the harm and injury which he alleged was caused. Those allegations were made in what the primary judge described as the 2004 proceedings.
Despite initial, mixed success following a trial before a single judge of the Supreme Court of South Australia (Anderson J), the Full Court (Doyle CJ, White and Kelly JJ) allowed an appeal and dismissed Mr McDonald’s cross-appeal,[12] with the result that the orders made in favour of Mr McDonald were set aside and his claim for damages against the State was dismissed.
[12] State of South Australia v McDonald (2009) 104 SASR 344 (Doyle CJ, White and Kelly JJ).
The Full Court found that the liability of the relevant Minister for breach of contract did not depend on the occurrence of a “compensable disability” and therefore could not be said to be “in respect of” a compensable injury, with the result that s 54(1) of the Workers Rehabilitation and Compensation Act 1986 (SA) (since repealed) (the WRC Act) did not preclude Mr McDonald’s claim for damages for breach of contract:[13]
The liability of the Minister for the breach of contract did not arise because of the occurrence of a compensable disability. Conduct by an employer of the general kind found by the judge in this case may be repudiatory, and give rise to a claim for damages for breach of contract, even in the absence of the occurrence of a compensable disability.
…
The damages awarded following an employee’s acceptance that repudiatory contract by an employer has brought the contract to an end are not assessed with a view to compensating the dismissed employee for the nature and extent of any injury suffered as a result of the repudiatory conduct. In fact, the existence of incapacity resulting from the injury may diminish the damages for wrongful termination which would otherwise have been awarded.
…
In summary, in our view, the liability of the Minister for breach of contract did not depend upon the occurrence of compensable disability. The damages in respect of the Minister’s breach were not to be assessed so as to provide compensation for any injury suffered by Mr McDonald. In these circumstances we do not consider that it can be said that the liability of the Minister found by the judge was “in respect of” a compensable disability suffered by Mr McDonald.
Accordingly, we do not regard s 54(1) of the WRC Act as precluding Mr McDonald’s claim altogether.
[13] State of South Australia v McDonald (2009) 104 SASR 344, [196]-[205] (Doyle CJ, White and Kelly JJ).
The distinction is between those remedies available for breach of contract, and those available for loss sustained “in respect of” a compensable injury which were then barred by s 54 of the WRC Act.
In addition, however, the Full Court found that an implied term of mutual trust and confidence did not form part of Mr McDonald’s contract of employment. The statutory and regulatory context in which the contract of employment operated made that implied term unnecessary,[14] and it was not appropriate to decide whether that term formed part of Australian employment contracts generally.[15]
[14] State of South Australia v McDonald (2009) 104 SASR 344, [269]-[271] (Doyle CJ, White and Kelly JJ).
[15] State of South Australia v McDonald (2009) 104 SASR 344, [236] (Doyle CJ, White and Kelly JJ).
Critically, the Full Court found that even if the contract of employment had contained an implied term of mutual trust and confidence, there was no repudiatory breach by the Minister:[16]
If, contrary to our conclusion, Mr McDonald’s contract of employment did contain an implied term of mutual trust and confidence, we doubt that it could be found to have been breached in a repudiatory way. That is because, in the determination of the nature and extent of any breach, account would have to be taken of the means of grievance resolution and appeal available to Mr McDonald. Even if he had been treated unfairly or inappropriately, the statutory and award context evinces an intention that his grievances should be addressed within the confines of the employment relationship, making use of the procedures provided.
We will address later in these reasons the alternative claim of Mr McDonald that the Minister was in breach of the implied contractual duty of care. We conclude that any breach by the Minister of that implied duty was not repudiatory so as to warrant Mr McDonald treating his contract as at an end. The reasons we give for that conclusion also indicate that there had not been a repudiatory breach of an implied term as to mutual trust and confidence.
[16] State of South Australia v McDonald (2009) 104 SASR 344, [272]-[273] (Doyle CJ, White and Kelly JJ).
The finding made by Anderson J to the contrary was set aside.
Absent a proved breach, Mr McDonald had no claim in contract.
On 12 February 2010, when Mr McDonald was legally represented, his application for special leave to appeal to the High Court was heard by French CJ and Kiefel J.[17] It is clear from a reading of the transcript that the Court was interested in the argument, but special leave was refused with costs, because the matter was “not a suitable vehicle” for the grant of special leave. Delivering the reasons of the Court, French CJ referred to the finding that “it was doubtful that the implied term, if it existed, had been breached”:[18]
The applicant, who was employed by the State of South Australia under the Education Act 1972, seeks special leave to appeal against a decision of the Full Court of the Supreme Court of South Australia. The Full Court allowed an appeal against the decision of a trial judge awarding the applicant damages for breach of the contract of employment. Special leave is sought on the basis that the Full Court wrongly held that the contract of employment did not contain an implied term of mutual trust and confidence.
In our opinion the conclusion of the Full Court related to the particular statutory context in which the applicant was employed. The court also held, on the basis of factual conclusions, that in any event it was doubtful that the implied term, if it existed, had been breached. The context of the court’s decision on the implied term affects the question whether that decision was correct and renders more difficult the identification of a principle of general importance and application.
This matter is not a suitable vehicle for the grant of special leave for those reasons and also because, in our opinion, it does not enjoy sufficient prospects of success. The application for special leave will be refused.
[17] McDonald v South Australia [2010] HCATrans 25.
[18] McDonald v South Australia [2010] HCATrans 25.
Following that decision, in Commonwealth Bank of Australia v Barker,[19] the High Court of Australia rejected the proposition that there was a term of mutual trust and confidence to be implied by law in all employment contracts.[20] That is to say, the term of mutual trust and confidence in contracts of employment which have been implied in law in the United Kingdom “ought not to be imported into the common law of Australia”.[21]
[19] Commonwealth Bank of Australia v Barker (2014) 253 CLR 169.
[20] Commonwealth Bank of Australia v Barker (2014) 253 CLR 169, [1] (French CJ, Bell and Keane JJ).
[21] Commonwealth Bank of Australia v Barker (2014) 253 CLR 169, [115] (Gageler J).
Accordingly, and by no later than 2014, an essential limb for any damages claim to be made by Mr McDonald arising out of an alleged breach of his employment contract was gone. Whereas Mr McDonald has been preoccupied with the identity of his employer, the Full Court had effectively held that this did not matter:[22]
From 1990 until April 2003 the respondent (Mr McDonald) held an appointment as an officer in the teaching service under the Education Act 1972 (SA) (the Act). He was appointed to that position by the Minister of Education (the Minister) (who at certain times has also been designated as Minister for Education and Children’s Services and as the Minister for Education, Training and Employment). Hereafter we will refer to the Minister as Mr McDonald’s employer. It is not necessary to decide whether his employment contract was with the Minister or with the Crown. We will refer to the department administering the Act under the Minister’s direction as “DECS”.
On 11 April 2003 Mr McDonald wrote to the Premier, and sent a copy of the letter to the Director-General of Education. In the letter he sets out complaints about his treatment as a teacher, and states “Therefore I dismiss myself from my employment”.
[22] State of South Australia v McDonald (2009) 104 SASR 344, 348-349 [2]-[3] (Doyle CJ, White and Kelly JJ).
Mr McDonald has not been deterred. On occasions, Mrs McDonald has joined in her husband’s claims. As the primary judge explained:[23]
[23] Reasons, [3]-[5].
For over 20 years, the State of South Australia has been vexed by defending the inordinate number of proceedings commenced or attempted to be commenced by Mr and Mrs McDonald. Identifying the “true identity” of the defendant(s)[24] in these proceedings has consumed Mr McDonald despite the defence having made plain that no point has, or will be, taken with the identity of the defendant, and that vicarious liability is admitted by the State. Further, as a Judge of this Court noted,[25] the proper forum for the “heartland” of Mr McDonald’s claims was the Worker’s Compensation Tribunal, given that s 54 of the Workers Rehabilitation and Compensation Act 1986 (SA) (“the WRC Act”) operates to prevent those claims being prosecuted in this Court.[26] The characterisation of his former employer and whether the “heartland” of his claims can be prosecuted in this Court are issues that have been finally determined. Regardless, Mr McDonald has wilfully sought time and time again to relitigate these settled controversies.
[24] Whilst rule 1.4(4)(b) of the Uniform Civil Rules 2020 (SA) (UCR) prescribes that, in respect of a proceeding instituted before the commencement of the UCR on 18 May 2020, a party who was a defendant is now a respondent, I use the term defendant (other than with respect to the Workers Compensation Tribunal litigation) throughout my reasons as much of Mr and Mrs McDonald’s litigation took place prior to the commencement of the UCR and the numerous judgments of this Court that have ensued use the term defendant.
[25] [2016] SASC 79 at [168] (Nicholson J).
[26] On the commencement of the Return to Work Act 2014 (SA) on 1 July 2015, ‘Workers Compensation Tribunal’ was replaced with ‘South Australian Employment Tribunal’. Schedule 9, cl 49 of the Return to Work Act 2014 (SA) provides ‘Part 5 of this Act does not apply to or in relation to an existing injury or the death of a worker resulting from an existing injury (and section 54(1) of the repealed Act will continue to apply in respect of such an injury or death)’.
As the years have passed Mr McDonald has broadened his complaints, making allegations of misconduct, fraud and conspiracy against former colleagues, non-parties, and legal practitioners employed in the Crown Solicitor’s Office. He has sought to set aside a Full Court judgment alleging it was obtained by misconduct that constituted actual fraud. He has also accused judicial officers of bias, fraud, misconduct, colluding with the Crown Solicitor’s Office, lacking independence, and failing to apply the law. He has alleged the Supreme Court Registrar was negligent in the management of court files. He asserts he went on a 40-day hunger strike in his quest to obtain confirmation of the identity of his employer. He has made veiled threats of using the public arena with the support of expert bloggers to release the evidence he has gathered in the event his ability to litigate is curtailed. Mrs McDonald, who is prone to accusatory, shrill outbursts during hearings, believes there is something seriously criminal going on this Court and has also threatened to go on a hunger strike with the result that I might have a death on my hands:
MS MCDONALD: … if you do throw us out of this court illegally, I personally as a 70 year-old woman will go on a hunger strike and that is 100%, because I cannot believe the injustice that has taken place with my husband, watching him work and work and work, sometimes up to 1 o’clock in the morning, and he was a young man when they bullied him in school, it’s an absolute disgrace what this court has done to us, and you think we’re idiots and that we don’t see what you’re doing? Judge David should’ve allowed my husband to go through his evidence.
HER HONOUR: Mrs McDonald please sit down.
MS MCDONALD: I can’t stand it –
HER HONOUR: Mrs McDonald –
MS MCDONALD: – and you might even have a death on your hands because I have gone mental because of what this court has done to my husband.
MR MCDONALD: Just stay quiet, just go quiet, go on, off you go, quiet.
HER HONOUR: Okay, thank you.
MS MCDONALD: I can’t stand what you have done to us, you think we’re idiots and we don’t know what should be done. We’ll get the outside people to judge you.
MR MCDONALD: Yeah, so we know exactly where we are all going with this.
The State of South Australia has had enough. The Attorney-General for the State of South Australia … has made an originating application under the vexatious proceedings provisions of the Supreme Court Act 1935 (SA) … The Attorney General seeks to satisfy the Court that Mr and Mrs McDonald have persistently instituted vexatious proceedings such that the Court should declare them vexatious litigants and make consequential orders pursuant to s 39(1)(a) and (b) of the Act.
(Original citations.)
Vexatious litigant applications
It is not necessary to address in detail the requirements for the making of a vexatious litigant declaration and orders pursuant to s 39 of the Supreme Court Act. They were relatively recently addressed by this Court in Keane v Woolworths Group Ltd(No. 4).[27] The history behind the present iteration of the South Australian vexatious litigant provision has been considered elsewhere.[28]
[27] Keane v Woolworths Group Ltd (No. 4) [2024] SASCA 113, [15]-[50] (Livesey P, Stanley and Hall AJJA).
[28] Georganas v Barkla [2021] SASC 47, [50]-[63] (Livesey J).
Section 39 of the Supreme Court Act is in the following terms:
(1)If, on the application of the Attorney-General or any other interested person, the court is satisfied that a person has persistently instituted vexatious proceedings, the court may make either or both of the following orders:
(a) an order prohibiting the person by whom the vexatious proceedings were instituted from instituting further proceedings, or further proceedings of a particular class, without permission of the court;
(b) an order staying proceedings already instituted by that person.
(2)Where it appears to a prescribed court that there are proper grounds for an application under this section, it may refer the matter to the Attorney-General for consideration.
(3) An order under this section remains in force (subject to variation by the court)—
(a) if a period for the operation of the order is fixed—until the expiration of that period or the revocation of the order (whichever first occurs);
(b) if no such period is fixed—until revocation of the order.
(4)Where an order is made under this section, a copy of the order must be published in the Gazette.
(5) For the purposes of this section, proceedings are vexatious—
(a) if instituted to harass or annoy, to cause delay, or for any other ulterior purpose; or
(b) if instituted without reasonable ground.
(6) In this section—
prescribed court means—
(a) the Supreme Court; or
(b) any other court of the State; or
(c) the South Australian Employment Tribunal; and
(d) any other tribunal of the State prescribed by the regulations;
proceedings means civil or criminal proceedings instituted in a prescribed court.
A two-stage process is involved in the application of s 39(1) of the Supreme Court Act:[29]
… At the first stage, an applicant must demonstrate that the respondent has persistently instituted “proceedings” within the meaning of s 39(6) and the proceedings are “vexatious” within the meaning of s 39(5). The concept of “proceedings” is defined by s 39(6) to mean proceedings instituted in a “prescribed court”, being one of the specified courts or tribunals of this State.
When addressing this first stage, the Court cannot take into account proceedings in any other Australian court or tribunal when determining whether the requirements of the Act are satisfied. The existence or outcome of other Australian court or tribunal proceedings may, however, assist the conclusion that the local proceedings are vexatious because the point in issue has been repeatedly instituted or conclusively determined elsewhere.[30]
At the second stage, having determined that the respondent has persistently instituted vexatious proceedings, the applicant must then persuade the Court that, in all the circumstances, it is proper for the Court to exercise its discretion in favour of making an order which is within the scope of s 39(1).[31]
(Original citations.)
[29] Georganas v Barkla [2021] SASC 47, [47]-[49] (Livesey J).
[30] Attorney-General (SA) v Burke (1997) 190 LSJS 28, 35 (Perry J).
[31] Attorney-General (SA) v Burke (1997) 190 LSJS 28, 33 (Perry J); Commonwealth Bank of Australia v Heinrich [2003] SASC 322, [58] (Debelle J).
The first stage may be analysed and addressed by reference to the following elements:[32]
[32] Keane v Woolworths Group Ltd (No. 4) [2024] SASCA 113, [18] (Livesey P, Stanley and Hall AJJA).J, citing Georganas v Barkla [2021] SASC 47, [64]-[65] (Livesey J).
The discretion under s 39 is only enlivened where:
1. an application is made by the Attorney-General or any other interested person; and
2. the Court is satisfied that a person has:
2.1 “persistently instituted”;
2.2 “proceedings” in South Australian courts or tribunals;
2.3 that are “vexatious” in that;
2.3.1.they were instituted to harass or annoy, to cause delay, or for any other ulterior purpose; or
2.3.2.they were instituted without reasonable grounds.
The phrase “persistently instituted vexatious proceedings” requires a finding to be made about each of three matters: (1) persistently instituted; (2) vexatious; and (3) proceedings.
At the hearing of this appeal there was no issue about the meaning of these three elements, namely, whether the appellants had (1) persistently instituted (2) vexatious (3) proceedings.
The second stage concerns the exercise of discretion by the court, which must be undertaken recognising that s 39 provides an extreme remedy, not granted lightly.[33] At this stage, whether a declaration is made, and whether and to what extent orders should be made, are determined by reference to the particular facts and circumstances of the case.
[33] Keane v Woolworths Group Ltd (No. 4) [2024] SASCA 113, [47]-[48] (Livesey P, Stanley and Hall AJJA).
That the putative vexatious litigant is almost invariably not legally represented is a feature that requires care. It may be necessary to exercise a degree of patience and tolerance, especially where the litigant is prone to extreme language and what appears to be inappropriate behaviour. That has occurred in the course of the hearing of this appeal. On occasion, Mrs McDonald was required to leave the court room if she persisted in yelling.
One day after the hearing, Mr McDonald sent the following email to the Court:
Dear Associates, Attorney General, CS Condoluci and CS Garnaut
Asociate [sic], could you draw his Honours [sic] attention to this email.
Attached is the Memorandum of Agreement, the Statement of Service of Education and Extracts of sections 6, 7, 8, 9, 11, 13 and 15 of the Education Act 1972.
Material facts were extracted from these documents and proved to three different AI platforms. (The extracted facts are shown on each of the AI platforms). Check the material facts for any errors against the original documents which are attached as pdf documents.
Each AI platform provided an analysis of Mr McDonald's employer/employee contractual relationship with the incorporated Minister representing the body corporate under the Education Act 1972 in the period 1988 to 2003.
To date, the Court has failed to produce the transcript or judgment indicating it has heard the original claim of 16 April 2004 for breach of contract and breach of the duty of care and negligence against the incorporated Minister representing the body corporate under s 7 of the Education Act or a delegate of the incorporated Minister in the Supreme Court.
At the hearing yesterday I informed the Court about the costs of litigation involving the McDonald’s over 21 years.
Should it turn out that I and my wife Rhoda are declared vexatious litigants based on the false evidence produced by employees of the Attorney General we will have no choice but to defend our good names and reputation vigorously in the public arena.
In the public arena we will be uploading evidence provided to the Court on several AI platforms to support our claim the Courts have failed to serve the interest of justice and the public interest and have caused a substantial injustice to Mr & Mrs Mcdonald over 21 years. We intend to show through AI platforms the Court relied on false evidence from the Crown Solicitors Office and provided perfect judgments on false evidence for the benefit of the Attorney General and his employees.
I have provided you with examples of the analyses of three AI platforms. The AI analyses took about one minute to deliver the legal and material facts from extracted facts. The algorithm carries no bias or apprehended bias. It is designed or programmed only to deal with the information fed into it. If the algorithm worked out in one minute the incorporated Minister representing the body corporate under s 7 of the Education Act 1972 was the employer in a contractual relationship with Mr McDonald when appointed to the SA teaching service under s 9(4) and s 15 of the Education [sic] in the period 1988 to 2003 then why have the McDonald's been kept in Court for 21 years with judges who claim to be impartial, independent legal experts in law who have had the same extracted facts but still have failed to accept in fact and in law an employer/employee contractual relationship existed between Mr McDonald and the Minister (a body corporate by virtue of the Education Act 1972) in the period 1988 to 2003 and McDonald's breach of contract and negligence claim has still not been heard against the incorporated Minister.
Yesterday at the hearing on Appeal in action CIV-24-5708 I was bullied and obstructed by Livesey P from delivering my oral submission on the Attorney Generals s 39 application. He claimed everything I had to say had been heard before or had been provided in submissions and he did not want to hear what I had to submit.
This is an official complaint of the actual bias and apprehended bias my wife and I experienced yesterday at the hearing which we regard as an obstruction of justice.
Regards
Mr McDonald
The “costs of the litigation” referred to in this email is a reference to the $4 million the appellants estimated has been spent addressing their cases. That is not an estimate made by the Attorney-General. The complaint made at the conclusion to this email is a reference to the occasions when Mr McDonald was asked in argument to address the issues arising on an appeal against a declaration and orders made on an application under s 39 of the Supreme Court Act, rather than re-litigate past issues, to avoid repetition, and to allow time for the respondent to present his submissions. The allegations of bias and procedural unfairness necessarily involve the entire coram,[34] and they are rejected.[35]
[34] McFarlane v The King [2023] SASCA 123, [34]-[35] (Livesey P).
[35] See McDonald & Anor v Attorney-General (SA) (No 3) [2025] SASCA 42 (Livesey P, Doyle and Bleby JJA).
That an unrepresented litigant is unrestrained by professional duties and obligations may serve to reinforce the need for a vexatious litigant declaration and orders to be made.
When addressing the first stage of an application under s 39 of the Supreme Court Act, it is important to recognise that the court is not undertaking an appeal under s 50 of the Supreme Court Act, and it does not go behind the earlier decisions. It is not reviewing whether the “proceedings” relied on by an applicant are affected by material error. Rather, the court is concerned with whether those proceedings are “vexatious” in the sense defined by s 39 of the Supreme Court Act.
Generally, that means that the court is concerned to determine whether they were “instituted to harass or annoy, to cause delay, or for any other ulterior purpose”, or “instituted without reasonable ground” by the putative vexatious litigant. Whilst that determination requires that some view be formed about the merit or otherwise of the proceedings being reviewed, that is done only through the prism of s 39 of the Supreme Court Act.
This difference between the analysis required under s 39 and an appeal under s 50 of the Supreme Court Act (or their counterparts in other jurisdictions) has been explained in a number of cases.
In Kay v Attorney-General (Vic), Ormiston JA explained the approach required under the Victorian vexatious litigant provision, s 21 of the Supreme Court Act 1986 (Vic):[36]
Eames J conducted the hearing with exemplary care and meticulous fairness so that from his Honour's reasons it is abundantly clear why the applicant should have been declared a vexatious litigant. The judge extended considerable generosity and latitude to the applicant who appeared on his own behalf, but I would not wish it to be thought that, in every application of this kind under s 21 of the Supreme Court Act 1986, it was necessary to re‑examine the circumstances of each proceeding upon which the Attorney-General might seek to rely to support the making of an order. If the proceedings relied upon are frivolous, vexatious or otherwise of a kind which would support the making of the order, then that ordinarily should be apparent upon a reading of the reasons and orders and, if it is not, there will be usually no sensible basis for relying upon them, except to the extent that they may form part of a relevant chain of events. The learned judge, primarily I would gather from a sense of fairness and in an attempt to discover why the applicant said that the order should not be made, went somewhat further into the reasons for the various orders, the circumstances that lay behind them and what may now be thought to be the applicant’s unreasonable attacks upon them. On other occasions, therefore, examination in such detail may properly be seen to be unnecessary, for the procedure is not to be treated as the opportunity for a second line of appeal against judgments or orders upon which reliance is placed for the making of an order under s 21.
[36] Kay v Attorney-General (Vic) [2000] 2 VR 436, 437.
Subsequently, in Mitsubishi Motors Australia Ltd v Kowalski, Bleby J referred to portions of this passage with approval.[37]
[37] Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154, [17] (Bleby J).
In Attorney-General (Vic) v Horvath, Ashley J (as his Honour then was) said that “it is not for a court considering a [vexatious litigant] application to go behind the order and go into the merits of the argument as a court of appeal would do”:[38]
It is one thing to know what the word “vexatious” means. It is another thing to apply s. 21(2) to the circumstances of a particular case. In the latter task the following matters are, according to the authorities, relevant: first, where an order has been made dismissing an action as frivolous or vexatious, or striking a pleading out, it is not for a court considering a s. 21 application to go behind the order and go into the merits of the argument as a court of appeal would do. Second, findings which are required do not depend on viva voce evidence or credibility of witnesses. The critical evidence is to be found in court files – documents, judgments, orders and reasons. For that reason, any hearsay material contained in an affidavit in support of an application, even though objectionable, should be treated simply as a distraction, and ignored. Third, the question is not whether the manner in which a proceeding is conducted is vexatious; it is whether, having regard to its nature and substance, it should be so characterised. Fourth, and this is a more general proposition with respect to s. 21, in determining whether the Attorney-General has made out a case, the court is not concerned with a minute individual examination of each proceeding. It must consider the overall impression created by the number of proceedings, their general character and their results.
(Citations omitted.)
[38] Attorney-General (Vic) v Horvath [2001] VSC 269, [28] (Ashley J).
This passage has also been referred to with approval.[39]
[39] See, for example, Garrett v Federal Commissioner of Taxation [2015] FCA 117, [7] (Pagone J); Attorney-General (Vic) v Whittingham [2021] VSC 91, [127] (Ginnane J); Muriniti v Lawcover Insurance Pty Ltd [2022] NSWSC 90, [517] (Ward CJ in Eq).
Justice Wheelahan has referred to the approach taken in Victoria and New South Wales to similar effect.[40] His Honour referred to the following passage from the reasons of the Full Court of the Supreme Court of Victoria, in Gallo v Attorney-General (Vic):[41]
I return then to the learned judge’s findings in regard to this matter. He started by saying, at page 35 of the appeal book, this:
The gist of what the respondent submits is that, in each instance, the proceeding in question is a genuine proceeding brought to redress a genuine grievance or wrong. I was invited to make some investigation in detail of the cases, the subject matter of the application. However, I do not feel it necessary to do so on an application of this sort. It is sufficient for my purposes that in a large number of instances various judges and Masters of this Court have expressed opinions as to the vexatious character of the particular proceeding before them. It is perhaps desirable to make some detailed reference to the cases which fall into category one.
He then dealt with those.
I might say, in parenthesis, that I agree with the learned judge that where an order has been made by a Judge or a Master dismissing an action as frivolous or vexatious, or striking a pleading out, it is not to go behind that order and, as it were, go into the merits of the argument as a court of appeal would.
[40] Fokas v Mansfield as Trustee of the Bankrupt Estate of Maria Fokas (No 2) [2020] FCA 30, [42]-[44] (Wheelahan J).
[41] Gallo v Attorney-General (Vic) (unreported, 4 September 1984) (Starke J, with whom Crockett and Beach JJ agreed), referring to the reasons of the primary judge, Gray J.
Justice Wheelahan also referred to Attorney-General (NSW) v Bar Mordecai, where Patten AJ had taken the same view regarding a vexatious litigant application made under s 84(1) of the Supreme Court Act 1970 (NSW) (since repealed):[42]
It seems to me that I will need to form my own view about each piece of litigation relied upon by the Attorney-General. In doing so, however, I believe that I am entitled to have regard to the result of the proceedings and, where appropriate, the findings of, and views expressed, by the various judicial officers who dealt with them.
[42] Attorney-General (NSW) v Bar Mordecai [2005] NSWSC 142, [5] (Patten AJ), subsequently referred to with approval in in Attorney-General (NSW) v Croker [2010] NSWSC 942, [125] (Fullerton J), Attorney-General (NSW) v Wilson [2010] NSWSC 1008, [22] (Davies J), and Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125,[50]-[53] (Beazley P, Emmett JA and Sackville AJA).
Although Simpson J (as her Honour then was) later held in Attorney-General (New South Wales) v Martin,[43] that s 91 of the Evidence Act 1995 (NSW) operated as a form of fetter, preventing reliance on any judgment which found that there was an abuse of process, or a failure to disclose a cause of action,[44] that provision does not apply in this Court.
[43] Attorney-General (New South Wales) v Martin [2015] NSWSC 1372, [20], [132]-[133] (Simpson J). However, Attorney-General (New South Wales) v Mohareb [2016] NSWSC 1823, [25]-[32] (Schmidt J) is to the contrary. In Fokas v Mansfield as Trustee of the Bankrupt Estate of Maria Fokas (No 2) [2020] FCA 30, [48]-[64] Wheelahan J pointed out that s 8(2) of the Vexatious Proceedings Act 2008 (NSW) was amended with effect from 20 February 2018 so as to exclude the operation of s 91 of the Evidence Act 1995 (NSW) and that the approach taken in the Federal Court differed.
[44] Evidence Act 1995 (NSW), s 91: “Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding”.
A review of the reasons of the primary judge in this case demonstrates that though she had regard to the findings made in each of the cases relied on by the Attorney-General, her Honour appeared to form her own view about whether the requirements of s 39 of the Supreme Court Act were satisfied in relation to each proceeding. The primary judge did this without being lured into any form of de facto appeal, and without going behind what was decided.[45]
[45] Reasons, [46].
That was appropriate.
Observations regarding the appeal
There are four initial observations to be made regarding the 25 proceedings instituted by the appellants and relied on by the Attorney-General and, in consequence, the appellants’ appeal.
The first is that the Attorney-General did not suggest that the 2004 proceedings, the 2009 Full Court appeal, nor the first special leave application to the High Court, were vexatious. That is important. The consequence was that the vexatious litigant application focussed on the many attempts made by the appellants to later re-litigate what was determined in that initial litigation.
Secondly, the Attorney-General did not rely upon the Federal Court or other High Court proceedings, or the many attempts made to file proceedings, as comprising “proceedings” within the meaning of s 39 of the Supreme Court Act.[46] Rather, these were treated as informing the exercise of the court’s discretion to make orders under s 39 of the Supreme Court Act.
[46] Thereby avoiding the need to address whether an attempt to file proceedings should be considered the institution of proceedings, see Georganas v Barkla [2021] SASC 47, [100]-[106] (Livesey J); Keane v Woolworths Group Ltd (No 4) [2024] SASCA 113, [33]-[35], [165] (Livesey P, Stanley and Hall AJJA).
Whether it was necessary to take that view of High Court proceedings following an appeal from a South Australian court was not an issue canvassed on the hearing of this appeal. In addition, the many appeal grounds which addressed the reliance placed by the primary judge on these decisions overlooked the reason why the judge had regard to them. Without acknowledging or addressing that they were only relied on in connection with the exercise of discretion, the appellants were intent on demonstrating why, for example, the ruling of Besanko J was said to be wrong.
Thirdly, the appellants re-agitated previous allegations of bias which concerned decisions made by the primary judge or the members of this Court in various of the proceedings relied on by the Attorney-General. It was said that, as a result, there was a “conflict of interest”. In so far as this concerned the primary judge, the allegation was one of actual bias and it was reagitated without regard to the fact that this allegation had been rejected by this Court in 2023.[47] To the extent that it was pressed by reference to the decision by the primary judge to press on with the hearing of the vexatious litigant application, rather than lift the stays and hear the appellants’ applications for judicial review (see below), there is nothing in that point and her Honour’s decision did not reveal bias of any kind. That too was previously addressed by this Court.
[47] McDonald v Attorney-General for the State of South Australia [2023] SASCA 132, [37] (Livesey P and Doyle JA).
In so far as the question of bias concerned this Court, it was an issue of ostensible bias, and the appellants maintained that they did not accept the rulings earlier made by this Court in late 2024 and early 2025.[48] This was communicated during the course of a speech made by Mr McDonald soon after the start of his oral address. No further or renewed application was made by the appellants – this was addressed specifically – and Mr McDonald (with whom Mrs McDonald appeared to agree) said that they were not making another bias application.[49] The issue may therefore be put to one side as no new allegations or applications were made.
[48] McDonald v Attorney-General (SA) [2024] SASCA 144 (Livesey P, S Doyle and Bleby JJA); McDonald v Attorney-General (SA) (No 2) [2025] SASCA 1 (Livesey P, S Doyle and Bleby JJA). The question of costs was reserved to this Court in each application.
[49] Transcript 9 April 2025, 11.28: “Bleby JA: This is not a new application …? Mr McDonald: No. …”.
Finally, and as earlier mentioned, the primary judge accepted the submission made by the Attorney-General that she need not “go behind” the judgments and findings made in prior proceedings when determining the vexatious litigant application. In circumstances where the issues raised by the appellants had been repeatedly rejected, the primary judge had “regard to the result of the proceedings and, where appropriate, the findings of, and views expressed by, the various judicial officers who dealt with them”.[50]
[50] Reasons, [46], citing Fokas v Mansfield as Trustee of the Bankrupt Estate of Maria Fokas (No 2) [2020] FCA 30, [42] (Wheelahan J), relying on Patten AJ in Attorney-General (NSW) v Bar Mordecai [2005] NSWSC 142, [5] which concerned an application made under s 84(1) of the Supreme Court Act 1970 (NSW) (since repealed).
There is no need to repeat what has been said about the proper approach to the review of the decisions relied on for the purposes of a vexatious litigant application. The corollary of this, however, is that it was not appropriate to treat the vexatious litigant application as an opportunity for the putative vexatious litigant to lead further evidence, whether or not it is called “fresh evidence”, so as to “right the wrongs” of past injustices. Granted, a question of degree may conceivably be involved when the parties are at issue over whether there was a reasonable basis for instituting a particular proceeding.
What is not permissible is an overt frontal assault on all of the past proceedings in all courts and tribunals involved with the benefit, as here, of seven lever arch folders of materials designed only to prove that every decision made by any court or tribunal that disagreed with the appellants is plainly wrong and must be set aside for numerous reasons which included baseless assertions of fraud, jurisdictional error and a denial of procedural fairness.
This represents an important point of difference between the parties on this appeal. Most of the appeal grounds and arguments mounted by the appellants were directed to re-litigating past issues and decisions.
Indeed, one of the central complaints made by the appellants is that the primary judge erred in denying Mr McDonald procedural fairness because two of his applications for judicial review should have been heard before the Attorney‑General’s vexatious litigant application, “for they would have shown Mr and Mrs McDonald were not vexatious litigants and they had sound legal reasons in the Originating Application for each Judicial Review for them to be heard”.[51] Those applications for judicial review sought “de novo standard review or a de novo appeal” of the 2004 proceedings.
[51] Appeal ground 2.41.
In argument, Mr McDonald admitted that he wanted to “start again” and he was critical of the refusal by the primary judge and, he inferred, by this Court to permit that to occur. There is no merit in the complaint. The appellants simply wished to use the judicial review proceedings to re-litigate past cases. The primary judge was right to refuse to allow that to happen.
In addition, the appellants complained that they were prevented by the primary judge from obtaining by subpoena or introducing into evidence a large volume of further material designed to demonstrate why earlier decisions were wrong and unjust.[52] Indeed, in one of their appeal grounds the appellants went so far as to suggest that the Full Court’s 2009 decision should be reconsidered and re‑litigated:[53]
Bampton [sic] erred in citing the cases from the ‘Workers Compensation Claim through to the Appellant’s application for leave to appeal to the Court of Appeal from Bampton J’s recusal refusal’ as her reasons (her ratio decidendi) for favouring the Attorney Generals application under s 39 of the Supreme Court Act 1935 for she failed to consider or accept Mr McDonald had the right to bring forward his case to the Appeal Court to reconsider the decision of the Full Court in 2009 for it was plainly wrong and resulted in a major injustice to Mr and Mrs McDonald for it was in breach of his constitutional and statutory rights under Australian jurisprudence to have his contract claims heard against the body corporate and trading corporation under the Education Act 1972 in the jurisdiction of the SA Supreme Court.
(Original emphasis.)
[52] See, for example, appeal ground 69.
[53] Appeal ground 76.
There is no merit in this complaint, either. The primary judge was right to refuse to give leave to issue subpoenas and receive a large volume of material designed to assist the re-litigation of past decisions.
Indeed, whilst the parties to this appeal agreed core appeal books spanning five lever arch volumes, the appellants insisted that another seven volumes of supplementary material were relevant. Whilst the Court has received that material and reviewed it, it is not relevant. It is designed only to facilitate the re-litigation of various issues and decisions which have been long resolved against the appellants.
That the appellants were intent on re-litigating their grievances over past issues and decisions is also made clear by the orders they sought in their notice of appeal. Order 1 is concerned with lifting the permanent stays concerning the two judicial review applications already mentioned:[54]
[54] Appellants’ notice of appeal, Part 3 “Orders sought”.
1.Order the permanent stay in action CIV-21-012132 and CIV-21-011585 is lifted and a date is set down to hear both actions.
2.Order Mr McDonald’s Appeal delivered to the Registry on 23 August 2007
against the Reasons of Judge Lunn to strike out parts of the Applicant’s Eighth Statement of Claim on 6 August 2007 in the 2004 actionis heard before theFullAppeal Court according to section 17, 48 and 50 of the Supreme Court Act 1935.3.Order the discretion to make orders under s 39 of the Supreme Court Act 1935 (SA) has not been enlivened for the Attorney General application under s 39 of the Supreme Court Act 1935 for Mr McDonald had a constitutional and statutory right
andright at common lawto have a breach of contract and contractual duty of carepersonal injuryclaim, heard in the Supreme Courtagainst the other party who varied his contractunder the statutory framework he was employed under for the variations made to his contract which caused harm and injury to him.4.Order
each of the RespondentsMr and Mrs McDonald has not instituted vexatious proceedings for at all material times they have endeavoured to have theirrights under Australia law in contract and tortconstitutional right under s 51(xx) of the Australian Constitution Act 1901 and their statutory right under s 4 of the TPA 1974 to have a contract claim heard against the body corporate and trading corporation in a contract of employment with Mr McDonald under the statutory framework he was employed under in the Supreme Court.5.Order the interest of justice was not served in the decision of Anderson J in 2009 for Mr McDonald was not in a contract of employment with DECS for DECS in not a body corporate and he did not receive a fair trial against DECS.
6.Order
the breachthe Full Court in action SCCIV-04-418 should have declared a mistrial occurred in the decision of Anderson J in 2008 for DECS was not in a contract of employment with Mr McDonald in the jurisdiction of the Supreme Court and no implied term of mutual trust and confidence existed between Mr McDonald and DECS at any time.7.Order the breach of contract
and personal injuryand contractual duty of care claim in the contract of employment between Mr McDonaldhad with the Ministerand his employer the body corporate and trading corporation under the Education Act has not been heard under the statutory framework he was employed under which means those causes of action are not functus officio for the interest of justice has not been served on these causes of action in the Supreme Court and Mr McDonald has the right to have them heard according to the Australian law.8.Order the
Full CourtAppeal Court uses its “inherent powers” and sets aside the Full Court decision in 2009 to allow Mr McDonald his substantive right under Australian jurisprudence to have his breach of contract and contractual duty of carepersonal injuryclaim heard or alternatively the Court provides a declaratory judgment in his favour.9.Order a settlement conferences is suggested between the parties to settle all outstanding claims before the Court.
[176] Mrs McDonald was an Interested Party in this proceeding.
[177] Mrs McDonald was only an Interested Party in CIV-23-004570.
Annexure 2 – Interlocutory Applications on Appeal
No.
Date Filed
Nature of Interlocutory Application
Outcome Date
Outcome
Costs
“Proceedings” within s 39 of the Supreme Court Act 1935 (SA)
1
25.06.2024
The appellants sought a stay of proceedings between 15 July 2024 and 15 October 2024.
12.07.2024
The matter was listed for appeal hearing on 6 February 2025.
N/A
Yes
2
15.07.2024
The appellants sought orders:
1. To amend the notice of appeal;
2. To file and serve electronic and physical core appeal books;
3. To lift the permanent stay in CIV‑21-012132;
4. For a de novo standard review or appeal of SCCIV-04-416.
19.07.2024
The Court remarked that the appellants could file amended grounds of appeal with the written outline on 6 December 2025.
The Court remarked that the filing of appeal books had been dealt with previously.
The Court remarked that the applications for a lift of the permanent stay and the de novo standard review or appeal are referred to the appeal hearing.
N/A
Yes (orders 3 and 4)
3
22.07.2024
The appellants sought to amend the notice of appeal.
13.11.2024
The respondent advised on 13 November 2024 that it had no objection to the appellants’ application to amend the notice of appeal.
N/A
No
4
23.07.2024
The appellants sought a de novo standard review of the decision of Anderson J in McDonald v State of SA [2008] SASC 134 and a stay until the de novo standard review is complete.
14.10.2024
The Court dismissed the application for a stay.
Ex tempore ruling delivered by Bleby JA on 11 October 2024.
The appellants are to pay the respondent’s costs on the standard basis.
Yes
5
24.07.2024
The appellants sought orders regarding the composition of the appeal coram and an order staying appeal proceeding “until a de novo standard review”.
14.10.2024
The Court dismissed the application.
The Court ordered that the appellants have liberty to apply for disqualification once they are notified of the coram’s composition.
Ex tempore ruling delivered by Bleby JA on 11 October 2024.
The appellants are to pay the respondent’s costs on the standard basis.
Yes
6
9.10.2024
The appellants sought orders regarding the inclusion of certain documents in the appeal books.
14.10.2024
The Court remarked that the appellants will have an opportunity to review the Appeal Books and that, once they have that opportunity, the Court will make directions concerning acceptance for filing.
Ex tempore ruling delivered by Bleby JA on 11 October 2024.
N/A
No
7
9.10.2024
The appellants sought discovery of transcripts and judgment.
14.10.2024
The Court dismissed the application.
Ex tempore ruling delivered by Bleby JA on 11 October 2024.
The appellants are to pay the respondent’s costs on the standard basis.
No
8
9.10.2024
The appellants sought permission to reply to the oral submissions of “QC Evans” in action SCCIV-04-418.
14.10.2024
The Court dismissed the application.
Ex tempore ruling delivered by Bleby JA on 11 October 2024.
The appellants are to pay the respondent’s costs on the standard basis.
No
9
10.10.2024
The appellants sought reasons explaining why the appellant’s “breach of contract claim was heard against [the Director of Education] … at trial and then against the Minister for Education on Appeal”.
14.10.2024
The Court dismissed the application.
Ex tempore ruling delivered by Bleby JA on 11 October 2024.
The appellants are to pay the respondent’s costs on the standard basis.
Yes
10
4.12.2024
The appellants sought an order regarding including certain documents in the core appeal book.
5.12.2024
The matter was referred to the appeal hearing.
N/A
No
11
4.12.2024
The appellants sought an order regarding including certain documents in the core appeal book.
5.12.2024
The matter was referred to the appeal hearing.
N/A
No
12
9.12.2024
The appellants filed an application seeking the disqualification of the coram for the appeal hearing.
13.12.2024
The Court dismissed the application to disqualify the coram.
McDonald & Anor v Attorney-General (SA) (No 2) [2024] SASCA 144.
Question of costs of the application reserved to the Court of Appeal
No
13
16.12.2024
The appellants sought an order regarding including certain documents in the core appeal book.
17.12.2024
The matter was referred to the appeal hearing.
N/A
No
14
16.12.2024
The appellants sought an order regarding including certain documents in the core appeal or supplementary appeal book.
17.12.2024
The matter was referred to the appeal hearing.
N/A
No
15
18.12.2024
The appellants sought an order regarding including certain documents in the core appeal book.
20.12.2024
The matter was referred to the appeal hearing.
N/A
No
16
19.12.2024
The appellants sought an order that the core appeal book collated by the appellant is placed on the Court file in this matter.
20.12.2024
The matter was referred to the appeal hearing.
N/A
No
17
24.12.2024
The appellants filed a second application seeking the disqualification of the coram for the appeal hearing.
9.01.2025
The Court dismissed the second application to disqualify the coram.
McDonald & Anor v Attorney-General (SA) (No 2) [2025] SASCA 1.
The Court observed that the second application repeated the earlier application to disqualify the coram.
Question of costs of the application reserved to the Court of Appeal
Yes
2
45
0