McDonald v Attorney-General (SA) (No 4)

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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…

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Details
Case
[2025] SASCA 43
Decision Date

CaseChat Overview and Summary

The Full Court of the Supreme Court of South Australia heard an appeal by the appellants against a declaration made by a single judge that they were vexatious litigants. The appellants sought to re-litigate issues and proceedings that had already been decided, based on their belief that those decisions were wrong and unjust. The Attorney-General for South Australia applied for and obtained orders declaring the appellants vexatious litigants, thereby restricting their ability to commence or continue legal proceedings without leave.

The central legal issues before the Full Court were whether the appellants' conduct amounted to vexatious litigation, and consequently, whether the declaration made by the primary judge was appropriate. This involved considering the appellants' history of litigation, their persistent attempts to reopen concluded matters, and whether their actions were an abuse of process, contrary to the fundamental principle of finality in legal disputes. The court also had to determine if the specific proceedings relied upon by the Attorney-General demonstrated a pattern of vexatious conduct.

The Full Court affirmed the principle of finality in litigation, emphasizing that once controversies are resolved, they are not to be reopened except in narrowly defined circumstances, such as through the appellate system or in cases of fraud. The court noted that doctrines like *res judicata* and issue estoppel prevent parties from raising issues that have already been finally decided. The appellants' determination to re-litigate past decisions, despite the finality of those judgments and the absence of any recognised grounds for reopening them, was found to constitute vexatious litigation. The court applied these principles to the extensive history of proceedings initiated by the appellants, concluding that their conduct demonstrated an abuse of process and a disregard for the finality of judicial decisions.

The Full Court dismissed the appeal and affirmed the orders made by the primary judge, upholding the declaration that the appellants were vexatious litigants.

Orders

Orders of the court

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Background

Background to the litigation

These reasons are set out as follows:Relevant backgroundVexatious litigant applicationsObservations regarding the appealThe reasons of the primary judgeThe 25 particular proceedings and associated litigationConclusions regarding the particular proceedingsThe appellants’ notice of appealOther matters – interlocutory applications on appealLeave to appealThe determination of the appealConclusionAnnexure 1 – Proceedings relied on by the Attorney-GeneralAnnexure 2 – Interlocutory Applications on AppealRelevant 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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