McDonald v Minister for Education - [2013] SASC 101

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
MCDONALD v MINISTER FOR EDUCATION & ORS
[2013] SASC 101
Judgment of The Honourable Justice Gray
27 June 2013
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - IN GENERAL AND PRELIMINARY MATTERS
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - OTHER CASES
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS - GENERALLY
The Registrar referred three sets of documents to a Judge pursuant to rule 53 of the Supreme Court Civil Rules 2006 (SA) - the first document was a proposed notice of appeal from a decision of a Judge to direct the Registrar to reject a summons and statement of claim as an abuse of process pursuant to rule 53 - the second and third sets of documents related to proposed proceedings that were substantively identical to the proposed proceedings the subject of the first document - whether the documents should be rejected as an abuse of the process of the Court.
Held: Registrar directed to reject documents as an abuse of process - a direction of a Judge under rule 53 is an administrative act from which there is no right of appeal - the second and third sets of documents related to proposed proceedings that were substantively identical to the proposed proceedings the subject of the first set of documents - the documents were an abuse of process.
Supreme Court Civil Rules 2006 (SA) r 53, referred to.
State of South Australia v McDonald (2009) 104 SASR 344; Westwill Pty Ltd v Byrt [2010] SASC 99, considered.

MCDONALD v MINISTER FOR EDUCATION & ORS
[2013] SASC 101
Civil
GRAY J.

Francis Thomas McDonald has sought to file three sets of documents in the Registry of the Supreme Court. On 15 April 2013, the Registrar, pursuant to rule 53(2) of the Supreme Court Civil Rules 2006 (SA), referred those three sets of documents to me seeking directions as to whether the documents should be accepted.
The documents relate to a proposed appeal, a proposed proceeding against the Minister for Education, and a proposed action against the Minister for Education, Kevin Boaden, Nancy Schupelius, Maureen Cochram, Peter Mitchell, Sue Hyde, Don Mackie and Chris Brown.
In his referral, the Registrar has advised that the documents appear to him to be yet another attempt to re-litigate matters concluded against Mr McDonald by the decision of the Full Court in State of South Australia v McDonald.[1] In that proceeding, although Mr McDonald had initially succeeded following a lengthy trial in this Court, the Full Court allowed an appeal by the State and dismissed Mr McDonald’s claim. The High Court refused to grant special leave to Mr McDonald to appeal against that decision. As a result, those proceedings have been finalised.
[1] State of South Australia v McDonald (2009) 104 SASR 344.
Rule 53
Rule 53 of the Supreme Court Civil Rules provides a power to reject documents submitted to the Registry for filing. That rule provides:
(1)A document is an abuse of the process of the Court if it contains matter that is scandalous, frivolous or vexatious.
(2)If it appears to the Registrar that a document submitted for filing is an abuse of the process of the Court, the Registrar must refer the matter to a Judge or Master.
(3) If the Judge or Master so directs, the Registrar will reject the document.
(4)If it appears to the Court that a document that is an abuse of the process of the Court has been filed in the Court, the Court may direct that it be struck from the file.
One purpose of the rule is to ensure that the resources of the Court are not exhausted by pointless and misconceived litigation, and that, in the interests of justice, defendants are not put through the expense and stress of such litigation.
In Westwill Pty Ltd v Byrt, I considered rule 53 and made the following observations regarding its operation:[2]
Rule 53(1) as extracted, provides that a document is an abuse of the process of the Court if it contains matter that is scandalous, frivolous or vexatious. It is apparent from the terms of Rule 53 that the Rule does not operate to limit what may amount to an abuse of the process of the Court. The terms “scandalous, frivolous or vexatious” in this context should be given a wide meaning. It is to be observed that Masters of this Court will generally direct the Registrar to reject a document where pleadings do not disclose an intelligible cause of action, or no intelligible grounds for appeal. Such documents fall within the wide meaning referred to above.
If the Registrar forms the opinion that the document is an abuse of process of the Court, the Registrar must refer the matter to a Judge or Master. The formation of this state of mind is an essential pre-condition to the referral. When this state of mind is reached, the Registrar must refer the matter for consideration. The general practice in this Court is that the referral under Rule 53(2) is to a Master. The present referral is before me, as the Notice of Appeal purports to appeal to the Full Court.
...
Rule 53 is, in part, a reflection of the need for courts to protect their resources, while dealing with cases justly. This objective is thwarted and the process of the court abused if litigants bombard the court with hopeless applications. While a court is occupied dealing with matters devoid of merit, meritorious claims are left wanting access to the courts. On the other hand, a fundamental rule of law is that all persons have access to courts. Regardless, general interests of justice and the public interest combine, to require that there be procedures for ensuring that a court can prevent the institution of frivolous or vexatious proceedings, in the sense that those proceedings cannot succeed. It is however a power which should be exercised with care.
[Footnotes omitted.]
[2] Westwill Pty Ltd v Byrt [2010] SASC 99, [5]-[6], [13].
Proposed Notice of Appeal
In January 2013, Mr McDonald sought to commence a further action in this Court, and attempted to file a purported summons and statement of claim. The Registrar sought directions from Stanley J as to whether the documents should be rejected. Stanley J reviewed the material and concluded that he was satisfied that he should direct the Registrar to reject the documents. His Honour provided written reasons for his direction, which included the following:
I am satisfied I should direct the Registrar to reject the documents for a number of reasons.
The statement of claim is a lengthy document that recites a series of events from 1995 through to 2004 during the plaintiff’s employment as a teacher with the Department of Education and Children’s Services (DECS).
There are multiple proposed defendants, including several public servants who were employed with DECS at the relevant times. The proposed defendants are the Minister for Education, the State of South Australia, Kevin Boaden, Nancy Schupelius, Maureen Cochram, Peter Mitchell, Sue Hyde, Don Mackie and Chris Brown.
Insofar as I can make sense of the pleading, Mr McDonald alleges that, by reason of the breaches of statutory non-delegable duty by the State of South Australia and acts or omissions constituting negligence on the part of the defendants, he suffered personal injury.
The personal injury allegedly suffered by Mr McDonald is alleged to have arisen out of, or occurred in the course of, his employment with DECS.
The document makes claims against various individuals who, at the relevant times, held various roles within DECS and other government agencies and alleges without particularity contraventions of the Civil Liability Act 1936 (SA), the Wrongs Act 1936 (SA), the Public Sector Management Act 1995 (SA), the Fair Trading Act 1987 (SA), the Trade Practices Act 1974 (Cth), the Equal Opportunity Act 1984 (SA), the Occupational Health, Safety and Welfare Act 1986 (SA) (sic), the Workers Rehabilitation and Compensation Act 1986 (SA) (sic), the Fair Work Act 1994 (SA) and the Teacher’s Award 1998.
It is alleged that the Minister for Education, as employer of education officers, is vicariously liable for the breaches of statutory duties of its employees under section 74 of the Public Sector Management Act 1995 (SA). These employees are also named as defendants in the proposed action as mentioned above. The allegations made against the public servants are prolix and difficult to follow. It would be extremely difficult for the defendants to understand the case pleaded against them and to plead their defence. The pleading is in breach of the Rules which require any pleading to be as brief as the nature of the case allows.
The proceedings sought to be instituted follow a six-week trial and appeal in this Court, an unsuccessful application for special leave to the High Court, an action in the Federal Court which also resulted in an appeal to the Full Federal Court, and an unsuccessful application for special leave to the High Court. In those proceedings, many, if not most, of the allegations sought to be ventilated in the statement of claim, if not the precise causes of action, have already been litigated.
I am satisfied that the proceedings sought to be instituted constitute an abuse of the Court’s process. I do so for reasons similar to those relied upon by Besanko J of the Federal Court in dismissing Mr McDonald’s claim as an abuse of process, and for the reasons previously given by me in relation to earlier documents sought to be filed by Mr McDonald and the subject of a 6SCR 53 referral dated 14 June 2012.
There are three further issues regarding the document. First, the allegations concern events over a nine year period ending in 2004 yet no extension of time in which to file proceedings in this Court has been sought. Second, any claim in respect of personal injury is statute barred pursuant to s 54 of the Worker’s Rehabilitation and Compensation Act 1986 (SA). Third, insofar as I can make sense of the pleadings, it appears that the rest of the causes of action are likely to have vested in Mr McDonald’s trustee in bankruptcy.
Mr McDonald then sought to file a purported appeal from the decision of Stanley J. The Registrar sought directions from Sulan J as to whether the notice of appeal should be rejected. His Honour concluded that there was no right of appeal. In so concluding his Honour reasoned:[3]
The Registrar acted administratively in rejecting for filing the Summons and Statement of Claim. In giving a direction to the Registrar, Stanley J was doing no more than acting in aid of an administrative function of the Registrar and of the Court. The direction given by Stanley J to the Registrar to reject the summons and statement of claim is an administrative act. I conclude that there is, therefore, no appeal from Stanley J’s decision. I direct that the notice of appeal is incompetent and the document should be rejected.
For completeness, I have considered the document. The grounds of appeal, insofar as I am able to understand them, do not address the determination from which Mr McDonald seeks to appeal. The orders sought include a request to set aside the judgment of Anderson J, which has been the subject of an appeal to the Full Court and an application for leave to appeal to the High Court. The grounds of appeal are a series of allegations which do not address the subject matter of the direction. The document does not comply with the requirements of the Court for notices of appeal. The Notice of Appeal is an abuse of the process of the Court.
[3] McDonald v State of South Australia [2013] SASC 31, [7]-[8].
In March 2013, Mr McDonald sought to file an appeal against the decision of Sulan J. The notice of appeal does not identify any suggested error on the part of Sulan J. The notice asserts factual matters under the heading “the Plaintiff Appeals the decision of Judge Stanley on the following grounds”. There is no identification of any ground of appeal in respect of the decision of Stanley J.
I consider that the notice insofar as it seeks to appeal against the decision of Sulan J is an abuse of process. No grounds are provided to support the notice. Mr McDonald appears to ignore the ruling of Sulan J that he has no right of appeal. Insofar as the document purports to complain about the decision of Stanley J, it is incomprehensible and an abuse.
I agree with the observations of Sulan J. The decision of the Registrar was an administrative decision and the direction of Stanley J was also an administrative decision. Accordingly, I would direct the Registrar to reject the purported notice of appeal.
Proposed Proceeding Against the Minister for Education
Mr McDonald has sought to file a purported summons dated 22 March 2013 relating to a proposed proceeding against the Minister for Education. Accompanying the summons is what is described as an “exhibit index”, which refers to psychiatric reports and medical reports, a document described as a “further amended statement of claim” dated 21 June 2007, and a document described as “further amended notice of cross-appeal”. The summons was also accompanied by an interlocutory application requesting an extension of time to present a personal injury claim against the Minister. Mr McDonald has also sought to file two affidavits, sworn on 8 April 2013 and 15 April 2013. The later of these affidavits was accompanied by three documents described as exhibits.
This proposed proceeding is, in substance, an attempt to raise the same matters as addressed by Stanley J. The proceeding appears to involve the same subject matter as is addressed in the proposed action against the Minister and others dated 2 April 2013 discussed below. The proposed proceeding appears to be an attempt to raise the same issues. I consider the proposed proceeding to be an abuse of process.
Proposed Action Against the Minister for Education, Boaden, Schupelius, Cochram, Mitchell, Hyde, Mackie and Brown
Mr McDonald has also sought to file a proposed summons and statement of claim against the Minister for Education and other named alleged tortfeasors, dated 2 April 2013. The summons makes reference to details of the claim and orders sought as being attached. With respect to this proposed action, Mr McDonald has also sought to file an affidavit sworn on 22 April 2013, accompanied by a book of purported exhibits, and another affidavit sworn on 13 June 2013.
The statement of claim is, in substance, in the same form as the statement of claim considered by Stanley J. In my view, the attempt to file the summons and statement of claim is an abuse of process. It is an attempt to proceed ignoring the order of Stanley J. The statement of claim suffers from all of the problems identified by Stanley J. The documents accompanying the summons, being described as an “exhibit index” and as a further amended notice of cross-appeal, should also be rejected as an abuse of process of the Court.
Conclusion
Pursuant to rule 53 of the Supreme Court Civil Rules, I direct the Registrar to reject the earlier referred to three sets of documents.