McDonald v Registrar of the Supreme Court of South Australia
[2021] SASC 57
•19 May 2021
SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
MCDONALD v REGISTRAR OF THE SUPREME COURT OF SOUTH AUSTRALIA
[2021] SASC 57
Judgment of the Honourable Justice Blue
19 May 2021
PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - OTHER MATTERS - REGISTRARS AND OTHER OFFICERS
PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS - REFERENCE AND REMOVAL OF PROCEEDINGS AND APPEAL AND REVIEW WITHIN COURT - DECISIONS OF REGISTRAR
Review of administrative decision by the Registrar to reject a Notice of Appeal lodged by Mr McDonald purporting to appeal against reasons for judgment on the ground that the proposed Notice of Appeal is frivolous, vexatious, scandalous or an abuse of the process of the Court.
On 21 May 2008 Anderson J delivered reasons for judgment in McDonald v State of South Australia [2008] SASC 134 concluding that the State of South Australia had breached its contract of employment with Mr McDonald, causing loss and damage assessed at $392,850.
On 23 June 2008 judgment was entered in favour of Mr McDonald against the State for damages of $369,100 with effect on 21 May 2008.
The State appealed against that judgment. Mr McDonald filed a cross-appeal.
On 30 July 2009 the Full Court delivered reasons for judgment in State of South Australia v McDonald [2009] SASC 219. It concluded that the State’s appeal should be allowed and Mr McDonald’s cross-appeal should be dismissed.
On 14 August 2009 judgment was entered by the Full Court, allowing the State’s appeal, setting aside the original judgment, substituting judgment dismissing Mr McDonald’s claim and dismissing Mr McDonald’s cross-appeal.
Held (dismissing the review):
1.Although subrule 13.4(2) of the Uniform Civil Rules 2020 provides that an application for review under rule 13.4 must be made by filing an interlocutory application and supporting affidavit, an interlocutory application is not apposite when a document rejected by the Registrar is an originating process. Direction given to the Registrar to accept the Notice of Review subject to removing Rhoda McDonald as a co-appellant and substituting the Registrar for the Deputy Registrar as respondent (at [17]).
2.The purported appeal the subject of the proposed Notice of Appeal would be incompetent because it is against Anderson J’s reasons for judgment rather than against the original judgment; section 50 of the Supreme Court Act 1935 contains no provision for a second or subsequent appeal against a judgment (Mr McDonald’s cross-appeal having been dismissed in 2009); and, having been set aside by the Full Court in 2009, the original judgment no longer exists and hence there could be no subject matter of an appeal against it (at [19]-[22]).
3.It follows that the proposed Notice of Appeal is frivolous, vexatious and an abuse of the process of the Court and the Registrar’s decision to reject it was correct (at [23]).
4.Application for review dismissed (at [25]).
Supreme Court Act 1935 (SA) s 50; Criminal Procedure Act 1921 (SA) s 159, referred to.
McDonald v State of South Australia [2008] SASC 134; State of South Australia v McDonald [2009] SASC 219, considered.
MCDONALD v REGISTRAR OF THE SUPREME COURT OF SOUTH AUSTRALIA
[2021] SASC 57
CIVIL: Review of Registrar’s Administrative Decision
BLUE J: On 8 April 2021 a Deputy Registrar rejected, pursuant to rule 32.3 of the Uniform Civil Rules 2020 (SA) (the Rules), a Notice of Appeal (the proposed Notice of Appeal) lodged by Francis McDonald purporting to appeal against reasons for judgment delivered by Anderson J dated 21 May 2008 in action 418 of 2004 (the action). The rejection was on the ground that the proposed Notice of Appeal is frivolous, vexatious, scandalous or an abuse of the process of the Court.
Mr McDonald lodged for filing a Notice of Review pursuant to rule 13.4 of the Rules in respect of the rejection decision. Mr McDonald showed himself and Rhoda McDonald as appellants notwithstanding that Rhoda is not named as an appellant in the proposed Notice of Appeal. Mr McDonald showed the respondent as the Deputy Registrar.
Background
On 21 May 2008 Anderson J delivered reasons for judgment in the action in McDonald v State of South Australia.[1] In his reasons for judgment, Anderson J said that Mr McDonald had been employed as a teacher by the State Department of Education and Children’s Services off and on between 1988 and 2003. Anderson J said that Mr McDonald’s claim was against the State of South Australia (the State) for damages for breach of contract. Anderson J concluded that the State had breached the contract of employment causing Mr McDonald to suffer loss and damage, and assessed damages at $392,850.
[1] [2008] SASC 134.
On 23 June 2008 judgment was entered in favour of Mr McDonald against the State for damages of $369,100 with effect on 21 May 2008 (the original judgment).
The State appealed against the original judgment. On 4 August 2008 Mr McDonald filed a cross-appeal against the original judgment, raising numerous grounds of appeal. On 22 December 2008 Mr McDonald filed a further amended cross-appeal against the original judgment.
On 30 July 2009 the Full Court delivered reasons for judgment on the appeals in State of South Australia v McDonald.[2] It concluded that the State’s appeal should be allowed and a judgment of dismissal should be substituted for the original judgment in favour of Mr McDonald and that Mr McDonald’s cross-appeal should be dismissed.
[2] [2009] SASC 219.
On 14 August 2009 judgment was entered by the Full Court, allowing the State’s appeal, setting aside the original judgment, substituting judgment dismissing Mr McDonald’s claim for damages against the State and dismissing Mr McDonald’s cross-appeal with effect on 30 July 2009 (the appellate judgment).
Provisions of the Act and Rules
Subsection 50(1) of the Supreme Court Act 1935 (SA) (the Act) provides:
50—Appeals
(1) Subject to this section—
(a) an appeal lies to the Court of Appeal against a judgment of the court constituted of a single judge; and
(b) an appeal lies against a judgment of the court constituted of a master.
Rule 214.1 of the Rules provides:
214.1—Time to appeal or review
(1) Subject to any statute or rule to the contrary, an appeal must be instituted within 21 days after the date of the judgment or order the subject of the appeal.
(2)If leave to appeal is sought under rule 213.3, an appeal must be instituted within the later of—
(a) 21 days after the making of the judgment, order or decision subject of the appeal; or
(b) 7 days after the grant or refusal of leave (as the case may be).
(3)If an extension of time to appeal is required, the appeal must be instituted in the ordinary way in accordance with 214.2 and the notice of appeal must seek the necessary extension of time.
(4)The Court may order that the question of an extension of time to appeal be heard before the hearing of the appeal.
(5)Unless an order is made under subrule (4), the application for an extension of time to appeal and the appeal will be heard at the same time.
Rule 281 of the Supreme Court Civil Rules 2006 (SA) (the Former Rules) formerly provided:
281—Time for appeal
(1)Subject to any statute or rule to the contrary, an appeal must be commenced within 21 calendar days after the date of the judgment, order or decision subject to the appeal.
Note—
See in particular, rules 289, 291 and 292 to the contrary.
(2)If, however, an appeal requires permission and an application or for permission to appeal is made under rule 289(1)(b) and is granted, the appeal must be commenced within 7 business days after the appellant obtains permission to appeal.
Rule 32.3 of the Rules provides:
32.3—Rejection of document for filing
(1)The Registrar may reject a document lodged for filing if—
(a) it does not substantially comply with the requirements contained under rule 31.2 or in rule 31.3;
(b) it otherwise does not substantially comply with these Rules;
(c) it is frivolous, vexatious, scandalous or an abuse of the process of the Court;
(d) the person lodging it has been declared a vexatious litigant under section 39 of the Supreme Court Act 1935, if filed it would institute a proceeding within the meaning of that section and leave has not been obtained to do so;
(e) the Court directs the Registrar not to accept it; or
(f) the Court directed the Registrar not to accept any document from the person lodging it without the prior leave of the Court and such leave has not been obtained.
Rule 13.4 of the Rules provides:
13.4—Review of exercise of function by Registrar
(1)The Court may, on application by a person having an interest in the exercise or on its own motion, review an exercise of administrative power by the Registrar and may make such orders as it thinks fit with respect to the matter in relation to which the power was exercised.
(2)An application for review must be made as soon as practicable, and in any event within 7 days, after the exercise of power the subject of the application by filing an interlocutory application and supporting affidavit in accordance with rule 102.1.
Notes—
An exercise, either at first instance by the Registrar or by a Magistrate or Master on review under this rule, of administrative power (as opposed to judicial power) is not subject to appeal.
An appeal against an exercise by a Registrar of the Court’s jurisdiction under Chapter 2 Part 1 (relating to the taxation of costs or enforcement of judgments) is governed by Chapter 18 Part 6 and not by this rule.
(3)An application for review under subrule (2) may not be made if the exercise of administrative power by the Registrar was pursuant to a direction by the Court under rule 13.3.
(4)Unless the Court otherwise orders and subject to subrule (5), an application for review under subrule (2) will be listed for hearing before—
(a) a Magistrate in the Magistrates Court;
(b) a Master in the District Court;
(c) a Master in the Supreme Court.
(5)A review may be determined without a hearing if the judicial officer conducting the review thinks fit.
Procedure for review of Registrar’s decision
Subrule 13.4(2) of the Rules provides that an application for review under rule 13.4 must be made by filing an interlocutory application and supporting affidavit. However, an interlocutory application is not apposite when a document rejected by the Registrar is an originating process, such as a claim, originating application or (as in the present case) notice of appeal, in which event there is no proceeding in which an interlocutory application can be filed. In these circumstances, an appropriate alternative form of procedure is to utilise a notice of review, which is what Mr McDonald did.
Rule 12.1(3) of the Rules empowers the Court to give directions about the procedure to be followed, amongst other things, when the Rules do not fully address a procedural matter or to resolve uncertainty about the correct procedure to be adopted, including commencing a proceeding or appellate proceeding. Given the situation referred to in the previous paragraph, I determined that it was appropriate to exercise that power and direct that the review by Mr McDonald under rule 13.4 be initiated by a notice of review in terms of the Notice of Review subject to two changes.
Mr McDonald was the sole plaintiff in the action and is the sole appellant named in the proposed Notice of Appeal. However, Mr McDonald included Rhoda McDonald as a co-appellant in the Notice of Review. As a condition of exercising the power under rule 12.1(3) of the Rules to direct that the review by Mr McDonald under rule 13.4 be initiated by a notice of review, I determined to direct that the name of Rhoda McDonald be removed as a party in the Notice of Review. I would in any event have exercised the power conferred by rule 22.3 to order the removal of Rhoda McDonald if she had been included as a party in the Notice of Review and it had been accepted for filing.
The Notice of Review shows the respondent as the Deputy Registrar of the Court. The power to reject a document for filing under rule 32.3 of the Rules is vested in the Registrar. The Registrar is entitled under rule 13.2(3) to delegate an administrative function to another officer of the Court and the Registrar has delegated, amongst others, the function of accepting or rejecting documents for filing to the Deputy Registrar. However, when the function is performed by a delegate, it is nevertheless performed by and in the name of the Registrar. Accordingly, I determined to direct that the name of the respondent to the review be altered to the Registrar. I would in any event have exercised the power conferred by rule 22.4 to correct the name of the respondent if the Deputy Registrar had been included as a party in the Notice of Review and it had been accepted for filing.
Accordingly, I gave the following direction to the Registrar:
1.The name of Rhoda McDonald be removed as a co-appellant shown in the Notice of Review lodged for filing on 11 April 2021.
2.The name of the respondent shown in the Notice of Review lodged for filing on 11 April 2021 be corrected from “Deputy Registrar Todd Wierenga” to “The Registrar of the Supreme Court of South Australia”.
3.Subject to those alterations, the Notice of Review lodged for filing on 11 April 2021 be accepted for filing.
Pursuant to that direction and subject to those alterations, the proposed Notice of Review has been accepted for filing.
The merits of the Registrar’s decision
The purported appeal the subject of the proposed Notice of Appeal would be incompetent, and the proposed Notice of Appeal is fundamentally misconceived, for three related reasons.
First, the purported appeal is against Anderson J’s reasons for judgment rather than against the original judgment. An appeal lies under section 50 of the Act against a “judgment of the court”. A judgment is an operative order by the Court. It stands in stark contrast with reasons for judgment which are given by a Judge to explain why the Judge has decided to make a given order. In the present case, the appeal purports to be against Anderson J’s reasons for judgment dated 21 May 2008. If any appeal now lies, it would lie against the original judgment dated 23 June 2008. However, the purported appeal is not against the original judgment and the proposed Notice of Appeal does not mention the original judgment.
Secondly, section 50 of the Act contains no provision for a second or subsequent appeal against a judgment. In this respect, it stands in contrast with section 159 of the Criminal Procedure Act 1921 (SA), subsection (1) of which provides that the Court of Appeal may hear a second or subsequent appeal against conviction by a person convicted on information if the Court is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal. Section 159 applies only to appeals against conviction and has no application to civil appeals. Section 50 of the Act provides for only a single appeal. Mr McDonald appealed in 2008 against the original judgment and that appeal was dismissed by the Full Court. A cross-appeal is a species of appeal for the purposes of section 50 and other purposes. A purported second appeal, even if expressed to be against the original judgment (and not against Anderson J’s reasons for judgment) would be incompetent.
Thirdly, the original judgment was set aside by the Full Court in 2009 and the Full Court substituted an order dismissing the action. Even if Mr McDonald had not already appealed against the original judgment and now sought to appeal for the first time against the original judgment (rather than against Anderson J’s reasons for judgment), the original judgment no longer exists and hence there could be no subject matter of an appeal against the judgment of Anderson J.
It follows that the Registrar’s decision, by her delegate the Deputy Registrar, was correct. Because the purported appeal would be incompetent and the proposed Notice of Appeal is fundamentally misconceived, the proposed Notice of Appeal is frivolous, vexatious and an abuse of the process of the Court.
Although (unlike the above fundamental misconceptions) this might be remedied, in addition an appeal against a judgment in 2008 would be out of time by more than 12 years. The purported Notice of Appeal does not contain any application for an extension of time to appeal or any grounds for such an extension. In the absence of such an application, any appeal (if otherwise competent) would be incompetent.
Conclusion
I dismiss Mr McDonald’s application for review of the Registrar’s decision to reject the purported Notice of Appeal.
2
1