McDonald v South Australia

[2013] SASC 31

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

MCDONALD v STATE OF SOUTH AUSTRALIA

[2013] SASC 31

Reasons for Decision of The Honourable Justice Sulan

8 March 2013

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS - LEAVE TO APPEAL

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - OTHER MATTERS ARISING BEFORE TRIAL

Pursuant to Rule 53 of the Supreme Court Civil Rules 2006, the Registrar referred a statement of claim to a Judge - the Judge directed the Registrar to reject the document - the plaintiff sought to file a notice of appeal from that decision.

Held:  a direction by a Judge to the Registrar pursuant to Rule 53 is an administrative act - there is therefore no appeal from that direction - the notice of appeal is incompetent and should be rejected.

Supreme Court Civil Rules 2006 (SA) r 53; Workers Rehabiltiation and Compensation Act 1986 (SA) s 54; Federal Court Rules 1979 (Cth) r O 46, r 7A, referred to.
Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99; Staats v United States of America (1992) 66 ALJR 793; Bizuneh v Minister for Immigration and Multicultural Affairs (2003) 128 FCR 353; Moore-McQuillan v Workcover [2010] SASC 162; Andrew Garrett Wines Reserts Pty Ltd & Anor v National Australia Bank Ltd & Ors [2007] SASC 89, considered.

MCDONALD v STATE OF SOUTH AUSTRALIA
[2013] SASC 31

Civil

1. SULAN J: Francis Thomas McDonald has attempted to file a Notice of Appeal in the Registry of the Supreme Court.  The Registrar of the Court has referred the document to me pursuant to r 53 of the Supreme Court Civil Rules 2006 (SA).  The Registrar has sought directions as to whether the Notice of Appeal should be rejected. 

2. The matter has a long history.  It commenced with a long trial in this Court, followed by an appeal and an unsuccessful application by Mr McDonald for special leave to the High Court.  There was also an action in the Federal Court which resulted in an appeal to the Full Federal Court, both of which were unsuccessful, and a further unsuccessful application by Mr McDonald for special leave to the High Court.

3. Mr McDonald then sought to commence a further action in this Court. He sought to file a Statement of Claim, dated 7 January 2013. That document was referred by the Registrar to Stanley J. Stanley J concluded that the proceedings sought to be instituted constituted an abuse of the Court’s process. He also concluded that, as the allegations in the Statement of Claim concern events dating from 1995 to 2004, the action was out of time, unless the Court granted an extension of time. Further, the claim was statute barred, pursuant to s 54 of the Workers Rehabilitation and Compensation Act 1986 (SA). Insofar as he could understand the pleadings, he concluded that the causes of action are likely to have vested in Mr McDonald’s trustee in bankruptcy. Pursuant to Supreme Court r 53, Stanley J directed the Registrar to reject the document. Mr McDonald now seeks to file a notice of appeal from that decision.

4. Rule 53 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.

5. In Westwill Pty Ltd & Ors v Byrt & Ors[1] Gray J observed  that the purpose of r 53 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 to the expense and stress in such cases.[2] 

   [1] [2010] SASC 99.

   [2]    Staats v United States of America (1992) 66 ALJR 793.

6. Rule 53 is in similar terms to order 46, r 7A of the Federal Court Rules 1979.  The Full Court of the Federal Court considered the rule in Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs.  The Full Court observed:[3]

   The purpose of r 7A is to assist the Registrar to maintain efficient operation of a registry and, thereby, the Court.  Even without a rule in the terms of r 7A, it may be thought that it would be implied that a Registrar would have the power, or be under a duty, to protect Court procedures from abuse by refusing to accept a document for lodgement or filing which, on its face, would be an abuse of court process or frivolous or vexatious.

   No judicial act is carried out by the Registrar in so acting.  The Registrar continues to perform an administrative function, albeit that the act of the Registrar may bear upon the ultimate performance of judicial power.  Insofar as r 7A gives the Registrar a discretion to seek a direction from a judge as to performance of the Registrar’s duties, the direction sought is administrative in character.  It is a direction provided by a Judge to assist the Registrar in the task of administration and is not a determination of right made by a Judge after hearing or considering arguments or submissions upon an application to the Court seeking the exercise of judicial power.

   Rule 7A provides for a Judge to act in aid of administration of the Court.  There is no application to the Court by motion or otherwise and no requirement for a party to be heard.  It involves determination of administrative obligations with respect to documents presented to a Registrar having regard to the character of the documents on their face.  No order or decree intended to bind a party and no determination of right is made by a Judge where assistance is provided to a Registrar under r 7A.

   A direction pursuant to the rule either assures a Registrar that he, or she, would not breach a duty by refusing to accept or issue a document, or advises the Registrar that a document, rejection of which is being considered by the Registrar, should be accepted, the Judge being unable to form a view on the face of the document that the Registrar is entitled to reject it.  Further, the Registrar may be directed by the Judge to inform the party who has presented the document that the Registrar will not accept it until that party has obtained leave from a Judge to lodge or file the document.  An application to a Judge for such leave, pursuant to which submissions would be presented and considered, would be determined in the exercise of judicial power.

   It should be concluded, therefore, that a mere direction under O 46 r 7A is not a judgment able to be subjected to appeal by a person whose document has been rejected by the Registrar pursuant to the direction.  Similarly, a respondent against whom litigation is commenced by a document accepted and issued by a Registrar, acting under a direction of a Judge pursuant to r 7A, cannot subject that direction to an appeal.  If such a respondent contends that the originating document as filed involves an abuse of process or is frivolous or vexatious, the respondent may, by motion under O 20, r 2 of the Rules, seek a summary judicial determination that the proceeding be stayed or dismissed.

   The application must be dismissed as incompetent.

   [3] (2003) 128 FCR 353, [15]-[20].

7. 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.[4]  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.

   [4]    Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99; Moore-McQuillan v Workcover [2010] SASC 162, [9]; Andrew Garrett Wines Resorts Pty Ltd & Anor v National Australia Bank Ltd & Ors [2007] SASC 89, [32].

8. 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. 

9. I direct the Registrar to reject the document.  I direct the Registrar to make these reasons available to Mr McDonald.