McDonald v State of SA - [2014] SASC 120

SUPREME COURT OF SOUTH AUSTRALIA
(Appeals to a Single Judge: Permission to Appeal)
MCDONALD v STATE OF SA
[2014] SASC 120
Judgment of The Honourable Justice Bampton
27 August 2014
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - OTHER MATTERS ARISING BEFORE TRIAL
Application for an extension of time to request permission to appeal an interlocutory decision of a District Court Judge – District Court Judge heard appeal from decision of a District Court Master refusing permission to change name of defendant from State of South Australia to Minister for Education – District Court Judge dismissed appeal and upheld Master’s decision.
HELD: Extension of time refused as there is no merit to the proposed appeal – application dismissed.
Supreme Court Civil Rules 2006 (SA) r 280(1)(b), r 288(a)(ii), r 295(1)(a); Crown Proceedings Act 1992 (SA) s 4, s 5; Public Sector Act 2009 (SA) s 74; District Court Act 1991 (SA) s 43(2)(a), 43(2)(b), referred to.
Money Tree Management Services Pty Ltd & Anor v Deputy Commissioner of Taxation (No 3) [2000] SASC 286; Grey v City of Marion (2006) 159 A Crim R 357; Landmark Operations Ltd v J Tiver Nominees Pty Ltd [2009] SASC 185; The State of South Australia v McDonald (2009) 104 SASR 344; Director-General of Education v Suttling (1987) 162 CLR 427, considered.

MCDONALD v STATE OF SA
[2014] SASC 120
Appeal to a single Judge
BAMPTON J.

The plaintiffs seek to appeal an order of a District Court Judge dismissing their appeal from a decision of a District Court Master. The Master dismissed the plaintiffs’ application to change the name of the defendant from the State of South Australia to the Minister for Education.
By s 43(2)(a) of the District Court Act 1991 (SA), the appeal against the Master’s decision lay to a Judge of the District Court. On 22 May 2013, the District Court Judge heard and dismissed the appeal.
The notice of appeal (FDN 20) seeking to appeal the order of the District Court Judge was filed on 10 April 2014 pursuant to 6R 280(1)(b) of the Supreme Court Civil Rules 2006 (SA). As the District Court Judge’s order is an interlocutory order, pursuant to s 43(2)(b) of the District Court Act, the plaintiffs’ appeal against the order lies to a single Judge of this Court. Rule 288(a)(ii) of the Supreme Court Civil Rules provides that the plaintiffs may only pursue the appeal if the Court grants permission.
As FDN 20 was not filed within 21 days after the date of the District Court Judge’s order in accordance with 6R 281(1), the plaintiffs must obtain an extension of time pursuant to 6R 295(1)(a) to bring the application for permission to appeal.
Accordingly before the plaintiffs’ appeal can be heard they must first obtain an extension of time to bring the application for permission. If the extension of time is granted they will be entitled to request permission to appeal. Only if permission is granted will they be entitled to have their appeal heard.
There are four grounds of appeal identified in the plaintiffs’ outline of argument (FDN 33). Ground 1 is the ground to be considered in this application. This ground concerns the plaintiffs’ contention that they should be permitted to change the name of the defendant to the Minister for Education. Grounds 2, 3 and 4 are not matters that were determined by the District Court Judge. They will be referred to the Master managing the interlocutory proceedings for further consideration.
Mr McDonald and Brennan McDonald’s claim
Mr McDonald and his son Brennan are self-represented plaintiffs in the proceedings. Mr McDonald seeks to pursue a claim for damages for injuries he alleges he suffers arising out of his employment as a teacher employed by the Education Department. Brennan McDonald’s claim is for damages for injuries he alleges he suffered as a student in Education Department schools.
As Brennan McDonald is presently overseas I permitted Mr McDonald to speak on behalf of his son for the purposes of the hearing before me.
Interlocutory history
FDN 28 is a chronology of the protracted interlocutory history of the matter since its institution in the District Court in 2005.
The application for an extension of time
As is apparent from the chronology, on 7 November 2013, a District Court Master ordered that the proceedings be transferred to this Court. On 5 June 2014, a Supreme Court Master noted that FDN 20 sought to appeal an interlocutory decision of a District Court Judge and referred it to the Chamber List for consideration by a single Judge.
The plaintiffs have attempted to file numerous notices of appeal. FDN 20 is the only notice of appeal accepted by the Registry for filing.
Whether an extension of time should be granted involves, in particular, a consideration of the reason for the delay, the length of the delay, the prejudice to the defendant, a consideration of whether the making of the order was correct and whether the appeal has any prospects of success.[1]
[1] Money Tree Management Services Pty Ltd & Anor v Deputy Commissioner of Taxation (No 3) [2000] SASC 286; Grey v City of Marion (2006) 159 A Crim R 357.
I indicate that if the proposed appeal had merit or was arguable I would have granted an extension of time to request permission to appeal as the plaintiffs first attempted to file a notice of appeal eight days out of time on 20 June 2013. That notice was rejected as an abuse of process.
Does the proposed appeal have merit or is it arguable?
The proceedings were commenced against the Government of South Australia in 2005. The Crown Solicitor, acting on behalf of the State of South Australia, filed a notice of address for service in which the defendant was described as “the State of South Australia, misdescribed in the summons and statement of claim as the Government of South Australia”.
Mr McDonald relied on his very detailed and lengthy oral and written submissions in support of his contention that the Minister for Education is the proper defendant to the plaintiffs’ claim. He argued that his employer was not the State of South Australia rather the “body corporate and independent legal entity created under the Education Act 1972 known as the Minister for Education and Child Development was my employer”.
There is no basis to Mr McDonald’s submission that the Minister is not part of the Crown.
The District Court Judge correctly noted that the Crown Proceedings Act 1992 (SA) provides in s 5 “that proceedings including tortuous proceedings like those presently before the Court may be brought and conducted by or against the Crown in the same way as proceedings between subjects”. He noted that the Act, and its predecessors, was designed to overcome difficulties that previously existed in identifying and serving correct parties in relation to alleged causes of action against government departments, Ministers in that capacity and their employees. He further noted that the Act defines the Crown as “Minister, instrumentality or agency of the Crown” in s 4(1)(a) and, in s 4(2), further provides that the Act “extends not only to the Crown in right of the State but also (as far as the legislative power of the State admits) to the Crown in any other capacity…”.
In his text The Constitution of South Australia,[2] the Hon Bradley Selway noted “…that employees are not included within the definition” of s 4 as “it is unnecessary to do so, most Crown employees enjoy immunity from suit, with any liability being against the Crown”. For example, s 74 of the Public Sector Act 2009 (SA) provides that any liability of an individual public official is the liability of the Crown.
[2] Bradley Selway, The Constitution of South Australia (The Federation Press, 1997) 147 [11.3.1].
It is clear that Mr McDonald is of the view that by naming the Minister for Education as the defendant in the proceedings, that the Crown Solicitor will no longer be able to act and the Minister for Education will be personally answerable in the proceedings.
The Minister for Education, even if capable of suing and being sued in its own name as a corporate entity, is nevertheless also part of the Crown and, therefore, the State of South Australia. Again, as the Hon Bradley Selway noted in his book:[3]
Proceedings may be brought by or against the Crown in the name of “The State of South Australia”.[4] Where the proceedings are against the Crown itself they must be brought in the name of “the State of South Australia” … Where the proceedings are by or against an individual or a body corporate which otherwise falls within the definition of the Crown for the purposes of the Act, the proceedings can be brought in the name of that individual or body corporate or in the name of “the State of South Australia”. However, it should be noted that the Act applies to the proceedings whether or not they are taken in the name of “the State of South Australia”.
It should also be noted that “the State of South Australia” is a mere juristic entity. It cannot do anything and cannot be compelled to do anything. All pleadings should identify the person or body … which is sued in the name of the State of South Australia.
(Footnote in original)
[3] Bradley Selway, The Constitution of South Australia (The Federation Press, 1997) 150 [11.3.3].
[4] Crown Proceedings Act 1992 (SA) s 5(2).
The District Court Judge recognised that it is possible to name the

Minister as a defendant as the Minister is a body corporate. However, as noted by the Judge, there is no utility in changing the name of the defendant. As the District Court Master said in his orders on 18 March 2013:
6.1.There is no basis in the current pleadings including FDN 95 for any suggestion that the current defendant will not honour the personal liability (if any) of the persons referred to in the amended application and there is therefore no utility in acceding to the application.
It is to be noted that the plaintiffs sought to join not only the Minister for Education but six other named individuals in the District Court proceedings. The Master rejected the argument put by Mr McDonald that the validity of any judgment against the defendant will be suspect or unenforceable or void or invalid as the conduct complained of by the plaintiffs amounts to unlawful or serious or wilful misconduct. He also rejected the argument that the Crown Solicitor would not be entitled to represent the entities and persons sought to be joined. The Master noted that over the eight year history of the action and in answer to various versions of the statement of claim, the named defendant had never sought to plead or argue serious and wilful misconduct.
There is no pleading, affidavit or written submission filed by Mr McDonald in these proceedings that alleges anything other than conduct of persons including the Minister for Education in the administration of public schooling and the employment of teachers for that purpose. There has been no allegation of any person acting outside of their employment or in their personal capacity. As the defendant submitted, if Mr McDonald’s claim is based on breaches of the employment relationship and Brennan McDonald’s claim relates to the treatment he received as a student at a public school, then by their very nature the claims attract s 74 of the Public Sector Act.
Further, the Full Court in The State of South Australia v McDonald succinctly described Mr McDonald’s employment with the defendant as follows:[5]
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”.
[5] (2009) 104 SASR 344 at 348-349.
As submitted by the defendant, the Full Court’s decision with respect to Mr McDonald’s contract of employment is binding on him and on this Court. The Full Court’s findings make it clear that the contract is a combination of both statutory and regulatory enactments combined with relevant documents.
At no stage has the defendant sought an order in these proceedings that it be released from the proceedings on the ground that it is the wrong defendant. It did not complain it was the wrong defendant in action number 418 of 2004 before Anderson J or the Full Court.
The defendant has been the defendant to these proceedings for almost 10 years. A defendant would not endure being a party to proceedings so tortuous and protracted if it were not the correct defendant.
The District Court Master and Judge were correct; there is no utility in substituting for the State of South Australia either the Minister or anyone else. It is plainly open for the State of South Australia to be sued and remain as a defendant.
As noted by the Master and Judge, the plaintiffs are fully protected by way of recovery should they succeed in the action.
Conclusion
In conclusion, the proposed appeal against the District Court Judge’s order is not arguable.
Accordingly, as there is no merit to the proposed appeal, I decline to grant an extension of time within which to request permission to appeal.
It follows that if the request for permission to appeal had been instituted within 21 days of the District Court Judge’s order I would have refused permission to appeal. There is no reason to doubt the correctness of the order. In my view, the plaintiffs suffer no injustice if the order remains.[6]
[6] Landmark Operations Ltd v J Tiver Nominees Pty Ltd [2009] SASC 185.
Finally, it is imperative that the matter be progressed to trial as soon as practicable.