McDonald v State of South Australia

[2015] SASCFC 15

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal)

MCDONALD & ANOR v STATE OF SOUTH AUSTRALIA

[2015] SASCFC 15

Judgment of The Full Court

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Nicholson)

24 February 2015

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY

Application for permission to appeal to the Full Court in private from a decision of a Justice refusing an extension of time within which to appeal from a decision of a District Court Judge dismissing an appeal from an interlocutory decision of a District Court Master.

Held:  The appeal for which permission is sought would enjoy no prospect of success; permission refused.

Supreme Court Civil Rules 2006 rule 288, rule 290, referred to.
McDonald v State of South Australia [2014] SASC 120, considered.

MCDONALD & ANOR v STATE OF SOUTH AUSTRALIA
[2015] SASCFC 15

Full Court:  Gray, Sulan and Nicholson JJ

THE COURT

1. The applicants have applied for permission to appeal to the Full Court from a decision by a Judge of this Court.  The application has been considered and determined by a bench of three Judges, in private, in accordance with rule 290 of the Supreme Court Civil Rules 2006.

2. On 27 August 2014, Bampton J delivered reasons[1] refusing an application by the applicants, Mr Francis McDonald and Mr Brennan McDonald, for an extension of time within which to request permission to appeal from a decision of a District Court Judge.  The District Court Judge had dismissed an appeal from an interlocutory decision of a District Court Master who had refused to permit the applicants to change the name of the defendant to these proceedings from the State of South Australia to the Minister for Education. 

   [1]    McDonald v State of South Australia [2014] SASC 120.

3. Bampton J found that there was no merit to the proposed appeal and refused the application for an extension of time within which to appeal from the decision of the District Court Judge.  The history of this tributary of the applicants’ litigation against the State Government, which commenced in 2005, is set out in some detail in the judgment of Bampton J.  It is unnecessary to repeat that history. 

4. The applicants, by notice of appeal dated 3 September 2014, wish to appeal from the decision of Bampton J.  The applicants require permission to appeal[2] and they have sought that permission.  It is unclear why the application for permission has only just now come before a Full Court, although it may have something to do with the fact that, after filing the notice of appeal, the applicants also filed a number of interlocutory applications seeking a panoply of orders directed against the respondent and seeking, inter alia, further disclosure of various categories of documents.  We refer to the interlocutory applications of 12 September 2014 and of 6 October 2014 (three).  It is not entirely clear which of these have been filed and which have only been received by the Registry but subject to permission to file.  But this doesn’t matter.  It would only be necessary to consider the applicants’ further interlocutory applications in the event that permission to appeal against the decision of Bampton J were to be granted. 

   [2]    Supreme Court Civil Rules 2006, rule 288.

5. A case book in support of the application for permission and as required by rule 290 was filed on 16 January 2015.  No outline of argument was provided by the applicants within the time period permitted by rule 290.

6. The applicants’ original interlocutory application to change the name of the defendant has been heard by a District Court Master, a District Court Judge and now a Supreme Court Judge.  In each case the application has been found to be without merit.  Detailed reasons have been given for this finding by each of those judicial officers.  It is not necessary to traverse those reasons yet again.  The decision of Bampton J was correct and an appeal from that decision would enjoy no prospect of success.  Permission to appeal is refused.