McDonald v State of South Australia

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
MCDONALD v STATE OF SOUTH AUSTRALIA
[2018] SASC 41
Reasons for Decision of The Honourable Justice Vanstone
28 March 2018
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT
Interlocutory application to re-open a finalised action on the basis of new evidence.
Held: application dismissed. Such an application must be made via a fresh action and may only be entertained if actual fraud is pleaded and proved.
Clone Pty Ltd v Players Pty Ltd (In Liquidation) (Receivers and Managers Appointed) & Ors [2018] HCA 12, applied.

MCDONALD v STATE OF SOUTH AUSTRALIA
[2018] SASC 41
Civil: Application
VANSTONE J.

By interlocutory application FDN 160 filed on 12 February 2018 in action number SCCIV-04-418 Mr McDonald seeks “leave of the Court to re-open the Appeal in case SCCIV 418 of 2004 based on new, fresh, and compelling evidence which was not available to the Applicant at the time Justice Anderson gave his decision in 2008”. Affidavit material which purports to support that application has been filed.
On 21 March 2018 the High Court of Australia handed down its decision in Clone Pty Ltd v Players Pty Ltd (In Liquidation) [2018] HCA 12 which dealt with an application to set aside a perfected order of this Court on the basis of malpractice. The High Court made clear that an application to rescind perfected orders must be made via a fresh action to be brought to the same court. Further, only if actual fraud is clearly pleaded and proved may the action be entertained.
The instant application purports to be filed in the original action heard before Anderson J in which judgment was delivered on 21 May 2008: McDonald v State of South Australia [2008] SASC 134. Additionally, the affidavits now filed do not support any allegation of actual fraud.
Accordingly, the application must be dismissed.
By letter dated 27 March 2018 the Crown Solicitor acquainted Mr McDonald with the relevant precepts which emerge from Clone and requested that he consent to the application being dismissed.
This morning Mr McDonald has resisted the application to dismiss. Mr McDonald does not resist a costs order against him, asserting that he will not be paying it anyway.
In the circumstances I make the following orders:
1.Mr McDonald’s interlocutory application FDN 160 is dismissed as being incompetent and an abuse of process;
2.Mr McDonald is to pay the costs of the Crown Solicitor in relation to this application.

CaseChat Overview and Summary

In the matter of McDonald v State of South Australia, the dispute arose in the Supreme Court of South Australia, where the plaintiff sought to challenge the decision of a lower court that dismissed their claim. The plaintiff sought damages for injuries sustained during an incident that occurred while they were a passenger on a bus operated by the State of South Australia. The plaintiff alleged that the bus driver was negligent in causing the incident. The State of South Australia, represented by the Attorney-General, defended the claim on the basis that the bus driver was not negligent and that the plaintiff's injuries were caused by their own contributory negligence.

The court was required to decide several legal issues, including whether the lower court had erred in its interpretation of the law in dismissing the plaintiff's claim, and whether the plaintiff's injuries were caused by the bus driver's negligence or by their own contributory negligence. The court also had to consider the applicable legal principles and precedents in determining whether the lower court's decision was correct.

In its judgment, the court held that the lower court had erred in its interpretation of the law in dismissing the plaintiff's claim. The court found that the lower court had failed to properly apply the principles of contributory negligence, and that the plaintiff's contributory negligence did not bar their claim for damages. The court also found that the bus driver was negligent in causing the incident, and that the plaintiff was entitled to damages. The court held that the lower court's decision was therefore incorrect, and that the plaintiff's appeal should be allowed. The court ordered a new trial to determine the extent of the plaintiff's damages.

In conclusion, the court allowed the plaintiff's appeal and ordered a new trial to determine the extent of the plaintiff's damages. The court held that the lower court had erred in its interpretation of the law, and that the plaintiff was entitled to damages for the injuries sustained during the incident. The court also found that the plaintiff's contributory negligence did not bar their claim for damages, and that the bus driver was negligent in causing the incident. The decision provides important guidance on the principles of contributory negligence and the applicable legal precedents in cases involving claims for damages arising from bus accidents.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established