McDonald v State of South Australia

[2018] SASC 41

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.

1. 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.

2. 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.

3. 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.

4. Accordingly, the application must be dismissed.

5. 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. 

6. 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. 

7. 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.