McDonald v State of South Australia; McDonald v Minister for Education and Child Development

[2016] SASCFC 39

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

MCDONALD & ANOR v STATE OF SOUTH AUSTRALIA;  MCDONALD & ORS v MINISTER FOR EDUCATION AND CHILD DEVELOPMENT & ORS

[2016] SASCFC 39

Judgment of The Full Court

(The Honourable Justice Sulan, The Honourable Justice Lovell and The Honourable Justice Doyle)

13 April 2016

PROFESSIONS AND TRADES - LAWYERS - DUTIES AND LIABILITIES - GENERALLY

Application for permission to appeal a decision to dismiss an application for the defendant's solicitors to be restrained from further acting in the proceedings.

Supreme Court Civil Rules 2006 (SA) r 288(1)(a)(i), r 290(6)(b), referred to.
South Australian Government Financing Corporation v Bank of New Zealand [2002] SASC 56; BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 756, applied.
McDonald v State of South Australia [2014] SASC 120; McDonald & Anor v State of South Australia; McDonald & Ors v The Minister for Education and Child Development & Ors [2015] SASC 141; McDonald & Anor v State of South Australia; McDonald & Ors v The Minister for Education and Child Development & Ors (No 2) [2015] SASC 188, discussed.

MCDONALD & ANOR v STATE OF SOUTH AUSTRALIA;  MCDONALD & ORS v MINISTER FOR EDUCATION AND CHILD DEVELOPMENT & ORS
[2016] SASCFC 39

Full Court:      Sulan, Lovell and Doyle JJ

1. THE COURT:      This is an application for permission to appeal an interlocutory decision of Nicholson J refusing applications made by the plaintiffs seeking orders that solicitors acting for the defendant be stood down and disqualified from acting in the proceedings. 

2. The applications are part of protracted proceedings in which the plaintiffs seek various orders, including damages, from the defendants.  Nicholson J summarised the proceedings as follows:[1]

   Francis McDonald is the first named plaintiff in proceedings originally filed in the District Court but transferred to this court in 2013 with the file reference SCCIV-13-1574. Mr McDonald’s son, Brennan McDonald, is also a named plaintiff in those proceedings. There is an extant application by the plaintiffs for Mr McDonald’s wife, Rhoda McDonald, to be joined as third plaintiff. That application has not yet been determined. The named defendant to proceedings 1574 of 2013 is the State of South Australia.

   Francis McDonald, Brennan McDonald and Rhoda McDonald are also named plaintiffs in proceedings filed in this Court bearing the reference SCCIV-14-1564. Rhoda McDonald has been a plaintiff to these proceedings from their inception. The four named defendants to these proceedings, as recorded on the plaintiffs’ statement of claim, are the Minister for Education and Child Development, Peter Mitchell, Sue Hyde and Don Mackie.

   Both sets of proceedings are still being dealt with at the interlocutory stage and it is fair to say that the court has become mired in a series of interlocutory disputes.

   In essence, the statement of claim in each matter raises identical complaints. The proceeding in 1574 of 2013 was originally commenced in the District Court in 2005 and this provides an indication of the extent of the interlocutory disputation that has taken place. The plaintiffs and, in particular, Francis McDonald, are understandably extremely frustrated at the delay in having what they apprehend to be a proper claim brought to trial.

   On 13 July 2015, the matter came before me, having been referred by the Master who had been managing the matter in this court, with a view to hearing argument on procedural applications to be brought by the defendants in both matters. It became apparent that a number of other procedural steps would need to be taken before any such applications could be heard. Whilst no order has been made formally assigning me as case manager in this matter, I have, at least for the present, assumed a responsibility to manage the two sets of proceedings with a view to: resolving outstanding interlocutory disputes; limiting, insofar as practicable, further interlocutory disputes; and moving the matters forward to a final resolution.

   [1] [2015] SASC 141.

   The interlocutory orders sought

3. For completeness, we set out Nicholson J’s summary of the orders sought on the interlocutory applications, the subject of this permission to appeal application:[2]

   [2]    McDonald & Anor v State of South Australia; McDonald & Ors v The Minister for Education and Child Development & Ors (No 2) [2015] SASC 188 [3]

   The plaintiffs have brought two interlocutory applications which appear to be in identical terms and both in action No. 1564 of 2014, being FDN 12 and FDN 15. No application has been brought in action No. 1574 of 2013 but it is common ground that the orders sought by the plaintiffs relate to both actions. The orders sought in each application are as follows.

   1. Solicitors Colleen Braddick, Loretta Condoluci and Todd Golding acting for the Attorney General are stood down while an investigation takes place into their fraudulent misrepresentation in case 418 of 2004, case 29 of 2005, case 6932/09 case 1574 of 2013 and in case 1564 of 2014 in presenting SAICorp as the defendant in these cases when it should have been the corporation under the Education Act 1972 as outlined in the affidavit of 3 June 2015.

   2.   Solicitors Colleen Braddick, Loretta Condoluci and Todd Golding acting for the Attorney General are stood down while an investigation takes place into their breaches of Section S21, 29, 133, 139, 140, 243, 251, 256 and 270 of the Criminal Law Consolidation Act 1936 as outlined in the affidavit of 3 June 2015.

   3.   Solicitors Colleen Braddick, Loretta Condoluci and Todd Golding acting for the Attorney General are stood down while an investigation takes place into their misfeasance in public office as outlined in the affidavit of 3 June 2015.

   4.   Solicitors Colleen Braddick, Loretta Condoluci and Todd Golding acting for the Attorney General are stood down while an investigation takes place into their serious and willful acts of misconduct as outlined in the affidavit of 3 June 2015.

   5.   Solicitors Colleen Braddick, Loretta Condoluci and Todd Golding acting for the Attorney General are stood down while and investigation takes place into for their breach of the code of conduct of public sector employees as outlined in the affidavit of 3 June 2015.

   6. The Notice of Acting Address for Service presented to the Supreme Registry by Loretta Condoluci, solicitor for the Attorney General is returned for solicitors from the Attorney General’s Department are not acting for the corporation under the Education Act 1972.

   7. Solicitors for the Attorney General cannot act for the statutory corporation under the Education Act 1972 until they show they have been retained by the Ministers Office to act for the corporation and then they must present the solicitor/client agreement to the courts to substantiate they represent the client known as the Minister for Education and Child Development.

   8. Solicitors for the Attorney General cannot act for the Minister as an agent of the crown unless they produce the argument supporting the proposition the statutory corporation under the Education Act is part of the executive and is entitled to the rights, privileges and prerogatives of the executive.

   9. Solicitors of the Attorney General cannot act for the Minister for Education and Child Development as Crown Solicitors for the action against the statutory corporation mentioned in the pleadings of 17 November 2014 is not taken against the State of SA under the Crown Proceedings Act 1992 but is taken against the corporation under the Education Act 1972.

   10. Solicitors for the Attorney Generals Department cannot act for employees of the corporation created under the Education Act for the corporation is liable for its employee’s acts or omissions under the Education Act, not under the Crown Proceedings Act 1992.

   11.   Solicitors for the Attorney Generals Department cannot act for employees of the corporation if the facts of the case shown employees of the corporation carried out misfeasance in public office, negligence and defamation.

   12.   Employees of the corporation have to find their own solicitor to act for them as they are liable for their own torts not the employer particularly where the acts of employees’ amount to serious and willful acts of misconduct which caused harm to others.

   [syntax and grammatical peccadilloes in the original]

4. Nicholson J summarised the allegations of the plaintiffs against the solicitors, which were:[3]

   [3] [2015] SASC 188 at [19].

   (i)committed numerous breaches of various provisions of the Criminal Law Consolidation Act 1935 (SA), including:

   ·       the unlawful commission of acts causing mental harm and creating risk of serious harm (Part 3, Division 7A);

   ·       the commission of acts of deception (section 139);

   ·       dishonestly dealing with documents (section 140);

   ·       as a public officer, acting improperly (section 238);

   ·       impeding the investigation of offences (section 241);

   ·       the commission of perjury (section 242);

   ·       destroying documents and thereby committing acts of fabricating, altering or concealing evidence (section 243);

   ·       the abuse of public office (section 251); and

   ·       attempting to obstruct or pervert the course of justice or due administration of law (section 256);

   (ii)    committed the tort of misfeasance in public office;

   (iii)     conspired to defraud;

   (iv)     engaged in fraudulent misrepresentation;

   (v)     engaged in serious and wilful acts of misconduct; and

   (vi)     breached the code of conduct applicable to public sector employees.

5. His Honour concluded that the evidence and submissions relied upon by the applicants did not lend support to the allegations.  He concluded that it was not a reasonable possibility that a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that the legal practitioner be disqualified from acting.

6. Nicholson J found that there was no power to order an investigation as sought in orders 1-5. His Honour found that there was no basis established that would support the making of order 6, as sought by the plaintiffs. The plaintiff conceded before Nicholson J that there was no objection to the Office of the Crown Solicitor representing the four defendants. Orders 7-12 were therefore not formally ruled upon. Nicholson J did, however, state that the contentions put forward as supporting those orders were either contrary to Bampton J’s decision in McDonald v State of South Australia,[4] or were simply untenable, or both.

   [4] [2014] SASC 120.

   Permission to appeal

7. As the application is against an interlocutory decision of a single judge, permission is required under r 288(1)(a)(i) of the Supreme Court Civil Rules 2006 (the Rules).  The Full Court has considered the application without oral argument from any party, pursuant to r 290(6)(b) of the Rules.

8. The principles regarding the grant of permission to appeal from an interlocutory order were adopted by the Full Court of this Court in South Australian Government Financing Corporation v Bank of New Zealand,[5] from a decision of the Supreme Court of Victoria in BHP Petroleum Pty Ltd v Oil Basins Ltd.[6] In the Supreme Court of Victoria, Fullagar J stated:[7]

   As this is an application for leave to appeal from interlocutory orders, the authorities show that this Court should address itself to two questions, as follows: (1) whether the correctness of the orders [appealed against] is attended with sufficient doubt to warrant their being reconsidered on appeal; and (2) whether substantial injustice will be caused to the applicant … if the orders [appealed against] stand.

   [Citations omitted.]

   [5] [2002] SASC 56.

   [6] [1985] VR 756.

   [7] [1985] VR 756, 758.

9. It must therefore be decided, first, whether the correctness of the order of Nicholson J could be reasonably argued as being infected by sufficient doubt to warrant reconsideration on appeal.

10. The second consideration is whether a substantial injustice could be reasonably argued, if the orders of Nicholson J are allowed to stand.

    The notice of appeal

11. The notice of appeal filed on this application fails to identify any error of law or fact. The notice of appeal is substantially a repetition of the orders sought on the initial interlocutory applications, with further general submissions that are more akin to pleadings in a statement of claim, regarding, amongst other things, general allegations of liability in contract and tort. The summary of argument filed in support of the application for permission is in similar terms, and merely amounts to a restatement of the plaintiffs’ allegations. Neither document identifies any valid grounds of appeal.  We have considered the material, including the applicants’ outline of argument.  Nothing in the material provided in support of the applications identifies any new matter or any error in approach by Nicholson J.

    Conclusion

12. In our view, the reasons for refusing the grant of the orders sought are uncontroversial, and supported by authority. No reasonably arguable ground of appeal has been identified by the plaintiffs, nor are any readily apparent on the face of the decision of Nicholson J.

13. In our view, the grounds of appeal, insofar as they can be discerned as grounds of appeal, do not identify any ground which is reasonably arguable.  There is no basis to conclude that the refusal of Nicholson J to make the orders sought is attended with any doubt to warrant its reconsideration.  No injustice is caused to the applicants by the refusal of permission to appeal.

14. The applications are refused.