McDonald v State of South Australia; McDonald v Minister for Education and Child Development (No 3)

[2016] SASC 79

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

MCDONALD & ANOR v STATE OF SOUTH AUSTRALIA; MCDONALD & ORS v MINISTER FOR EDUCATION AND CHILD DEVELOPMENT & ORS (No 3)

[2016] SASC 79

Judgment of The Honourable Justice Nicholson

3 June 2016

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JOINDER OF CAUSES OF ACTION AND OF PARTIES - PARTIES - GENERALLY

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS - STRIKING OUT - DISCLOSING NO REASONABLE CAUSE OF ACTION OR DEFENCE

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS - STRIKING OUT - OTHERWISE ABUSE OF PROCESS

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS - STRIKING OUT - EMBARRASSING, TENDENCY TO CAUSE PREJUDICE, SCANDALOUS, UNNECESSARY ETC OR CAUSING DELAY IN PROCEEDINGS

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS

The plaintiffs in action no. 1574 of 2013 (“the 2013 proceedings”), being Mr Frank McDonald and Mr Brennan McDonald, seek to amend their statement of claim in the form of a proposed new statement of claim (FDN 59A) exhibited to an affidavit (FDN 59), as filed in those proceedings. Mrs Rhoda McDonald, Mr Frank McDonald’s wife, has applied to be joined as a plaintiff to the 2013 proceedings. These three individuals are also plaintiffs in action no. 1564 of 2014 (“the 2014 proceedings”).    

The defendant(s) in both the 2013 proceedings and 2014 proceedings have sought orders, inter alia, that: Mrs McDonald’s application to be joined as a plaintiff to the 2013 proceedings be dismissed; that the pleaded claims by Mr McDonald in the 2013 proceedings be struck out; and the 2013 proceedings insofar as they concern Mr McDonald be dismissed, and that the pleaded claims by all plaintiffs in the 2014 proceedings be struck out and the 2014 proceedings dismissed.  The plaintiffs have resisted the defendant(s)’ applications and have sought the making of a number of alternative interlocutory orders.

Held:

1. The 2013 plaintiffs’ application for permission to file a new statement of claim in the form of FDN 59A in the 2013 proceedings is refused.

2. Mr Brennan McDonald is granted liberty to apply to amend his claim in the 2013 proceedings in accordance with FDN 59A, if so advised, notwithstanding Order 1.

3. Mrs McDonald’s application to be joined as a plaintiff in the 2013 proceedings is refused.

4. The 2013 proceedings, insofar as Mr Frank McDonald’s claims are concerned, are dismissed with judgment against Mr Frank McDonald for the 2013 defendant.

5. The 2013 proceedings, insofar as Mr Brennan McDonald’s claim is concerned, are remitted to the District Court for trial.

6. The 2014 plaintiffs’ pleadings in the 2014 proceedings are struck out.

7. The 2014 proceedings are dismissed with judgment against all 2014 plaintiffs for the 2014 defendants.

8. The plaintiffs’ interlocutory applications in FDN 18, FDN 24 and FDN 29 (2013 proceedings) and FDN 52 (2014 proceedings) are dismissed.

Supreme Court Civil Rules 2006 (SA) r 104, r 193; Workers Rehabilitation and Compensation Act 1986 (SA) s 30, s 54; Public Sector Management Act 1995 (SA) s 74; Freedom of Information Act 1991 (SA) s 50; Civil Liability Act 1936 (SA) s 33, s 53, s 59, referred to.
State of South Australia v McDonald [2009] SASC 219, (2009) 104 SASR 344, applied.
McDonald v State of South Australia [2011] FCA 297; McDonald v State of South Australia [2008] SASC 134, (2008) 172 IR 256; McDonald v State of South Australia [2013] SASC 36, discussed.
McDonald v State of South Australia [2011] FCA 1251; McDonald v State of South Australia (unreported, District Court of South Australia, Master Norman, 11 July 2011); McDonald v State of South Australia [2012] SADC 54; McDonald v Department of Education and Children’s Services [2011] SAWCT 36; McDonald v The Workers Compensation Tribunal [2013] SASC 34; McDonald v State of SA [2014] SASC 120; McDonald v State of South Australia [2015] SASCFC 15; McDonald v State of South Australia [2015] HCASL 118; Harman v Secretary of State for the Home Department [1983] 1 AC 280; Esso Australia Resources Limited v Plowman (Minister for Energy and Minerals) (1995) 183 CLR 10; McDonald v State of South Australia [2015] SASC 141; McDonald v State of South Australia (No 2) [2015] SASC 188; Errington v Target Australia Pty Ltd [1995] SASC 5569, (1995) 65 SASR 378; Andrews v Ziersch (1994) 61 SASR 521; Boral Resources (Queensland) Pty Ltd v Pyke [1992] 2 Qd R 25; Knorr v CSIRO [2012] VSC 83; Fuller v Jenkins (1990) 55 SASR 54; Akerman v John Fairfax & Sons (1992) 163 LSJS 267; Norris v McNair (1992) 167 LSJS 389; Tepperova v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1147; Garrett v National Australia Bank [2007] FCA 530; King v Philcox [2015] HCA 19, (2015) 255 CLR 304; Tame v New South Wales [2002] HCA 35, (2002) 211 CLR 317; Koehler v Cerebos (Australia) Limited [2005] HCA 15, (2005) 222 CLR 44, considered.

MCDONALD & ANOR v STATE OF SOUTH AUSTRALIA; MCDONALD & ORS v MINISTER FOR EDUCATION AND CHILD DEVELOPMENT & ORS (No 3)
[2016] SASC 79

Civil

NICHOLSON J.        

Introduction and background to the litigation

The two sets of proceedings and the parties

1. These reasons concern my determination of various interlocutory applications brought by the defendant in action no. 1574 of 2013 (“the 2013 proceedings”) the defendants in action no. 1564 of 2014 (“the 2014 proceedings”) and the plaintiffs in both proceedings. 

2. The plaintiffs in the 2013 proceedings (“the 2013 plaintiffs”) are Mr Francis McDonald who, at all times throughout the 2013 proceedings, has represented himself, and his adult son, Mr Brennan McDonald, on whose behalf, at all times throughout both sets of proceedings, Mr Francis McDonald has been permitted to speak.  Hereafter, when I refer to Mr McDonald I will be referring to Mr Francis McDonald.  In the 2013 proceedings there is an application, as yet undetermined, filed on behalf of Mr McDonald’s wife, Mrs Rhoda McDonald, that she be joined as a third plaintiff. 

3. The plaintiffs in the 2014 proceedings (“the 2014 plaintiffs”) are Mr McDonald, Mr Brennan McDonald and Mrs McDonald.  As will be seen, and for reasons to be explained, the two statements of claim on which the plaintiffs seek to rely are, as to their substantive content, identical.

4. The defendant to the 2013 proceedings is the State of South Australia (“the 2013 defendant”).  The defendants to the 2014 proceedings are the Minister for Education and Child Development and three government employees, Mr Peter Mitchell, Ms Sue Hyde and Mr Don Mackie (“the 2014 defendants”).

5. The defendant(s) seek orders, inter alia, that: Mrs McDonald’s application to be joined as a plaintiff to the 2013 proceedings be dismissed; the pleaded claims by Mr McDonald in the 2013 proceedings and the pleaded claims by Mr McDonald and Mrs McDonald in the 2014 proceedings be struck out; and the proceedings brought by Mr McDonald in the 2013 proceedings and by Mr McDonald and Mrs McDonald in the 2014 proceedings, each be dismissed.

6. The defendant(s) rely, inter alia, on the powers conferred by rules 104 and 193 of the Supreme Court Civil Rules 2006 which are in the following terms.[1]

   [1]    There may be a question whether the 2006 Rules or the preceding version of the Rules apply to the 2013 proceedings (originally, action no. 29 of 2005 in the District Court, as explained later in these reasons).  However, it is unnecessary to resolve this.  I am satisfied that, in the circumstances of this matter, the relevant powers available to the Court under the old rules match those under the 2006 Rules.

   104—Court's power to strike out pleading

   The Court may strike out a pleading in whole or part if the pleading—

   (a)does not comply with these rules; and

   (b)is an abuse of the process of the Court or prejudices the proper conduct of the action.

   .  .  .  .

   193—Court's power to dismiss proceedings

   The Court may dismiss proceedings if—

   (a)the pleadings disclose no reasonable cause of action; or

   (b)the proceedings are frivolous, vexatious or an abuse of the process of the Court.

   The essence of the plaintiffs’ complaints and the earlier completed litigation

7. Mr McDonald seeks to agitate a number of causes of action said to be available to him in order to recover damages for personal injury, essentially, psychiatric harm and physical symptoms consequent on stress, anxiety and emotional harm caused by victimisation, bullying, harassment and other related wrongful conduct by the defendant(s) whilst Mr McDonald was an employed teacher between 1996 and 2003.  He also seeks to press a claim in defamation.  The defendant(s) raise a number of legal arguments in support of their contention that Mr McDonald’s claims should not be permitted to proceed to trial.

8. Similar issues arose in the Federal Court when Mr McDonald attempted, unsuccessfully, to bring proceedings in that jurisdiction.[2]   Besanko J struck out, as an abuse of process, a statement of claim filed by Mr McDonald in the Federal Court alleging causes of action against six respondents, including breaches of implied terms of his contract of employment, breaches of a duty of care in tort, contraventions of the Trade Practices Act 1974 (Cth), breaches of the Workplace Relations Act 1996 (Cth) and an “action” under the Workers Rehabilitation and Compensation Act 1986 (SA). The six respondents were the State of South Australia and five named government or former government employees, including Mr Mitchell and Ms Hyde but not Mr Mackie.

   [2]    McDonald v State of South Australia [2011] FCA 297 (Besanko J). Mr McDonald’s application for leave to appeal to the Full Court of the Federal Court was dismissed, McDonald v State of South Australia [2011] FCA 1251 (Lander J).

9. Mr McDonald also was the plaintiff in earlier concluded litigation against the State of South Australia.  A summary of the factual background to Mr McDonald’s claims, past and present, can be ascertained from the findings made by Anderson J in McDonald v State of South Australia,[3] as modified by the Full Court on appeal.[4]Anderson J dealt with a claim for, inter alia, breach of contract brought by Mr McDonald who had been employed as a teacher by the defendant through the then Department of Education and Children’s Services (“DECS”). 

   [3]    McDonald v State of South Australia [2008] SASC 134; (2008) 172 IR 256.

   [4]    State of South Australia v McDonald [2009] SASC 219; (2009) 104 SASR 344 particularly at [27]-[103], [140]-[178] and [295]-[397] (The Court: Doyle CJ, White and Kelly JJ).

10. Besanko J, in his judgment, has provided a summary of the factual background in terms which I most gratefully adopt.[5]

    [5]    McDonald v State of South Australia [2011] FCA 297 at [8]-[20].

    I now set out a general summary of the factual matters which arose in the Supreme Court. The summary is based on the findings made by the trial judge as varied or modified by the Full Court on the appeal (see in particular the reasons of the Full Court at [27]–[103] and [140]–[178], [295]–[379]).

    The applicant was first employed as a teacher with the South Australian Department of Education and Children’s Services (“DECS”) in 1990. On the hearing of this application the applicant made a number of submissions regarding the precise identity of his employer and I will come back to that topic.

    The applicant had previously worked as a teacher in Scotland, with qualifications in teaching business education and economics. He had experience with word processing but not with computing generally.

    In 1996 the applicant was appointed to Mount Barker High School, where he was asked to take on the role of network manager of the school’s computing systems, in addition to his teaching load. The role involved repairing and maintaining computers and other equipment. This was not work for which the applicant was qualified and he found it stressful. His workload affected the applicant’s health adversely. Over the course of several conversations, the applicant informed Mr Boaden, the second respondent, who was then the Assistant Director of Personnel with DECS, about the difficulties he was experiencing. Mr Boaden was aware that Brighton Secondary School needed to fill the position of Co-ordinator of Information Technology and a Year 12 Computing teacher. The applicant was appointed to teach computing to Year 12 and mathematics to Year 11 at Brighton High School for the following year.

    At Brighton Secondary School, the applicant took on similar duties to those he had performed at Mount Barker, including managing the computer network. This was in addition to his teaching load. Ms Schupelius, the third respondent, was then the principal of Brighton. In April 1997 the applicant was appointed Acting Coordinator of Information Technology Across the Curriculum (“Co-ordinator”), and was confirmed in this position for a five-year term from January 1998 to January 2003. There was a reduction in his teaching hours, but the applicant continued to find it difficult to manage his workload. Ms Schupelius was aware of this and engaged Mr Crompton to help the applicant on a part-time basis. The applicant’s teaching load was further reduced.

    The applicant continued to be assisted with his workload by Mr Crompton, and later by his son, Damien McDonald, on a part time basis. The trial judge found that things proceeded “reasonably well” for the remainder of 1998 to the end of 1999. A new computer network was installed at Brighton at the beginning of 2000 and a number of second-hand computers, requiring considerable work in order to make them suitable for the school’s use, were purchased throughout that year. The applicant undertook that work and found it time-consuming. In late 2000 a part-time School Services Officer was employed to assist the applicant with the task. The trial judge found that Ms Schupelius was aware that the applicant continued to work long hours, and was not qualified for the work that he had undertaken. She offered to further reduce Mr McDonald’s teaching hours but the offer was refused.

    In late 2000 and early 2001, the applicant began to fear that he would not be reappointed as Co-ordinator in January 2003. In January 2001 the applicant wrote to Ms Schupelius resigning from his employment on the basis of his “impossible work situation” but this resignation was not treated as effective.

    As a result of the letter a meeting was held on 29 January 2001 between the applicant, Ms Schupelius, and Ms Cochram, the fourth respondent, who was at that time the District Superintendent. Ms Cochram understood the applicant to be raising a grievance with her, and the applicant’s workload, his difficulties with another staff member, and the information technology situation at Brighton were all discussed. A follow-up meeting occurred on 7 February 2001 and it was agreed that the applicant would no longer provide technical support for the computing network at Brighton but instead concentrate on his role as Co-ordinator. Ms Schupelius had the responsibility of informing staff at Brighton about the change in the applicant’s duties. At these meetings the applicant also raised the issue of his tenure at Brighton and Ms Schupelius indicated that she thought that he had a ten-year tenure but was not sure. Ms Schupelius left Brighton to take up an overseas appointment some days afterwards and staff at Brighton were not informed of the change to the applicant’s role. Ms Cochram did not follow up the applicant’s grievance to ensure that the agreements had been implemented and did not inform the Acting Principal, Mr Potts, of the agreement. Mr McDonald did not seek a further meeting with Ms Cochram.

    As a result the applicant continued to be asked by other staff to assist with matters which were no longer his responsibility. The applicant raised this with Mr Potts, but nothing was done to resolve the issue. In early 2001, the applicant also complained to Mr Potts that he was being bullied, victimised, and harassed by other staff. He raised with Mr Potts the issue of his tenure, which Mr Potts referred to Ms Cochram, but Ms Cochram did not respond.

    In July 2001, the fifth respondent, Mr Mitchell, was appointed Principal at Brighton. In October 2001, the applicant wrote to Mr Mitchell raising his concerns regarding who was responsible for the computer network, and his problems with other computing staff. A meeting was held shortly after involving Mr Mitchell, the applicant and other staff at which the applicant became extremely angry. The applicant apologised to Mr Mitchell and there were no further unpleasant meetings until June 2002. As a result of that meeting, it was made clear to Mr McDonald, to his satisfaction, that he was not responsible for the other computing staff. The harassment seems to have ceased from October 2001. By that time, a number of Mr McDonald’s functions as network manager had been taken over by technicians employed at Brighton.

    In May 2002, the applicant’s position as Co-ordinator at the school was reviewed. The position was subsequently redefined in such a way as to make it unlikely that the applicant would be the successful applicant. The Full Court noted that the trial judge did not make a finding that this was done deliberately so as to remove the applicant from Brighton but that the trial judge did find that Mr Mitchell was aware this would likely be the consequence of the redefinition. The Full Court rejected the trial judge’s findings that this had been “inappropriate and unfair” and that the decision not to interview Mr McDonald was “attributable to a desire to ‘get McDonald out of Brighton’” on the part of Mr Mitchell (at [162]). The position was advertised and was to be taken up from January 2003. The applicant applied for the position but a three-person panel, composed of Mr Mitchell, Ms Groves, who was a co-ordinator at Seacliff High School, and Ms Sara, a teacher at Brighton nominated by the Australian Education Union’s Brighton sub-branch, elected not to interview him for it. The applicant was informed of this in late June 2002, and complained to Ms Hyde, the sixth respondent, who was now the District Superintendent.

    The applicant was greatly upset at the failure to interview him for the position and there was an angry confrontation with Mr Mitchell. From July 2002 to September 2002 the applicant took sick leave on the basis that he was suffering from a “stress/anxiety disorder”. He returned to work for a brief period in late September 2002. At that time Mr Mitchell informed the applicant that he was obliged to complete a DECS Placement Form to arrange appointment to another position, and the applicant refused to do so on the basis that he had a ten-year appointment at Brighton. Mr Mitchell informed the applicant that he would complete the form himself and did so. In July 2002 the applicant telephoned Ms Hyde and informed her that he was initiating a grievance procedure. Ms Hyde did nothing to address the applicant’s grievances. He subsequently lodged a written grievance in October 2002. Ms Hyde forwarded this to the Legal Department within DECS but took no other step.

    From October 2002 to December 2002 the applicant took further sick leave for his stress and anxiety disorder. After that time he did not return to Brighton or to any other school. On 18 December 2002, the applicant made a claim for compensation under the Workers Rehabilitation and Compensation Act. As a result he was provided with rehabilitation services by DECS and two positions were offered to the applicant in other schools. However, he subsequently withdrew his claim before it could be determined. In April 2003 the applicant wrote to the Pay Section of DECS, and to the Premier of South Australia with a copy to the Director-General of Education, informing them that he was treating himself as dismissed from his employment.

1. After a lengthy trial, Anderson J found in favour of Mr McDonald and awarded a substantial amount by way of damages.  The trial had proceeded on the basis that Mr McDonald was claiming damages for breach of implied terms in the contract of employment, damages for estoppel and damages for deceit.[6]  At first instance, Mr McDonald succeeded upon his Honour’s finding that the contract of employment had contained an implied term of mutual trust and confidence that had been breached.  The damages award was based on a wrongful termination of the employment causing past and future loss of earning capacity. 

   [6]    McDonald v State of South Australia [2008] SASC 134; (2008) 172 IR 256 at [449].

2. Prior to trial, various propounded causes of action were struck out by a Master of this court, namely, causes of action alleging breaches of the Trade Practices Act 1974 (Cth), a breach of the Workers Rehabilitation and Compensation Act 1986 (SA) and a breach of the Occupational Health, Safety and Welfare Act 1986 (SA) claims for physical and/or mental injury arising from Mr McDonald’s employment with DECS and a claim based on alleged harassment, bullying and annoying conduct experienced by Mr McDonald in the work place, together with a related damages claim for associated pain and suffering.[7]

   [7]    McDonald v State of South Australia [2008] SASC 134; (2008) 172 IR 256 at [443].

3. During the trial before Anderson J, Mr McDonald sought to amend his pleading in order to make a claim for damages at common law for personal injury including pain and suffering and psychiatric injury. The application to amend was refused. Anderson J gave a number of reasons for refusing the amendment. The primary reason was that such a claim was not available bearing in mind the provisions of section 54 of the Workers Rehabilitation and Compensation Act 1986 (SA), subsection (1) of which provided, at the relevant time:

   (1)Subject to subsection (2), no liability attaches to an employer in respect of compensable disability arising from employment by that employer except—

   (a)     a liability under this Act.

   His Honour reasoned in this way.[8]

   This section provides protection to an employer in that it bars non-statutory actions and establishes a system of indemnity insurance through the WorkCover Corporation in Pt 4, Div 7 of the Workers Rehabilitation and Compensation Act.  The intention of Parliament in this regard is clear: see Errington at 384.

   The master delivered reasons for striking out parts of Mr McDonald’s claim as follows:

   While much of the plaintiff’s pleaded claim is for a constructive wrongful dismissal, which is now maintainable in this Court, parts of his pleadings and submissions show that he also seeks to claim for physical and/or mental injury arising out of his employment by the defendant. This is barred by s 54(1). The plaintiff referred to a number of authorities decided interstate and in England where such a claim is apparently maintainable, but they do not affect the operation of s 54(1) in this State. He can have no claim under the Workers Rehabilitation and Compensation Act 1986 in this Court: Errington v Target Australia Pty Ltd (1995) 65 SASR 378.

   See McDonald v South Australia (unreported, SC (SA), Lunn J, 6 August 2007) at [1]-[2].  I agree with the comments and reasoning of the master as set out above.

   [8]    McDonald v State of South Australia [2008] SASC 134; (2008) 172 IR 256 at [459]-[461].

4. The Full Court allowed an appeal by DECS against the decision of Anderson J and dismissed Mr McDonald’s claim.  Mr McDonald’s application for special leave to appeal to the High Court was dismissed.[9]  The Full Court held as follows.[10]

   (1)The liability of the Minister for breach of contract does not depend upon the occurrence of a compensable disability, and cannot be said to be “in respect of” a compensable injury ... Accordingly, s 54(1) of the Workers Rehabilitation and Compensation Act does not preclude the respondent’s claim for damages ... .

   (2)The implied term of mutual trust and confidence did not form part of the respondent’s contract of employment.  The statutory and regulatory context in which the respondent’s contract of employment operated made the implied term unnecessary ... Even if the respondent’s contract of employment had contained an implied term of mutual trust and confidence, there was no repudiatory breach of that term by the Minister ... It is not appropriate in the circumstances of this case to decide whether the implied term of mutual trust and confidence forms part of Australian employment contracts generally... .

   (3)The Minister did not breach the implied contractual duty to take reasonable care to protect the respondent against foreseeable injury arising out of the contract of employment ... The statutory, award and departmental regimes available to the respondent are relevant to whether the Minister’s conduct should be regarded as repudiatory... .

   (4)Section 54 of the Workers Rehabilitation and Compensation Act is a bar to a claim by the respondent on the cross-appeal for damages for non-economic loss ... and personal injury... .

   [9]    McDonald v State of South Australia [2010] HCATrans 25.

   [10] Taken from the head note reported at (2009) 104 SASR 344 at 345.

5. The essence of Mr Brennan McDonald’s claim is, in effect, that during his early school years he was denied proper educational opportunities, harassed and bullied by DECS employees and that such conduct has caused him loss and damage.  The defendant(s) do not object to Mr Brennan McDonald’s claim proceeding to trial, although the final version of a statement of claim upon which Mr Brennan McDonald may seek to rely has not yet been settled.  Save for saying something further about this issue, these reasons do not address the form of his claim or any potential challenges to it.  

6. The essence of Mrs McDonald’s claim is that, as a result of the treatment Mr McDonald and Mr Brennan McDonald received, she as wife and mother, respectively, has suffered stress, anxiety and psychiatric harm and that this harm has been caused by breach of a duty owed by the 2014 defendants directly to her.  The defendant(s) maintain, inter alia, that this claim is untenable at law and should be struck out.

   Some general principles of law potentially relevant to Mr McDonald’s present claims

7. A number of Mr McDonald’s present claims have either been ventilated or arise out of facts that were ventilated in the litigation against the State of South Australia heard by Anderson J in 2008.  As a consequence, the 2013 defendant and the 2014 defendants maintain that Mr McDonald is attempting, impermissibly, to re-litigate matters already finally dealt with. 

8. As earlier mentioned, similar challenges formed the subject of Besanko J’s decision in the Federal Court in 2011.  Again, I gratefully adopt the following summary of potentially relevant legal principles provided by his Honour.[11]

   [11]   McDonald v State of South Australia [2011] FCA 297 at [36]-[46].

   Res judicata

   The doctrine of res judicata operates to prevent parties from re-litigating causes of action which have already been the subject of a judicial decision. A party relying on the doctrine of res judicata must establish that a Court with the relevant jurisdiction has already given judgment on the cause of action raised in the later litigation. The claim or cause of action is said to have merged in the judgment and no longer to have an independent existence: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 597 (“Anshun”). This doctrine operates only where the parties to the first action are the same as the parties to the second action: Ramsay v Pigram (1968) 118 CLR 271 at 276 (“Ramsay v Pigram”). The parties must be suing or being sued in the same right or capacity: Leggott v Great Northern Railway Co (1876) 1 QBD 599. The parties will be considered to be the same where they share a privity of interest, defined by Sir Robert Megarry VC in Gleeson v J Wippell & Co Ltd [1977] 1 WLR 510 as “a sufficient degree of identification between the two to make it just to hold that the decision to which one was party should be binding in proceedings to which the other is party” (at 515). In Ramsay v Pigram, Barwick CJ said that to establish privity of interest “the privy must claim under or through the person of whom he is said to be a privy”: at 279.

   Issue estoppel

   Issue estoppel arises where a party, for the purpose of a claim or cause of action, alleges or denies the existence of facts which were necessarily decided by a prior judgment. That is, a party will be estopped from re-arguing questions of fact or law decided in a previous case, even though the cause of action in the subsequent case has not been determined, so long as the findings of fact or law were a necessary ingredient in the determination of the previous cause of action: Anshun at 597–8. Ordinarily issue estoppel will arise only in a subsequent action between the same parties, but in Arthur JS Hall & Co v Simons [2002] 1 AC 615 Lord Hoffman considered that issue estoppel may extend to situations where the parties to the subsequent proceeding are not the same as the parties to the earlier proceeding, but the circumstances are such as to bring the parties within the spirit of the rules (at 701).

   Anshun estoppel

   Parties are not permitted to litigate issues which could and should have been litigated in earlier proceedings between them: Henderson v Henderson (1843) 67 ER 313 (“Henderson”); Anshun. In Henderson, Sir James Wigram VC said (at 320) that:

   Where a given matter becomes the subject of litigation in and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.

   In Anshun the High Court said that where a matter relied on as a defence in a second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it, the party will be estopped from raising it as a defence in the second action: at 602. There must be a close connection between the subject matter of the first litigation and the second, such that it would be expected that the matter would have been raised in the first litigation.

   In Spalla, French J (as his Honour then was) referred to Anshun estoppel as an analogical extension of the doctrines of res judicata and issue estoppel (at [59]).

   Abuse of process by relitigation

   The doctrines set out above have a number of technical requirements. The Court’s jurisdiction to protect a party from an abuse of process constituted by an attempt to relitigate a case already disposed of is not limited to cases where those technical requirements can be made out: Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ (“Walton”); Rana v University of South Australia [2008] FCA 1903 at [43]. The operation of the doctrines of res judicata, issue estoppel and Anshun estoppel is subsumed into the Federal Court’s implied incidental power to prevent abuse of its processes: Spalla at [59]. Justice French said in Spalla (at [66]) that:

   the doctrines of res judicata, issue estoppel, and Anshun do not exhaust the circumstances in which a proceeding may be regarded as amounting to an abuse of process by way of attempted relitigation of a dispute already judicially determined.

   In Walton Mason CJ, Deane and Dawson JJ said (at 393) that:

   … proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.

   The power to strike out a claim is to be exercised sparingly and “upon an examination of the relevant circumstances of the particular case before the court”: Spalla at [70].

   In State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81-423 (at 64,089) (“Stenhouse”), Giles CJ set out a list of relevant matters in determining whether it would be an abuse of process if a party were allowed to litigate an issue already raised in previous proceedings:

   (a)the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary or an ultimate issue;

   (b)the opportunity available and taken to fully litigate the issue;

   (c)the terms and finality of the finding as to the issue;

   (d)the identity between the relevant issues in the two proceedings;

   (e)any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings…;

   (f)the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and

   (g)an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.

   In Spalla, French J described this list as a non-exhaustive one (at [70]).

   The parties need not necessarily be the same for the proceedings to be permanently stayed as an abuse of process.

   In a case bearing some similarities to the present, R v Lessur-Millar (1990) 47 A Crim R 111, Lockhart J said (at 117–118):

   For this Court to allow the present matter to proceed and to consider granting the relief sought by the applicant would be to lend its aid to a further investigation of the very matters which have been fully considered by judges at first instance and on appeal in New South Wales and, through a special leave application and not the hearing of a substantive appeal, by the High Court.

   No fresh evidence of any probative kind has been placed before the Court additional to what was before the New South Wales courts.

   It is vexatious and an abuse of process for a party, having sued unsuccessfully before the courts of New South Wales, to seek to agitate the very same issues and facts in this Court. The proceedings, remedies and parties are not precisely identical; but they are in all essential respects the same

   There are a number of cases dealing with the category of abuse of process by relitigation. For present purposes it is sufficient for me to refer to SZJAB v Minister for Immigration (2008) 168 FCR 410 at 423 per French J and Rippon, in addition to the cases to which I have already referred.

   The more recent procedural history

9. Various accounts of the background to, the procedural history of and the unfortunate progress of these proceedings have been provided in earlier judgments of this and other courts.[12]  What follows is a very brief explanation of how the present interlocutory applications have come before me for decision. 

   [12]   For example, the judgments referred to in footnotes 13, 14, 19, 20 and 24.

10. The 2013 proceedings were commenced in the District Court in 2005 (action no. 29 of 2005).  Numerous iterations of the 2013 plaintiffs’ statement of claim (both filed and proposed) have been robustly challenged by the 2013 defendant over the years on various grounds and, usually, with complete or substantial success insofar as Mr McDonald’s claims have been concerned. 

11. In 2013, I heard an appeal from a Judge of the District Court dismissing Mr McDonald’s action as plaintiff in the original District Court proceedings.[13]  A Master had struck out numerous paragraphs of the then extant statement of claim, essentially confined to Mr McDonald’s asserted causes of action, and thereby largely eviscerated Mr McDonald’s then claim.[14]  The District Court Judge had dismissed an appeal from the Master’s determination.[15] 

    [13]   McDonald v State of South Australia [2013] SASC 36.

    [14]   McDonald v The State of South Australia (unreported, District Court of South Australia, Master Norman, 11 July 2011) FDN 62. This decision was subsequently amended on 11 November 2011, FDN 69.

    [15]   McDonald v State of South Australia [2012] SADC 54.

12. On the further appeal to me, I refused to disturb the Master’s and the District Court Judge’s orders in this respect.  However, I allowed Mr McDonald’s appeal against an order that the District Court proceedings action no. 29 of 2005 be dismissed.  I set that order aside and remitted the proceedings to a Master of the District Court for directions to be made as to the future conduct of the matter; such directions to be consistent with my reasons.  It was anticipated that Mr McDonald would be given another, probably final,[16] opportunity to plead his proposed case.  I said this.[17]

    Having allowed the appeal against the dismissal of Mr McDonald’s action in District Court proceedings No 29 of 2005, Mr McDonald should be allowed a further opportunity to plead his case in full, that is, not restricted just to the defamation allegations but also raising such other causes of action that any material facts Mr McDonald relies on and properly pleads will support. 

    However, Mr McDonald ought to be aware that in order to successfully plead his case he will need to make wholesale changes to that which he has proffered to this point.  I risk speaking out of turn here.  Nevertheless, Mr McDonald should understand that, based on the history of his previous attempts, this task is very likely to be beyond him in the absence of legal assistance.  I remind Mr McDonald of this again now because this is likely to be the last opportunity he will be given to plead his case.

    [16]   By that stage, Mr McDonald had attempted, unsuccessfully, on numerous occasions to file a pleading that complied with conventional pleading requirements and the Rules of Court.  Since then Mr McDonald has proposed a number of other versions of his claim.  The number of statements of claim filed or proposed by Mr McDonald now exceeds 25.

    [17]   McDonald v State of South Australia [2013] SASC 36 at [39]-[40].

13. By order of a Master of the District Court, on 7 November 2013, the District Court proceedings were transferred to the Supreme Court and became the 2013 proceedings.  No further amended statement of claim has been filed in the 2013 proceedings, although various attempts to file an amended statement of claim have been made.  The extant pleading in the 2013 proceedings is FDN 95[18] in District Court action no 29 of 2005 in the redacted form that remained following the District Court Master’s decision earlier referred to.

    [18]   FDN is an acronym for “File Document Number”.  A number of filed Court documents will be referred to in these reasons and for ease of identification they will be referred to by their FDN.

14. The form of the statement of claim that the 2013 plaintiffs now seek to rely on is that in FDN 59A exhibited to an affidavit of Mr McDonald sworn 23 April 2015 (FDN 59) and filed in the 2013 proceedings.  The 2013 plaintiffs wish to file FDN 59A and have it accepted in the 2013 proceedings in lieu of FDN 95 (as filed in the District Court).  In addition, Mrs McDonald has filed an application seeking an order that she be joined as a plaintiff to the 2013 proceedings (FDN 77).  Her proposed pleaded case is included in FDN 59A.

15. The 2013 defendant opposes the filing of the proposed further amended statement of claim and has applied for Mr McDonald’s claim to be dismissed, that is, any further opportunity to re-plead denied.  The 2013 defendant also opposes Mrs McDonald’s application to be joined as a plaintiff to the 2013 proceedings.  As earlier indicated, the 2013 defendant does not oppose the claim by Mr Brennan McDonald proceeding to trial.

1. A fundamental concern of Mr McDonald has always been that the 2013 proceedings wrongly record the State of South Australia as the defendant.  He insists that the proper defendants to his, Mr Brennan McDonald’s and Mrs McDonald’s asserted causes of action are those defendants recorded in the 2014 proceedings.  Mr McDonald has failed with multiple attempts to obtain permission to amend the 2013 proceedings in this respect.[19]  Insofar as the 2013 plaintiffs and the 2013 defendant are concerned, this issue has been finally determined.[20]

   [19]   This abiding concern of Mr McDonald was also central to the events which lead to Mr McDonald’s claim under the Workers Rehabilitation and Compensation Act 1986 (SA) being dismissed in the South Australian Workers Compensation Tribunal for want of prosecution, McDonald v Department of Education and Children’s Services [2011] SAWCT 36, McDonald v The Workers Compensation Tribunal [2013] SASC 34.

   [20]   McDonald v State of SA [2014] SASC 120 (Bampton J refusing permission to appeal from Tilmouth DCJ dismissing an appeal from a Master of the District Court). An application for permission to appeal to the Full Court was refused, McDonald v State of South Australia [2015] SASCFC 15 and an application for special leave to appeal to the High Court was also refused, McDonald v State of South Australia [2015] HCASL 118.

2. I am satisfied that the 2013 plaintiffs, in November 2014, commenced the 2014 proceedings, by way of parallel proceedings in this Court, in direct response to Mr McDonald’s failure to have the 2013 proceedings amended so as to record those whom he regards to be the proper defendants.  They did so by filing a summons[21] and a statement of claim[22] the latter being, substantively, in identical terms to FDN 59A insofar as the claims by Mr McDonald and Mr Brennan McDonald are concerned. In addition, Mrs McDonald has been included as a third plaintiff with the pleading replicating, as her claim, the claim proposed by her with respect to the 2013 proceedings. In short, the proposed statement of claim, FDN 59A, and the filed statement of claim, FDN 2, are in identical terms but with one exception. The one exception is that in FDN 2 the 2014 defendants have replaced the 2013 defendant. Were the 2014 proceedings to remain and go to trial, all of the claims by the 2014 plaintiffs would be out of time by many years. A time consuming and rather complex consideration of whether extensions of time pursuant to section 48 of the Limitation of Actions Act 1936 should be granted would be required.  All to no purpose and entirely unnecessary given the existence of FDN 59A.

   [21]   FDN 1 in the 2014 proceedings.

   [22]   FDN 2 in the 2014 proceedings.

3. For these reasons alone, in my view, the 2014 proceedings, insofar as they purport to present claims by Mr McDonald and Mr Brennan McDonald, constitute an abuse of process and should be struck out.  Both Mr McDonald and Mr Brennan McDonald have failed to demonstrate an entitlement to sue the 2014 defendants and should not be permitted to do so by the device of filing fresh proceedings.  Whether or not the 2014 pleading might remain in order to assert causes of action by Mrs McDonald but subject to any time limitation issues that might arise, may require further consideration depending on the validity of her claims.

4. Mr McDonald’s primary claim relates to personal injuries said to have been suffered at the hands of the various defendants.  However, Mr McDonald also seeks to agitate a defamation claim.  In this respect he has brought applications to be relieved, insofar as is necessary, from the implied undertaking not to use for a collateral purpose documents obtained during earlier legal proceedings,[23] and, insofar as is necessary, for an extension of time.  These applications are opposed by the defendant(s).

   [23]   The so called Harman undertaking, Harman v Secretary of State for the Home Department [1983] 1 AC 280 and see, for example, Esso Australia Resources Ltd v Plowman (Minister for Energy and Minerals) (1995) 183 CLR 10.

5. It is the case that, following the transfer of the District Court proceedings to this Court in 2013, the litigation has languished.  The parties, particularly Mr McDonald, have flooded the Court’s registry with applications and purported supporting affidavits and, in Mr McDonald’s case, relentless email traffic.  As I indicated in an earlier judgment:[24]

   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. 

   [24]   McDonald v State of South Australia [2015] SASC 141 at [4]-[5].

6. In order to assist with how to proceed with what had become an excessively complicated and encrusted matter, I directed the defendant(s) to prepare a chronological summary for both proceedings of all still to be determined interlocutory applications, all affidavit material filed in purported support thereof, all statements of claim, as filed, and proposed statements of claim filed since the transfer of the 2013 proceedings to this Court.  That document (FDN 68 in the 2013 proceedings and FDN 20 in the 2014 proceedings) comprises some 50 A3 spreadsheets. 

7. However, before being able to proceed with any of the outstanding interlocutory applications, it became necessary for me to hear argument and deliver judgments with respect to a recusal application brought by the plaintiffs[25] and with respect to an application by the plaintiffs for the solicitors on the record for and counsel representing the 2013 defendant and the 2014 defendants to be restrained from further participation in the proceedings.[26]  Both applications were dismissed.

   [25]   McDonald v State of South Australia [2015] SASC 141.

   [26]   McDonald v State of South Australia (No 2) [2015] SASC 188.

8. Ultimately, upon consideration of the chronology (FDN 68 and FDN 20) and after hearing from the parties, I directed that the following applications should be argued and determined first and at the same time.

   The 2013 defendant’s interlocutory application, FDN 45 in the 2013 proceedings

9. By FDN 45, the 2013 defendant seeks the following orders or directions.

   1.That the first plaintiff’s applications to be relieved from the implied undertaking and application for an extension of time pursuant to the Limitation of Actions Act 1936 (FDN 24 and 29) be refused.

   2.That the actions of the first plaintiff be dismissed.

   3.In the alternative to paragraph 2 the pleadings of the first plaintiff in the proposed statement of claim dated 16 May 2014 (FDN 21) and the proposed statement of claim dated 25 September 2014 be struck out.

   4.That the pleadings of the second plaintiff in the proposed statement of claim dated 16 May 2014 (FDN 21) and 25 September 2014 be struck out.

   5.That the application by Rhoda Louise McDonald dated 13 March 2014 (FDN 18) seeking leave to be joined as a plaintiff be refused and permission to file the proposed statements of claim (FDN 26) and 25 September 2014 be refused.

   6.That Brennan James McDonald’s action (FDN 95) be set down for trial.

   7.That Brennan James McDonald appear by counsel or on his own behalf in the conduct of his claim.

   8.That the plaintiffs bear the costs of the application.

   The 2013 defendant’s interlocutory application, FDN 40 in the 2013 proceedings

10. By FDN 40, the 2013 defendant seeks the following orders and directions.

    1.That the first plaintiff’s applications to be relieved from the implied undertaking (FDN 24 and 29) be refused.

    2.That the pleadings of the first plaintiff in the proposed statement of claim dated 16 May 2014 (FDN 21) be struck out.

    3.That the first plaintiff’s action be dismissed.

    4.That the pleadings of the second plaintiff in the proposed statement of claim dated 16 May 2014 (FDN 21) be struck out.

    5.That the application filed by Rhoda Louise McDonald dated 13 March 2014 (FDN 18) seeking leave to join Rhoda Louise Mc Donald as a plaintiff and permission to file the proposed statement of claim be refused.

    6.That the proposed statement of claim of Rhoda Louise McDonald dated 23 May 2014 be struck out and the claim dismissed.

    7.That the plaintiffs bear the costs of the application.

    The 2013 plaintiffs’ interlocutory application, FDN 18 in the 2013 proceedings

11. By FDN 18, Mrs McDonald seeks the following two orders.

    1.Mrs Rhoda Louise McDonald (Mrs McDonald) applies to the Supreme Court of SA and requests the Courts permission for a Joinder under R74 of the Supreme Court 2006 rules which would allow her to be added as a Plaintiff in the pleadings in case No 1574 of 2013 Francis and Brennan McDonald v the State of SA in a personal injury claim.

    2.Mrs McDonald also applies to the Supreme Court and requests permission for an extension of time if she is permitted as a Joinder under R74 of the Supreme Court 2006 rules to be included in the pleadings in case No 1574 of 2013 Francis and Brennan McDonald v the State of SA in a personal injury claim.

    The 2013 plaintiffs’ interlocutory application, FDN 24 in the 2013 proceedings

12. By FDN 24, Mr McDonald seeks the following three orders.

    1.The Court Order that Mr McDonald is relieved of the implied undertaking from using Defamation documents 1, 10 and 14 which the Defendant claims he is statute barred from using and he is allowed to use these documents in his claim in Defamation in case No 1574 of 2013.

    2.The Court Order that Mr McDonald is relieved of the implied undertaking from using Defamation documents 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 15 which the Defendant claims he is statute barred from using and he is allowed to use these documents in his claim in Defamation in case 1574 of 2013.

    3.The Court Order that if an extension of time is required under s48 of the Limitations of Action Act 1936 to use the documents mentioned in paragraph 1 and 2 above to support a Defamation claim in case No 1574 of 2013 then Mr McDonald be granted this extension of time to use these documents.

    The 2013 plaintiffs’ interlocutory application, FDN 29 in the 2013 proceedings

13. By FDN 29, the 2013 plaintiffs seek the following order.

    1.That the Plaintiffs be relieved of any implied undertaking in respect of using for collateral purposes documents 2, 3, 4, 5, 6, 7, 8, 9, ,11, 12 and 15.

    The 2014 defendants’ interlocutory application, FDN 10 in the 2014 proceedings

14. By FDN 10, the 2014 defendants seek the following orders or directions.

    1.That the first, second and third plaintiffs’ actions be dismissed.

    2.In the alternative, that the pleadings of the first, second and third plaintiffs in the statement of claim dated 17 November 2014 (FDN 2) be struck out.

    3.That the plaintiffs bear the costs of the application.

    The 2014 plaintiffs’ interlocutory application, FDN 52 in the 2014 proceedings

15. By FDN 52, the 2014 plaintiffs seeks the following orders.

    1.The Court Orders the defendant the State of SA in case SCCIV 13-1574 be dismissed from case SCCIV 13-1574 on the ground the State of SA is not the real party in the case.

    2.The Court Orders the defendant the State of SA in case SCCIV 13-1574 be dismissed from case SCCIV 13-1574 on the ground no contractual relationship exists between Francis McDonald and the Commissioner of Public Employment “Commissioner” under Part III of the Government Management and Employment (GME) Act 1985 or the Public Sector Management (PSM) Act 1995.

    3.The Court Orders the defendant the State of SA in case SCCIV 13-1574 be dismissed from case SCCIV 13-1574 on the ground the Commissioner on behalf of the crown did not appoint Francis Thomas McDonald as a Crown employee to a position in an administrative unit under Part III of the GME Act 1985 or the Public Sector Management Act 1995 in the period 1989 – 2003.

    4.The Court Orders the defendant the State of SA in case SCCIV 13-1574 be dismissed from case SCCIV 13-1574 on the ground the Commissioner has acknowledged by letter that Francis Thomas McDonald was not appointed to a position in an administrative unit by the Commissioner and the Commissioner was not his employer in the period 1989 – 2003.

    5.The Court Orders the Minister for Education and Child Development is shown as the defendant in case SCCIV 13-1574 on the ground the Minister for Education and Child Development is a real party in the case.

    6.The Court Orders the Minister for Education and Child Development is shown as the defendant in case SCCIV 13-1574 on the ground the Minister as a ‘body corporate constituted of a Minister’ under the Education Act 1972 was in a prima facie employer/employee contractual relationship with Francis Thomas McDonald for the period 1989 – 2003.

    7.The Court Orders the defendant the State of SA in case SCCIV 13-1574 be dismissed from case SCCIV 13-1574 on the ground the Minister for Education and Child Development was the employer of Francis Thomas McDonald under the Education Act 1972 in the period 1989 – 2003.

    8.The Court Orders the defendant the State of SA in case SCCIV 13-1574 be dismissed from case SCCIV 13-1574 on the ground a Statement of Service of Francis Thomas McDonald has been provided to the court as evidence he was appointed to the SA teaching service by his employer under the Education Act 1972 in the period 1989 – 2003.

    9.The Court Orders the Minister for Education and Child Development is shown as the defendant in case SCCIV 13-1574 on the ground persons appointed by the body corporate under the Education Act 1972 are employees of the body corporate, not Crown employee or employees of the State of SA.

    10.The Court Orders the defendant the State of SA in case SCCIV 13-1574 be dismissed from case SCCIV 13-1574 on the ground there has been an abuse of process by the Court by State of SA claiming they are the real party and defendant in case SCCIV 13-1574 when there is overwhelming documentary evidence and substantive law in SA to show this is not the case.

    11.The Court Orders Francis, Brennan and Rhoda McDonald are shown as the plaintiffs in case SCCIV 13-1574 on the ground they are a real party to the case.

    12.The Court Orders the plaintiffs Francis, Brennan and Rhoda McDonald and the defendant the Minister for Education and Child Development and Others be listed on the Court record as the real parties in case SCCIV 13-1574.

16. The 2013 defendant’s applications FDN 40 and FDN 45 are dated 15 October 2014 and 29 January 2015, respectively.  They refer to the 2013 plaintiffs’ proposed statements of claim FDN 21 and dated 25 September 2014, being the documents the 2013 plaintiffs were propounding at the time FDN 40 and FDN 45 were filed.  However, on 23 April 2015, Mr McDonald filed an affidavit (FDN 59) exhibiting the proposed statement of claim (FDN 59A) as being the one “to go forward in the [2013 proceedings]”.  As earlier indicated, FDN 59A also incorporates Mrs McDonald’s proposed claim.  The argument before me was conducted on the basis that FDN 59A was the pleading in the 2013 proceedings under challenge and which the 2013 plaintiffs wished to uphold.

    The materials before the Court

17. Argument on the various matters raised by these applications was heard over four days in February and March of this year.  In response to the legal issues to be determined, essentially, on the pleadings and by having regard to the interlocutory history of the proceedings, Mr McDonald addressed the Court for more than two days.  His oral and written submissions and the many documents he relied on were directed, essentially, to factual matters and the construction of various statutes said to govern his employment relationship and the proper contracting party.  Mr McDonald was keen, as he has been throughout the interlocutory stages, to prove his case on the facts and to persuade the Court that the State of South Australia was not the proper defendant.  In addition to the parties’ oral submissions, the written materials (excluding authorities) before the Court included the following. 

    1.Written submissions and other documents filed by the parties prior to the hearing, including:

    (i)Defendant’s List of Authorities (FDN 83 in the 2013 proceedings);

    (ii)Defendant’s Outline of Argument (FDN 84 in the 2014 proceedings);

    (iii)List of Authorities filed by the 2013 plaintiffs (FDN 85 in the 2013 proceedings); and

    (iv)Plaintiffs Outline of Argument (FDN 89 in the 2013 proceedings).

    2.Casebook comprising three volumes filed by the defendant(s) on 27 January 2016 (FDN 82 in the 2013 proceedings). The Casebook includes the following documents.

    (i)The 2013 defendant’s applications and filed documents in the 2013 proceedings (FDNs 39, 40, 45 and 46);

    (ii)The 2013 plaintiffs’ applications and filed documents in the 2013 proceedings (FDNs 18, 19, 21, 23, 24, 25, 26, 29, 30 and 59);

    (iii)The proposed statement of claim dated 25 September 2014 that was received but not filed by the Court’s registry;

    (iv)Applications and filed documents filed by both parties in the District Court proceedings (FDN 102, 103, 105, 104, 106 and 107);

    (v)The 2014 defendants’ applications and filed documents in the 2014 proceedings (FDNs 10, 11 and 16); and

    (vi)The 2014 plaintiffs’ applications and filed documents in the 2014 proceedings (FDNs 1, 2, 29, 47, 48, 49, 51 and 52). 

    3.Casebook comprising four volumes filed by the 2013 plaintiffs on 10 February 2016 (FDN 88 in the 2013 proceedings). The four volumes include 123 documents.

    4.Materials relating to defamation pleadings filed by the 2013 defendant (FDN 93 in the 2013 proceedings).

    5.Materials handed up by the parties during the course of oral submissions in February and March 2016, including:

    (i)Schedule of documents relied on by first plaintiff in support of defamation claim;

    (ii)Statement of Claim of Mr McDonald in the Federal Court proceedings;

    (iii)Copy of 2004 Grievance Report concerning Mr McDonald;

    (iv)Copy of the New South Wales Law Society’s Guidelines for solicitors dealing with self-represented litigants dated April 2006;

    (v)Bundle of documents comprising of correspondence concerning Freedom of Information requests and extracts of Department for Education and Child Development documents;

    (vi)Further Amended Statement of Claim of Mr McDonald in the Supreme Court proceedings before Anderson J dated 21 June 2007 (FDN 69);

    (vii)Copy of the Statement of Claim in Doulis v State of Victoria;

    (viii)Further Amended Statement of Claim in the District Court proceedings (FDN 20);

    (ix)Transcript of Proceedings, McDonald v State of South Australia, (District Court of South Australia, DCCIV-05-29, Master Norman, 26 February 2007);

    (x)Transcript of Proceedings, McDonald v State of South Australia, (District Court of South Australia, SCCIV-04-418, Judge Lunn, 4 May 2006);

    (xi)Document titled “Extracts from the Respondent’s Cross Appeal in case 418 of 2004 McDonald v the State of SA”;

    (xii)Further Amended Notice of Cross Appeal of Mr McDonald in the Supreme Court proceedings before Anderson J dated 22 December 2008;

    (xiii)Further Amended Statement of Claim of Mr Brennan McDonald in the District Court proceedings filed on 8 June 2006 (FDN 10);

    (xiv)Document titled “Francis and Brennan McDonald v the State of SA in action No 29 of 2005” relevant to the strike out of Mr McDonald’s defamation claim by Master Norman, provided to JusticeNet; and

    (xv)Copy of the Statement of Claim in Naidu v Group 4 Securitas Pty Limited & Anor.

    6.Submissions and documents filed by the parties following the commencement of oral submissions, including:

    (i)Affidavit of Jeffrey Mark Mullan sworn 6 March 2013 (FDN 16 in the 2013 proceedings);

    (ii)Fifth Affidavit of Loretta Marie Condoluci (FDN 92 in the 2013 proceedings);

    (iii)Materials relating to the defamation pleadings filed by 2013 defendant (FDN 93 in the 2013 proceedings);

    (iv)The Defendant(s)’ Schedule of Legislation Relating to the Employment of Individually Named Defendants in 1564/2014 (FDN 98 of the 2013 proceedings);

    (v)Affidavit of Mr McDonald sworn on 19 March 2016 (FDN 100 in the 2013 proceedings);

    (vi)Affidavit of Mr McDonald sworn on 13 April 2016 (FDN 101 in the 2013 proceedings);

    (vii)Affidavit of Michael Papps sworn on 12 April 2016 (FDN 102 in the 2013 proceedings);

    (viii)Defendant(s)’ Further Submissions Regarding the Appointments of Susan Hyde and Don Mackie (FDN 103 in the 2013 proceedings);

    (ix)Affidavit of Mr McDonald sworn on 19 April 2016 (FDN 104 in the 2013 proceedings);

    (x)Second Affidavit of Mr McDonald sworn on 19 April 2016 (FDN 105 in the 2013 proceedings);

    (xi)Plaintiffs’ Further Submissions Regarding the Appointment of Susan Hyde and Don Mackie (FDN 106 in the 2013 proceedings);

    (xii)Defendant(s)’ Submissions in Reply to the Plaintiffs’ Submissions of 12 April 2016 (FDN 107 of the 2013 proceedings);

    (xiii)Interlocutory Application filed by the 2014 plaintiffs seeking an extension of time pursuant to the Limitation of Actions Act 1948 (FDN 61 in the 2014 proceedings);

    (xiv)Argument on s48 of Limitation of Actions Act 1936 in case 14-1564 (FDN 65 of the 2014 proceedings); and

    (xv)List of Authorities in case SCCIV-14-1564 in support of Plaintiffs’ Argument on 12 April 2016 (FDN 66 of 2014 proceedings).

    The content of FDN 59A and FDN 2

1. Paragraph 1 under the heading Introduction is in the following terms.

   This is a personal injury claim against the body corporate known by the corporate name “the Minister for Education and Child Development” for it owed a duty of care to Francis, Rhoda and Brennan McDonald.  It breached the duty of care owed and caused harm and injury to the Plaintiffs through its negligent acts and omissions and those of its employees.  As the Education Authority and employer under the Act the corporate body is vicariously liable for its breach of duty of care owed and the Plaintiffs seek damages in the form of General and Special damages or Aggravated and Exemplary damages or other forms of relief the courts think fit for the harm and injury caused by the defendant’s negligent acts or omissions. 

2. Under the heading The causes of action relied on paragraphs 2 to 6 assert as follows.

   2.A breach of duty of care owed in tort by the employer not to cause harm or injury to an employee by failing to provide the employee with safe systems of work and a safe workplace and with the proper tools and equipment; or

   3.A breach of duty of care owed by the employer in contract to provide employees with safe systems of work and a safe workplace and with the proper tools and equipment; or

   4.A breach of duty of care owed under the Occupational Health, Safety and Welfare Act 1986 to employees by the employer.

   5.A breach of duty of care owed to parents and their children by the Education Authority under the Education Act 1972.

   6.Injurious falsehood and defamation in tort or in statute.

3. Under the heading Part 1: Background and uncontroversial matters the pleading seeks to identify the role said to have been played by each of the various protagonists, Mr McDonald, Mr Brennan McDonald, Mrs McDonald, the Minister of Education and Child Development (“the Minister”), Mr Mitchell, Ms Hyde and Mr Mackie (paragraphs 7 to 24).[27]  The existence of and alleged terms of a “Memorandum of Agreement ... of 1988 between the Minister of Education ... and Mr McDonald” are pleaded in paragraphs 25 to 31.  In short, it is alleged that the Minister entered into a contractual agreement with Mr McDonald in 1988, appointing him to the South Australian teaching service which agreement established a “contractual employer/employee relationship between the Minister ... and Mr McDonald” which was binding on both parties. 

   [27]   The latter four are referred to as the first defendant, second defendant, third defendant and fourth defendant respectively in both pleadings.

4. In paragraphs 32 through to 47 (still under “Part 1”) the pleading asserts various propositions of law or mixed law and fact dealing with the statutory and regulatory framework said to govern a teacher’s employment contract and the roles of the Human Resource Manager, Site Managers and Supervisors in controlling Mr McDonald’s work situation.  A number of other senior employees in DECS (who are not proposed as defendants) are identified including: Mr Kevin Boaden, a Human Resources Manager who dealt with Mr McDonald’s appointments to schools during 1988 to 2003; Mr Bob Parsons, a Site Manager; Ms Nancy Schupelius, the Site Manager at Brighton Secondary School and Ms Maureen Cochram a District Superintendent.

5. In Part 2 under the heading Basis of causes of action and other material matters (paragraphs 48 to 403) the pleading sets out what is said to be the bases of the various causes of action relied upon by Mr McDonald, Mr Brennan McDonald and Mrs Rhoda McDonald.

6. In paragraphs 48 to 59, Mr McDonald alleges that, at all material times, “the corporate body [that is, the Minister] and its employees” knew of certain matters including, for example: that the implementation of the technology plan to be rolled out in South Australian schools in 1995 would place excessive and complex workloads on existing teachers; that the facilities, equipment, budgets and training were inadequate; that this state of affairs posed a risk of harm to Mr McDonald “but [they] sent him to work anyway”; and that existing occupational health and safety policies and arrangements were inadequate. 

7. In the unnumbered paragraph, appearing between paragraphs 59 and 60, it is alleged that:

   Mr McDonald sustained injury in the course of his employment with the Minister at the facilities referred to until forced to cease work in April 2003 when he was repeatedly exposed to highly stressful circumstances in his work environment of which circumstances the Minister, Kevin Boaden, Bob Parsons, Nancy Schupelius, Maureen Cochram, Peter Mitchell, Sue Hyde and Don Mackie were fully aware and failed to control adequately or at all and which were in breach of the statutory regulations and DECS Policies.

   There follows, still in that unnumbered paragraph, a list, by way of “particulars” of various statutes[28] and DECS policies said to have been breached by the corporate body and its employees.  Finally, it is asserted in this unnumbered paragraph that all of the “aforesaid breaches” had caused Mr McDonald to suffer stress, anxiety and irritable bowel syndrome while working in the period 1996 to 2003. 

   [28]   The various pieces of legislation relied upon by Mr McDonald are recorded in the pleading in the following terms: section 27(c)(3) of the Wrongs Act 1936, section 15 of the Education Act 1972, section 86 of the Equal Opportunity Act 1984, section 19 of the Occupational Health and Safety and Welfare Act 1986, section 54(4a)(b)(i)(ii) of the Workers Rehabilitation and Compensation Act 1986, section 28A of the Workers Rehabilitation and Compensation Act 1986, sections 57, 58 and 60 of the SA Fair Trading Act 1987, section 3 of the Industrial and Employees Relations Act 1994 and clause 3.1, 4.1 and 4.3 of the DECS (Teachers) Award 1994.

8. In paragraphs 60 to 107 and under the heading Kevin Boaden HRM for DECS 1988-2003 and two subheadings Particulars of DECS HRM (Kevin Boaden) negligence and Particulars of cause of negligence at MBHS and BSS[29] Mr McDonald pleads numerous alleged acts and omissions on the part of Mr Boaden.  The allegations, whilst at a level of some generality, essentially assert conduct by Mr Boaden (acts and omissions) that might be characterised as particulars of negligence or breach of a contractual or statutory obligation.  However, the allegations are all couched as “failing” to do something and no dates are particularised other than the global timeframe of 1988 to 2003.

   [29]   MBHS is the acronym for Mount Barker High School and BSS is the acronym for Brighton Secondary School.

9. The following are examples demonstrating the very general nature of the allegations.  Paragraph 61 asserts a failure to appoint Mr McDonald to MBHS and BSS to carry out “Teachers Work” that was in the contemplation of his contract.  Paragraphs 62 and 63 allege a failure to tell Mr McDonald when he was appointed to these two schools that there was no vacancy for a business education teacher at the schools[30] and that he was being appointed to teach computing/maths, a highly complex area of work with heavy workloads and as to which Mr McDonald was not qualified to teach.  Paragraphs 73 and 74 allege failures to provide Mr McDonald with supervision and training in the new areas of teaching and failures to provide him with supervision when working in areas for which he was not trained.  Paragraphs 77 to 81 (amongst a number of other paragraphs) allege various failures to do with providing a safe system of work.  Paragraphs 82 and following allege, inter alia, various failures concerning the provision of a safe system of work, the exposure of Mr McDonald to risk of injury, the permitting and/or requiring of Mr McDonald to work in a dangerous manner and the permitting or requiring of Mr McDonald to undertake an unduly complex and heavy workload in areas which were not within the contemplation of his teaching contract. 

   [30]   Business education was the area for which Mr McDonald was qualified to teach and in which he was experienced.

10. This section of the pleading contains numerous other allegations, many of which are repetitive and expressed at a high level of generality.  Nevertheless, the examples just now given demonstrate the flavour of the pleading. 

11. At the end of the numbered paragraphs dealing with Mr Boaden, there is a final, unnumbered paragraph in the following terms.

    Further and in the alternative, the injuries were caused by reason of the breach of the implied terms in Mr McDonald’s contract of employment with the Minister, namely the provision of a safe system of work, safe equipment with which to carry out teaching, a safe place of work with appropriate supervision of his work. 

12. The pleading then proceeds to raise further allegations, essentially of a similar nature, but this time under the heading Nancy Schupelius Site Manager of BSS in the period 1997-2002 and the subheading Particulars of Nancy Schupelius’s Negligence at BSS as Site Manager (paragraphs 108 to 139).  It is unnecessary to set out examples from this part of the pleading.  Again, the allegations of acts and omissions by Ms Schupelius are at a very general level and are of a nature aimed at supporting an allegation of breach of duty of care in negligence or breach of contract.  At the end of this section, in an unnumbered paragraph, Mr McDonald alleges:

    All of the aforesaid failures and breaches led to Mr McDonald suffering stress and anxiety and irritable bowel syndrome while working at BSS.

13. Paragraphs 140 to 150 assert various acts and omissions by Ms Cochram under the heading Maureen Cochram District Superintendent for the Central South-West Area in 2000/2001 and the subheading Particulars of Maureen Cochram’s Negligence as District Superintendent of BSS.  Again, the essence of the allegations is that Ms Cochram, by her acts and omissions, contributed to Mr McDonald being exposed to an unsafe workplace and to unsafe systems of work.

14. Paragraphs 151-187 deal with acts and omissions of the “second defendant” Mr Mitchell under the heading Second Defendant Peter Mitchell site Manager of BSS in the period 2001-2003 and subheading Particulars of Peter Mitchell’s Negligence as site Manager of BSS.  Again, acts and omissions of Mr Mitchell, said to have contributed to the failure to provide Mr McDonald with a safe workplace and safe systems of work, are alleged. 

15. In addition, there are allegations of failures to investigate Mr McDonald’s complaints of bullying in the workplace, failures to provide Mr McDonald with procedural fairness and natural justice following his making of complaints of bullying in the workplace, complaints of harassment of Mr McDonald following his making of complaints of being bullied in the workplace, failures to implement appropriate policies and the failure to investigate, either properly or at all, Mr McDonald’s claims of being discriminated against and victimised in the workplace.  Again, the allegations are at a high level of generality and lack proper particulars. 

16. A problem from a rules of pleading perspective with the allegations against each of the individually named persons, including Mr Mitchell, is that very little particularity is provided.  That is not to say that no particulars have been provided, but where particulars are provided they are usually of a more minor concern.  For example, in paragraph 171, Mr McDonald alleges that Mr Mitchell failed to “place a fully paid stamp on the envelope” which contained the letter addressed to Mr McDonald telling him he had not been invited to an interview for the position of Coordinator Learning Technologies, such that the letter arrived well after the interviews had taken place.  However, and by way of example only, the, perhaps, more serious allegation in paragraph 163 of “harassing Mr McDonald after he made complaints of being bullied in the work place in October 2001” remains unparticularised. 

17. In paragraphs 184 to 186, Mr McDonald alleges that Mr Mitchell defamed him.  I will need to return to Mr McDonald’s defamation pleadings later in these reasons.  However, it is convenient, at this stage, to set out Mr McDonald’s pleading insofar as it relates to Mr Mitchell.

    184.Defaming Mr McDonald’s good name and reputation in the letter he sent to Mr [Capozzo] in January 2002;

    185.Defaming Mr McDonald’s good name and reputation in the letter of reply he sent Dr Kalnin in January 2003;

    186.Defaming Mr McDonald’s good name and reputation in correspondence to senior DECS officials in the period October 2002 - April 2004.

    In addition, in paragraph 187 a new type of claim is adverted to.

    187.Conspiring with DECS Directorate and Superintendents to prevent Brennan McDonald from attending BSS in 2004.

18. There is no pleading that any negligence of Mr Mitchell arose from or in the course of “serious and wilful conduct”.[31]  Further, the allegations of defamation in paragraphs 184 to 186 are not in any way particularised, although some particulars are given later in the pleading.  Further again, the allegation of a conspiracy cannot be a particular of negligence by Mr Mitchell, or if it is, it is a serious allegation which is, again, completely unparticularised and one which does not have any apparent connection with loss caused to Mr McDonald.

    [31] This term is employed in section 54(4a) of the Workers Rehabilitation and Compensation Act 1986 in force at the time of the events complained of by Mr McDonald.  I return to this provision later in these reasons.

19. In paragraphs 188 to 219, Mr McDonald alleges various wrongful acts and omissions by Ms Hyde, described as the third defendant under the heading Third Defendant Sue Hyde District Superintendent for Central South West in the period 2001-2003 and the subheading Particulars of Sue Hyde’s negligence as District Superintendent.  Again, the allegations are of a similar nature and generality as those already described.  The burden of the case against Ms Hyde would appear to be that she failed to check that appropriate health and safety and risk management policies and procedures were in place during the period of Mr McDonald’s employment, failed to ensure that Mr McDonald had a safe place of work with safe systems of work, failed to protect Mr McDonald from bullying, failed to provide Mr McDonald with procedural fairness and natural justice during various grievance processes, failed to properly investigate Mr McDonald’s complaints and lied to Mr McDonald and other persons. 

20. Mr McDonald also alleges acts of conspiracy by Ms Hyde and that she too defamed Mr McDonald.  Paragraphs 214 to 219 are in these terms.

    214.Conspiring with Mr Mackie and others to cover up she had received Mr McDonald’s Bullying Grievance in October 2002;

    215.Conspiring with Mr Mackie and others to prevent a Grievance investigation into bullying at BSS;

    216.Defaming Mr McDonald’s good name and reputation in the Minutes to the Directorate in 2003/4;

    217.Defaming Mr McDonald’s good name and reputation in correspondence to the Senior DECS officials in the period October 2002 - April 2004;

    218.Defaming Mr McDonald’s good name and reputation in a group setting by providing defamatory statements to senior officials in DECS and the Commission in 2003/2004 to prevent an investigation into Mr McDonald being bullied out of work;

    219.Conspiring with Peter Mitchell, John Mudge and DECS Directorate to prevent Brennan McDonald from attending BSS in 2004.

    Again, there is no pleading that any negligence of Ms Hyde arose from or in the course of “serious and wilful misconduct”.  Further, I make the same observations concerning the references to “conspiring” and “defaming” as made earlier with respect to the pleas against Mr Mitchell.

21. In paragraphs 220 to 246, Mr McDonald alleges that Mr Mackie committed various acts and omissions under the heading Fourth Defendant Don Mackie, Legal Services Unit in the period 2002 – 2004 and the subheading Particulars of Don Mackie’s Negligence as DECS Legal Advisor.  The allegations are numerous and most are in the form of an alleged failure by Mr Mackie to advise other persons, including Ms Hyde and Mr Mitchell of the appropriate way to deal with Mr McDonald’s complaints and the circumstances in which Mr McDonald found himself.  There are also allegations that Mr Mackie failed to act on Mr McDonald’s “Bullying Grievance Report”, lied about Mr McDonald to other persons, engaged in various conspiracies and engaged in various acts of defamation.  Paragraphs 241 to 246 contain conspiracy and defamation allegations.

    241.Conspiring with Sue Hyde and others to cover up he had received Mr McDonald’s Bullying Grievance from Sue Hyde;

    242.Conspiring with Sue Hyde and others to prevent a Grievance investigation into the bullying at BSS;

    243.Defaming Mr McDonald’s good name and reputation to the Directorate in 2003/4 to cover up bullying in schools;

    244.Defaming Mr McDonald’s good name and reputation in correspondence to Senior DECS officials to cover up their wrong doing;

    245.Defaming Mr McDonald’s good name and reputation in a group setting by providing defamatory statements to senior officials in DECS and the Commission in 2003/2004 to portray Mr McDonald as a disgruntled employee;

    246.Conspiring with DECS Directorate, Sue Hyde, Peter Mitchell, John Mudge and John Binks-Williams to prevent Brennan McDonald from attending BSS in 2004. 

    Again, there is no pleading that any negligence of Mr Mackie arose from or in the course of “serious and wilful misconduct”.  Further, I make the same observations concerning the references to “conspiring” and “defaming” as made earlier with respect to the pleas against Mr Mitchell and Ms Hyde.

22. After paragraph 246, following Mr McDonald having dealt with his complaints against various named employees including the three proposed defendants, Mr Mitchell, Ms Hyde and Mr Mackie, an unnumbered paragraph headed “Particulars of Injury to Mr McDonald” appears.  It is unclear whether this is a subheading related to the heading “Fourth Defendant Don Mackie, Legal Services Unit in the period 2002-2004” or whether this unnumbered paragraph purports to set out a general statement of particulars of injury suffered by Mr McDonald as a consequence of all of the conduct complained of to this point.  For present purposes, it is material to note that the particulars of injury set out in subparagraphs (a)-(p) are all matters of personal (including psychiatric, psychological and emotional) injury or indisposition such as, by way of example only, panic disorder with anxiety attacks, disturbed sleep patterns, sense of worthlessness, irritable bowel syndrome, chronic major depressive disorder and inability to relax. 

23. The pleading then moves to a new major heading Causation (paragraph 247.1 to 247.13).  The essence of this plea is that, had the Minister and his employees observed the terms of Mr McDonald’s teaching contract, not breached that contract in various ways, not breached the employer’s statutory duty of care under the Occupational Health, Safety and Welfare Act 1986, not breached section 28A of the Workers Rehabilitation and Compensation Act 1986, not breached various departmental policies and codes of conduct but, instead, had the Minister employed Mr McDonald or trained Mr McDonald for employment in accordance with his contractual entitlements, Mr McDonald’s employment “would have remained on course”.  In addition, it is alleged, in effect, that because of the wrongful conduct of the Minister, Mr McDonald’s employment was “prematurely brought to a close”. 

24. Mr McDonald then pleads three propositions under a new heading The duty of care owed by the Minister... and its employees to students and parents as the Education Authority under the Education Act 1972.  This would appear to be a precursor to subsequent pleadings dealing with Mr Brennan McDonald’s complaints, further complaints by Mr McDonald and Mrs McDonald’s complaints.  The three propositions are in the following terms. 

    (a)Under the Education Act 1972 the Minister for Education is the Education Authority under that Act;

    (b)At all material times, the Minister for Education and Child Development is the Education Authority under the Education Act 1972 and as the Authority under that Act owes a duty of care to supervise pupils in its care and keep them safe and owes third parties a duty of care to supervise their children whilst in its care and not cause harm to them;

    (c)The Minister for Education and Child Development is vicariously liable in its corporate name for the torts of teachers if they occurred in the course of a teacher’s official duty. 

1. The defendant(s) also maintain that Mr McDonald requires a release from the implied undertaking not to use documents obtained through compulsory processes in other litigation for a collateral purpose.[85]  The defendant(s) maintain that documents 2, 3, 4, 5, 10, 12 and 15 attract the implied undertaking because they were disclosed in the action with reference to Mr Brennan McDonald’s claim.  I have already determined that the pleas based on documents 3, 4, 7, 14 and 15 should be struck out as disclosing no tenable cause of action.  As far as 1 (in part), 2[86] (in part), 5, 6, 8, 9, 10 and 12[87] are concerned, only 2, 5, 10 and 12 might be said to attract the implied undertaking.  However, Document 9 came to Mr McDonald’s attention solely through a freedom of information application. Section 50 of the Freedom of Information Act 1991 provides a complete immunity from suit in these circumstances with respect to Document 9.[88]  It follows that any defamation pleading based on Document 9 should be struck out for this reason as well.

   [85]   Harman v Secretary of State for the Home Department [1983] 1 AC 280.

   [86]   Document 11 is identical to Document 2.

   [87]   There is no Document 13.

   [88]   Morgan v Mallard [2001] SASC 364. Documents 2, 3, 4, 5, 10, 12 and 15 were also made available to Mr McDonald in this way. However, his having also obtained them through the disclosure process for Mr Brennan McDonald’s claim provided another potential justification to use them, subject to being released from the implied undertaking.

2. The defendant(s) further argue that the latest any of the documents, relied on, came into Mr McDonald’s possession was 31 July 2006[89] and that the defamation pleadings are out of time.

   [89]   See defendant(s) written submission entitled “Materials Relating to Defamation Pleadings” filed on 26 February 2016 in the 2013 proceedings (FDN 93).

3. Mr McDonald has sought orders extending time pursuant to section 48 of the Limitation of Actions Act 1936, insofar as necessary, and for release of the implied undertaking insofar as necessary. It is unnecessary for me to form a final view with respect to the latter. However, if the only matter preventing Mr McDonald from proceeding with a defamation claim was the implied undertaking, a release would more likely be given. The questions of whether or not Mr McDonald requires an extension of time, and, if so, whether it should be allowed, raise complex questions of fact that may well require the hearing of oral evidence more appropriately dealt with at and, in the context of, any trial of substantive issues. Nevertheless, I observe at this point, that Mr McDonald has not pleaded any “new material fact” which on its face would satisfy the requirements of section 48.

4. Returning to the question of malice, the plea of qualified privilege, together with any proper plea of malice, would require the substratum of facts explored in the trial before Anderson J to be completely revisited.  It would be necessary to do so in order to gain a proper appreciation of the necessary mutuality of obligation or duty and interest and also in order to assess any pleaded factual basis of malice.  The evidence of all of the employee witnesses before Anderson J would need to be re-heard in order to assess the proper nature of the relationships between Mr McDonald and the various employees the subject of his defamation allegations and, ultimately, the questions of whether any of the publications (if defamatory) demonstrated a misuse of the privilege and was actuated by an improper motive of injuring Mr McDonald.

5. The proper and fair occasion to pursue this was in the trial before Anderson J, which was heard between October 2007 and February 2008.  In my view, in addition to striking out the defamation pleading as a result of its pleading inadequacies, Mr McDonald should be precluded from bringing such a claim, based on the documents he seeks to rely on, on the basis of an Anshun estoppel or an abuse of process in seeking to re-litigate settled controversies.

6. I also observe here that Mr McDonald only seeks reputation loss. In any event, to the extent that any loss claimed were to extend to personal injury (including mental harm) such would be precluded by section 54(1) of the Workers Rehabilitation and Compensation Act 1986 for the reasons earlier discussed.  The limitation of recovery to reputation loss, the nature of the defamatory statements relied on, including their low potency, the limited circumstances of any publication relied on and the context in which any such publication occurred, combine to suggest that any damages recovery, were Mr McDonald to succeed, would, at best, be modest.

7. If, on a strict application, Anshun estoppel and abuse of process by attempted re-litigation of settled controversies were not to apply, the defamation pleadings remain as embarrassing and should be struck out.  The following considerations are relevant to the question of whether or not Mr McDonald should be allowed another opportunity to re-plead his defamation claim.

8. It was made clear to Mr McDonald in early 2013 that he was likely to get only one more opportunity to plead his case.  As earlier indicated, since 2005 Mr McDonald has filed or attempted to file more than 25 statements of claim, including multiple versions containing either a bare assertion of or an unsatisfactory attempt to plead a claim in defamation.  He has been on notice of Documents 1 to 15, now sought to be relied on, since no later than 31 July 2006.

9. The claim in defamation has, in any event, been very substantially delayed.  Whilst Mr McDonald at earlier times asserted in bare terms that he had been defamed, it was not until November 2010 that he sought to rely, for the first time, on documents 1 to 15.

10. For the reasons earlier given, Mr McDonald, if he were to succeed with his defamation claim, including, of necessity, overcoming the qualified privilege defence, he would be entitled to, at best, a modest award of damages. 

11. On any analysis, the extensive factual substratum before Anderson J would need to be revisited with substantial cost, inconvenience and unacceptable risk of inconsistent findings; the principle of finality must be given weight in this context.

12. Even if it were possible to discern a pleaded case in defamation against one or more of the defendants, I am satisfied that this last attempt should be struck out.  It is embarrassing, oppressive and unfairly prejudicial to the defendant(s).  To quote from Finn J in Tepperova v Minister for Immigration and Multicultural and Indigenous Affairs,[90] “the pleading discloses a claim with obvious flaws and little by way of prospect”.  Ultimately, there has to be an end point in such a process.[91]  I will not grant permission to Mr McDonald to attempt a further pleading of a claim in defamation.

    [90] [2006] FCA 1147 at [43].

    [91]   Cf; Tepperova v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1147; Garrett v National Australia Bank [2007] FCA 530.

13. The claim by Mr McDonald that remains to be considered is the derivative claim in (ix) at [90] above asserting a duty of care not to bully Mr Brennan McDonald so as to result in personal injury to Mr McDonald. As a matter of principle, this is the same derivative claim that is asserted by Mrs McDonald and I will consider it in that context. I have concluded that Mr McDonald’s derivative claim also should be struck out.

    Whether the pleadings concerning Mr McDonald’s claim in the 2014 proceedings should be struck out

14. The pleadings in the 2014 proceedings, insofar as Mr McDonald’s claims are concerned, should be struck out.  For the reasons given earlier, the filing of the 2014 proceedings was, itself, an abuse of process.  In any event, the 2014 pleadings suffer from the same flaws as do the pleadings in the 2013 proceedings.

    Whether Mr McDonald’s causes of action in the 2013 proceedings and the 2014 proceedings should be dismissed

15. I propose to order the dismissal of both the 2013 proceedings and the 2014 proceedings, insofar as Mr McDonald’s claims are concerned, pursuant to rule 193 of the Supreme Court Civil Rules 2006 (or the earlier analogous rule) on the basis that the pleadings disclose no reasonable cause of action and/or comprise an abuse of the process of the Court. Furthermore, Mr McDonald has had multiple opportunities over many years to produce pleadings that comply with the rules and which plead reasonably arguable causes of action. He has consistently failed to do so. The heartland of his claims could never be prosecuted in this Court because of section 54 of the Workers Rehabilitation and Compensation Act 1986 and the fact that various issues of fact and law have already been decided against him in earlier litigations.  I have sympathy for Mr McDonald in that, should he have a claim on the facts, the proper forum is the Worker’s Compensation Tribunal.  However, there must be an end point and, as far as this Court and the District Court is concerned, that point has been reached.

    The potential or adverted to bases for Mrs McDonald’s claims, as pleaded

16. By way of summary, Mrs McDonald makes or adverts to the following causes of action or bases for causes of action. 

    (i)Breach by the State of South Australia (the 2013 proceedings) and the Minister (the 2014 proceedings) of a duty of care owed to Mrs McDonald not to bully her son, Mr Brennan McDonald and not to bully and otherwise cause personal injury to her husband, Mr McDonald, resulting in personal injury to Mrs McDonald (Mrs McDonald’s “derivative” claims). 

    (ii)Breach by the State of South Australia (the 2013 proceedings) and the Minister (the 2014 proceedings) of various duties as an employer of Mr McDonald said to arise under the Occupational Health, Safety and Welfare Act 1996 resulting in personal injury to Mrs McDonald.

    (iii)Breach by the State of South Australia (the 2013 proceedings) and the Minister (the 2014 proceedings) of section 59(3) of the Civil Liability Act such that the acts and omissions complained of amounted to “serious and wilful acts of misconduct” resulting in personal injury to Mrs McDonald.

17. The claims adverted to in (ii) and (iii) above are untenable and should be struck out of the 2014 proceedings as disclosing no reasonably arguable cause of action in favour of Mrs McDonald.  I refuse permission for Mrs McDonald to be joined to the 2013 proceedings in order to prosecute the claims in (ii) and (iii).

18. The derivative claims in (i) (and the cognate claim by Mr McDonald with reference to the treatment of Mr Brennan McDonald) to the effect that the defendant(s) owed a duty of care not to treat Mr McDonald and Mr Brennan McDonald in such a way as to cause personal injury to Mrs McDonald, call for more detailed consideration. 

19. The claim is one to recover damages for pure mental harm, that is, mental harm unaccompanied by any physical injury.  Mental harm, to be compensable, must be comprised of those illnesses which psychiatry will recognise.  For example, grief, sorrow, anxiety or distress alone, will not qualify.  In the unnumbered paragraph after paragraph 403, Mrs McDonald claims to have suffered, inter alia, chronic major depressive disorder and adjustment disorder with mixed anxiety and depressed mood.  I accept, for present purposes, that Mrs McDonald has pleaded that she has been caused to suffer recognised psychiatric injury.  In the unnumbered paragraph after paragraph 340, Mr McDonald claims in the context of the bullying of Mr Brennan McDonald, that he has been caused to suffer, inter alia, post-traumatic stress disorder.  In the context of his wider claims, Mr McDonald pleads (after paragraph 246) that he has been caused to suffer, inter alia, adjustment disorder with mixed anxiety and depressed mood.  I accept, for present purposes, that Mr McDonald has pleaded that he has been caused to suffer recognised psychiatric injury. 

20. However, there is no claim by Mr Brennan McDonald in either the 2013 proceedings or the 2014 proceedings for any form of physical or mental harm.  The damages sought on behalf of Mr Brennan McDonald in FDN 59A and FDN 2 are completely unparticularised.

    413.An award of aggravated and exemplary damages or special and general damages against [the defendant(s)] for their negligent acts or omissions to Brennan as a student in the care of the Education Authority.

    In the body of FDN 59A and FDN 2, there is no assertion that Mr Brennan McDonald suffered any physical or psychiatric harm.  Further, it is not pleaded, and cannot be known without an enquiry into the facts, when any of Mrs McDonald’s or Mr McDonald’s recognised psychiatric injury first occurred.  The period of their complaints about the behaviour of the defendant(s) and employees, insofar as Mr McDonald is concerned, is 1996 to 2003.  Mr McDonald ceased his employment in April 2003.  The period of Mr Brennan McDonald’s complaints about the behaviour of the defendant(s) and employees is 1997 to 2000, whilst a student at Paringa Park Primary School, and 2004, whilst a student at Glenelg Primary School.

21. Amendments to the Wrongs Act 1936, now known (as a result of one of those amendments) as the Civil Liability Act 1936, were passed in 2004.  A number of those amendments, if applicable, would bear directly on the claims for pure mental harm now under consideration.  However, it is likely that these amendments apply only to causes of action that accrued (including, for a tort claim, the suffering of loss and damage) on or after 1 May 2004.  Given the lack of clarity concerning when any relevant damage may have been suffered (a question of fact best determined at any trial) I will consider the current pleadings with reference to both the Civil Liability Act 1936 and the law as it stood immediately before the passage of the amendments in 2004.

    The Civil Liability Act 1936

22. Section 33 identifies circumstances in which a duty to take care not to cause mental harm will not arise.

    33—Mental harm—duty of care

    (1)A person (the defendant) does not owe a duty to another person (the plaintiff ) to take care not to cause the plaintiff mental harm unless a reasonable person in the defendant's position would have foreseen that a person of normal fortitude in the plaintiff's position might, in the circumstances of the case, suffer a psychiatric illness.

    (2)For the purposes of this section—

    (a)     in a case of pure mental harm, the circumstances of the case to which the court is to have regard include the following:

    (i)whether or not the mental harm was suffered as the result of a sudden shock;

    (ii)whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril;

    (iii)the nature of the relationship between the plaintiff and any person killed, injured or put in peril;

    (iv)whether or not there was a pre-existing relationship between the plaintiff and the defendant;

    (b)     in a case of consequential mental harm, the circumstances of the case include the nature of the bodily injury out of which the mental harm arose.

    (3)This section does not affect the duty of care of a person (the defendant) to another (the plaintiff) if the defendant knows, or ought reasonably to know, that the plaintiff is a person of less than normal fortitude.

23. Section 53 limits the circumstances in which damages might be awarded for mental harm.

    53—Damages for mental harm

    (1)Damages may only be awarded for mental harm if the injured person—

    (a)     was physically injured in the accident or was present at the scene of the accident when the accident occurred; or

    (b)     is a parent, spouse, domestic partner or child of a person killed, injured or endangered in the accident.

    (2)Damages may only be awarded for pure mental harm if the harm consists of a recognised psychiatric illness.

    (3)Damages may only be awarded for economic loss resulting from consequential mental harm if the harm consists of a recognised psychiatric illness.

24. Definitions for “accident”, “harm”, “mental harm” and “pure mental harm”, as provided for in section 3, are as follows.

    accident means an incident out of which personal injury arises and includes a motor accident;

    harm includes loss of life, personal injury, damage to property, economic loss and loss of any other kind;

    mental harm means impairment of a person's mental condition;

    pure mental harm means mental harm other than consequential mental harm;

    The definition of “accident” depends on the notion of “personal injury”. According to its definition in section 3, “personal injury” includes “mental harm”.

25. There is no pleading to the effect that Mr Brennan McDonald suffered personal injury as a result of an incident. Therefore there has been no “accident” concerning Mr Brennan McDonald. Neither can it be said that either Mr McDonald or Mrs McDonald was present at the scene of any “accident” involving Mr Brennan McDonald. Neither can it be said that either Mr McDonald or Mrs McDonald was the parent of a person [Mr Brennan McDonald] killed, injured or endangered in an “accident”. Section 53, should it apply, would preclude any claim by either Mr McDonald or Mrs McDonald based on the alleged bullying of Mr Brennan McDonald.

26. There may be an argument that Mrs McDonald’s claim based on mental harm caused to her husband, if proved, would fall within section 53(1)(b). It might be argued that she is a spouse of a person (Mr McDonald) injured in an “accident”. To sustain this argument it would have to be demonstrated that “accident” (in its singular form) that is, “incident (in its singular form) out of which [Mr McDonald’s] personal injury” arose, embraces a series of a large number of events that have taken place over a number of years and which, in combination, have caused or contributed to some recognised psychiatric condition in Mr McDonald. I reject any such argument.

27. In King v Philcox,[92] the High Court considered the proper construction and application to the facts before it of section 53(1)(b). The questions before the court included, inter alia, what it meant to be “present” at the scene of an accident.  However, the plurality judgment contained the following observations.[93]

    [92] [2015] HCA 19; (2015) 255 CLR 304.

    [93]   At [21]-[24] (French CJ, Kiefel and Gageler JJ) (citations omitted and emphasis supplied).

    The text of 53(1)(a), read in light of its legislative ancestry and by way of contrast with the Ipp Report Recommendations, does not support the extended notion of “[presence] at the scene of the accident when the accident occurred” for which Ryan Philcox contends.  According to ordinary English usage he drove past “the scene of the accident” several times.  Assuming he can be taken, on that basis, to have been “present at the scene of the accident”, he was not “present at the scene of the accident when the accident occurred”.

    A similar approach to the same words, appearing in s 77(a)(ii) of the Motor Accidents Act 1988 (NSW), was taken by the Court of Appeal of New South Wales in Hoinville-Wiggins v Connelly, in which Giles JA, with whom Mason P and Stein JA agreed, said that:

    “Close connection in space and time is required.  The words ‘when the accident occurred’ mean that it is not enough that [the plaintiff] came to the scene of the accident after the accident occurred, as might have happened in ‘rescuer’ cases at common law.”

    Similarly, in Spence v Biscotti Miles CJ, dealing with the same provision in proceedings in the Supreme Court of the Australian Capital Territory, said:

    “An accident is an event in space as well as time: hence the term in s 77 ‘scene of the accident’. The plaintiff must satisfy a spatial and temporal test, present at that place, the scene, when that event, the accident, occurred. In my view, there is nothing to require the term ‘accident’ to include the immediate consequences of the accident or its immediate aftermath.”

    Sulan J in the Full Court considered that s 77 of the Motor Accidents Act could be distinguished from s 53(1)(a) as that Act did not defined “accident”. The definition of “accident” in the Civil Liability Act (SA), his Honour said, imported the term “incident”, which was said to be synonymous with an event, eventuality or aftermath. The definition of a “motor accident” was therefore broad enough to encompass events directly related to and following on from the actual impact. Parker J also viewed the use of the word “incident” in the definition of “accident” as extending to the ordinary meaning accident.

    With respect to their Honours, the relevant ordinary English meaning of the word “incident” is “[a] distinct occurrence or event”.  The use of the term “incident” in the definition of “accident” dates back to the enactment of s 35A(1)(c), when it was used to define the class of event constituting a “motor accident” by reference to the use of a motor vehicle.

1. In my view, the terms “accident” (and “incident”) where employed in section 53 refer to a single event. They do not lend themselves to encompassing a course of conduct, made up of numerous inter-personal interactions extending over a number of years. Mrs McDonald’s derivative claim based on harm caused to her husband is also bound to fail in the event that section 53 of the Civil Liability Act 1936 were to apply.

   Pure mental harm at common law

2. In the event that section 53 of the Civil Liability Act 1936 does not apply, the question arises whether Mr McDonald and Mrs McDonald have pleaded sufficient facts to ground a duty of care in the defendant(s) not to cause pure mental harm as a result of their conduct towards Mr McDonald (Mrs McDonald’s claim) and towards Mr Brennan McDonald (Mr and Mrs McDonald’s claims).

3. It will be helpful to revisit the pleadings relevant to this aspect of the claims.  Mr McDonald pleads at paragraphs 330 to 332 under the heading Injury caused to Mr McDonald in April 2003 to April 2004 and subheading Particulars of injuries sustained by Mr McDonald in 2003/2004, as follows.

   330.Mr McDonald suffered further stress and anxiety and depression after April 2003 as a consequence of the Education Authority bullying Brennan;

   331.Mr McDonald suffered chronic adjustment disorder as a consequence of the Education Authority bullying Brennan in this time period;

   332.Mr McDonald suffered Post Traumatic Stress Disorder caused as a result of the Education Authority bullying Brennan in this time period;

   In paragraph 340, Mr McDonald provides a rolled up plea to the effect that the bullying of Brennan, the failure to investigate the Bullying Grievance of October 2002 and the acts of injurious falsehood caused Mr McDonald to experience various physical symptoms and emotional and psychological states, including depression and post-traumatic stress disorder. 

4. The only references to any alleged duty of care are in paragraph 5 and paragraph (b) (occurring after paragraph 247).  In paragraph 5, Mr McDonald pleads that a cause of action he wishes to rely on is “a breach of duty of care owed to parents... by the Education Authority under the Education Act 1972”.  In paragraph (b) it is alleged that the Minister owed “third parties a duty of care to supervise their children while in its care and not cause harm to them”.

5. Mrs McDonald’s complaints about the defendant(s) conduct have been summarised earlier. In paragraph 341, she asserts a duty of care in her favour in the same terms as asserted by Mr McDonald. She does not plead a similar type of duty with respect to the defendant(s) conduct towards Mr McDonald, although pleads numerous breaches of such a duty, all along the lines of “failing to protect” Mrs McDonald from the stress and anxiety caused to Mr McDonald.

6. Apart from the fact that Mr McDonald and the personal 2014 defendants were employed by the Minister, no material facts are pleaded to support or justify a finding that the defendant(s) or any of them owed Mr McDonald a duty of care vis-à-vis their conduct towards Mr Brennan McDonald and owed Mrs McDonald a duty of care vis-à-vis their conduct towards Mr Brennan McDonald and Mr McDonald.  For this reason alone, the pleas are embarrassing and should be struck out.  Given that an entirely novel duty of care is alleged,[94] the defendant(s) cannot know the factual case to be answered. 

   [94]   No case has been drawn to my attention and I have been unable to locate any case that has dealt with the availability or non-availability of a duty of care in such a situation.

7. Reasonable foreseeability that psychiatric injury might be caused to a person of normal fortitude, as a necessary pre-condition to the establishment of a duty of care at common law not to cause pure mental harm, was rejected by the majority of the High Court in Tame v New South Wales.[95]  The issue at common law, in this respect, is one of reasonable foreseeability of risk with risks that are farfetched or fanciful to be excluded.[96]

   [95] [2002] HCA 35; (2002) 211 CLR 317. See now section 33(1) of the Civil Liability Act 1936. 

   [96]   See also Koehler v Cerebos (Australia) Limited [2005] HCA 15; (2005) 222 CLR 44.

8. When determining whether a duty of care not to cause pure mental harm exists, there are a number of factors to be taken into account “which may have greater or less weight depending upon all the circumstances of the case”.[97]  Balkin and Davis in their summary of relevant considerations,[98]  identified from the cases, include the following factors.[99]

   (i)Whether the psychiatric illness was the result of a sudden shock once was but is no longer a prerequisite to liability, although it can operate as a limiting factor.  In the present case the fact that Mr McDonald’s direct claim for mental harm is not based on any sudden shock would not, of itself, deny the existence of a duty.  His direct claim(s) fail for other reasons.  However, both his and Mrs McDonald’s derivative claims introduce an element of remoteness such that the failure to point to a single triggering event assumes more significance.  A duty of care which requires the protagonists to avoid a course of inter-personal conduct extending over a number of years where it could not be said that it was foreseeable that any individual interaction would cause a related (derivative) person pure mental harm would be very onerous indeed.  At what point in the time line could it be said that a duty of care has arisen and a breach of duty has taken place?  When would the risk of pure mental harm to a person unknown to the protagonist (other than that she may exist) and with whom there is no relationship become reasonably foreseeable?

   (ii)In the case of the two derivative claims, there has been no or relatively little direct perception of any distressing events.  Rather, the claims are in large part based on Mr and Mrs McDonald’s perceptions of the effects on Mr Brennan McDonald of the conduct complained of and Mrs McDonald’s perception of the effects on Mr McDonald of the conduct complained of.  In each case, Mr and Mrs McDonald are “secondary” victims.  The case law in this area has been developed in the context of accidents causing physical harm to a loved one and the psychiatric reaction of a close relative who witnessed the accident, its aftermath or was told about it.  Mr and Mrs McDonald’s derivative claims are novel and do not readily lend themselves to this type of analysis.  There is a remoteness to the claims which suggests that the duty of care not to cause pure mental harm ought not be extended to embrace the situations complained of by Mr and Mrs McDonald.

   (iii)The relationship between the primary and secondary victims is an important consideration.  Here, for each of Mr and Mrs McDonald’s derivative claims, the relationship is a close one.

   (iv)The relationship between plaintiff and defendant is of significance.  Here, Mr McDonald is in an employment relationship.  However, there is no pre-existing relationship between the defendant(s) and Mrs McDonald.  This is a significant factor tending against a duty of care of this derivative nature.

   [97]   See generally the discussion in Balkin and Davis Law of Torts 5^th ed, LexisNexis Butterworths at [7.45]-[7.54].

   [98]   Balkin and Davis Law of Torts 5^th ed, LexisNexis Butterworths at [7.45]ff.

   [99] These factors are, by and large, reflected in section 33 of the Civil Liability Act 1936.

9. As far as the derivative claims based on alleged wrongdoing towards Mr Brennan McDonald are concerned, a significant problem is that the pleading is silent as to any physical or mental harm said to have been suffered by him.  It is unclear what damages are being claimed and what is the basis thereof apart from, perhaps, some delayed progress through school.[100]  For this reason, alone, it is difficult to see how any derivative claim based on harm to Mr Brennan McDonald could ever succeed.

   [100] During argument, the Court was advised that Mr Brennan McDonald, who is in his early 20s, is presently completing Masters level university studies in Germany and hopes next year to proceed to Doctoral study either in Europe or the UK.

10. The pleading of the derivative claims is inadequate.  The present pleading discloses no reasonably arguable cause of action.  Further, I doubt very much that a reasonably arguable cause of action along these lines could ever be identified and pleaded with respect to either Mr McDonald or Mrs McDonald. 

11. In addition, the derivative claims on behalf of Mr McDonald and Mrs McDonald necessarily would involve a reconsideration of the evidence and claims dealt with by Anderson J and the Full Court which I have found should not be permitted.  Further, Mrs McDonald’s claims, first brought forward in 2012, are substantially out of time and there is no adequately particularised application for an extension of time. 

12. On 18 March 2013, a District Court Master made the following order with reasons.

    4.In relation to the application in FDN 77, the plaintiff proposes to rely on the draft pleading received by the court on 09.08.2012 marked “A”, signed and dated by me this day. The particular pleadings relating to Rhoda McDonald do not, on their face, plead an arguable cause of Action which could be pursued in the terms there delineated as the allegations are now out of time by virtue of Section 36 of the Limitation of Actions Act and there is no proposed pleading relying on Section 48 of the Limitation of Actions Act. Nor, in my view, does Rule 53.03 of the Old Rules assist the plaintiff in this application as the inclusion of a new plaintiff on the basis set out in the document “A” does not fall within Rule 53.03(a), (b) or (c). A limitations period prescribed by the Limitation of Actions Act is part of the substantive law.

    The reasoning of the Master was correct and there was no appeal from that decision.  The problems identified have not been rectified in the current pleadings.

13. For the above reasons: I strike out Mr McDonald’s derivative claims in the 2013 proceedings and the 2014 proceedings; I strike out Mrs McDonald’s derivative claims in the 2014 proceedings; and I refuse permission for Mrs McDonald to be joined to the 2013 proceedings in order to prosecute her derivative claims.

    Whether Mrs McDonald should be joined as a plaintiff to the 2013 proceedings in accordance with her proposed pleading in FDN 59A

14. I refuse permission for Mrs McDonald to be joined as a plaintiff to the 2013 proceedings.  The claims she seeks to propound are not reasonably arguable.

    Whether the pleadings concerning Mrs McDonald’s claim in the 2014 proceedings should be struck out

15. Mrs McDonald’s pleadings in the 2014 proceedings are to be struck out in any event as disclosing no reasonable cause of action, that is, independently of my dismissal of all claims in the 2014 proceedings, for the reason that the filing of the 2014 proceedings constituted an abuse of process.

    Whether Mrs McDonald’s action in the 2014 proceedings should be dismissed

16. Yes.  The claims she seeks to propound are not reasonably arguable.

    Conclusions

17. The final position is that Mr Brennan McDonald’s claim should proceed to trial but the proceedings by Mr McDonald and Mrs McDonald are dismissed such that their claims are at an end.

18. As far as Mr Brennan McDonald’s claim is concerned, it is unclear whether he, independently of any wish of his father, Mr McDonald, wants to proceed on the basis of FDN 95 filed in the District Court in No 29 of 2005 or FDN 59A as proposed in the 2013 proceedings.[101]  This is the first matter that Mr Brennan McDonald, acting on his own behalf or through counsel, will have to attend to.  It is no longer appropriate for Mr McDonald to have any involvement vis-à-vis the 2013 defendant and the Court in conducting Mr Brennan McDonald’s claim who, it would appear, has been sui juris for some years now.  Whilst, ultimately a matter for the Master who comes to manage the matter, any further steps needed to ready Mr Brennan McDonald’s claim for trial (such as finalisation of pleadings, disclosure and expert reports) should be engaged in by Mr Brennan McDonald either acting on his own behalf or through counsel.  The history of this matter suggests that to allow any further involvement by Mr McDonald, even as some form of a “McKenzie” friend, would risk further delay and obfuscation of the proceedings.  If Mr Brennan McDonald is not prepared to pursue his claim to trial with diligence, that ultimately will be a matter for the 2013 defendant and the Court.

    [101] FDN 2 in the 2014 proceedings would serve Mr Brennan McDonald no advantage rather, to the contrary, it may give rise to a defence under the Limitation of Actions Act 1936 that, it would seem, may not be available under the identical pleading in FDN 95.

19. I propose to order that the 2013 proceedings, insofar as Mr Brennan McDonald’s claim is concerned, are to be remitted to the District Court and for a Master of that Court to make such directions consistent with these reasons as are necessary to enable Mr Brennan McDonald’s claim to be listed for trial as soon as practicable in that Court. 

20. I make the following orders.

    (i)Permission for the 2013 plaintiffs to file FDN 59A is refused.

    (ii)Mr Brennan McDonald has liberty to apply to amend his claim in the 2013 proceedings in accordance with FDN 59A, if so advised, notwithstanding order (i).

    (ii)Permission for Mrs McDonald to be joined as a plaintiff to the 2013 proceedings on the basis of the claims set out in FDN 59A is refused.

    (iv)The 2013 proceedings, insofar as Mr Frank McDonald’s claims are concerned, are dismissed with judgment against Mr Frank McDonald for the 2013 defendant.

    (v)The 2013 proceedings, insofar as Mr Brennan McDonald’s claim is concerned, are remitted to the District Court for trial and for the management of Mr Brennan McDonald’s claim to trial to be conducted by a Master of that court.

    (vi)The 2014 plaintiffs’ pleadings in the 2014 proceedings are struck out.

    (vii)The 2014 proceedings are dismissed with judgment against all 2014 plaintiffs for the 2014 defendants.

    (viii)The plaintiffs’ interlocutory applications in FDN 18, FDN 24 and FDN 29 (2013 proceedings) and FDN 52 (2014 proceedings) are dismissed.

    (ix)The 2013 defendant and 2014 defendants are to provide written submissions setting out any costs orders that are sought, consequential to this judgment, and their argument in support thereof within 21 days from the date of judgment.

    (x)The 2013 and 2014 plaintiffs are to provide written submissions in response to the defendant(s)’ costs submissions within 14 days of receiving the defendant(s)’ submissions.

    (xi)Unless it becomes necessary to call the matter back on for further oral submissions, costs orders will be made in Chambers following the receipt of the submissions referred to in (ix) and (x).