McDonald v State of South Australia; McDonald v Minister for Education and Child Development (NO. 4) - [2016] SASC 113

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
MCDONALD & ANOR v STATE OF SOUTH AUSTRALIA; MCDONALD & ORS v MINISTER FOR EDUCATION AND CHILD DEVELOPMENT (NO. 4)
[2016] SASC 113
Reasons for Ruling of The Honourable Justice Stanley
1 August 2016
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT
Francis Thomas McDonald has sought to file three sets of documents in the Registry of the Supreme Court. The Senior Deputy Registrar, pursuant to rule 53(2) of the Supreme Court Civil Rules 2006 (SA) referred those documents to a Judge of the Supreme Court seeking directions as to whether the documents should be accepted.
Held: The Senior Deputy Registrar is directed to reject each of the documents (at [12]).
Supreme Court Civil Rules 2006 (SA) r 53(2), r 156, referred to.
Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99, considered.

MCDONALD & ANOR v STATE OF SOUTH AUSTRALIA; MCDONALD & ORS v MINISTER FOR EDUCATION AND CHILD DEVELOPMENT (NO. 4)
[2016] SASC 113
Civil
STANLEY J:

Francis Thomas McDonald has sought to file three sets of documents in the Registry of the Supreme Court. On 15 July 2016, the Senior Deputy Registrar, pursuant to 6SCR53(2) referred those documents to me seeking directions as to whether the documents should be accepted.
The documents are notices to admit in Supreme Court action number 1574 of 2013 between Francis Thomas McDonald and Brennan James McDonald as plaintiffs and the State of South Australia as defendant, and in Supreme Court action 1564 of 2014 between Francis Thomas McDonald, Brennan James McDonald and Rhoda Louise McDonald as plaintiffs and the Minister for Education and Child Development, Peter Mitchell, Sue Hyde and Don Mackie as defendants, and draft minutes of order that appear to relate to the notices to admit.
In his referral, the Senior Deputy Registrar has advised that he is of the opinion that the notices to admit contain matters that are frivolous and appear to be filed on behalf of Brennan McDonald by Francis McDonald in action 1574 of 2013.
Rule 53
6SCR53 provides a power to reject documents submitted to the Registry for filing. That rule provides:
53—Power to reject documents submitted for filing
(1)A document is an abuse of the process of the Court if it contains matter that is scandalous, frivolous or vexatious.
(2)If it appears to the Registrar that a document submitted for filing is an abuse of the process of the Court, the Registrar must refer the matter to a Judge or Master.
(3)If the Judge or Master so directs, the Registrar will reject the document.
(4)If it appears to the Court that a document that is an abuse of the process of the Court has been filed in the Court, the Court may direct that it be struck from the file.
In Westwill Pty Ltd & Ors v Byrt & Ors,[1] Gray J considered the operation of 6SCR53. He made the following observations as to its operation:[2]
Rule 53(1) as extracted, provides that a document is an abuse of the process of the Court if it contains matter that is scandalous, frivolous or vexatious. It is apparent from the terms of Rule 53 that the Rule does not operate to limit what may amount to an abuse of the process of the Court. The terms “scandalous, frivolous or vexatious” in this context should be given a wide meaning. It is to be observed that Masters of this Court will generally direct the Registrar to reject a document where pleadings do not disclose an intelligible cause of action, or no intelligible grounds for appeal. Such documents fall within the wide meaning referred to above.
If the Registrar forms the opinion that the document is an abuse of process of the Court, the Registrar must refer the matter to a Judge or Master. The formation of this state of mind is an essential pre-condition to the referral. When this state of mind is reached, the Registrar must refer the matter for consideration. The general practice in this Court is that the referral under Rule 53(2) is to a Master. The present referral is before me, as the Notice of Appeal purports to appeal to the Full Court.
…
Rule 53 is, in part, a reflection of the need for courts to protect their resources, while dealing with cases justly. This objective is thwarted and the process of the court abused if litigants bombard the court with hopeless applications. While a court is occupied dealing with matters devoid of merit, meritorious claims are left wanting access to the courts. On the other hand, a fundamental rule of law is that all persons have access to courts. Regardless, general interests of justice and the public interest combine, to require that there be procedures for ensuring that a court can prevent the institution of frivolous or vexatious proceedings, in the sense that those proceedings cannot succeed. It is however a power which should be exercised with care.
[1] [2010] SASC 99.
[2] [2010] SASC 99 at [5]-[6], [13].
Notices to admit
The notices to admit in each action essentially are in identical terms. Each consists of 38 separate matters in respect of which the applicants seek admissions from the defendants. It is unnecessary to recite each of the 38 paragraphs of the notices. It is sufficient to observe that they concern questions of law rather than fact or propositions framed in terms of some unknown person’s understanding or belief of a particular legal proposition. An example is paragraph [7] which provides, “A Minister of the Crown is regarded as a servant or agent of the Crown”. The notice does not identify the person who presumably regards a Minister of the Crown as a servant or agent of the Crown.
The notice suffers from a more fundamental defect. The power to give a notice to another party is found in 6SCR156. Relevantly, the rule provides:
(1)A party may give notice to another party (a notice to admit) asking the other party to admit a particular assertion that the party makes for the purposes of the action.
(2)The assertion may be—
(a)     a statement purporting to be a statement of fact; or
(b)     an assertion of the authenticity of a particular document; or
(c)     an assertion that a particular document is, for stated reasons, relevant to the subject matter of the action; or
(d)     an assertion that a particular document is, for stated reasons, admissible in evidence at the trial of the action.
The notices the subject of the referral do not ask the defendants to admit a particular assertion purporting to be a statement of fact. As I say, they are propositions of law. They are not a proper subject matter of a notice to admit.
Action 1574 of 2013 and action 1564 of 2014
In any event, the documents confront a more fundamental obstacle. On 3 June 2016, a Judge of this Court made orders dismissing action 1564 of 2014. The Judge also made orders dismissing action 1574 of 2013 insofar as it concerns the claims made by Francis Thomas McDonald. With respect to the claims made by Brennan James McDonald in that action he directed that they be remitted to the District Court. The Judge further directed that in respect of Mr Brennan McDonald’s claims in action 1574 of 2013 that Mr Francis McDonald was no longer to have any involvement in conducting Mr Brennan McDonald’s claim. Any notice pursuant to rule 156 by Mr Brennan McDonald should be directed to the District Court to which the matter has been remitted. However, for the reasons I have explained a notice in this form is impermissible as it is contrary to the requirements of the rule.
The attempt to file these documents ignores the orders made by the Judge and constitutes an abuse of process.
Minutes of order
The draft minutes of order relate to the notices to admit. They stand or fall together. For the reasons explained, the notices are an abuse of process.
Conclusion
Pursuant to 6SCR53, I direct the Senior Deputy Registrar to reject each of the documents.