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

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
MCDONALD & ANOR v STATE OF SOUTH AUSTRALIA; MCDONALD & ORS v THE MINISTER FOR EDUCATION AND CHILD DEVELOPMENT & ORS (No 2)
[2015] SASC 188
Judgment of The Honourable Justice Nicholson
1 December 2015
PROFESSIONS AND TRADES - LAWYERS - DUTIES AND LIABILITIES - GENERALLY
Application by the plaintiffs for the defendants’ solicitors to be restrained from further acting in the proceedings.
Held: Application dismissed.
Public Services Act 2009 (SA) s 74, referred to.
Coppola & Anor v Nobile & Anor [2012] SASC 42, applied.
McDonald & Anor v State of South Australia; McDonald & Ors v The Minister for Education and Child Development & Ors [2015] SASC 141; McDonald v State of SA [2014] SASC 120; McDonald & Anor v State of South Australia [2015] SASCFC 15; McDonald & Anor v The State of South Australia [2015] HCASL 118, considered.

MCDONALD & ANOR v STATE OF SOUTH AUSTRALIA; MCDONALD & ORS v THE MINISTER FOR EDUCATION AND CHILD DEVELOPMENT & ORS (No 2)
[2015] SASC 188
Civil
NICHOLSON J.
Introduction

By way of introduction, I set out paragraphs [1] to [5] of my judgment delivered in McDonald & Anor v State of South Australia; McDonald & Ors v The Minister for Education and Child Development & Ors.[1]
Francis McDonald is the first named plaintiff in proceedings originally filed in the District Court but transferred to this Court in 2013 with the file reference SCCIV-13-1574. Mr McDonald’s son, Brennan McDonald, is also a named plaintiff in those proceedings. There is an extant application by the plaintiffs for Mr McDonald’s wife, Rhoda McDonald, to be joined as third plaintiff. That application has not yet been determined. The named defendant to proceedings 1574 of 2013 is the State of South Australia.
Francis McDonald, Brennan McDonald and Rhoda McDonald are also named plaintiffs in proceedings filed in this Court bearing the reference SCCIV-14-1564. Rhoda McDonald has been a plaintiff to these proceedings from their inception. The four named defendants to these proceedings, as recorded on the plaintiffs’ statement of claim, are the Minister for Education and Child Development, Peter Mitchell, Sue Hyde and Don Mackie.
Both sets of proceedings are still being dealt with at the interlocutory stage and it is fair to say that the Court has become mired in a series of interlocutory disputes.
In essence, the statement of claim in each matter raises identical complaints. The proceeding in 1574 of 2013 was originally commenced in the District Court in 2005 and this provides an indication of the extent of the interlocutory disputation that has taken place. The plaintiffs and, in particular, Francis McDonald, are understandably extremely frustrated at the delay in having what they apprehend to be a proper claim brought to trial.
On 13 July 2015, the matter came before me, having been referred by the Master who had been managing the matter in this Court, with a view to hearing argument on procedural applications to be brought by the defendants in both matters. It became apparent that a number of other procedural steps would need to be taken before any such applications could be heard. Whilst no order has been made formally assigning me as case manager in this matter, I have, at least for the present, assumed a responsibility to manage the two sets of proceedings with a view to: resolving outstanding interlocutory disputes; limiting, insofar as practicable, further interlocutory disputes; and moving the matters forward to a final resolution.
[1] [2015] SASC 141.
The first issue to be dealt with by me concerned an interlocutory application brought by the plaintiffs that I recuse myself from any further participation in the hearing of both matters. That application was dismissed on 23 September 2015.[2] The second matter to be dealt with before any further substantive steps, necessary to moving the matters to a final resolution, can be undertaken, and the subject of these reasons, is the resolution of an application by the plaintiffs that certain legal practitioners employed in the Crown Solicitor’s Office be restrained from acting for the defendants.
[2] McDonald & Anor v State of South Australia; McDonald & Ors v The Minister for Education and Child Development & Ors [2015] SASC 141.
The applications and materials relied on by the plaintiffs
The plaintiffs have brought two interlocutory applications which appear to be in identical terms and both in action No. 1564 of 2014, being FDN 12 and FDN 15. No application has been brought in action No. 1574 of 2013 but it is common ground that the orders sought by the plaintiffs relate to both actions. The orders sought in each application are as follows.
1.Solicitors Colleen Braddick, Loretta Condoluci and Todd Golding acting for the Attorney General are stood down while an investigation takes place into their fraudulent misrepresentation in case 418 of 2004, case 29 of 2005, case 6932/09 case 1574 of 2013 and in case 1564 of 2014 in presenting SAICorp as the defendant in these cases when it should have been the corporation under the Education Act 1972 as outlined in the affidavit of 3 June 2015.
2.Solicitors Colleen Braddick, Loretta Condoluci and Todd Golding acting for the Attorney General are stood down while an investigation takes place into their breaches of Section S21, 29, 133, 139, 140, 243, 251, 256 and 270 of the Criminal Law Consolidation Act 1936 as outlined in the affidavit of 3 June 2015.
3.Solicitors Colleen Braddick, Loretta Condoluci and Todd Golding acting for the Attorney General are stood down while an investigation takes place into their misfeasance in public office as outlined in the affidavit of 3 June 2015.
4.Solicitors Colleen Braddick, Loretta Condoluci and Todd Golding acting for the Attorney General are stood down while an investigation takes place into their serious and willful acts of misconduct as outlined in the affidavit of 3 June 2015.
5.Solicitors Colleen Braddick, Loretta Condoluci and Todd Golding acting for the Attorney General are stood down while and investigation takes place into for their breach of the code of conduct of public sector employees as outlined in the affidavit of 3 June 2015.
6.The Notice of Acting Address for Service presented to the Supreme Registry by Loretta Condoluci, solicitor for the Attorney General is returned for solicitors from the Attorney General’s Department are not acting for the corporation under the Education Act 1972.
7.Solicitors for the Attorney General cannot act for the statutory corporation under the Education Act 1972 until they show they have been retained by the Ministers Office to act for the corporation and then they must present the solicitor/client agreement to the courts to substantiate they represent the client known as the Minister for Education and Child Development.
8.Solicitors for the Attorney General cannot act for the Minister as an agent of the crown unless they produce the argument supporting the proposition the statutory corporation under the Education Act is part of the executive and is entitled to the rights, privileges and prerogatives of the executive.
9.Solicitors of the Attorney General cannot act for the Minister for Education and Child Development as Crown Solicitors for the action against the statutory corporation mentioned in the pleadings of 17 November 2014 is not taken against the State of SA under the Crown Proceedings Act 1992 but is taken against the corporation under the Education Act 1972.
10.Solicitors for the Attorney Generals Department cannot act for employees of the corporation created under the Education Act for the corporation is liable for its employee’s acts or omissions under the Education Act, not under the Crown Proceedings Act 1992.
11.Solicitors for the Attorney Generals Department cannot act for employees of the corporation if the facts of the case shown employees of the corporation carried out misfeasance in public office, negligence and defamation.
12.Employees of the corporation have to find their own solicitor to act for them as they are liable for their own torts not the employer particularly where the acts of employees’ amount to serious and willful acts of misconduct which caused harm to others.
[syntax and grammatical peccadilloes in the original]
In support of the application, the plaintiffs relied on two affidavits sworn by Mr Francis McDonald being FDN 13 and FDN 14. The affidavits appear to be in identical terms until the end of the paragraph numbered 10 on page 6 of each affidavit.[3] Paragraphs 11 (page 6) to 21 (page 8) on FDN 14 and paragraphs 11 (page 6) to 23 (page 8) on FDN 13 are in different terms. FDN 13 also refers to and attaches five exhibits and FDN 14 refers to and attaches two exhibits. The plaintiffs also rely upon a bound volume of documents (FDN 35) headed “List of Documents in the Oral Submission of Francis McDonald before Judge Nicholson on 1 October 2015”, a bound volume of psychiatric and psychological reports relating to the medical history of Francis McDonald (FDN 45) and a number of other documents that were handed up during oral submissions.
[3] For some reason not clear to me, each affidavit is comprised of paragraphs 1 to 38 but thereafter, on page 5 of each affidavit, the paragraph numbering recommences at paragraph 4 and continues to paragraph 21 on FDN 14 and paragraph 23 on FDN 13.
The defendants rely upon an affidavit of Loretta Maria Condoluci (FDN 39) an affidavit of Colleen Braddick (FDN 40) and an affidavit of Todd Nathan Golding (FDN 41). Ms Braddick is a legal practitioner who was engaged, as a government employee in the Crown Solicitor’s Office, to conduct the defence of earlier proceedings involving Mr McDonald. Mr Golding and Ms Condoluci are legal practitioners engaged, as government employees in the Crown Solicitor’s Office, to conduct the defence of the present proceedings. The purport of each of these affidavits is to formally deny the allegations made in the affidavits of Mr McDonald of illegal, improper and unethical conduct put against each of the deponents.
I have also had the assistance of an outline of argument filed on behalf of the plaintiffs, an outline filed on behalf of the defendants and oral submissions.
Orders 6-12, as sought, appear to be directed to an outcome such that no legal officers employed in the Attorney-General’s Department should be permitted to represent the defendants and, in effect, the Office of the Crown Solicitor should not be permitted to represent the defendants. Early during the argument, it became apparent that the plaintiffs did not contend that the Office of the Crown Solicitor was not entitled to represent the first defendant, the Minister for Education and Child Development. However, at first, they did contend that the Office of the Crown Solicitor was not entitled to represent the three named personal defendants.
Whilst it is disputed by the plaintiffs, the three named personal defendants are regarded by the Crown as having been employees of the Crown or a Crown instrumentality at all material times. The Office of the Crown Solicitor has agreed to represent these defendants in the proceedings. The plaintiffs’ contention to the effect that the Office of the Crown Solicitor should not be permitted to represent the three named personal defendants seems to have arisen as a consequence of Mr McDonald’s view that these defendants, if liable, would be personally liable to the plaintiffs on a basis that would take them outside any protection of the Crown otherwise available.[4]
[4] See section 74 of the Public Sector Act 2009 (SA). Previous legislative provisions covering this field of operation, in force at all relevant times, were, materially, to the same effect.
The plaintiffs’ position is misconceived. Nevertheless, counsel for the defendants undertook in open court that the Crown, in right of South Australia, will hold itself vicariously liable with respect to any proved wrongful conduct by any of the defendants giving rise to liability in favour of the plaintiffs according to their pleaded claims. Such vicarious liability will be conceded, whatever the nature of any defendant’s conduct and whatever characterisation were to be given to their conduct.[5] Of course, the Crown reserves its rights of recovery, if any, against any of the defendants on any basis, statutory or otherwise, open to the Crown.
[5] Transcript of Proceedings, McDonald & Ors v Minister of Education and Child Development & Ors; McDonald & Anor v State of South Australia (Supreme Court of South Australia, SCCIV-14-1564; SCCIV-13-1574, Nicholson J, 1 October 2015) at 20-21.
Furthermore, whatever the strict legal position,[6] counsel for the defendants conceded that, whether attention is directed to the statutory position or the common law of vicarious liability, the Crown has assumed liability with respect to proved wrongful conduct by any of the defendants which results in liability according to the plaintiffs’ pleaded claims.[7]
[6] Section 74 of the Public Sector Act 2009 (SA) and its progenitors.
[7] Transcript of Proceedings at 23-24.
The plaintiffs take the view that the proper defendants to their claims are those that they have named in proceedings 1564 of 2014, being the Minister for Education and Child Development and the three named personal defendants. However, the fact that the proceedings have been structured in this way by the plaintiffs, rather than by simply suing the State of South Australia and particularising in the body of the statement of claim the individuals about whom they complain, does not alter the legal arrangements between the Crown and those individuals that arise by statute, at common law or by agreement.
Once this position had been explained to Mr McDonald, he conceded that the plaintiffs had no objection to the Office of the Crown Solicitor representing all four defendants. The following exchanges occurred.[8]
[8]    Transcript of Proceedings at 17-18, 26.
HIS HONOUR:     Well, so can the Crown Solicitor continue to act for [Mr Mitchell]?
MR MCDONALD: If it’s found that these people are accountable for these actions, that they bring in a new team, shall we say, then if they want to act for them and take the vicarious liability for Mr Mitchell, Ms Hyde and Mr Mackie, then I will accept that.
HIS HONOUR:     So there are circumstances where the Crown Solicitor can act for Mr Mitchell, Ms Hyde and Mr Mackie?
MR MCDONALD: That is if they accept the vicarious liability of their actions.
HIS HONOUR:     And the Crown Solicitor can act for the minister?
MR MCDONALD: Yes. Yes, because -
HIS HONOUR:     But what you want is a different team?
MR MCDONALD: What we need is that we need a fresh group of people coming in, looking at it, like yourself, independent.
..  .  .
HIS HONOUR:     So on that basis it seems to me, am I correct then, that your complaint then is not that the Crown Solicitor is acting for any of these people, but that it is these people to your left that are acting or engaged or employed to act and that you say for the reasons you’ve put that there ought to be – that they ought to not act and there ought to be a fresh Crown Solicitor team in both matters.
MR MCDONALD: I fully agree.
Given the concession given in open court by counsel instructed on behalf of the Crown Solicitor, and given Mr McDonald’s acceptance, as a consequence, that the plaintiffs have no objection to the Crown Solicitor representing the defendants to the proceedings, it is unnecessary to consider further the orders sought in 7-12. In any event, the underlying contentions said to support the making of such orders are either contrary to the reasoning and decision of Bampton J in McDonald v State of SA[9] or are simply untenable or both. In addition, there is a real issue as to whether or not the plaintiffs would have standing to challenge the Crown Solicitor’s retainer (and as a consequence the assignment of the matter to solicitors employed in the Attorney-General’s Department). This is an issue I do not need to embark upon.
[9] [2014] SASC 120. The plaintiffs' application for permission to appeal was refused: McDonald & Anor v State of South Australia [2015] SASCFC 15. The plaintiffs' application for special leave to appeal to the High Court was refused: McDonald & Anor v The State of South Australia [2015] HCASL 118.
The substance of the argument put by the plaintiffs was to the effect that the Court ought to make an order or orders prohibiting or preventing the present legal team instructed by the Crown Solicitor, Mr Golding and Ms Condoluci, from any further involvement in the proceedings such that the Crown Solicitor would need to assign the matter to a new legal team. As far as Ms Braddick is concerned, she has not been involved in any proceedings to do with the plaintiffs since about July 2009. Nevertheless, the plaintiffs seek orders to the effect that she be prevented from any future involvement.
Counsel for the defendants put submissions to the effect that it was not open to this Court as a matter of law to restrain employed solicitors within the Crown Solicitor’s Office from acting and that the only object of any such restraining order could be the Crown Solicitor for the State of South Australia as a corporation sole. I do not need to enter upon this debate. I will assume for present purposes that I have power to restrain Ms Braddick, Mr Golding and Ms Condoluci from any participation or further participation in these proceedings on instructions from the Crown Solicitor.
In Coppola & Anor v Nobile & Anor,[10] Stanley J has summarised the principles that govern an application to restrain a solicitor from acting, in terms which I gratefully adopt.
[10] [2012] SASC 42 at [20]-[22].
There are three categories of cases in which a court will restrain solicitors from acting in a matter. First, where a solicitor seeks to act, or acts against a former client, creating a risk that the solicitor might use, or be bound to use, information which he or she holds subject to a duty of confidence to the former client. Second, where a solicitor seeks to act, or acts against a former client in circumstances which would give rise to a breach of the duty of loyalty owed by the solicitor to his or her former client as a fiduciary. Third, in circumstances where the court considers, having regard to the supervisory jurisdiction it exercises over solicitors as officers of the court, that it is necessary to restrain a solicitor from acting in a matter, irrespective of whether or not to do so would infringe any legal or equitable right of the solicitors to act, where the conduct of the solicitors was so offensive to common notions of fairness and justice that they should, as officers of the court, be restrained from acting.
The first category, namely, breach of confidence, involves a claim to enforce a contractual or equitable right, namely, the protection of a confidence which the solicitor is bound to maintain even after the termination of his or her retainer pursuant to the contract of retainer and/or in equity. The second category, the breach of the fiduciary duty of loyalty, depends on ordinary equitable principles derived from a solicitor’s fiduciary duty. The third category is different, depending not upon legal or equitable rights of the parties, but on the court’s inherent supervisory jurisdiction over its officers. ...
The principles relevant to the exercise of the court’s powers in this third category have been helpfully summarised by Brereton J in Kallinicos & Anor v Hunt & Ors[11] as follows:[12]
(1)     The Court always has an inherent jurisdiction to restrain solicitors from acting in a particular case, as an incident of its inherent jurisdiction over its officers and to control its processes in aid of the administration of justice.
(2)    The test to be applied in this inherent jurisdiction is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.
(3)    The jurisdiction is to be regarded as exceptional and is to be exercised with caution.
(4)    Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause.
(5)    The timing of the application may be relevant, in that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief.
[Citations omitted].
[11] (2005) 64 NSWLR 561.
[12] (2005) 64 NSWLR 561 at 582 at [76].

The plaintiffs have never been former clients of the Crown Solicitor and the first two potential bases for a restraining order can have no application.
The third category of case reflects a broad and overarching protective basis upon which a solicitor may be restrained from acting. In support of the application directed at Ms Braddick, Mr Golding and Ms Condoluci, Mr McDonald, on behalf of the plaintiffs, has levelled a battery of extremely serious allegations against each of them; allegations which attack their professionalism and their personal integrity.
The allegations are to the effect that one or more of these three legal practitioners, whilst acting on behalf of defendants, sued by Mr McDonald in earlier proceedings (in the case of Ms Braddick) and by the plaintiffs in the present proceedings (in the case of Mr Golding and Ms Condoluci) have:
(i)committed numerous breaches of various provisions of the Criminal Law Consolidation Act 1935 (SA), including:
·       the unlawful commission of acts causing mental harm and creating risk of serious harm (Part 3, Division 7A);
·       the commission of acts of deception (section 139);
·       dishonestly dealing with documents (section 140);
·       as a public officer, acting improperly (section 238);
·       impeding the investigation of offences (section 241);
·       the commission of perjury (section 242);
·       destroying documents and thereby committing acts of fabricating, altering or concealing evidence (section 243);
·       the abuse of public office (section 251); and
·       attempting to obstruct or pervert the course of justice or due administration of law (section 256);
(ii)committed the tort of misfeasance in public office;
(iii)conspired to defraud;
(iv)engaged in fraudulent misrepresentation;
(v)engaged in serious and wilful acts of misconduct; and
(vi)breached the code of conduct applicable to public sector employees.
I have considered the written materials and the written and oral submissions relied on by the plaintiffs for these assertions. There is nothing before me that lends any support to these allegations. The plaintiffs are frustrated at the rate of progress in these proceedings and the level of and nature of the opposition maintained by the defendants throughout the interlocutory processes. The plaintiffs view all opposition and counter-argument to their case, the legitimacy of which they are convinced of, as engaging in improper and criminal conduct.
I am not satisfied, indeed I do not consider it to be even a reasonable possibility, that a fair minded reasonably informed member of the public would conclude that the proper administration of justice requires that these legal practitioners be prevented from acting in the interests of protecting the integrity of the judicial process and the due administration of justice, including the appearance of justice.
As far as orders 1-5, as sought in the interlocutory application, are concerned, I have no power to order any such investigation. However, and more importantly for present purposes, nothing has been put on behalf of the plaintiffs to suggest to my mind that any such investigation is called for. No basis has been established that would support the making of order 6, as sought.
For these reasons, I decline to make any of orders 1-12 on each of the two interlocutory applications and both applications are dismissed.