McDonald v State of South Australia (NO. 2)

[2018] SASC 57

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

MCDONALD v STATE OF SOUTH AUSTRALIA (NO. 2)

[2018] SASC 57

Reasons for Decision of The Honourable Justice Vanstone

7 May 2018

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT

Interlocutory application seeking an order that a summons and statement of claim be accepted by the Registrar.

Held: application struck out pursuant to rule 117(2)(e) of the Supreme Court Civil Rules 2006 (SA). The present action resulted in a perfected judgment which can only be set aside by means of separate proceedings.

Supreme Court Civil Rules 2006 (SA) r 117(2)(e), referred to.
Clone Pty Ltd v Players Pty Ltd (In Liquidation) & Ors [2018] HCA 12, applied.

MCDONALD v STATE OF SOUTH AUSTRALIA (NO. 2)
[2018] SASC 57

Civil:   Application

VANSTONE J.

1. The applicant, Mr McDonald, wishes to have the final judgment entered in action 418 of 2004 set aside on the basis of fraud.

2. In March 2018 he filed an application in that action (FDN 160) seeking leave to ‘re-open the Appeal’ in that action.  I dismissed that action as being incompetent and an abuse of process:  McDonald v State of South Australia [2018] SASC 41. In my reasons I pointed out to Mr McDonald that the recent decision in the High Court of Clone Pty Ltd v Players Pty Ltd (In Liquidation) & Ors [2018] HCA 12 dictated that an application to set aside a perfected judgment must be taken by way of fresh proceedings issued in the same court and supported by evidence of fraud.

3. The present interlocutory application (FDN 166) is again filed in action number 418 of 2004.  It amounts to an attempt to secure orders against the Registrar regulating his processing of fresh proceedings which Mr McDonald wishes to file.

4. I have determined I shall deal with the application in Chambers and without hearing from any of the parties to the 2004 action.  There is no justification for expending the further time of the respondent, or indeed of the Court, in relation to this matter.

5. It appears from Mr McDonald’s present application and from his affidavits in support of it (FDN 167 and 168) that on 20 April 2018 Mr McDonald attended at the Registry and presented a summons and statement of claim which he asserts answers the requirements of the principle referred to in Clone v Players.  From information available to me it appears that a Master of this Court has directed the Registrar to reject the documents presented ‘on the basis that they amount to an abuse of process’.  Since that direction was made only several days ago on 1 May, notice of it might not yet have reached Mr McDonald.

6. The present application and the affidavits in support of it should be struck out. Rule 117(2)(e) of the Supreme Court Civil Rules 2006 (SA) allows the Court to ‘strike out a document or proceeding if the Court considers it frivolous, vexatious, or an abuse of the process of the Court’.

7. The documents should be struck out because the action numbered 418 of 2004 has resulted in a perfected judgment, which can only be set aside by separate proceedings.  Therefore the application is an abuse of process. That means that no further documents purporting to be filed in that action should be accepted at the registry.

8. In addition, the application is filed for an improper purpose, namely to obtain an order directed to the Registrar to accept the originating documents proffered by Mr McDonald on 20 April, and to obtain ancillary orders dependant on that acceptance.  This vehicle is not available for an extraneous purpose such as that.

9. I order as follows:

   1.   Pursuant to r 117(2)(e), FDN 166, 167 and 168 are struck out.