McDonald v Supreme Court of South Australia - [2019] SASC 201

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
MCDONALD v SUPREME COURT OF SOUTH AUSTRALIA & ANOR
[2019] SASC 201
Judgment of The Honourable Justice Lovell
26 November 2019
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES - EXCLUDED DECISIONS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - DISTINCTION BETWEEN ADMINISTRATIVE AND JUDICIAL FUNCTIONS
Judicial review of decision of a master of the Supreme Court to reject documents for filing as an abuse of process – judicial review of a decision of a master of the Supreme Court to refuse to remit or reduce the filing fee – whether the supervisory jurisdiction of the Supreme Court extends to the review of decisions made by members of the Court
Held, dismissing the application:
1. The Supreme Court lacks jurisdiction to consider the validity of its own decisions.
Supreme Court Act 1935 (SA) ss 7(1), 17, 50, 130(2); Crown Proceedings Act 1992 (SA) s 9(2)(b)(ii); Supreme Court Civil Rules 2006 (SA) r 17, 53, referred to.
R v Upper Tribunal & Anor [2011] QB 120; Groenwelt v Burwell (1700) 1 Salk 144; Darlow v Shuttleworth [1902] 1 KB 721; Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; Re Jarman; Ex Parte Cook (1997) 188 CLR 595; Ousley v The Queen (1997) 192 CLR 69; Rana v Housing Trust of South Australia [2011] SASC 127, considered.

MCDONALD v SUPREME COURT OF SOUTH AUSTRALIA & ANOR
[2019] SASC 201
LOVELL J:
Overview

On 5 March 2019, Judge Bochner directed the Deputy Registrar to reject for filing a summons and statement of claim lodged by the plaintiff, Mr McDonald, as an abuse of process pursuant to r 53 of the Supreme Court Civil Rules 2006 (SA) (‘SCCR’). On 9 April 2019, Judge Dart declined to remit or reduce the filing fee, under s 130(2) of the Supreme Court Act 1935 (SA) (‘SCA’), payable by Mr McDonald for filing an application for a judicial review of Judge Bochner’s decision.
On 26 July 2019, Mr McDonald filed an application for judicial review, seeking to impugn the decisions of both Judge Bochner and Judge Dart.
By interlocutory application dated 29 August 2019, the Attorney-General applied to be joined as a party pursuant to her right of intervention under s 9(2)(b)(ii) of the Crown Proceedings Act 1992 (SA). The application was granted on 30 August 2019.
The application for judicial review was heard before me on 1 November 2019. The issue to be determined was whether this Court has jurisdiction to consider the validity of its own decisions.
Decision of Judge Dart
It became apparent at the hearing of this application that despite Judge Dart’s initial direction on 9 April 2019 not to remit or reduce the filing fee, Registry had allowed Mr McDonald to file the current judicial review application of both decisions with no fee. Consequently, I indicated, and Mr McDonald accepted, that given Registry had already waived the fee and I had no intention to impose a fee in relation to the filing, the application for the review of Judge Dart’s decision was redundant as Mr McDonald had already achieved what he sought from the judicial review of Judge Dart’s decision.
Decision of Judge Bochner
Mr McDonald, without conceding the application for review of Judge Bochner’s decision, did not put forward any argument contrary to the submission put forward by counsel for the Attorney-General. For the reasons that follow, I find that this Court lacks jurisdiction to consider the validity of its own decisions.
Supervisory jurisdiction
The Supreme Court of South Australia inherited its inherent supervisory jurisdiction from the jurisdiction formerly vested in the courts in England by virtue of s 17 of the SCA. Section 17 states:
17—General jurisdiction
(1)The court shall be a court of law and equity.
(2)There shall be vested in the court—
(a)the like jurisdiction, in and for the State, as was formerly vested in, or capable of being exercised by, all or any of the courts in England, following:
(i)The High Court of Chancery, both as a common law court and as a court of equity:
(ii)The Court of Queen's Bench:
(iii)The Court of Common Pleas at Westminster:
(iv)The Court of Exchequer both as a court of revenue and as a court of common law:
(v)The courts created by commissions of assize:
(b)such other jurisdiction, whether original or appellate, as is vested in, or capable of being exercised by the court:
(c)such other jurisdiction as is in this Act conferred upon the court.
As put by Mr O’Flaherty, counsel for the Attorney-General, it is necessary to ascertain the nature, scope and origins of the jurisdiction in the relevant English courts in order to determine the nature and scope of the Supreme Court’s inherent supervisory jurisdiction.
Historically, the Court of King’s Bench had supervisory jurisdiction over all English courts and tribunals due to its origins as the King’s Court where initially the King personally heard matters.[1] The King’s Bench enjoyed a general supervisory jurisdiction and an appellate jurisdiction “in error”[2]. As Holt CJ stated in Groenwelt v Burwell:[3]
… no Court can be intended exempt from the superintendency of the King in this Court of [Banco Regis]. It is a consequence of every inferior jurisdiction of record, that their proceedings be removeable into this Court, to inspect the record, and see whether they keep themselves within the limits of their jurisdiction.
(Citations omitted)
[1]    R v Upper Tribunal & Anor [2011] QB 120 at [44]-[45].
[2]    R v Upper Tribunal & Anor [2011] QB 120 at [47].
[3]    Groenwelt v Burwell (1700) 1 Salk 144.
It primarily kept inferior jurisdictions within the bounds of their authority through issuing prerogative writs.[4] The Court of King’s Bench, which later became the King’s Bench Division of the High Court (or the Queen’s Bench Division depending on the monarch), was vested with “original or inherent jurisdiction… to examine and correct all errors in inferior Courts”[5]. Section 17 of the SCA confers that jurisdiction on the Supreme Court of South Australia.[6]
[4]    R v Upper Tribunal & Anor [2011] QB 120 at [50].
[5]    Darlow v Shuttleworth [1902] 1 KB 721 at 726.
[6]    Kirk v Industrial Court of New South Wales (2010) 239 CLR 531.
The Supreme Court of South Australia has unlimited jurisdiction within the state in civil matters. The Court’s supervisory jurisdiction can only be directed at courts of limited jurisdiction. The jurisdiction does not extend to the review of decisions made by members of this Court. The principle was outlined by Dawson J in the High Court decision of Re Jarman; Ex parte Cook in which his Honour stated that:[7]
… the jurisdiction of a superior court of record exercised by a single judge is still the jurisdiction of the court; there are not two courts, one comprising the single judge and one comprising all the judges. Nor does the provision of an appeal from a single judge to a full court alter the situation for an order made on appeal is made in the exercise of a jurisdiction which is different from that of the judge at first instance. For a court to grant prerogative relief against one of its own judges is for it to grant relief against itself in the exercise of the same jurisdiction as that exercised by the judge, a situation which has been described as "rather ludicrous".
(Citations omitted)
[7] (1997) 188 CLR 595 at 610.
The principle relating to judicial review is distinguishable from the rights of appeal provided by s 50 of the SCA and r 17 of the SCCR.
Mr O’Flaherty submitted that consideration must also be given to whether, when making the decision, the member of the Court is exercising a function as a member of the Court or in their personal capacity. If the decision is not one made in the exercise of a judicial function of the Court, the decision is open to judicial review.[8] Therefore, a decision of a member of this Court cannot be reviewed by this Court if that member is exercising a function conferred on the Court itself.
[8] Ousley v The Queen (1997) 192 CLR 69 at 99-100.
Is a master a member of the Supreme Court?
Section 7(1)(c) of the SCA makes it clear that a master of the Supreme Court is a member of the Court. Judge Bochner is a member of this Court.
Is the decision an exercise of a function conferred on the Court?
As Gray J stated in Rana v Housing Trust of South Australia, “the purpose of rule 53 is to ensure that the resources of the court are not exhausted by pointless and misconceived litigation and that in the interests of justice, defendants are not put to expense and stress in such cases” [9]. The power to reject documents is a power conferred on the Court to enable it to manage its resources in the interests of justice and to prevent abuses of process. As Mr O’Flaherty submitted, and I accept, the purpose of r 53 of the SCCR is intrinsically linked with the appropriate exercise of the Court’s jurisdiction. It would be incongruous to characterise the power to reject the filing of documents as one conferred on a member in their personal capacity. Therefore, Judge Bochner was exercising a function conferred on the Court when she directed the Deputy Registrar to reject the documents for filing.
[9] [2011] SASC 127 at [3].
Therefore, as a member of this Court exercising a function conferred on the Court, the decision of Judge Bochner is not subject to the supervisory jurisdiction of this Court.
The same reasoning applies to the function performed by Judge Dart.
I do not need to decide whether it was appropriate in one judicial review application to attempt to review decisions of two persons.
I dismiss the application for judicial review.
I will hear the parties on the question of costs.