McDonald v The State of South Australia

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
MCDONALD & ANOR v THE STATE OF SOUTH AUSTRALIA & ORS
[2022] SASC 17
Judgment of the Honourable Justice David
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS - ACTIONS TO REVIEW OR SET ASIDE JUDGMENT OR ORDER - WHERE FRAUD, MISREPRESENTATION OR SUPPRESSION OF MATERIAL FACTS
PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - INHERENT AND GENERAL STATUTORY POWERS - TO STAY OR DISMISS ORDERS OR PROCEEDINGS GENERALLY
COURTS AND JUDGES - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - REASONABLE APPREHENSION OF BIAS GENERALLY
In these proceedings, Mr and Mrs McDonald, the first and second applicant respectively, allege that the judgment in McDonald v State of South Australia [2008] SASC 134 was obtained by actual fraud, or conduct analogous to fraud, by solicitors acting for the State of South Australia (the ‘State’). The applicants seek that the judgment be set aside and a retrial be held, as well as other relief in the form of damages.
On 21 January 2021, the respondents filed an interlocutory application seeking dismissal of the action or summary judgment, and/or strike out of the applicants’ Claim. The application is made on the following grounds:
1.The action and Claim are vexatious and/or an abuse of process in that the allegations of fraud are a mere device without proper foundation to continue the applicants' extensive litigation campaign arising from the first applicant's employment.
2.The allegations of actual fraud and conspiracy to defraud are not material to the judgment dismissing Mr McDonald’s original claim, such as to justify the setting aside of the judgment. Without setting aside that judgment, there is no basis for any of the other relief sought.
3.The applicants have not pleaded the circumstances in which they say that they discovered the truth of the matters that form a reasonable basis to seek the setting aside of the perfected judgment.
4.The strict rules of pleadings, particularly relating to allegations of actual fraud, have not been complied with.

Held, per David JA, allowing the respondents’ interlocutory application and dismissing the applicants’ Claim:
1.The matter should properly proceed as a claim pursuant to r 51.4 of the Uniform Civil Rules 2020 (SA) (‘UCR’).
2.The name and identity of the first respondent is amended to the State of South Australia pursuant to r 22.4 of the UCR.
3.The action is vexatious and an abuse of process and there is no reasonable cause of action capable of being disclosed. Judgment for the respondent is granted dismissing the applicant’s action pursuant to rr 143.1 and 143.2 of the UCR.
4.I dismiss the extant interlocutory applications filed by the applicants (FDNs 7, 34, 36, 42, 46, 69, 74, 81 and 84).
5. I provide my reasons for the dismissal of the applicants' recusal application (FDN 62).

Acts Interpretation Act 1901 (Cth); Crown Proceedings Act 1992 (SA); Education Act 1972 (SA); Oaths Act 1936 (SA); Supreme Court Act 1935 (SA) ss 17, 21, 48, 50; Supreme Court Civil Rules 2006 (SA) r 53; Trade Practices Act 1974 (Cth); Uniform Civil Rules 2020 (SA) rr 22.4, 34.1, 51.4, 65.1, 70.3, 142.2, 143.1, 143.2, 144.2; Workers Rehabilitation and Compensation Act 1986 (SA), referred to.
Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117; Clone Pty Ltd v Players Pty Ltd (In Liq) (2018) 264 CLR 165; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Johnson v Johnson (2000) 201 CLR 488; McDonald v Colbran [2019] FCA 1937; McDonald v Department of Education and Children's Services [2011] SAWCT 18; McDonald v Department of Education and Children's Services [2011] SAWCT 36; McDonald v Federal Court of Australia [2017] FCA 1216; McDonald v Registrar of the Supreme Court of South Australia [2021] SASC 57; McDonald v South Australia [2008] SASC 134; (2008) 172 IR 256; McDonald v State of SA [2014] SASC 120; McDonald v State of South Australia (No 2) [2015] SASC 188; McDonald v State of South Australia(No. 2) [2018] SASC 57; McDonald v State of South Australia (No 3) [2016] SASC 79; McDonald v State of South Australia (No. 4) [2016] SASC 113; McDonald v State of South Australia [2011] FCA 1251; McDonald v State of South Australia [2011] FCA 297; McDonald v State of South Australia [2015] SASCFC 15; McDonald v State of South Australia [2016] SASCFC 39; McDonald v State of South Australia [2017] HCASL 1; McDonald v State of South Australia [2018] SASC 41; McDonald v State of South Australia [2020] SASC 112; McDonald v Supreme Court of South Australia [2019] SASC 201; McDonald v The State of South Australia [2015] HCASL 118; McDonald v The State of South Australia [2017] SASCFC 146; McDonald v The State of South Australia [2018] HCASL 43; McDonald v The Workers Compensation Tribunal (Workers Compensation Tribunal, Judge Withers, 4 December 2012); McDonald v The Workers Compensation Tribunal [2013] SASC 34; Patch v Ward (1867) LR 3 Ch App 203; Re JRL; Ex parte CJL (1986) 161 CLR 342; State of South Australia v McDonald (2009) 104 SASR 344; Toubia v Schwenke (2002) 54 NSWLR 46, considered.

MCDONALD & ANOR v THE STATE OF SOUTH AUSTRALIA & ORS
[2022] SASC 17
Supreme Court: Civil

DAVID JA: In these proceedings, Mr and Mrs McDonald, the first and second applicant respectively, filed an Originating Application and a Statement of Claim on 11 December 2020.[1] The applicants’ Statement of Claim alleges that the judgment in McDonald v State of South Australia[2] was obtained by actual fraud, or conduct analogous to fraud, by solicitors acting for the State of South Australia (the ‘State’). The applicants seek orders that the judgment delivered in McDonald v South Australia be set aside and a retrial be held, or in the alternative:[3]
·Relief be granted to the applicants ‘in the form of general and special damages for the breach of contract and aggravated damages for the personal injury claim in action SCCIV 418 of 2004 which would have been heard against the body corporate pursuant to s 7 of the Education Act in the jurisdiction of the Supreme Court but for the actual fraud of the Defendant’ pursuant to ss 17 and 21 of the Supreme Court Act 1935 (SA) (the ‘SCA’);
·Relief be granted to the applicants ‘in the form of General and Special damages for the actual fraud of the Defendants and Aggravated damages for the personal injuries sustained by the Applicants caused by the Defendants actual fraud of over a period of 17 years’ pursuant to ss 17 and 21 of the SCA; and
·Relief be granted to the applicants ‘in the form of punitive damages as a warning to Court officers the Court will not tolerate the high handed tactic of actual fraud on the Court and for any serious and wilful acts of misconduct by Court officers which is contrary to the interest of justice and contrary to the public interest’ pursuant to ss 17 and 21 of the SCA.
[1]    Originating Application (FDN 1); Statement of Claim (FDN 2).
[2]    McDonald v South Australia [2008] SASC 134; (2008) 172 IR 256.
[3]    Statement of Claim (FDN 2) at [5]-[7].
The applicants, in effect, seek to set aside a perfected order dismissing the first applicant’s original claim for damages on the basis of allegations of actual fraud, along with other relief. As the applicants seek remedies that are founded on common law and equitable causes of action (including the remedy of rescission of a perfected judgment in equity for actual fraud), the matter should proceed as a claim pursuant to r 51.4 of the Uniform Civil Rules 2020 (SA) (‘UCR’).
In this action, the applicants appeared self-represented. They are husband and wife. Mr McDonald made submissions on his own behalf and on behalf of Mrs McDonald. The affidavits filed in support of the Claim and various interlocutory applications were sworn by Mr McDonald but filed on behalf of both applicants.
Interlocutory applications
Interlocutory applications filed before 2 July 2021
The following applications were the subject of written submissions and oral submissions at a hearing on 2 July 2021:
1.The first, second and third respondents’ application seeking dismissal of the action, summary judgment, and/or strike out of the applicants’ Originating Application and/or Statement of Claim (FDN 15);
2.The first applicant’s application regarding service on the fourth and fifth respondents (FDN 7);
3.The first applicant’s application seeking strike out of the respondents’ interlocutory application (FDN 15), default and/or summary judgment, and referral to the Full Court (FDN 34);
4.The first applicant’s application (FDN 36) requesting leave to file interrogatories and a date for the respondents to answer the applicants’ Notice to Produce (FDN 26);
5.The first applicant’s application requesting discovery (FDN 42);
6.The first applicant’s application (FDN 46) regarding his List of Documents (FDN 18) and Notices to Admit and Produce (FDNs 21 , 23 and 39); and
7.The applicants’ application for my recusal (FDN 62).[4]
[4] This application was reiterated in Interlocutory Application (FDN 66).
Interlocutory applications filed after 2 July 2021
The applicants also filed numerous interlocutory applications in this action after judgment was reserved on 2 July 2021. Those applications include:
1.The applicants’ application to adduce ‘new, fresh and compelling evidence’ consisting of Freedom of Information determinations from the Office of the Minister for Education, the Attorney-General’s Department, and the Department of Treasury and Finance, for the Court to order the production of documents, and for leave to join the persons in SAICORP who had the management of actions DCCIV-05-029, SCCIV-13-574, SCCIV-14-1564 and this action (FDN 69);
2.The applicants’ application for a stay of judgment in this matter until the Court makes various orders sought in previous applications (FDN 74);
3.The applicants’ application for an order compelling the respondents to answer the first applicant’s Notice to Produce (FDN 77) and produce documents from ‘[Mr McDonald’s] personal file’ (FDN 81); and
4.The applicants’ application for an order compelling the respondents to provide copies of the updated statements of service for various individuals (FDN 84).
Those applications filed after 2 July 2021 were the subject of oral submissions on 13 August 2021 and 17 December 2021.
The applicants have also filed four affidavits since 2 July 2021 concerning new evidence uncovered by the first applicant at the Civil Registry.[5] However, these affidavits are not discernibly associated with any interlocutory application filed in this action.
[5] Affidavit of Mr McDonald affirmed 8 October 2021 (FDN 103); Affidavit of Mr McDonald affirmed 12 October 2021 (FDN 105); Affidavit of Mr McDonald affirmed 10 November 2021 (FDN 107); Affidavit of Mr McDonald affirmed 10 November 2021 (FDN 108).
If the applicants’ Claim is summarily dismissed or struck out, as sought by the respondents in FDN 15, the balance of the applicants’ interlocutory applications will necessarily become otiose or be dismissed. Therefore, I will first deal with the respondents’ application seeking summary dismissal of the Claim, or in the alternative, strike out of the Claim.
Background
It is necessary to first say something about the long and vexed litigious history between the applicants and the State.
Mr McDonald was employed as a high school teacher between 1990 and April 2003. In 2004, Mr McDonald commenced proceedings against the Department of Education and Children’s Services (‘DECS’) in this Court in respect of his employment (the ‘Original Proceedings’). The State was later substituted as the defendant in this action. The matter proceeded to trial before Anderson J. Mr McDonald claimed damages for breach of implied terms in his contract of employment and for negligently failing to discharge the duty of care by not providing a safe workplace or system of work. Mr McDonald also made claims in estoppel and the tort of deceit. On 21 May 2008, Anderson J awarded Mr McDonald a substantial sum of damages on the basis that the defendant had breached the contractual duty to provide a safe system of work and an implied term of mutual trust and confidence in its contract of employment with Mr McDonald.[6] Mr McDonald was awarded damages on the basis of a loss of past and future earning capacity.
[6] McDonald v South Australia [2008] SASC 134; (2008) 172 IR 256.
In State of South Australia v McDonald, the Full Court allowed an appeal by the State against the decision of Anderson J and dismissed Mr McDonald’s claim for damages against the State.[7] The Full Court held that the implied term of mutual trust and confidence did not form part of the contract of employment, and even if there had been such an implied term, there had not been a repudiatory breach of that term or of the implied contractual duty of care.
[7] (2009) 104 SASR 344 per Doyle CJ, White and Kelly JJ.
In McDonald v State of South Australia, Besanko J set out the factual background to Mr McDonald’s claims,[8] which I do not need to repeat, and gave a more fulsome summary of the outcomes of the judgment at first instance and on appeal to the Full Court, which I gratefully adopt in extenso. His Honour said:[9]
[8] [2011] FCA 297 at [8]-[20].
[9] [2011] FCA 297 at [21]-[34].
The applicant brought an action in the Supreme Court in April 2004. DECS was named as the defendant, but in August 2004 the State of South Australia was substituted for it. The applicant’s Statement of Claim was amended a number of times.
Strike out application
A Master of the Supreme Court heard an application to strike out various parts of the further amended statement of claim (the eighth). The Statement of Claim at that time included a claim that DECS had contravened ss 51AB, 51AC, 60 and 82 of the Trade Practices Act. The Master struck out these paragraphs on the basis that the plaintiff had no cause of action under that Act because DECS was not a body corporate, but a body politic within the meaning of s 22 of the Acts Interpretation Act 1901 (Cth).
The Master also struck out a claim for non-economic loss on the ground that s 54(1) of the Workers Rehabilitation and Compensation Act provided that an employer was not liable for a compensable disability except under the Act. His Honour noted that in all the circumstances pleaded the defendant was the plaintiff’s employer, and said while the plaintiff’s claim for constructive wrongful dismissal was maintainable, he was barred by s 54(1) from maintaining a claim for physical or mental injury arising out of his employment. The applicant sought to raise this issue before the Full Court, and the Full Court noted that there had been no appeal from the Master’s decision and in any event the Master and the trial judge, who had dealt with an application to amend in similar terms, were correct in rejecting the claim.
A claim by the applicant in relation to a contravention of s 55A of the Occupational Health, Safety and Welfare Act 1986 (SA) was also struck out, on the basis that the section conferred jurisdiction on the Industrial Commission in cases of bullying, but did not give rise to a cause of action in the Supreme Court.
A paragraph relating to the applicant’s (then plaintiff) claim in deceit and claiming the applicant was affected in his ‘social status and personal satisfaction’ was also struck out on the basis that such heads of loss are not claimable for deceit. Paragraphs purporting to bring a claim for ‘harassment’ in common law were struck out, there being no such cause of action.
The time within which the applicant could appeal from the Master’s decision was extended to 14 days from 17 August 2007. The applicant did not appeal the decision within that time, although he raised the issue with the trial judge at a directions hearing in late August 2007. The trial judge told the applicant that in order to challenge the decision he would need to file an appeal, but no appeal was ever filed, and the time for doing so had passed by the commencement of the trial.
The judgment at first instance
The matter proceeded to trial in late 2007. The remaining causes of action were breach of contract, estoppel, and deceit. The contract claim was for breach of three terms said to be implied in the applicant’s contract of employment: first, a term that neither party to the employment contract would act in a manner that would destroy or seriously damage the relationship of trust and confidence between them; second, a term that his employer would take reasonable care to provide a safe place of work and safe systems of work; and, third, a term that the Minister would exercise his powers in relation to the applicant fairly and reasonably. The estoppel related to the failure to pay alleged agreed rates of overtime and to reimburse for additional work performed. The deceit was said to arise in relation to the information given by Mr Boaden to the applicant about the nature of the duties the applicant would be performing at Brighton.
In the course of the trial the applicant had applied for permission to amend his Statement of Claim to claim damages for non-economic loss for pain and suffering, loss of dignity and reputation, and loss of enjoyment of lifestyle and for psychiatric injury. The trial judge refused permission to amend the pleading, and the Full Court dismissed the applicant’s appeal against that decision.
The trial judge found that the State was in breach of the first and second alleged implied terms, and that the applicant had been constructively dismissed. He rejected the claim for damages for deceit, finding that the elements of the tort had not been established because there had been no false representation. The trial judge did not deal with the issue of estoppel, but the Full Court noted that there was no doubt that damages were not claimable by reference to estoppel. The trial judge also rejected a claim for aggravated and exemplary damages. He awarded damages in the amount of $392,850.00 for loss of earning capacity, superannuation entitlements and long service leave entitlements.
The judgment of the Full Court
The State appealed against the trial judge’s decision. The applicant cross-appealed on various grounds.
The State raised for the first time on appeal a submission that the applicant’s claim for breach of contract was barred by section 54(1) of the Workers Rehabilitation and Compensation Act. The Full Court rejected the submission, finding that even if the applicant had suffered a compensable disability, the relationship between the compensable disability and the alleged repudiatory breach of contract lay only in the fact that the conduct amounting to the repudiatory breach had also caused the compensable disability. The liability in contract did not depend on the existence of the compensable disability and accordingly the applicant was not precluded from bringing the contractual claim, notwithstanding that he remained entitled to bring a claim under the Workers Rehabilitation and Compensation Act, as he has since done.
The Full Court nevertheless allowed the appeal, finding that there was no implied term requiring the State not to damage seriously or destroy his relationship of mutual trust and confidence with the applicant. This was because the extensive statutory regulation of the applicant’s employment contract, which provided a process for addressing his grievances, rendered the implication of such a term unnecessary. The Court also found that even if such a term was implied into the applicant’s employment contract, it had not been breached in a repudiatory way because of the availability to the applicant of grievance resolution processes within the confines of the employment relationship. In relation to the implied contractual duty of care, the Court held that any breach was not repudiatory, because the issues of the definition of the applicant’s role at the school, his workload, and harassment by other staff had been resolved well before the applicant terminated his employment; and because it had upheld certain challenges to factual findings made by the trial judge which supported the finding that there had been a repudiatory breach. It further considered that the conclusion that the applicant had been bullied and victimised by Mr Mitchell and excluded from committee participation was not supported by the evidence and could not amount to a breach of the duty. Nor did any breaches cumulatively amount to a repudiatory breach of the employment contract.
On the appeal, the applicant also sought to bring a negligence claim against those employees of DECS who are named in the present proceeding as the second to sixth respondents. He said that the prohibition in s 54(4a) of the Workers Rehabilitation and Compensation Act on bringing actions for negligence against fellow employees did not apply because that section did not prohibit such actions where the negligence arose through ‘serious and wilful misconduct’. In relation to that claim, the Full Court said:
The reference to ‘serious and wilful misconduct’ suggests that Mr McDonald claims to have a right of action against other workers for a compensable disability, the claim being attributable to negligence of other workers that arose from or in the course of ‘serious and wilful misconduct’. Section 54(4a) does not bar a right of action against another worker if the disability is caused by the negligence of that worker and the negligence arose from or in the course of serious and wilful misconduct by the worker. If this right of action against another worker was to be maintained, in our opinion it should have been clearly pleaded and that would necessitate the naming of the other worker or other workers and, we consider, their joinder as a further party or parties. None of this occurred. In our opinion it is now too late to raise this matter in these proceedings.
An application by Mr McDonald for special leave to appeal to the High Court was refused.
(citations omitted)

On 3 September 2009, Mr McDonald made a claim under the Workers Rehabilitation and Compensation Act 1986 (SA) (as it then applied) in the Workers Compensation Tribunal for injury arising from the matters litigated in the Original Proceedings, namely ‘stress, anxiety and depression as a result of “bullying, harassment, victimisation and discrimination” in the course of his employment as a teacher’.[10] The claim was dismissed for want of prosecution.[11] An application for permission to apply for judicial review of that decision was dismissed by a Master of this Court.[12] The Master’s refusal was the subject of an unsuccessful appeal in this Court.[13]
[10] McDonald v Department of Education and Children’s Services [2011] SAWCT 36 at [1] per Hannon DP.
[11] McDonald v Department of Education and Children’s Services [2011] SAWCT 36 per Hannon DP.
[12] McDonald v The Workers Compensation Tribunal (Workers Compensation Tribunal, Judge Withers, 4 December 2012).
[13] McDonald v The Workers Compensation Tribunal [2013] SASC 34 per Nicholson J.
More recent procedural history
From about mid-2009 through to March 2018, Mr McDonald, and at times Mrs McDonald, have made claims relating to the first applicant’s employment as a teacher against the State, together with its agencies, officers and employees, in this Court and the District Court. In this period, interlocutory decisions of both courts were also appealed by the applicants.
In this period, multiple Statements of Claim filed by Mr McDonald were struck out, re-pleaded or sought to be re-pleaded. Further, an application and subsequent appeals by Mr McDonald to change the name of the defendant from the State to the Minister for Education were refused.[14]
[14] McDonald v State of SA [2014] SASC 120 per Bampton J; McDonald v State of South Australia [2015] SASCFC 15 per Gray, Sulan and Nicholson JJ.
In 2013 and 2014, Mr McDonald commenced claims for personal injury against the State, the Minister for Education and Child Development, and three employees of DECS, which arose from largely the same subject matter as the Original Proceedings. The second applicant, Mrs McDonald, was named as a plaintiff in the 2014 proceedings. Those claims were summarily dismissed by this Court on the basis that there was no reasonable cause of action and/or the pleadings comprised an abuse of process for attempting to re-litigate a settled controversy with no prospect of success.[15] The appeal from this decision and an application to the High Court for special leave were dismissed.[16]
[15] McDonald v State of South Australia (No 3) [2016] SASC 79 per Nicholson J at [97], [167]-[168], [190] and [195].
[16] McDonald v The State of South Australia [2017] SASCFC 146 per Slattery AJ (with whom Vanstone J and Gilchrist AJ agreed); McDonald v The State of South Australia [2018] HCASL 43 per Keane and Edelman JJ.
Mr McDonald, and at times also Mrs McDonald, have on several occasions also commenced proceedings in the Federal Court for the purpose of re-litigating matters. The Federal Court has at different times regarded these actions as an abuse of process.[17]
[17] McDonald v State of South Australia [2011] FCA 297 per Besanko J; McDonald v State of South Australia [2011] FCA 1251 per Lander J dismissing the first applicant’s application for leave to appeal from the decision of Besanko J; McDonald v Federal Court of Australia [2017] FCA 1216 per Kerr J dismissing the applicants’ application for judicial review; McDonald v Colbran [2019] FCA 1937 per Charlesworth J dismissing the applicants’ application for judicial review. Further, Charlesworth and Kerr JJ made orders limiting the applicants’ right to litigate in the Federal Court, see McDonald v Colbran [2019] FCA 1937 at [131]-[132] per Charlesworth J; McDonald v Federal Court of Australia [2017] FCA 1216 at [73]-[74] per Kerr J.
Since 2013, Mr McDonald has also attempted to institute proceedings in this Court directed at setting aside or reopening the Original Proceedings. The Registrar (at the direction of a judicial officer) has rejected some of these documents, with Mr McDonald then challenging that administrative decision or direction.[18] Mr McDonald’s previous attempts to file documents to re-litigate the Original Proceedings have been based on there being a different defendant than in the Original Proceedings, fresh and compelling evidence, and fraud justifying setting aside the order dismissing the Original Proceedings in accordance with the reasons in Clone Pty Ltd v Players Pty Ltd (In Liq) (‘Clone’).[19]
[18] See, for example, McDonald v State of South Australia (No. 4) [2016] SASC 113 per Stanley J; McDonald v State of South Australia [2018] SASC 41 per Vanstone J; McDonald v State of South Australia (No. 2) [2018] SASC 57 per Vanstone J; McDonald v Supreme Court of South Australia [2019] SASC 201 per Lovell J; McDonald v State of South Australia [2020] SASC 112 per Lovell J; McDonald v Registrar of the Supreme Court of South Australia [2021] SASC 57 per Blue J.
[19] (2018) 264 CLR 165.
It is clear from the Statement of Claim that the applicants’ allegations of fraud rely upon the following assertions:[20] the Original Proceedings did not involve the correct defendant or defendants as the first applicant’s employer was not the Crown in right of the State, but the Minister of Education under the Education Act 1972 (SA); the solicitors for the defendant did not disclose documents relevant to the issue of the first applicant’s correct employer or the correct defendant; and fraud or malpractice by lawyers of the Crown Solicitor’s Office (the ‘CSO’) with respect to disclosure and submissions related to the correct defendant.
[20] Statement of Claim (FDN 2).
By way of background, it is to be noted that the Full Court held that it was ‘not necessary to decide’ whether the first applicant’s employer was the Minister or the Crown.[21] Further, the applicants’ assertion that the proper defendants in the Original Proceedings were the Minister for Education (a body corporate under s 7 of the Education Act 1972 (SA)) and several government employees has subsequently been dismissed by various courts and tribunals.[22] The assertion that there has been misconduct by the State’s solicitors has also been the subject of numerous rulings and judgments of this Court decided adversely to the applicants.[23]
[21] State of South Australia v McDonald (2009) 104 SASR 344 at [2] per Doyle CJ, White and Kelly JJ.
[22] See, eg, McDonald v State of SA [2014] SASC 120 at [16], [19]-[20] per Bampton J; McDonald v State of South Australia [2015] SASCFC 15 per Gray, Sulan and Nicholson JJ at [6]; McDonald v The State of South Australia [2015] HCASL 118 per Bell and Gageler JJ; McDonald v State of South Australia (No 3) [2016] SASC 79 at [26]-[28] per Nicholson J; McDonald v The State of South Australia [2017] SASCFC 146 at [74]-[78] per Slattery AJ (with whom Vanstone J and Gilchrist AJ agreed); McDonald v Department of Education and Children’s Services [2011] SAWCT 18 at [9]-[13], [20] per Parsons, Farrell and McCouaig DPP; McDonald v State of South Australia [2011] FCA 1251 at [25] per Lander J.
[23] See, eg, McDonald v State of South Australia (No 2) [2015] SASC 188 at [20]-[21] per Nicholson J; McDonald v State of South Australia [2016] SASCFC 39 at [12]-[13] per Sulan, Lovell and Doyle JJ; McDonald v State of South Australia [2017] HCASL 1 per Nettle and Gordon JJ; McDonald v The State of South Australia [2017] SASCFC 146 at [162] per Slattery AJ (with whom Vanstone J and Gilchrist AJ agreed); McDonald v The State of South Australia [2018] HCASL 43 per Keane and Edelman JJ.
It is against this background that I will first deal with the respondents’ application for summary dismissal and/or summary judgment or, in the alternative, strike out of the applicants’ Claim. It is necessary first to consider more closely the proposed action as set out in the Statement of Claim and some preliminary matters raised by the respondents.
Statement of Claim
The applicants bring their claim against five respondents: the Attorney‑General of South Australia, SAICORP, the incorporated Minister for Education, Ms Colleen Braddick (a solicitor employed by the CSO), and Mr Michael Mills (a barrister instructed by the CSO).
The applicants contend that the respondents ‘devised a plan … to conspire to defraud’ the first applicant before the commencement of the Original Proceedings by concealing the true identity of the defendant.[24] More particularly, the applicants allege that:[25]
[24] Statement of Claim (FDN 2) at [37].
[25] Statement of Claim (FDN 2) at [38]-[41].
The co-conspirators knew at the time they devised the plan to conspire to defraud the First Applicant out of his constitutional, statutory and common law right to sue for breach of contract and for the negligent acts and omissions of his employer and those of its employees who engaged in serious and wilful acts of misconduct which led to the First Applicant’s injuries, the body corporate created under s 7 of the Education Act was the First Applicant’s employer at common law and was the primary Defendant liable in the 2004 action for it was the party in contract with the First Applicant under s 9(4) and s 15(2) of the Education Act in the period of 1988 to 2002.
At all material times with access to expert advice in public and administrative law the co‑conspirators knew the body corporate pursuant to s 7 of the Education Act had a separate legal personality to that of State of SA under s 5 of the Crown Proceedings Act 1992 and it could sue and be sued in its corporate name in the jurisdiction of the Supreme Court and in the Federal Court under the TPA for breach of contract and for causing harm and injury to the First Applicant.
The legal Defence Strategy of the co-conspirators at all material times was to fraudulently dupe the Court and the First Applicant into believing the First Applicant was employed as a teacher by DECS under the Education Act 1972 and therefore could be regarded as a Crown employee in a government department. As a Crown employee with DECS the First Applicant and other teachers would have immunity under s 74 of the Public Sector Management (PSM) Act 1995 and State of SA would be regarded as their employer for the purpose of s 5 of the Crown Proceedings Act 1992 in the jurisdiction of the Supreme Court.
The co-conspirators raison d’etre for their conspiracy to defraud the First Applicant in the 2004 action in the Supreme Court were:
1. In the First instance State of SA would become the employer and primary Defendant liable at common law in the 2004 action in the jurisdiction of the Supreme Court for the acts and omissions of persons employed under the Education Act;
2. Persons employed under the Education Act would have the protection of s 74 of the PSM Act;
3. State of SA would be able to falsely represent DECS as the employer in the 2004 action in the Supreme Court under s 5 of the Crown Proceedings Act 1992.
4. Using this strategy the First Applicant would be prevented from suing his employer the body corporate under s 7 of the Education Act for a breach of his contract at common law in the jurisdiction of the Supreme Court; and
5. DECS would be protected by s 54(1) of the Workers Rehabilitation and Compensation (WRC) Act 1986 from its and those of its employees negligent acts and omissions at common law in the 2004 action in the jurisdiction of the Supreme Court.
6.   DECS not being a body corporate would mean the First Applicant would not be able to sue DECS for breach of contract under the Trade Practices Act (TPA) 1974 in the jurisdiction of the Supreme Court; and
7. the First Applicant would not be able to sue State of SA for a breach of contract under the TPA in the jurisdiction of the Federal Court for a trial had already been heard against State of SA in the jurisdiction of the Supreme Court;
8.   if a judgment was given in favour of the First Applicant damages would be limited to WorkCover claim rather than a contract claim and negligence claim;
9.   on the other hand if the First Applicant lost at trial then no damages would be paid out; and
10.   finally, if the First Applicant ever discovered a miscarriage of justice occurred in the 2004 action in the Supreme Court the model litigant would submit as a Defence the First Applicant is trying to relitigate a claim already heard in the Supreme Court and his action is an abuse of process based on the principals of res judicata, Anshun estoppel, issue estoppel and it should be dismissed.
In the Statement of Claim, the applicants contend that the first applicant was not an employee of DECS or the State and therefore the wrong defendant was joined in the Original Proceedings. Mr McDonald submits that as the State was named as the sole defendant in the Original Proceedings, the Supreme Court is yet to determine the applicants’ case against the Minister of Education. Thus, the applicants contend they have an arguable claim in contract and negligence against the Minister of Education, which has not yet been finally determined by the Supreme Court.
The applicants contend that the respondents engaged in actual fraud and a conspiracy to defraud by having knowingly concealed and fabricated material from the first applicant, and that if the true situation had been known in the Original Proceedings, there would have been a different outcome.
Preliminary matters
Order sought to be set aside
The applicants’ Claim seeks to set aside the perfected order dismissing the Original Proceedings. This order was made by the Full Court, rather than the order made by Anderson J in the Original Proceedings. During the oral hearing on 2 July 2021, the applicants acknowledged it was the perfected order of the Full Court which they sought to have set aside, and I have proceeded on that basis.[26]
[26] On 1 September 2021, the first applicant filed an Interlocutory Application (FDN 91) seeking an order permitting the applicants to amend the Statement of Claim to include ‘pleadings on the errors made by the Full Court which are different to the errors made in the Anderson J judgment in 2008’; see Affidavit of Mr McDonald affirmed 31 August 2021 (FDN 92). At the hearing on 17 December 2021, submissions were made by the applicants and respondents on this application. In my reasons delivered on 23 December 2021, I dismissed Interlocutory Application (FDN 91) as there was ‘no basis for concluding that any alleged errors in the Full Court’s judgment could have any bearing on the issue of whether there was actual fraud, so as to set aside a perfected judgment’.
Named first respondent
The applicants have named five respondents to the action but have not named the State. As the applicants are seeking to set aside a judgment made in favour of the State, in my view, the State is a necessary party to the proceedings. The first respondent is named to be the Attorney-General, but the Statement of Claim suggests it is the State that is sought to be the subject of the proceedings.[27] The name and identity of the first respondent is therefore amended to the State of South Australia pursuant to r 22.4 of the UCR.
[27] See Statement of Claim (FDN 2) at [3], [5] and [16].
Appropriate forum
In the Statement of Claim, and a subsequent interlocutory application (FDN 34), the applicants contend that only the Full Court (or the Court of Appeal) has the jurisdiction or power to grant the relief sought and therefore, interlocutory steps should be taken in that forum. I do not accept that contention. In respect of an action for rescission of a perfected judgment in equity for actual fraud (as is alleged in the present matter), the claim should be made as a ‘new proceeding before a single judge of the Supreme Court’.[28] This relies upon a power to set aside a perfected judgment of ‘any court for fraud’, including ‘an appellate court’s decision’.[29] Accordingly, any interlocutory processes and trial of these proceedings are appropriately heard before a single Judge of this Court.
[28] Clone Pty Ltd v Players Pty Ltd (In Liq) (2018) 264 CLR 165 at [32].
[29] Clone Pty Ltd v Players Pty Ltd (In Liq) (2018) 264 CLR 165 at [32].
Respondents’ application for summary dismissal or summary judgment (FDN 15)
The respondents make an application for the Court to dismiss the Claim and/or give summary judgment against the applicants, or in the alternative, for the Statement of Claim to be struck out. This application is made on the following grounds:[30]
1.   The action and Claim are vexatious and/or an abuse of process in that the allegations of actual fraud are a mere device without proper foundation used to continue the applicants’ extensive litigation campaign arising from the first applicant’s employment.
2.   The allegations of actual fraud and conspiracy to defraud are not material to the judgment dismissing Mr McDonald’s original claim, such as to justify the setting aside of the judgment. Without setting aside that judgment, there is no basis for any of the other relief sought.
3.   The applicants have not pleaded the circumstances in which they say they discovered the truth of matters that form a reasonable basis to seek the setting aside of the perfected judgment.
4.   The strict rules of pleadings, particularly relating to allegations of actual fraud, have not been complied with.
[30] See Respondents’ Outline of Argument: Interlocutory Hearing on 2 July 2021 (FDN 54) at [20]-[38].
The respondents contend that there is no proper basis to set aside the perfected order of the Full Court on the basis of actual fraud, and in the absence of a proper basis to set aside the perfected order on grounds of actual fraud, the other claims for relief in these proceedings have been finally determined and are precluded from succeeding by reason of res judicata, estoppel or abuse of process principles.
The UCR
The respondents’ application for a summary dismissal is made pursuant to the rr 143.1 and 143.2 of the UCR, which provide for summary dismissal on two grounds: on the ground that no reasonable cause of action is capable of being disclosed, or, on the ground that the action is frivolous, vexatious or an abuse of process. The rules relevantly state:
143.1—Judgment for failure to disclose basis
(1)The Court may grant judgment dismissing an action on the ground that no reasonable cause of action in the case of a claim, or basis for the application in the case of an originating application, is capable of being disclosed.
(2)The Court may grant judgment in favour of an applicant in an action on the ground that no reasonable defence in the case of a claim, or basis to contest the application in the case of an originating application, is capable of being disclosed.
143.2—Judgment for abuse of process
(1)The Court may grant judgment dismissing an action on the ground that it is frivolous, vexatious or an abuse of the process of the Court.
(2)The Court may grant judgment in favour of an applicant in an action on the ground that a defence of or contest to it is frivolous, vexatious or an abuse of the process of the Court.
The respondents also apply for summary judgment pursuant to r 144.2(2) of the UCR, which provides for summary judgment to be entered in a claim if there is no reasonable basis for prosecuting the claim. The rule relevantly states:
(2)The Court may, on application by a party, give summary judgment against an applicant—
(a)on a claim if there is no reasonable basis for prosecuting the claim;
(b)on a cause of action in a claim if there is no reasonable basis for prosecuting the cause of action; or
(c)on a separate issue that arises in a claim if there is no reasonable basis for prosecuting the applicant’s contention on that issue.
In the alternative, the respondents seek a strike out of the claim under rr 34.1 and 70.3 of the UCR. Those rules state:
34.1—Strike out of filed documents
(1)The Court may order that a filed document or part of a filed document be struck out if—
(a)it does not comply with these Rules; or
(b)it is frivolous, vexatious or an abuse of the process of the Court.
(2)If the Court strikes out all or part of a document under subrule (1), it may if it thinks fit grant leave to file within a specified time an amended or substituted document rectifying the matter that caused the original document to be struck out.
70.3—Strike out
(1)The Court may strike out all or part of a Claim or pleading if—
(a)it does not comply with these Rules;
(b)it is frivolous, vexatious or an abuse of the process of the Court; or
(c)it does not disclose a reasonable cause of action or defence (as applicable).
(2)If the Court strikes out all or part of a document under subrule (1), it may if it thinks fit grant leave to file within a specified time an amended or substituted document rectifying the matter that caused the original document to be struck out.

The principles to be applied in determining a claim summarily were summarised by Doyle J in Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd:[31]
By way of summary of the approach articulated in Spencer v Commonwealth, it can be said that the power to determine a claim summarily should not be exercised lightly. Exercise of the power requires a practical assessment of whether the applicant has real, as opposed to merely fanciful, prospects of success. While the Court need not be satisfied that the claim is hopeless or bound to fail, nevertheless it must be cautious not to do a party injustice by summarily determining an action, particularly where there are disputed issues of fact or law or mixed fact and law, merely because the Court considers that the claim is unlikely to succeed. However, beyond these very general guidelines, the Court should focus upon the words used in the rules and avoid applying any judicial gloss.
Related to the requirement that the Court undertake a “practical” assessment is the notion that the Court should not embark upon a “mini trial” of the claim. Rather, the claim should be assessed in a summary manner, while being cognisant of the incomplete nature of the evidence upon which the Court’s decision must be based. Adversarial argument may assist, and indeed may result in the emergence of a sufficiently clear answer to a complex issue that summary judgment is appropriate. On the other hand, the need for prolonged argument may be indicative of a reasonable basis for the claim.
(citations omitted)
[31] Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117 at [59]-[60].
As to the differences between the exercise of the Court’s power to summarily dismiss a claim from the exercise undertaken by the Court on an application for summary judgment, his Honour said:[32]
While the difference is difficult to articulate, an application for summary dismissal is typically addressed more to the absence of any identifiable proper claim, whereas an application for summary judgment is typically addressed more to a particular defect in, or answer to, an otherwise properly articulated and disclosed case.
[32] Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117 at [68].
Before I turn to the grounds upon which the respondents contend that the Claim should be summarily dismissed and/or summary judgment entered against the applicants, it is necessary to consider the principles in Clone to determine whether the applicants’ Claim discloses a reasonable cause of action. This informs the determination of whether there is a reasonable basis for prosecuting the Claim.
Principles in Clone
In Clone, the respondent sought to set aside a judgment of this Court on the basis that the appellant’s legal practitioners had failed to disclose documentary material during trial. The respondent brought two applications to set aside the judgment: one in the same proceedings that had been the subject of the earlier judgment, the other was a fresh application to set aside the judgment. The primary Judge held that the non-disclosure of the document constituted malpractice by the appellant’s lawyers and ordered a new trial. The decision was upheld by the Full Court. The High Court reversed the judgment of the Full Court.
In Clone, the High Court enunciated the relevant principles to be applied in setting aside a perfected judgment for actual fraud.
Those principles have been recently summarised by Charlesworth J in McDonald v Colbran.[33] In a judgment dismissing an application by Mr McDonald for judicial review of a decision of a Registrar to refuse to accept documents for filing in a proposed action to set aside the perfected judgment of Besanko J in McDonald v State of South Australia, which he alleged was obtained by actual fraud, her Honour considered whether the proposed action could be properly commenced in accordance with the principles in Clone. It is convenient to extract her Honour’s summary of the principles enunciated in Clone, which I gratefully adopt. Her Honour said:[34]
The following principles may be discerned from the reasons of the High Court insofar as they concerned that category of case in which actual fraud is alleged:
(1)    the power to set aside a perfected judgment by an original bill is a narrowly defined exception to the principle of finality;
(2)    the appropriate procedure for seeking an order setting aside an earlier perfected judgment is by application in a new proceeding, and not by application in the proceeding in which the judgment was obtained;
(3)    it is necessary to demonstrate actual fraud. Proof of misconduct, accident, surprise, mistake or lack of frankness will not suffice;
(4)    the party seeking to set aside the judgment on the ground of actual fraud need not demonstrate that he or she exercised reasonable diligence to discover the fraud in the course of the earlier proceeding, although a lack of diligence may inform the Court’s discretion as to whether relief should be granted; and
(5)    whether or not the fraud (if proven) might have affected the outcome of the original proceedings is not a matter pre-conditioning the exercise of the power, but will be relevant to the exercise of the Court’s discretion.
The High Court’s remarks in relation to the topics … above are to be understood as obiter, as fraud of the kind necessary for setting aside the earlier judgment had not been established.
(citations omitted)
[33] [2019] FCA 1937.
[34] McDonald v Colbran [2019] FCA 1937 at [40]-[41].
The High Court also explained that the party alleging the fraud must satisfy the Court that the order was obtained by the actual positive fraud and contrivance of the party obtaining it.[35]
[35] Clone Pty Ltd v Players Pty Ltd(In Liq) (2018) 264 CLR 165 at [55] citing Patch v Ward (1867) LR 3 Ch App 203 at 212-3 per Sir John Rolt LJ.
The respondents contend that the applicants have not established: an evidentiary basis for the allegations of actual fraud or conspiracy; that the court orders sought to be set aside were obtained by the alleged fraud, that is, there is materiality between the alleged fraud and the judgment dismissing Mr McDonald’s original Claim; or, that the circumstances in which the applicants discovered the truth of matters form a reasonable basis to set aside the perfected judgment. In the absence of a proper basis to set aside the perfected order on grounds of actual fraud, the respondents contend that none of the other claims for relief can be maintained as they have been finally determined and are precluded from succeeding by reason of res judicata, estoppel or abuse of process principles.
Grounds for summary judgment, summary dismissal, or strike out of the Claim
Ground 1 – Vexatious and/or abuse of process
The respondents contend that the Court should enter summary judgment against the applicants or dismiss or strike out the whole Claim with no liberty to re-plead on the basis that the Claim is vexatious and an abuse of process. In essence, the respondents contend that there is no evidentiary basis for the allegations of actual fraud relied upon by the applicants to set aside the perfected judgment, and in the context of the applicants’ litigious history against the State, the current proceedings are a device to vexatiously continue their litigation. Accordingly, the respondents submit that the Court should grant judgment summarily dismissing the Claim as vexatious and/or an abuse of process.
The first applicant, Mr McDonald, repeatedly asserts in his Statement of Claim, affidavits,[36] and oral submissions that there is ‘fresh and compelling evidence’ which shows that the Original Proceedings and the Full Court judgment were obtained by actual fraud or conspiracy to defraud by lawyers acting for the State, without identifying the evidence which purportedly supports these allegations. The applicants do not provide any particularity as to their allegations of fraud, nor have they established any reasonable foundation or basis to make their broad allegations of fraud or dishonesty.
[36] See, eg, Affidavit of Mr McDonald affirmed 16 April 2021 (FDN 35) at [31]-[32], [44]; Affidavit of Mr McDonald affirmed 28 July 2021 (FDN 70) at [5]-[6].
In his affidavits, Mr McDonald alleges that lawyers acting for the State in the Original Proceedings, and at the appeal before the Full Court, concealed ‘evidence’ from him which would have established that the Minister was his employer, not the Crown. Mr McDonald asserts that had the ‘correct’ situation been known at trial, the outcome of the trial and appeal would have been different. The applicants seem to rely on this assertion as evidence of actual fraud. The applicants submit that lawyers who were acting for the State at trial and on appeal were experts in their field and therefore, would have known the ‘correct’ legal position as to the identity of Mr McDonald’s employer. The applicants submit that the State’s lawyers deliberately concealed that fact from the applicants to deprive them of their rights. The applicants seem to assert that a legal submission on behalf of the State, which they contest, or a legal conclusion by a court, with which they disagree, amounts to actual fraud. Neither of those matters without more can constitute an act of actual fraud.[37] The applicants have clearly conflated assertions and findings which they continue to challenge with evidence of allegations of dishonesty and actual fraud or conspiracy to defraud.
[37] See Clone Pty Ltd v Players Pty Ltd (In Liq) (2018) 264 CLR 165.
Plainly, the applicants’ assertions of actual fraud or conspiracy to defraud as detailed in the Statement of Claim and affidavits provide no evidentiary foundation for an allegation of actual fraud to invoke the Court’s equitable jurisdiction to set aside a perfected judgment. Further, and as discussed in greater detail below, the assertion central to the allegations of actual fraud is that the Original Proceedings did not involve the correct defendant as the first applicant’s employer was not the Crown in right of the State, but the Minister under the Education Act 1972 (SA) (as it then applied). That contention, however, is untenable. The Full Court considered it ‘not necessary to decide whether his employment contract was with the Minister or with the Crown’.[38] Other Courts have subsequently repeated and emphasised the Full Court’s finding that the identity of the first applicant’s employer was not necessary to decide.[39]
[38] State of South Australia v McDonald (2009) 104 SASR 344 at [2] per Doyle CJ, White and Kelly JJ.
[39] See McDonald v South Australia [2011] FCA 297 at [65] per Besanko J; McDonald v South Australia (No 3) [2016] SASC 79 at [95]-[97] per Nicholson J; McDonald v Colbran [2019] FCA 1937 at [67]-[69] per Charlesworth J.
Since 2009, the applicants have continued to pursue multiple proceedings arising out of the first applicant’s employment as a teacher, and those proceedings have largely been summarily dismissed. In those circumstances, I agree with the respondents’ submission that the applicants are using bald allegations of actual fraud, which are said to invoke the equitable jurisdiction to set aside a perfected judgment, as a device to vexatiously continue their litigation campaigns. For the following reasons I am satisfied the applicants are attempting to re-litigate judicially settled contentions arising out of Mr McDonald’s former employment: first, the extensive history of proceedings in which courts have rejected the applicants’ assertion as to the correct employer/defendant in the Original Proceedings; second, the courts’ rejection of prior allegations of dishonesty and fraud on the part of the lawyers employed by the CSO; and third, the absence of any reasonable foundation for the allegations of fraud presently pleaded. I am therefore satisfied it is reasonable to infer that the current Statement of Claim is a device by which the applicants are attempting to re-litigate judicially settled contentions arising out of the first applicant’s former employment as a teacher.
I am satisfied that in the absence of any evidentiary basis for the allegations of actual fraud, the Claim is vexatious and an abuse of process in its attempt to re‑litigate judicially settled issues and contentions arising out of the first applicant’s former employment as a teacher.
Ground 2 – No materiality between the allegations of fraud and the Full Court judgment
The respondents contend that the Court should: grant judgment summarily dismissing the Claim because no reasonable cause of action is capable of being disclosed; give summary judgment against the applicants as there is no reasonable basis for prosecuting the Claim; or, strike out the whole Claim with no liberty to re-plead because it does not disclose a reasonable cause of action. In respect of the respondents’ application for the Court to summarily determine the Claim or order that the Claim be struck out, the respondents contend the Claim does not disclose a reasonable cause of action because the allegations of fraud are not material to the judgment dismissing Mr McDonald’s original Claim.
For the Court to exercise its equitable power to set aside a perfected order on the ground of fraud, the applicants are required to ‘satisfy the Court that the [order] was obtained by the positive and actual fraud and contrivance of the party obtaining it’.[40] For a perfected judgment to be set aside for actual fraud, there needs to be materiality between the alleged fraud and the reasons for the judgment. As discussed earlier, the applicants’ allegations of fraud as pleaded relate in their entirety to the assertion that the Original Proceedings did not involve the correct defendant because at the relevant time Mr McDonald’s employer was not the Crown, but the Minister under the Education Act 1972 (SA). However, the Full Court, in making the order to set aside the judgment of Anderson J and dismiss Mr McDonald’s claim for damages, considered it not necessary to decide whether Mr McDonald’s employment contract was with the Minister or with the Crown. The Full Court said it was not necessary to decide this issue because it would have no effect on the substantive issues concerning whether an implied term of mutual trust and confidence formed part of Mr McDonald’s contract of employment, whether there was a repudiatory breach of that implied term, or whether there was a repudiatory breach of an implied contractual duty of care.[41]
[40] Clone Pty Ltd v Players Pty Ltd(In Liq) (2018) 264 CLR 165 at [55] citing Patch v Ward (1867) LR 3 Ch App 203 at 212-3 per Sir John Rolt LJ.
[41] State of South Australia v McDonald (2009) 104 SASR 344 at [2], [269]-[273], [387]-[392] per Doyle CJ, White and Kelly JJ.
Subsequent judgments have reinforced that it was not necessary to decide the identity of the first applicant’s employer in the Original Proceedings.[42]
[42] See McDonald v State of South Australia [2011] FCA 297 at [65] per Besanko J; McDonald v State of South Australia (No 3) [2016] SASC 79 at [95]-[97] per Nicholson J; McDonald v Colbran [2019] FCA 1937 at [67]-[69] per Charlesworth J.
Even if the applicants’ contention that the Minister is not part of the Crown for the purposes of the Crown Proceedings Act1992 (SA) was material to the outcome in the Original Proceedings, that contention is unarguable for the reasons set out by Bampton J in McDonald v State of SA[43] and Charlesworth J in McDonald v Colbran.[44]
[43] [2014] SASC 120 at [30]-[31].
[44] [2019] FCA 1937 at [67].
Further, the applicants have not identified with any particularity any evidentiary material that was not before the Full Court because of the fraudulent conduct of the respondents which could be said to be an operative cause of the Full Court’s decision.[45]
[45] Clone Pty Ltd v Players Pty Ltd (In Liq) (2018) 264 CLR 165 at [62].
Putting aside the assertions that the Original Proceedings did not involve the correct defendant and the allegations of fraud made in that context, there is no other apparent basis for any of the other relief sought to be granted. For example, the applicants have not established any other basis to re-litigate the conclusion of Nicholson J in McDonald v State of South Australia(No 3) that the claims against other individual teachers should be struck out and dismissed, which was upheld on appeal.[46] Further, Besanko J’s conclusion that Mr McDonald’s contentions concerning the Trade Practices Act1974 (Cth) were ‘obviously untenable’ would remain, even if the Minister was Mr McDonald’s employer.[47]
[46] McDonald v State of South Australia (No 3) [2016] SASC 79 at [98]-[119], [167]-[168] and [193]-[197] per Nicholson J; McDonald v The State of South Australia [2017] SASCFC 146 at [80]-[107] per Slattery AJ (with whom Vanstone J and Gilchrist AJ agreed); McDonald v The State of South Australia [2018] HCASL 43 per Keane and Edelman JJ refusing special leave.
[47] McDonald v State of South Australia [2011] FCA 297 at [57].
In those circumstances, I am satisfied on Ground 2 alone that there is no reasonable cause of action which is capable of being disclosed and there is no reasonable basis for prosecuting the Claim.
Ground 3 – No subsequent discovery of the truth of the matters alleged
Further to Ground 2, the respondents also contend there is no reasonable cause of action or basis for prosecuting the Claim as the applicants have not pleaded the circumstances in which they discovered the truth of matters from which they allege they were deceived and which, in turn, form a reasonable basis for setting aside the perfected judgment.
For a perfected judgment to be set aside on the basis of actual fraud, it is necessary for the applicants to establish ‘that [the applicants] and the Court were deceived and [the applicants] can only do this by showing that [the applicants have] discovered the truth since the trial’.[48]
[48] Toubia v Schwenke (2002) 54 NSWLR 46 at [41] per Handley JA (with whom Heydon and Hodgson JJA agreed).
The applicants have not pleaded the circumstances in which they say they discovered the truth of the matters about which they were allegedly deceived. The applicants’ failure to provide any such particulars reflect the absence of an evidentiary basis or foundation for the allegations of fraud. Rather than a standalone ground for summary determination of the Claim that there has been no pleadings as to the alleged discovery of the truth of matters about which the applicants were allegedly deceived by the respondents, I am fortified in my conclusion that there is no reasonable cause of action capable of being disclosed and there is no reasonable basis for prosecuting the claim.
In the circumstances of this matter, and by reference to the grounds upon which the respondents rely and the contentions and arguments put in support of those grounds, I consider it most appropriate to grant judgment dismissing the applicants’ action, rather than give summary judgment against the applicants.
For the reasons set out earlier, I am satisfied the action is vexatious and an abuse of process and there is no reasonable cause of action capable of being disclosed. It is therefore not necessary to consider the alternative application by the respondents that the Statement of Claim be struck out for a failure to comply with the pleading rules.
The Statement of Claim having been summarily dismissed, it follows that the interlocutory applications filed by the applicants FDNs 7, 34, 36, 42 and 46 should be dismissed. Further, the extant interlocutory applications that were filed after 2 July 2021, being FDNs 69, 74, 78, 81 and 84, should also be dismissed.
As to the applicants’ application for default judgment (FDN 34), this application is made pursuant to r 142.2(1) of the UCR on the basis of the respondents’ purported failure to file a defence within 28 days. Pursuant to r 65.1 of the UCR, a defence to a Statement of Claim (which I have concluded is the form in which this matter should properly proceed) must be filed within 28 days of service. Within that time period, the respondents filed their application for summary judgment, summary dismissal, or strike out (FDN 15) and on 22 January 2021, the Court dispensed with the requirement to file a defence until further order. Thus, separately from the merits of the Claim, there is no basis for default judgment to be ordered against the respondents.
Recusal applications (FDNs 62 and 66)

The applicants first filed an application for my recusal on 28 June 2021. I heard submissions and argument on this application at the hearing on 2 July 2021. I declined to recuse myself. I now provide reasons for that decision.
The basis for the application for my recusal was that my father, Justice Michael David, in July 2013 had twice rejected Mr McDonald’s appeal documents against a decision made by Judge Tilmouth of the District Court. Judge Tilmouth heard an appeal from a decision of Master Blumberg as to the question of whether Mr McDonald was permitted to change the name of the defendant from the State to the Minister of Education. Justice Michael David directed the Registry to reject the appeal documents for filing on both occasions pursuant to r 53 of the Supreme Court Civil Rules 2006 (SA) (as it then applied). The applicants contend there is an apprehension of bias because of my familial relationship with Justice Michael David as:[49]
The Applicants contends Judge Sophie David has a conflict of interest for she will have to decide on the new, fresh evidence in action CIV-20-006239 if her father gave a decision which was a personal decision and not judicial and if her father’s decision was unconstitutional and in breach of s 17(1)(2)(a)(i), s 48(2)(a)(ii) and s 50(1) of the Supreme Court Act 1935.
Judge Sophie David also needs to contend with determining if her father misled the Applicant by not informing him the decision he made in 2013 was a personal decision and not a perfected judgment of the Court and the Applicant had rights of appeal.
Her Honour also needs to contend with determining if her father breached his duty under the Oaths Act 1936 [sic] by making a decision that he knew at the time he made the decision he did not have the inherent supervisory jurisdictional power over that decision and knew when he made that decision it was unconstitutional and not in the interest of justice and was likely to obstruct the Applicant’s litigation.
The Applicants contends that there is a connection between the decision made by Judge Michael David in action DCCIV 29 of 2005 and the one that his daughter Judge Sophie David is asked to deal with in action CIV-20-006239 and there is a real possibility that her decision will not remain impartial but will be influenced by what her father decided and what other judges have already decided in this matter.
[49] Application to Recuse (FDN 62) at [42]-[45].
The applicants also contend that I ‘failed to admit or reveal’ to the applicants that my father had given a previous direction in respect of appeal documents attempted to be lodged by Mr McDonald.[50]
[50] Application to Recuse (FDN 62) at [51].
There appears to be no suggestion of actual bias, rather the application is based on apprehended bias by virtue of my association with a person purportedly interested in, or otherwise involved in, the proceedings due to the first-degree familial relationship existing between me and Justice Michael David.
The principles for determining whether a judicial officer should disqualify himself or herself for apprehended bias are well established. The relevant test requires consideration to be given to whether ‘a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide’.[51] It is necessary that there be ‘an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits’.[52]
[51] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ.
[52] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ.
In other words, the party seeking recusal must demonstrate that the familial relationship between myself and Justice Michael David, and his purported interest in these proceedings, might reasonably be said to divert a judicial officer from an impartial approach in deciding the case on its merits.
The test necessitates a two-step process. The first is an identification of something that might lead to a judicial officer deciding a case other than on its legal and factual merits. The second is the identification of the logical connection between the asserted matter and the feared deviation by the judicial officer from deciding the case on its merits.
The test is an objective one and founded on the need for public confidence in the judiciary. The fictional observer is taken to be reasonable and is not to be assumed to have a detailed knowledge of the law. The reasonableness of any suggestion of apprehended bias is to be considered in the context of ordinary judicial practice and considered by reference to how matters might reasonably appear to the parties and to the public.[53]
[53] Johnson v Johnson (2000) 201 CLR 488 at [12]-[13] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ, at [49] per Kirby J.
I am not satisfied that the applicants have identified a rational link giving rise to a reasonable apprehension of bias, as required by the relevant test. There is a first-degree familial relationship existing between me and Justice Michael David. However, no logical connection has been established between that association and my not deciding this case on its merits. Justice Michael David is not an interested party or otherwise involved in the present proceedings. His Honour does not stand to receive any kind of benefit or advantage as a result of the outcome of these proceedings. It has not been shown that the outcome of these proceeding has the potential to affect him in any way. Further, the outcome of these proceedings could not be said to bear upon the correctness of Justice Michael David’s decision to advise the Registry to reject the appeal documents, nor to affect his reputation or standing in the judiciary, legal community, or the community more broadly.
The applicants also submit that an independent observer might reasonably apprehend that, because of my familial relationship with Justice Michael David, and his decision to direct the Civil Registry to reject the appeal documents, I might be diverted from an impartial approach to the issues. I do not agree. A fair-minded lay observer would consider that as a judicial officer, I would exercise my discretion separately and independently from any outside influences, including that of my father. Such an observer would also expect that I would turn my own independent mind to the circumstances and issues before the Court.
A judicial officer has a duty not to withdraw from a case and to continue to hear a matter unless there are proper grounds which require recusal. This is to discourage litigants from ‘judge-shopping’ whereby, if judges accede too readily to suggestions of the appearance of bias and disqualify themselves, litigants may be encouraged to seek applications for disqualification so that their case may be tried by someone more likely to decide in their favour.[54]
[54] Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 per Mason J.
In the circumstances of this matter, I am not satisfied that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of these proceedings because there exists a familial relationship with Justice Michael David, who previously directed the Civil Registry to reject the applicants’ appeal documents relating to a decision of Judge Tilmouth on a separate but related matter to that being considered by this Court.
For those reasons, I declined to recuse myself and dismissed the applicants’ Applications for Recusal (FDNs 62 and 66).

[2022] SASC 17

1 March 2022