McDonald v The State of South Australia; McDonald v Attorney-General for the State of South Australia - [2022] SASCA 81

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
MCDONALD & ANOR v THE STATE OF SOUTH AUSTRALIA & ORS; MCDONALD & ANOR v ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA
[2022] SASCA 81
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby)
12 August 2022
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL
EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - INTERLOCUTORY INJUNCTIONS
PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - INHERENT AND GENERAL STATUTORY POWERS - TO PREVENT ABUSE OF PROCESS
By two Notices of Appeal dated 18 March 2022 and 15 July 2022, the appellants sought to appeal against two decisions made by judges of this Court.
The first appeal concerned an order made by David J summarily dismissing the appellants’ action against the respondent on the basis that the action was vexatious, an abuse of process and no reasonable cause of action was capable of being disclosed (the first appeal).
The second appeal concerned an order made by Bampton J prohibiting the appellants from filing any further documents in any extant proceedings, or from commencing new proceedings, in a registry of any court of South Australia, other than in connection with the first appeal and the vexatious litigant proceedings commenced by the Attorney-General (the second appeal). Associated with the second appeal are three interlocutory applications.
In the first appeal, the appellants advanced 45 grounds of appeal contesting each of the conclusions reached by the primary judge. In the second appeal, the appellants advanced 20 grounds of appeal alleging that the primary judge made various errors of law and fact.
Held (the Court):
First Appeal
1.Insofar as leave is required, leave to appeal is refused, and the appeal against the orders made by David J on 1 March 2022 is otherwise dismissed.
2.The appellants pay the respondents’ costs in the fixed amount of $250.
Second Appeal
3.The appeal against the interlocutory injunction order made by Bampton J on 24 June 2022 is dismissed.
4.The appellants’ applications dated 15 July and 4 August 2022 are dismissed.
5.The application of the Attorney-General dated 3 August 2022 is dismissed insofar as it seeks an order striking out the second appeal against the order made by Bampton J on 24 June 2022.
6.The appellants pay the respondent’s costs in the fixed amount of $250.

Education Act 1972 (SA); Supreme Court Act 1935 (SA) s 39; Uniform Civil Rules 2020 (SA) r 22.4, 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; Georganas v Barkla [2021] SASC 47; Jennings v Police (2019) 133 SASR 520; JLS v Chief Executive for Department of Child Protection (No 3) [2022] SASCA 2; Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401; McDonald v Attorney-General for the State of South Australia (No 2) [2021] SASCA 146; McDonald v Attorney-General for the State of South Australia [2021] SASCA 57; McDonald v Attorney-General for the State of South Australia [2022] SASCA 43; McDonald v Colbran [2019] FCA 1937; McDonald v State of SA [2014] SASC 120; McDonald v State of South Australia (No 3) [2016] SASC 79; 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 The State of South Australia [2010] HCATrans 25; McDonald v The State of South Australia [2015] HCASL 118; McDonald v The State of South Australia [2017] SASCFC 146; Re Luck (2003) 78 ALJR 177; State of South Australia v McDonald (2009) 104 SASR 344; UBS AG v Tyne (2018) 265 CLR 77, considered.

MCDONALD & ANOR v THE STATE OF SOUTH AUSTRALIA & ORS; MCDONALD & ANOR v ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA
[2022] SASCA 81
Court of Appeal – Civil: Livesey P, Doyle and Bleby JJA
THE COURT
Introduction

There are two appeals before the Court of Appeal.
The first appeal is against, amongst other orders, an order summarily dismissing the appellants’ action against the respondent on the basis that the action was vexatious, an abuse of process and no reasonable cause of action was capable of being disclosed.[1] That decision was made on 1 March 2022.
[1] McDonald v The State of South Australia [2022] SASC 17 (David J).
The second appeal is against a decision prohibiting the appellants from filing any further documents in any extant proceedings, or from commencing new proceedings, in a registry of any court of South Australia, other than in connection with the first appeal, and in proceedings commenced by the Attorney-General, pending the final determination of those proceedings. In those proceedings an order is sought that the respondents be declared vexatious litigants pursuant to s 39(1) of the Supreme Court Act 1935 (SA).[2] That decision was made on 24 June 2022.
[2] CIV-21-010182.
Associated with the second appeal are three interlocutory applications which have been referred to this Court for hearing. The first is an application by the appellants dated 15 July 2022 seeking an order granting permission to appeal. The second application is by the Attorney-General dated 3 August 2022 seeking, amongst other orders, an order striking out the second appeal, whether “in whole or in part”. The third application is by the appellants dated 4 August 2022 seeking, amongst other orders, further time in which to file an amended set of appeal documents.
Background to this litigation
The litigation involving Mr McDonald and his former employment as a teacher spans 18 years and a very large number of actions and hearings. Mr McDonald was formerly a teacher appointed by the Minister for Education under the Education Act 1972 (SA).[3]
[3] State of South Australia v McDonald (2009) 104 SASR 344; McDonald v State of South Australia [2015] SASCFC 15; McDonald v The State of South Australia [2017] SASCFC 146, [2]-[20] (Slattery AJ, with whom Vanstone J and Gilchrist AJ agreed); McDonald v Attorney-General for the State of South Australia [2021] SASCA 57; McDonald v Attorney-General for the State of South Australia (No 2) [2021] SASCA 146; McDonald v Attorney-General for the State of South Australia [2022] SASCA 43.
Briefly, in State of South Australia v McDonald,[4] the Full Court allowed an appeal against a decision made by Anderson J in favour of Mr McDonald following a trial. The trial judge had found that there was an implied term of mutual trust and confidence which had been breached, and that an implied contractual duty of care had also been breached. Damages for loss of earnings were awarded in favour of Mr McDonald.
[4] State of South Australia v McDonald (2009) 104 SASR 344.
The Full Court set aside the award, rejecting the contention that an implied term of mutual trust and confidence formed part of the contract of employment.[5] The Full Court found that, in any event, there had been no breach of contract.[6] The Full Court also found that the Minister had not breached any implied duty to take reasonable care to protect Mr McDonald against foreseeable injury.[7]
[5]     State of South Australia v McDonald (2009) 104 SASR 344, [269]-[271] (Doyle CJ, White and Kelly JJ).
[6]     State of South Australia v McDonald (2009) 104 SASR 344, [272]-[273] (Doyle CJ, White and Kelly JJ).
[7]     State of South Australia v McDonald (2009) 104 SASR 344, [387] (Doyle CJ, White and Kelly JJ).
Importantly, the Full Court found that it “is not necessary to decide whether [Mr McDonald’s] employment contract was with the Minister [for Education] or the Crown”.[8] The High Court refused Mr McDonald special leave to appeal from the Full Court’s judgment.[9]
[8] State of South Australia v McDonald (2009) 104 SASR 344, 349 (2) (Doyle CJ, White and Kelly JJ).
[9] McDonald v The State of South Australia [2010] HCATrans 25 (French CJ and Kiefel J).
It is not necessary for the purposes of the two appeals and the applications before the Court today to address the very extensive litigation which has followed. So far as is relevant today:
1.On 11 December 2020, the appellants filed an Originating Application supported by a Statement of Claim which is over 150 pages in length. In essence, that claim purports to be “an equitable bill in the form of an original bill in actual fraud pursuant to s 17 of the Supreme Court Act”. The appellants assert that their “pleadings in actual fraud” show that “the perfected common law judgment of Anderson J in case McDonald v State of SA [sic] [2008] SASC 134 was obtained by actual fraud or conduct analogous to fraud by solicitors” for the Attorney-General and that the judgment should be set aside. Associated with this action were a number of applications which the primary judge found would become “otiose” and should be dismissed if the claim was summarily dismissed.[10] The primary judge dismissed the claim and those applications and, in addition, she gave reasons for her ruling that she was not disqualified from hearing and determining those matters.
2.As mentioned, the Attorney-General has commenced proceedings against the appellants pursuant to s 39 of the Supreme Court Act 1935 (SA). If the Attorney-General succeeds in obtaining a declaration that the appellants should be declared vexatious litigants, they will be prohibited from proceeding with or commencing, without leave, any litigation in the courts and tribunals of this State. The Attorney-General initially sought orders prohibiting the filing of any further proceedings by way of interlocutory injunction in September 2021, and an interim order by way of injunction was made by the primary judge on 4 March 2022.[11] After hearing further argument, the judge made the interlocutory injunction order which is the subject of the second appeal.
[10] McDonald v State of South Australia [2022] SASC 17, [5]-[8] (David J).
[11] An earlier appeal against the interim injunction was addressed by an order striking out those paragraphs which concerned the interim injunction because the appellants had failed to identify any appealable error, McDonald v Attorney-General for the State of South Australia [2022] SASCA 43, [3] and [10] (Livesey P and Bleby JA).
The order for summary dismissal of the action
The primary judge whose decision is the subject of the first appeal relied upon the principles concerning summary judgment set out in Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd.[12] Her Honour then considered the principles applicable to setting aside a perfected judgment on the ground of fraud as laid down by the High Court in Clone Pty Ltd v Players Pty Ltd (In Liq).[13] The primary judge was satisfied that, absent any evidentiary basis for the allegations of actual fraud, the claim propounded by the appellants was vexatious and an abuse of process because it attempted to re-litigate judicially settled issues and contentions arising out of Mr McDonald’s former employment as a teacher.[14]
[12] Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117, [59]-[60] (Doyle J).
[13] Clone Pty Ltd v Players Pty Ltd (In Liq) (2018) 264 CLR 165, [55] (Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ) citing Patch v Ward (1867) LR 3 Ch App 203, 212-213 (Sir John Rolt LJ); see also McDonald v Colbran [2019] FCA 1937, [40]-[41] (Charlesworth J).
[14] McDonald v The State of South Australia [2022] SASC 17, [47] (David J).
In addition, the primary judge was satisfied that no reasonable cause of action was capable of being disclosed and there was no reasonable basis for prosecuting the action.[15] That conclusion depended upon the anterior finding that the appellants could not satisfy the Court that the order the subject of the application to set aside was obtained by the positive, actual fraud and contrivance of the party obtaining it; namely, the appellants could not show materiality between the alleged fraud and the reasons for judgment.[16]
[15] McDonald v The State of South Australia [2022] SASC 17, [54] (David J).
[16] Clone Pty Ltd v Players Pty Ltd (In Liq) (2018) 264 CLR 165, [55] (Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ).
The appellants’ central allegation remains that there was fraud because the earlier proceedings did not involve the correct defendant: Mr McDonald’s employer was not the Crown but the Minister. The primary judge found that the difficulty with this contention was that the Full Court and, indeed, many other Courts have repeatedly found that it was, and is, not necessary to decide this issue because it had no effect on the substantive issues concerning the existence or otherwise of the implied term of mutual trust and confidence which it was alleged 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.[17]
[17] State of South Australia v McDonald (2009) 104 SASR 344, [2], [269]-[273], [387]-[392] (Doyle CJ, White and Kelly JJ); McDonald v State of South Australia [2011] FCA 297, [65] (Besanko J); McDonald v State of South Australia [2011] FCA 1251, [25] (Lander J); McDonald v State of SA [2014] SASC 120, [16], [19]-[20] (Bampton J); McDonald v State of South Australia [2015] SASCFC 15, [6] (Gray, Sulan and Nicholson JJ); McDonald v The State of South Australia [2015] HCASL 118, [1]-[4] (Bell and Gageler JJ); McDonald v State of South Australia (No 3) [2016] SASC 79, [95]-[97] (Nicholson J); McDonald v The State of South Australia [2017] SASCFC 146, [74]-[78] (Slattery AJ, with whom Vanstone J and Gilchrist AJ agreed); McDonald v Colbran [2019] FCA 1937, [67]-[69] (Charlesworth J); McDonald v State of South Australia [2022] SASC 17, [49]-[53] (David J).
Next, the primary judge found that the appellants had, by their pleadings, failed to particularise in any relevant or material way how they and the Court had been deceived and how they had discovered the truth since the trial.[18]
[18] McDonald v State of South Australia [2022] SASC 17, [56]-[57] (David J) citing Toubia v Schwenke (2002) 54 NSWLR 46, [41] (Handley JA, with whom Heydon and Hodgson JJA agreed).
The primary judge found it appropriate to grant summary dismissal of the action rather than to give summary judgment against the appellants. In those circumstances, the primary judge found that the appellants’ various interlocutory applications should also be dismissed.[19]
[19] McDonald v State of South Australia [2022] SASC 17, [60]-[61] (David J).
Finally, her Honour gave reasons for why she declined to disqualify herself from sitting on the basis that her father, when sitting as a judge of the Supreme Court, had earlier rejected some of the appeal documents filed by the appellants.[20]
[20] McDonald v State of South Australia [2022] SASC 17, [73] (David J).
The contentions of the appellants and the respondent on the first appeal
The appellants’ Notice of Appeal is difficult to digest. There are 45 separate grounds of appeal, and seven orders are sought, including orders requiring the production of various documents. It is sufficient to say that the appellants contest each of the conclusions reached by the primary judge. They contend that her Honour was wrong and that the first appeal should be allowed.
For the respondent State, it is contended that the orders made by the primary judge were interlocutory in nature, and reliance is placed on the decision of the High Court in Re Luck for the proposition that leave to appeal is required:[21]
An order is an interlocutory order… when it stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous, vexatious, an abuse of the process of the court or does not disclose a reasonable cause of action.
[21] Re Luck (2003) 78 ALJR 177, [9] (McHugh ACJ, Gummow and Heydon JJ).
Notwithstanding what might possibly be an expression of opinion to the contrary,[22] that statement by the High Court has generally been followed, including in this Court.[23] The State contends that leave to appeal should be refused.
[22] Jennings v Police (2019) 133 SASR 520, [31](3) (Kourakis CJ, with whom Stanley and Parker JJ agreed).
[23] Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401, [40] (Spender, Graham and Gilmour JJ); JLS v Chief Executive for Department of Child Protection (No 3) [2022] SASCA 2, [19] (Livesey P and Bleby JA).
Determination of the first appeal
It is curious that the appellants seek to impeach the initial judgment of Anderson J which was favourable to the appellants. Nonetheless it is clear that the appellants wish to commence their litigation afresh. In our view, it is not appropriate to grant leave to appeal on the first appeal in respect of the orders made by the primary judge because we are not satisfied that they are attended with sufficient doubt to warrant their reconsideration on appeal and, in any event, they raise no issue of principle or general importance.[24]
[24] McDonald v Attorney-General [2022] SASCA 43, [21] (Livesey P and Bleby JA).
However, even if it could be said that some or all of the orders were final in nature, and that leave to appeal was not required, the appeal against those orders should be dismissed as being without merit.
The second appeal against the interlocutory injunction
The circumstances in which the primary judge made the order which is the subject of the second appeal, prohibiting the filing of any further documents save for documents in the vexatious litigant proceedings and the first appeal, have earlier been outlined.
There can be no doubt that the appellants intend to continue filing further documents agitating their various claims, whether alleging fraud or otherwise, arising out of Mr McDonald’s employment as a teacher. That is demonstrated by the terms of the 20 appeal grounds put forward in support of the second appeal.
Determination of the second appeal
Whilst there is much to be said for the application by the Attorney-General seeking to strike out the second appeal because it is only concerned with the underlying merits of the appellants’ various claims, rather than with the identification of error in the decision of the primary judge, we have formed the view that it is appropriate to dismiss the second appeal as it is without merit. Had we not dismissed the appeal we would have struck it out.
The brief reasons given by the primary judge adequately identified the reason and basis for her order. The order was designed to facilitate the hearing of a vexatious litigant application made pursuant to s 39 of the Supreme Court Act 1935 (SA) and there was and is, with respect, evident good sense in putting a halt to most of the litigation involving the appellants in the meantime.[25]
[25] McDonald v Attorney-General for the State of South Australia [2022] SASCA 43, [18], [23] (Livesey P and Bleby JA).
To act in this way causes the appellants no injustice. It is in accord with the necessity to take into account the wider public interest, beyond the interests of the parties to a dispute, when addressing the timely, cost effective and efficient conduct of modern civil litigation.[26] Whilst it may be accepted that the Court will rarely make an order prohibiting the filing of documents which operates across both extant and new proceedings in any court or tribunal of South Australia, the inherent power to make that kind of order is not in doubt.[27]
[26] UBS AG v Tyne (2018) 265 CLR 77, [38] (Kiefel CJ, Bell and Keane JJ).
[27] Georganas v Barkla [2021] SASC 47, [16] (Livesey J), at least where the extant and new proceedings involve the re-litigation of an issue or proceeding, or they are otherwise concerned with an issue or proceeding, which has been finally determined, as in this case.

As we are of the opinion that there is no merit in the second appeal, and that it must be dismissed, it is not otherwise necessary to address the applications which are listed for hearing today except in one respect. By their application dated 4 August 2022, the appellants seek an order permitting them to file an amended appeal document rectifying those aspects of their existing appeal documents which render them liable to be struck out.[28]
[28] CIV-22-007750 FDN 10, [3].
In our view, it would be inappropriate to grant leave to file any further appeal documents. The appellants have filed their appeal documents and they have been heard on their appeal.
The three applications filed in connection with the second appeal should be dismissed.
Conclusion
The Court will make the following orders:
1.Insofar as leave is required, leave to appeal is refused, and the appeal against the orders made by David J on 1 March 2022 is otherwise dismissed.
2.The appeal against the interlocutory injunction order made by Bampton J on 24 June 2022 is dismissed.
3.The appellants’ applications dated 15 July and 4 August 2022 are dismissed.
4.The application of the Attorney-General dated 3 August 2022 is dismissed insofar as it seeks an order striking out the appeal against the interlocutory injunction order made by Bampton J on 24 June 2022.
5.The appellants must pay the respondents’ costs in the fixed amount of $250 for each appeal.