McDonald v The State of South Australia; McDonald v The Minister for Education and Child Development
[2017] SASCFC 146
•2 November 2017
Supreme Court of South Australia
(Full Court)
MCDONALD & ANOR v THE STATE OF SOUTH AUSTRALIA; MCDONALD & ORS v THE MINISTER FOR EDUCATION AND CHILD DEVELOPMENT & ORS
[2017] SASCFC 146
Judgment of The Full Court
(The Honourable Justice Vanstone, The Honourable Auxiliary Justice Slattery and The Honourable Auxiliary Justice Gilchrist)
2 November 2017
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS - STRIKING OUT - DISCLOSING NO REASONABLE CAUSE OF ACTION OR DEFENCE
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS - STRIKING OUT - OTHERWISE ABUSE OF PROCESS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS - STRIKING OUT - EMBARRASSING, TENDENCY TO CAUSE PREJUDICE, SCANDALOUS, UNNECESSARY ETC OR CAUSING DELAY IN PROCEEDINGS
In Supreme Court proceedings commenced in 2004 Mr McDonald alleged that the State of South Australia breached an implied obligation of trust and confidence in his employment as a teacher at Brighton Secondary School. Anderson J upheld Mr McDonald’s claim and made a damages award. An appeal from that decision was upheld on 30 July 2009 and Mr McDonald’s claim was dismissed with costs. On 12 February 2010, the High Court dismissed an application by Mr McDonald for leave to appeal against the Full Court decision.
On 12 January 2005 Mr McDonald commenced further proceedings in the District Court that purported to make fresh allegations against the State of South Australia based upon the same substratum of facts and issues that were the subject of the decision of Anderson J in the 2004 action. This action had a long interlocutory history and in 2013 was transferred to the Supreme Court (the 2013 action). In that action Mr McDonald’s application to change the name of the defendants to the Minister of Education and individuals failed. In 2014 separate Supreme Court proceedings were commenced naming as plaintiffs Mr McDonald, his son Brennan McDonald and his wife Mrs Rhoda McDonald. The defendants were the Minister for Education and Child Development and individuals (the 2014 action). The pleadings were otherwise identical to the 2013 action.
On 5 November 2010 Mr McDonald commenced a Federal Court action pleading identical facts and causes of action as in the 2004 Supreme Court action. The Federal Court action was dismissed as an abuse of process. The pleadings in the 2013 and 2014 actions refer to and rely upon the same substratum of facts and issues canvassed and resolved in the 2004 Supreme Court action.
The State of South Australia made application for the dismissal of the 2013 action and the 2014 action. Mr McDonald made application for Mrs Rhoda McDonald to be joined as a plaintiff to the 2013 action. Nicholson J made orders:
(i) Refusing permission for Mrs Rhoda McDonald to be joined to the 2013 action on the basis of her proposed pleadings;
(ii) That the pleadings of Mrs Rhoda McDonald in the 2014 action be struck out and that her action be dismissed;
(iii) That under Rule 193 of the Supreme Court Civil Rules (2006) the pleaded claims of Mr McDonald in the 2013 and 2014 actions should be dismissed because they disclose no reasonable cause of action and/or comprise an abuse of the process of the Court;
(iv) That in any event the 2014 action be struck out as an abuse of the process of the Court; and
(v) That the claims of Bernnan McDonald be remitted to the District Court for trial.
The appellants appeal against the whole of the orders of Nicholson J.
Held per Slattery AJ (Vanstone J and Gilchrist AJ agreeing), appeal dismissed.
MCDONALD & ANOR v THE STATE OF SOUTH AUSTRALIA; MCDONALD & ORS v THE MINISTER FOR EDUCATION AND CHILD DEVELOPMENT & ORS
[2017] SASCFC 146Full Court: Vanstone J, Slattery and Gilchrist AJJ
VANSTONE J: I would dismiss the appeal for the reasons written by Slattery AJ.
SLATTERY AJ:
Mr Francis McDonald the appellant (Mr McDonald) came to Australia from Scotland as a qualified teacher and was employed at various schools throughout Australia. In 1997 he was appointed as a teacher of Brighton Secondary School (BSS). He “dismissed himself” from his employment at that school on 11 April 2003. On 8 July 2002 he made a claim under the Workers Rehabilitation and Compensation Act 1986 (SA) (WRC Act) in respect of an alleged compensable injury arising during that employment. The claim was stress related and it was alleged that the injury led to his incapacity for work. He separately alleged that he had been bullied whilst working at the BSS. That claim was withdrawn on 11 February 2003.
The 2004 action
On 16 April 2004 Mr McDonald commenced proceedings in the Supreme Court of South Australia in action 418 of 2004 (the 2004 action). The statement of claim upon which the action proceeded was the eighth iteration of a statement of claim filed by Mr McDonald in that action. The claim for common law relief on the bases pleaded followed the abandonment of Mr McDonald’s claim under the WRC Act. It appears to be common ground that s 54(1),[1] and s 54(4a)[2] of the WRC Act did not prevent the prosecution of that claim.
[1] 54—Limitation of employer's liability
(1) Subject to subsection (2), no liability attaches to an employer in respect of a compensable disability arising from employment by that employer except—
(a) a liability under this Act.
[2] (4a) Where—
Mr McDonald’s claim in the 2004 action was heard before Anderson J and his Honour delivered judgment on 21 May 2008. His Honour summarised the claims of Mr McDonald in those proceedings as follows: that the relevant state department called the Department of Education and Child Services (DECS) breached an implied duty of trust and confidence in the employment contract because it breached its contractual duty to take care for Mr McDonald’s safety and welfare by failing to provide a safe system of work; that at BSS he was harassed, victimised and bullied; although he was trained and experienced in teaching business studies and economics, he was required to take on roles involving network management of computer systems in different schools; and he was still required to teach subjects as part of the curriculum.
Mr McDonald alleged in the 2004 action that he was not qualified in computing or computing network management. That contention appears to have been accepted by Anderson J. In the course of those proceedings the court heard evidence from a number of witnesses including a Mr Boaden, Ms Schupelius, Mr Hill, Mr Mitchell, Mr Potts, Ms Cochram, Mr Nelligan and Ms Kakas. Ms Schupelius, Mr Mitchell and Mr Potts held roles as principal or as acting principal of the BSS at times consonant with Mr McDonald’s employment as a teacher at that school. The other witnesses named were employed teachers or persons employed by DECS.
Anderson J made findings in relation to the employment of Mr McDonald at BSS up to January 2001 from [176] of his Honour’s judgment. In doing so, his Honour made an assessment of the evidence given by each of the witnesses and the versions of the facts put forward by them. His Honour made a thorough assessment of the circumstances of Mr McDonald’s employment at BSS in the period between February 2001 to July 2001.
At [209] et seq of his Honour’s judgment, Anderson J made findings in relation to what he found to be the failures of the executive and the staff at BSS. His Honour was critical of the involvement of a number of staff at BSS and his Honour held that the conduct to which Mr McDonald was subjected breached an implied obligation of mutual trust and confidence between employer and employee giving rise to a right in Mr McDonald to claim damages. At [442], Anderson J described Mr McDonald’s alleged loss and damage as follows:
Loss of remuneration, loss of future economic loss, past economic loss, loss of dignity and reputation as a skilled teacher and educational leader… the particulars of the loss and damage included for loss of remuneration of salary, future economic loss which takes account of superannuation and present and future long service leave.
Anderson J then made an assessment of the quantum of damage said to have been suffered by Mr McDonald.
On 30 July 2009 the Full Court of the Supreme Court of South Australia upheld an appeal from the decision of Anderson J and dismissed Mr McDonald’s claim with costs.
The 2013 action
On 12 January 2005, Mr McDonald caused proceedings to be commenced in the District Court in the name of Brennan McDonald, his son, by Mr McDonald as his next friend (which for convenience I will call the 2005 District Court action). Between 16 February 2006 and 20 April 2015 there were 24 amended or proposed amended statements of claim filed by Mr McDonald in that action. Objections were raised to all of these pleadings and the objections, and the decisions thereon and the appeals therefrom, progressed through the various courts during that period. On 27 August 2009 the claim in the 2005 District Court action was struck out and on 5 July 2010, an appeal from the decision of the Master striking out the claim was upheld. The re-pleading by Mr McDonald was objected to and a further application was taken to strike out the action.
On 11 July 2011, a Master of the District Court refused an application by Mr McDonald for leave to file an amended statement of claim in the 2005 District Court action in the form proposed by him. Leave was granted for Mr McDonald to file the proposed statement of claim consisting of only three paragraphs, namely, paragraphs 379 to 381, limited to the issue of alleged defamation.
Mr McDonald appealed the Master’s decision while the defendants cross-appealed, arguing that the three paragraphs which the Master had allowed ought to have also been struck out on the same basis as the rest of the proposed statement of claim. This appeal and cross-appeal were heard by Judge Rice of the District Court on 16 November 2011, and his Honour published his reasons on 20 April 2012.[3] The defendants were successful in their cross-appeal and Judge Rice made orders that the proposed statement of claim, in its entirety, be struck out. Following the judgment of 20 April 2012, and after many interlocutory applications heard before Master(s) of the District Court, the defendants brought in an interlocutory application to dismiss Mr McDonald’s claim, arguing that due to the success of their cross-appeal, Mr McDonald had not argued and could not argue, for any cause of action in his pleadings. The defendants were successful on their application and Judge Rice made orders on 7 August 2012, dismissing Mr McDonald’s action with costs to the defendants.
[3] [2012] SADC 54.
On 19 March 2013, Nicholson J in the Supreme Court, heard the appeal against Judge Rice’s decision of 7 August 2012. The appeal on the pleading issue was dismissed. Nicholson J allowed an appeal against the dismissal of the 2005 District Court action and Mr McDonald was given one further opportunity to plead a claim. At the time, Nicholson J made plain that wholesale changes would be needed if the claim was to proceed. Prior to the making of those orders by Nicholson J on 18 March 2013, a Master of the District Court had separately refused leave to Mr McDonald to change the name of the defendant in the 2005 District Court action from “The State of South Australia” to “The Minister for Education, Peter Verrier, Sue Hyde, Peter Mitchell, Trevor Potts, John Mudge and Paula Wilson”.
On 5 June 2013, in the 2005 District Court action Mr McDonald provided the proposed further amended statement of claim of himself and his son Brennan McDonald and at the same time applied for the joinder to the action of his wife Mrs Rhoda McDonald. On 26 June 2013 the defendant took an application that the proposed pleadings of Mr McDonald and Brennan McDonald be disallowed or struck out and that the application for leave for the joinder of Mrs Rhoda McDonald be refused. On 7 November 2013 the 2005 action was transferred to the Supreme Court on the application of Brennan McDonald and Mr McDonald. The 2005 District Court action then became the 2013 Supreme Court action (the 2013 action).[4] On 11 March 2014 the plaintiffs in the 2013 action filed a proposed amended statement of claim.[5] At the same time, an interlocutory application (FDN 19), dated 13 March 2014 sought the joinder of Mrs Rhoda McDonald to the 2013 action and for an extension of time to bring such joinder application.[6]
[4] SCCIV-13-1574.
[5] FDN 59A in that action AB 3-71.
[6] AB 72-73.
The 2014 action
On 20 November 2014 separate proceedings were issued in the Supreme Court of South Australia in action 1564 of 2014 (the 2014 action). The plaintiffs in those proceedings were Mr McDonald, Brennan McDonald and Mrs Rhoda McDonald. The named defendants were the Minister for Education and Child Development, Mr Peter Mitchell, Ms Sue Hyde and Mr Don Mackie. The pleadings in these proceedings were identical to the pleadings in the 2013 proceedings except that the names of the parties had changed.
On 29 January 2015 the defendant, the State of South Australia, the respondent to this appeal, took an application in the 2013 action for orders including that Mrs Rhoda McDonald’s application to be joined as a plaintiff be refused, that the proposed amended statement of claim be struck out and that the claims of Mrs Rhoda McDonald and Mr McDonald be dismissed. On 23 April 2015 the further proposed amended statement of claim (FDN 59A) in the 2013 proceedings was treated as an extant pleading and so as the basis for argument on the various applications of the plaintiffs and defendants in the 2013 action. As well the defendants’ application to strike out and or for dismissal was also made applicable to the 2014 action.
The applications before Nicholson J
Between 11 February and 2 March 2016 Nicholson J heard the plaintiffs’ applications and the defendants’ applications concurrently and on 3 June 2016 the plaintiffs’ applications were dismissed and the defendants’ applications in respect of the pleadings of Mr McDonald and Mrs Rhoda McDonald in the 2013 proceedings and in the 2014 proceedings were upheld. Brennan McDonald’s claim in the 2013 proceedings was remitted to the District Court for trial. The other applications referred to above were applications on 19 August 2015 by the plaintiff for Nicholson J to disqualify himself[7] and an application on 1 December 2015[8] by the plaintiffs that the defendants’ solicitors be restrained from further acting in the proceedings. All of these applications were dismissed as were all appeals against those orders of dismissal.[9] I will deal separately with these matters later in these reasons.
[7] FDN 69 – AB 342-345; AB 508-517.
[8] AB 518-527.
[9] FDN 18 – AB 72-73; FDN 24 – AB 76-77; FDN 45 – AB 92-94; FDN 10 – AB 697-698.
On 5 November 2010 Mr McDonald also commenced an action in the Federal Court of Australia.[10] In his statement of claim in the Federal Court action, Mr McDonald pleaded identical claims to those which had been heard and determined by Anderson J and which had been dealt with by the Full Court on appeal from his Honour’s judgment. On 31 March 2011 Besanko J dismissed Mr McDonald’s proceedings in the Federal Court.[11] On 7 April 2011 Mr McDonald sought leave to appeal the decision of Besanko J and on 7 November 2011 Lander J dismissed the application for leave to appeal.[12] On 12 February 2010, the High Court dismissed Mr McDonald’s application for leave to appeal against the decision of the Full Court overturning the decision of Anderson J at first instance.[13]
[10] Francis McDonald v The State of South Australia, Keven Boaden, Nancy Schupelius, Maureen Cochram, Peter Mitchell and Sue Hyde SAD 178 of 2010.
[11] McDonald v The State of South Australia [2011] FCA 297.
[12] McDonald v The State of South Australia [2011] FCA 1251.
[13] AB 611.
At the outset, there were six applications before Nicholson J. Mr McDonald asked his Honour to recuse himself and his Honour dismissed that application. Then Mr McDonald sought orders that some of the solicitors and counsel at the Crown Solicitor’s Office should be restrained from continuing to act. There were applications for leave to appeal against his Honour’s decision dismissing the applications concerning recusal and restraint of practitioners, to the Full Court of the Supreme Court of South Australia and to the High Court. Both were refused. I will deal separately with those matters later in these reasons.
Nicholson J then dealt with the two applications that are the subject of the judgment upon which this appeal has primarily proceeded: the objection of the defendant to the filing of the statement of claim in the form of (FDN 59A) to the 2013 action[14] and the claims made within the statement of claim (FDN 2) to the 2014 action.[15]
[14] AB 3-71.
[15] AB 621-688.
On 3 June 2016 Nicholson J published his judgment on the application brought by the defendant in both the 2013 and the 2014 proceedings.[16] His Honour confirmed[17] that the defendant’s application was for the dismissal of Mrs Rhoda McDonald’s application to be joined as a plaintiff; for the pleaded claims of Mr McDonald in the 2013 proceeding and the pleaded claims by Mr McDonald and Mrs McDonald in the 2014 proceedings to be struck out; and for orders that the whole of the 2013 proceedings and the whole of the 2014 proceedings be dismissed.
[16] AB 528-599.
[17] At [5] judgment 3 June 2016 AB – 531.
The power of the court to strike out pleadings and dismiss proceedings
The applications of the defendants upon which Nicholson J made orders were made pursuant to the inherent jurisdiction of the court and 6 SCR 104 and 6 SCR 193 which separately give the court power to strike out pleadings and to dismiss proceedings. 6 SCR 104 provides as follows:
104—Court's power to strike out pleading
The Court may strike out a pleading in whole or part if the pleading—
(a) does not comply with these rules; and
(b) is an abuse of the process of the Court or prejudices the proper conduct of the action.
6 SCR 193 provides as follows:
193—Court's power to dismiss proceedings
The Court may dismiss proceedings if—
(a) the pleadings disclose no reasonable cause of action; or
(b) the proceedings are frivolous, vexatious or an abuse of the process of the Court.
In order for an order to be made under 6 SCR 104 it is necessary for the court to be satisfied that both the whole or part of the pleadings do not comply with the rules and is an abuse of the process of the court or prejudices the proper conduct of the action. Both of these tests must be satisfied. In addressing the question of compliance with the rules as to pleadings, the question for consideration is usually not one of particularity. The focus is upon whether the pleading is so defective that it cannot be allowed to stand and in that context, the court will view the whole of the background circumstances of the pleading process. Here this includes the fact that in the 2013 action the pleading before the court is the 25th iteration of an attempt at a pleading which the plaintiffs seek to put before the court. The court will not allow an action to proceed where a plaintiff cannot produce or is incapable of producing a proper pleading. In general terms, an enquiry whether or not there is an abuse of process is directed to the action itself and must be dealt with on the face of the pleadings.
The guiding principles for the exercise of the discretion of the court under this rule are well known and understood. It is necessary to do what is just and the power may only be exercised in clear and obvious cases. Embarrassing material will include those pleadings which seek to re-litigate a previous action.
Under 6 SCR 193 what amounts to an abuse of process will include an action commenced but where an estoppel, such as an Anshun estoppel[18] operates or where there is the possibility of conflicting and contradictory judgments in two actions.[19]
[18] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
[19] Ibid.
The 2013 and 2014 proceedings are identical except that in the 2013 proceedings the defendant is the State of South Australia and in the 2014 proceedings the named defendants are the Minister for Education and Child Development, and individuals Mr Peter Mitchell, Ms Sue Hyde and Mr Don Mackie. I have earlier set out the history of the commencement of the 2013 proceedings in the District Court in 2005. Mr McDonald maintains the position that the State of South Australia is the wrong defendant in any action for which he has a justiciable lis and that his primary claim is against the relevant Minister as the person with whom he had a contract of employment. The pleaded claim against the other proposed defendants relates to their conduct as teachers/principals retained or as public sector employees. I will return to that issue later in these reasons.
In his decision, Nicholson J dealt first[20] with the 2014 action.[21] His Honour held that the 2014 action was a parallel proceeding commenced as a result of Mr McDonald’s inability to have the 2013 proceedings amended to record those persons whom he thought were the proper parties. His Honour held that the pleadings in the proposed new statement of claim[22] in the 2013 action and the filed statement of claim in the 2014 action[23] were in identical term except for the names of the defendants.[24] This finding is not in contest in this appeal. Nicholson J also held that in the event that the 2014 proceedings went to trial, all of the claims in that action were substantially out of time by many years. His Honour finally found[25] that the 2014 proceedings were an abuse of process and should be struck out.
[20] AB 528 – 599.
[21] At [27] – AB 524.
[22] FDN 59A – AB 3-71.
[23] FDN 2 – AB 621-688.
[24] At [27] – AB 524.
[25] At [28] AB 543.
I respectfully agree with his Honour’s decision. The 2014 action is a device to overcome what became insuperable difficulties in the 2013 action arising out of the hearing and final disposition of the 2004 action in this court, by refusal of a grant of leave to appeal against the Full Court judgment in the High Court, the later application in the 2013 action for joinder and change of parties that was refused and the appeals from such orders which failed.
Nicholson J then dealt with the balance of the contentions of Mr McDonald by reference to (FDN 59A) in the 2013 proceedings.[26] His Honour also had regard to the content of the defendants’ filed defence in the 2014 action[27] as being applicable to considerations and issues arising in both actions.
[26] see [29] et seq of the judgment of Nicholson J [2016] SASC 79 AB 528-599.
[27] FDN 16; AB 732-747.
Before embarking upon a discussion of those matters, there are some other issues which may be conveniently dealt with now.
Background facts
There are some material background facts to be derived from the judgments of Anderson J and the Full Court that may conveniently be stated and are not controversial. Mr McDonald was first employed as a teacher with the South Australian DECS in 1990. He had earlier been employed in other schools in Australia and New Zealand and prior to that time had been employed in Scotland as a teacher of business education and economics. In the context of teaching business education, he had some experience with word processing systems. He did not have experience with computers generally.
In 1996 Mr McDonald was employed at the Mount Barker High School and he was asked by the principal to take on the role of network manager of the school’s computing system. He was not qualified for that work and the workload affected his health. He made his concerns known to the Assistant Director of Personnel, DECS and the Assistant Director was then instrumental in having him transferred to BSS to fill the position of co-ordinator of Information Technology and year 12 computing as well as year 11 mathematics.
Mr McDonald managed the computer network at BSS as well as fulfilling his teaching duties. He was appointed Acting Co-ordinator of Information Technology across the curriculum for a five year term from January 1998 to January 2003. In order to assist Mr McDonald fulfil his workload, a Mr Crompton was employed and Mr McDonald’s teaching load was reduced. His son Damien McDonald was also employed on a part-time basis. At the end of 1999 a new computer network was installed at BSS and an attempt was made to integrate old computers into the new system. The task of creating a network was left to Mr McDonald. The Principal of the school, Ms Schupelius, was aware of the task confronting Mr McDonald and the hours he was working.
Fearing for his future, in January 2001 Mr McDonald delivered a letter of resignation to Ms Schupelius because of his impossible work situation but that resignation was not accepted. Following that letter, a meeting was held between Mr McDonald, Ms Schupelius and a Ms Cochram, the then District Superintendent at DECS. A second meeting was held on 7 February 2001. Following those meetings a decision was made to lighten the workload of Mr McDonald and he was to focus on his role as co-ordinator. It fell upon Ms Schupelius to ensure that staff at BSS were informed but a few days later Ms Schupelius left to take an overseas appointment and staff were not informed of the agreement reached in the meetings with Ms Cochram.
There was no follow up by Ms Cochram on the implementation of the agreement and as a result, Mr McDonald continued to be treated as providing the same services that he had always provided at BSS. A Mr Potts was appointed as an Acting Principal and Mr McDonald raised these issues with Mr Potts. It was at that time that Mr McDonald informed Mr Potts that he was being bullied, victimised and harassed by other staff. As he had done with Ms Schupelius on a number of occasions, he raised the question of his tenure with Mr Potts. That enquiry was referred to Ms Cochram but there was no response.
Mr Potts was relieved as Acting Principal by Mr Mitchell who was appointed Principal at BSS in July 2001. Mr McDonald then wrote a letter to Mr Mitchell in October 2001 requesting information as to who was to be responsible for the computing network. A little later, a meeting with Mr Mitchell was held and at the meeting Mr McDonald became visibly angry. Mr McDonald apologised to Mr Mitchell and there were no further unpleasant meetings until June 2002. During that period, other technicians had been employed at BSS to take over the work previously done by Mr McDonald.
The role of co-ordinator previously fulfilled by Mr McDonald since April 1997 was reviewed in May 2002. The role was redefined. That redefinition made it unlikely that Mr McDonald would be the successful applicant for that role notwithstanding that he had been fulfilling a similar role since 1997. At first instance, Anderson J found this treatment of Mr McDonald was unfair but the Full Court rejected that finding as well as the finding made by Anderson J that the reason why Mr McDonald was not interviewed for the job was attributable to a desire to get him out of BSS. This was because the position was advertised for commencement from January 2003 and Mr McDonald applied for the position but was an unsuccessful applicant. The interviewing panel for the position was apparently independent; Mr McDonald had earlier made a complaint to Ms Hyde about a lack of independence of the panel.
Following the failure of his application, Mr McDonald angrily confronted Mr Mitchell and then from July 2002 until September 2002 took sick leave. He was suffering from a stress/anxiety disorder and only returned to work briefly in September 2002. At the time of his return to work, Mr Mitchell required him to complete a DECS placement form. The purpose of this was to arrange an appointment of Mr McDonald to another position. Mr McDonald refused this request saying that he had a 10 year appointment at BSS. Mr Mitchell completed the document himself and following that, Mr McDonald made contact with Ms Hyde informing her that he was initiating a grievance procedure. Ms Hyde did not act on that information and following the lodgement of a written grievance in October 2002, Ms Hyde forwarded that to the legal department within DECS.
Between October 2002 and December 2002 Mr McDonald took further sick leave based upon his stress and anxiety disorder. He did not return to work at BSS or to any other school and on 18 December 2002 he made a claim for workers compensation under the WRC Act. In 2003 he withdrew his claim under the WRC Act and announced he was treating himself as dismissed from his employment.
When reference is made to FDN 59A in the 2013 proceedings,[28] it becomes apparent at least from paragraph 48 of that document that the issues, there pleaded as allegedly forming the basis of a cause of action, reflect and are drawn from the same factual substratum that I have set out above and which was identified by Anderson J, the Full Court and Besanko J. In the pleading in the 2013 action, Mr McDonald names a number of persons who he alleges failed to tell him that he was being appointed to teach computing/maths and that the technology department intended to bring in a large influx of computers into public schools.[29] He then pleads the same particulars of negligence against the Mount Barker High School and BSS as well as against Ms Nancy Schupelius, the original Principal of BSS, Mr Peter Mitchell who succeeded Ms Schupelius as the Principal of BSS and then against Ms Sue Hyde as District Superintendent, DECS.
[28] AB 3-71.
[29] Viz paragraph 63, 64 et seq. AB 22.
At paragraph 246 of the pleading,[30] Mr McDonald pleads injuries and at paragraph 247[31] and following Mr McDonald pleads causation. From paragraph 313[32] onwards Mr McDonald pleads injurious falsehood and defamation and injury caused to him in April 2003 to April 2004 as a result of the bullying of his son. He then pleads the claims of Mrs Rhoda McDonald at paragraph 341[33] and this is described by Nicholson J as a derivative claim. The claims in relation to Brennan McDonald and Mrs Rhoda McDonald are derivative in the sense that it is alleged that as a result of the treatment of Mr McDonald, Mrs Rhoda McDonald has suffered a compensable injury. This includes as a result of an alleged breach of the Occupational Health, Safety and Welfare Act (SA) (OHSW Act). It is also alleged that both Mrs Rhoda McDonald and Mr McDonald have a derivative claim as a result of an injury to them following the treatment by DECS of their son Mr Brennan McDonald. It is alleged there was a duty upon all parties involved including the Minister to protect Mrs Rhoda McDonald from the consequences of what she perceived to be the maltreatment of her husband and her son by educational institutions and in turn, the Department.
[30] AB 39-40.
[31] AB 40-41.
[32] AB 48.
[33] AB 59.
I accept the characterisation made by Nicholson J of these claims. First, they are claims that have already been ventilated before Anderson J and those claims were dismissed on appeal. The second is some of these claims relating to alleged wrongs committed against Mrs Rhoda McDonald are significantly out of time but leaving that issue to one side, they are claims which could have and should have been litigated before Anderson J. The third is that the proposed statement of claim would require the re-argument of issues of fact and issues of law that have already been decided in the judgment before Anderson J and the Full Court. Finally, the formulation of the claims within FDN 59A discloses that it is unjustifiably vexatious and oppressive for Mr McDonald to reformulate those claims in another form and then seek to re-litigate them before the Supreme Court.
A summary of the applicable principles
I have earlier mentioned that in 2010 Besanko J struck out an action commenced by Mr McDonald in the Federal Court which sought to re-litigate issues that had already been canvassed before Anderson J and which had been the subject of the Full Court judgment. In that judgment, Besanko J set out the pertinent applicable legal principles that I have outlined below. That part of the judgment of Besanko J in the Federal Court has been set out by Nicholson J at [18] of his Honour’s judgment.[34]
[34] AB 538-540.
At [18] Nicholson J adopted the summary principles applicable to res judicata, issue estoppel, Anshun estoppel and abuse of process by re-litigation as formulated by Besanko J in his Honour’s judgment[35] to which I have earlier made reference. The respondent contends before this court, as before Besanko J, that these principles have application to the issues for determination in this appeal.
[35] [2011] FCA 297 at [36]-[46].
Drawing upon the judgment of Besanko J as referred to and applied by Nicholson J, these principles may be stated slightly more narrowly as follows:-
1 Res judicata
Causes of action between the same parties suing in the same right or capacity including when they share a privity of interest that have been the subject of a judicial decision may not be re-litigated.[36]
[36] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 597 (Anshun); Ramsay v Pigram (1968) 118 CLR 271 at 276 (Ramsay v Pigram); Leggott v Great Northern Railway Co (1876) 1 QBD 599.
2 Issue estoppel
Questions of fact or law that have been decided in an earlier action or the determination of which has necessarily occurred in the disposition of that earlier action, even though a cause of action was not determined in that earlier action,[37] give rise to an issue estoppel.[38]
[37] Anshun at 597-598.
[38] Judicial consideration has been given to the position where the parties to the second action are not the same as the parties to the first action; even so the rule may have application: Arthur JS Hall & Co v Simons [2002] 1 AC 615.
3 Anshun estoppel
3.1 The parties to litigation are required to ventilate and canvass for decision before the court every issue arising in the litigation between them which forms part or ought to form part of the subject matter of the litigation as well as assessing those matters upon which a court was required to form an opinion and pronounce judgment.[39]
[39] Henderson v Henderson (1843) 67 ER 313 at 320 (Henderson); Anshun (1981) 147 CLR 589; Spalla v St George Motor Finance Limited (No 6) [2004] FCA 1699 at [59].
3.2 Discretionary conditions for determination include the propinquity between the subject matter of the first and second actions justifying the expectation that the issue or issues would be ventilated and canvassed for decision in the first action.
3.3 The court will also make an assessment of whether the party (or parties) exercising reasonable diligence may have raised particular points for decision as part of the subject matter of the proceedings.
4 Abuse of process by re-litigation
4.1Even though a second (or third) action does not strictly satisfy the requirements for an estoppel, such an action “may still be… unjustifiably vexatious and oppressive and so amount to an abuse of process by way of attempted re-litigation of the dispute already judicially determined…” or “that it seeks to litigate anew a cause which has already been disposed of in an earlier proceeding”.[40]
[40] Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ (Walton).
4.2This principle operates within a narrower scope than the three formal principles set out above.[41] Higher courts have not set down an exhaustive list of considerations and relevant matters to be taken into account in deciding whether the principle has operation include the following:[42]
[41] Walton at 393; Spalla at [70].
[42] State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81-423 (at 64,089) (Stenhouse) per Giles CJ.
(a)the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary or an ultimate issue;
(b) the opportunity available and taken to fully litigate the issue;
(c) the terms and finality of the finding as to the issue;
(d) the identity between the relevant issues in the two proceedings;
(e)any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; all part of –
(f)the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and
(g)an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.[43]
4.3 In reaching its decision, the court will address this question: is a previously unsuccessful party trying to re-litigate the same issues and facts in another action before a second court.
4.4 A party may be identified as a previously unsuccessful party even though there is not a complete identity between parties and remedies but as a matter of proper judgment they are: “…in all essential respects the same…”[44]
[43] Spalla at [70]; Besanko J in McDonald at [43].
[44] R v Lessur-Millar (1990) 47 A Crim R 111 at 117-118 per Lockhart J; SZJAB v Minister for Immigration (2008) 168 FCR 410 at 423 per French J; Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198.
In this judgment, I make reference to these principles and insofar as I am of the view that one or some of these principles have application, it is convenient that I identify the principle and the reason why it has application.
The judgment of Nicholson J
In his judgment, Nicholson J held that[45] Mr McDonald should not now be permitted to pursue his pleaded case complaining of breach of contract or breach of duty of care allegedly arising because such claims would require a reconsideration of the same factual material considered by Anderson J in the 2004 proceedings. The appropriate place for those matters to have been canvassed and decided was in the 2004 proceedings before Anderson J. Similarly, Nicholson J was of the view that any further claim by Mr McDonald against his former employer in contract or in tort constituted an abuse of process because an Anshun estoppel arises and Mr McDonald should not be permitted to now attempt to re-litigate in a separate action, causes that he could have and should have litigated in an earlier action. For the similar reasons, namely the identity of claims, such an action would also be an attempt to re-litigate settled controversies. His Honour held that there was no proper pleading of injury and that the nature of the claims at first instance against the alleged employer or alternatively against co-workers were respectively barred under the operation of s 54(1) and s 54(4a) of the WRC Act. Also, there was no issue of serious and wilful misconduct arising under s 54(4a) WRC Act in the absence of any appropriate pleading in relation to serious and wilful misconduct.
[45] At [101] et seq AB 568.
Nicholson J then considered the pleadings against the three individuals having set out by way of summary the relevant paragraphs under consideration.[46] There is not and there has not been any allegation of serious and wilful misconduct made by the State of South Australia against the other personal defendants, Mr Mackie, Mr Mitchell and Ms Hyde arising out of their conduct between 1998 and 2002. Any such allegations by Mr McDonald should have been raised before Anderson J, and the canvassing of these allegations in a fresh trial would require revisiting of a range of other matters that were already canvassed before Anderson J and upon which a decision has been made and an appeal held. His Honour held that such a process would amount to an abuse of process because it would require the re-litigation of settled controversies or alternatively would give rise to an Anshun estoppel and that Mr Mackie was entitled to immunity from civil liability under s 74 of the Public Sector Management Act 1995 (SA).[47]
[46] See judgment of Nicholson J at [112] et seq AB 570.
[47] At [118] AB 572.
Nicholson J held[48] that the purported pleading in negligence against the three defendants should be struck out and that there is no proper pleading in relation to any aspect of injurious falsehood. A pleading of injurious falsehood by reference to a conspiracy was a pleading that should be struck out under 6 SCR 104. A plea of an obligation as giving rise to a duty to Mr McDonald under s 19 of the OHSW Act was misconceived because under the operation of the WRC Act, the OHSW Act creates no independent duty of care owed to Mr McDonald; s 54(1) of the WRC Act is a complete answer to any such claims.
[48] At [119] AB 572.
On the defamation claims, his Honour considered 13 separate documents allegedly containing defamatory material. In order for there to be a proper pleading it was at least necessary to identify those words in the publication alleged to be defamatory, the natural and ordinary meaning of those words and the defamatory imputations and innuendos said to be conveyed by those words.[49] In some circumstances a group of documents may be looked at together in order to assess whether, considered together, any defamatory imputations and innuendos are said to be conveyed by those documents. This is not that case. The 13 documents which are identified and which Nicholson J considered from [129][50] onwards are separate documents which were created at separate times, under different circumstances and which involved a number of different individuals. From a pleading perspective, the documents do not particularise to whom the document was delivered, the circumstances of delivery and the alleged defamatory content.
[49] At [126] AB 574; Fuller v Jenkins (1990) 55 SASR 54 at 58.
[50] AB 574.
The pleading of Mr McDonald also points to particular words in a disparate set of documents and then alleges that those words were particulars of malicious statements which defamed Mr McDonald; he fails to plead any defamatory imputations or innuendos. Nicholson J held[51] that the plea of the case in defamation appears to rely on the natural and ordinary meaning of the particular words identified, read in context. He then went on to consider each of the 13 documents. As will become apparent, his Honour has applied 6 SCR 104 on the question of the content of the pleadings and then later applied 6 SCR 193 on the question of the abuse of process. In doing so, his Honour plainly had in mind the caution that a court must exercise in striking out pleadings about defamatory meanings and the appropriateness of deciding on a preliminary basis whether words are capable of bearing a particular meaning. These are usually matters to be dealt with at trial by a Judge as a matter of law.
[51] At [127].
Having considered each of the identified documents that were before the court,[52] Nicholson J then considered whether any of the claimed defamatory meanings naturally arose from the documents. His Honour decided that each of the documents was unarguably published on an occasion of qualified privilege and that malice had not been proven. His Honour separately found that for a large number of the documents no defamatory meaning as pleaded arose.
[52] See fourth affidavit of Loretta Maria Condoluci sworn 29 January 2015 (FDN 46) AB 95-106.
Nicholson J made orders for the dismissal of both the 2013 proceedings and the 2014 proceedings insofar as they involved Mr McDonald’s claims. His Honour made these orders under the inherent jurisdiction of this court and pursuant to 6 SCR 104 and 6 SCR 193 of the Supreme Court Rules because the pleadings disclosed no reasonable cause of action and or comprised an abuse of the process of the court.
His Honour then turned his attention to the claims of Mrs Rhoda McDonald. His Honour identified the three bases upon which those claims were brought. The second and third of which (the assertion of an alleged duty arising under the OHSW Act and a claim under s 59(3) of the Civil Liability Act 1936 (SA)) were untenable and should be struck out. This is because Mrs Rhoda McDonald was never relevantly an employee and so no duty arising under the operation of that Act could be owed to her. The first claim related to an alleged duty said to arise in favour of Mrs Rhoda McDonald by the State of South Australia not to bully her son Brennan McDonald and not to bully and otherwise cause personal injury to Mr McDonald. These formed part of what I have earlier described as the derivative claims of Mr McDonald, and Mrs Rhoda McDonald said to arise from their personal reaction to the treatment by DECS of Brennan McDonald and Mr McDonald. These claims were struck out as disclosing no reasonable cause of action and so her action in the 2014 proceeding was dismissed. His Honour refused leave to join Mrs Rhoda McDonald to the 2013 proceedings as her claims were not reasonably arguable.
Grounds of appeal
I turn now to the grounds of appeal in both actions which for the sake of brevity of expression I will describe as the grounds of appeal of Mr McDonald.
The orders made by Nicholson J were not interlocutory in nature and those orders finally disposed of each action. I have approached my assessment of the grounds of appeal on that basis.
The respondent submits, and I accept, that these grounds of appeal may be grouped under a limited number of headings which reflect the thrust of the principle areas of complaint of Mr McDonald. To an extent, this grouping is reflected in the summary of propositions filed by Mr McDonald immediately prior to the hearing of the appeal before us.
There are 30 separate grounds of appeal; they are repetitive of grounds and issues raised.
The approach of Mr McDonald was not to point to any error in the approach of Nicholson J but to argue that the findings made were not open. The appeal grounds are addressed in that background.
The respondents’ outline of argument for the Full Court in both actions has associated the appeal grounds under particular topics. They may be grouped under the following headings: the proper defendants and the employer (appeal grounds 1 – 10, 13 – 19 and 25); the individuals, Mr Peter Mitchell, Ms Sue Hyde and Mr Don Mackie (appeal grounds 11 and 12); tort and workers compensation (appeal grounds 15, 24, 27 and 28); and defamation (appeal ground 30). There are then associated appeal grounds. They include: Mrs Rhoda McDonald’s claim (appeal grounds 24, 26, 27 – 29), and the application for recusal of Nicholson J (appeal grounds 24, 26 – 29) and the application for restraint of the defendants’ solicitors (appeal grounds 21, 22 and 23).
Having assessed the second notice of appeal,[53] I consider that the groupings suggested by the respondents to the appeal are appropriate and it is convenient to proceed as the respondents have suggested.
[53] AB 491-507.
The “proper” defendant: appeal grounds 1 – 10, 13 – 19 and 25
The first topic under which the appeal grounds may be grouped, is the topic of who is the proper defendant or defendants and who is the employer of Mr McDonald.[54] In ground one, Mr McDonald alleges that Nicholson J has erred in law in his judgment of 3 June 2016, by ignoring Mr McDonald’s right to contract law. In ground two, Mr McDonald alleges that the learned Judge erred in law in his judgment (by failing to identify) that his Honour was dealing with a contract case. He then complains that Nicholson J did not establish from the evidentiary material facts before the court, the identity of the other party to the contract, following Mr McDonald’s appointment to the teaching service under the Education Act 1972 (SA).
[54] This ground will be considered in several different contexts.
The rest of the appeal grounds grouped under this heading tend to repeat the same matters either as a failure of the learned trial Judge to make a particular finding, or a failure of the learned trial Judge to find in the way that is contended for by Mr McDonald.
It appears that the principal contention of Mr McDonald is that his contract of employment as a teacher at the various schools around South Australia was with the Minister of Education. Mr McDonald asserts that the Minister either as the Crown or part of the State of South Australia, or alternatively, for example, the Minister as part of the Executive Crown, is unable to employ another servant. The basis of these grounds of appeal appear to be an attempt by Mr McDonald to avoid the assertion that the judgment in the 2004 action, in any way sets up any form of estoppel against him.
Nicholson J dealt with a number of these submissions at [26]-[28][55] et seq of his Honour’s judgment. His Honour found that the 2014 proceedings were commenced in response to Mr McDonald failing in a number of attempts to obtain permission to amend the 2013 proceedings to include those persons or entities whom he thought to be the proper defendants in the proceedings. The 2014 proceedings were commenced against the Director and the individuals, Mr Mitchell, Ms Hyde and Mr Mackie.
[55] AB 542.
Nicholson J decided that the 2014 proceedings should be struck out because, as “parallel proceedings” in the court, they constituted an abuse of process. His Honour also identified[56] that: the primary claim of Mr McDonald is for personal injury said to have been suffered “… at the hands of the various defendants … and a defamation claim”; and that Mr McDonald has failed on a number of occasions to obtain permission to amend the 2013 proceedings to join the Director and the individuals.[57]
[56] [2016] SASC 79 at [29] AB 543.
[57] See McDonald v State of SA [2014] SASC 120 (per Bampton J); McDonald v State of SA [2015] SASC 15; McDonald v State of SA [2015] HCASL 118.
Nicholson J held[58] that there is no utility in permitting Mr McDonald to sue again in contract because in earlier proceedings the issues had been canvassed before the court, the evidence heard, determinations made and judgments given. There would be no apparent utility in allowing Mr McDonald to re-litigate such a controversy because such an application would have no prospects of success. Thus, any claim in contract would therefore have no prospects of success. It would make no difference if the claim proceeded against the Director and the individuals.
[58] At [97] et seq AB 567.
The evidence of those individuals or the evidence about their conduct, has been given before Anderson J and findings about that conduct were made by Anderson J. These matters were then considered on appeal. The only person who did not give evidence before Anderson J was Mr Mackie. Anderson J made findings based upon the whole of the evidentiary substratum allegedly concerning and relating to such a contract. Having regard to the findings made by Anderson J, any further re-canvassing of all of those issues in another action, would require the revisitation of the same material covered by Anderson J in his Honour’s judgment. In turn, this would require the revisiting of, for example, credibility findings made in relation to the evidence given by particular witnesses before Anderson J, including the individuals, whom Mr McDonald now seeks to sue in one action or the other. Nicholson J considered that this was an abuse of process on the basis of Anshun estoppel or attempted re-litigation of settled controversies.[59]
[59] At [102] AB 568.
There is a further matter. I am satisfied that even though it may be accepted that Mr McDonald’s contract of employment was with the Minister, the State of South Australia is the correct defendant. On appeal this issue was addressed by the Full Court.[60] Mr McDonald was appointed to a teaching position by the Minister of Education and the Full Court referred to the Minister as Mr McDonald’s employer. The Full Court held that it was not necessary to decide whether Mr McDonald’s employment contract was with the Minister or with the Crown.
[60] State of SA v McDonald (2009) 104 SASR 344 at 348-9.
In her Honour’s judgment in McDonald v State of SA[61] on appeal from a District Court Judge who dismissed an appeal from a District Court Master, refusing Mr McDonald’s application to change the name of the defendant from the State of South Australia to the Minister of Education and to join individuals, Bampton J held at [14] et seq as follows:
[61] [2014] SASC 120 per Bampton J.
The proceedings were commenced against the Government of South Australia in 2005. The Crown Solicitor, acting on behalf of the State of South Australia, filed a notice of address for service in which the defendant was described as “the State of South Australia, misdescribed in the summons and statement of claim as the Government of South Australia”.
Mr McDonald relied on his very detailed and lengthy oral and written submissions in support of his contention that the Minister for Education is the proper defendant to the plaintiffs’ claim. He argued that his employer was not the State of South Australia rather the ‘body corporate and independent legal entity created under the Education Act 1972 known as the Minister for Education and Child Development was my employer’.
There is no basis to Mr McDonald’s submission that the Minister is not part of the Crown.
The District Court Judge correctly noted that the Crown Proceedings Act 1992 (SA) provides in s 5 ‘that proceedings including tortuous proceedings like those presently before the Court may be brought and conducted by or against the Crown in the same way as proceedings between subjects’. He noted that the Act, and its predecessors, was designed to overcome difficulties that previously existed in identifying and serving correct parties in relation to alleged causes of action against government departments, Ministers in that capacity and their employees. He further noted that the Act defines the Crown as ‘Minister, instrumentality or agency of the Crown’ in s 4(1)(a) and, in s 4(2), further provides that the Act ‘extends not only to the Crown in right of the State but also (as far as the legislative power of the State admits) to the Crown in any other capacity…’.
In his text The Constitution of South Australia, the Hon Bradley Selway noted ‘…that employees are not included within the definition’ of s 4 as ‘it is unnecessary to do so, most Crown employees enjoy immunity from suit, with any liability being against the Crown’. For example, s 74 of the Public Sector Act 2009 (SA) provides that any liability of an individual public official is the liability of the Crown.
It is clear that Mr McDonald is of the view that by naming the Minister for Education as the defendant in the proceedings, that the Crown Solicitor will no longer be able to act and the Minister for Education will be personally answerable in the proceedings.
The Minister for Education, even if capable of suing and being sued in its own name as a corporate entity, is nevertheless also part of the Crown and, therefore, the State of South Australia. Again, as the Hon Bradley Selway noted in his book:
Proceedings may be brought by or against the Crown in the name of ‘The State of South Australia’. Where the proceedings are against the Crown itself they must be brought in the name of ‘the State of South Australia’ … Where the proceedings are by or against an individual or a body corporate which otherwise falls within the definition of the Crown for the purposes of the Act, the proceedings can be brought in the name of that individual or body corporate or in the name of ‘the State of South Australia’. However, it should be noted that the Act applies to the proceedings whether or not they are taken in the name of ‘the State of South Australia’.
It should also be noted that ‘the State of South Australia’ is a mere juristic entity. It cannot do anything and cannot be compelled to do anything. All pleadings should identify the person or body … which is sued in the name of the State of South Australia.
I respectfully agree with her Honour’s comments. The court has decided that no permission should be given to amend the statement of claim to change the name of the defendant. These issues raised as the appeal grounds have already been canvassed in the various decisions at first instance and appellate decisions made in relation to these matters. This issue has been pursued as far as the High Court without success. It should not be re-agitated now.
Under s 5 of the Crown Proceedings Act 1992 (SA), proceedings may be brought and conducted by or against the Crown under the name “the State of South Australia”, or, in any other case, under the name in which the Crown could sue or be sued in the courts of its own jurisdiction. Under s 4 of the same Act, the Crown is defined to include a Minister, instrumentality or agency of the Crown and a body or person declared by regulations to be an instrumentality or agency of the Crown for the purposes of the Crown Proceedings Act (SA). Because the Crown includes a Minister of the Crown, the Minister of Education, in this instance, forms part of the Crown and therefore, for the purposes of s 5 of that Act, the Minister is also part of the State of South Australia. In the result, there would be no utility or purpose in insisting upon the inclusion of the Minister as a defendant in the proceedings because the Crown includes the Minister and the Crown may be sued under the name of the State of South Australia. Under the operation of ss 4 and 5 Crown Proceedings Act (SA) the causes of action pleaded under the 2013 action are properly against the State of South Australia. These grounds of appeal should be dismissed.
Appellants questions
In the context of this issue, Mr McDonald, put five propositions as questions. It is difficult to associate those questions with the grounds of appeal that are set out in the notice of appeal. In submissions before the court, Mr McDonald addressed these five propositions that are set out in a summary of argument filed by him on 6 September 2017. In light of those facts, it is appropriate to set out the propositions addressed by Mr McDonald in his submissions. Those propositions also address issues concerning the decisions regarding Mrs Rhoda McDonald. They are as follows:-
1. First proposition:
‘Were employees appointed under s 9(4) s 15(1)(2) and s 11(4) of the Education Act 1972 by Minister of Education or a delegate thereof in the period 1998 to 2004 employees of Minister of Education under that Act.’
2. Second proposition:
‘Does the body corporate created under section 7(1)(a)(b)(c)(d) of the Education Act have the power to sue and be sued in its corporate name in contract and tort under the Act.’
3. Third proposition:
a) Based on the Memorandum of Agreement entered into between the First Applicant and Minister of Education (a body corporate by virtue of the Education Act 1972) did an employer/employee contractual relationship exist between the parties under s 9(4) of the Act in the period 24 April 1989 to 15 December 1989; and
b) Based on the Statement of Service of the First Applicant did an employer/employee contractual relationship exist between the First Applicant and Minister of Education (a body corporate by virtue of the Education Act 1972) under s 15 of the Education Act 1972 in the period 23 April 1990 to 28 April 2003?
4. Fourth proposition:
‘Is the First Applicants employment contract with the body corporate or with the Crown?’
5. Fifth proposition:
‘Is the body corporate under the Education Act 1972 vicariously liable for its and education employees acts and omissions under the Act.’
These questions raise issues that have already been resolved in an earlier decision of the Judges of this court and in the High Court. I have earlier set out that in the judgment of Bampton J,[62] her Honour held that in the action commenced by Mr McDonald in the 2013 proceedings, the correct defendant was the State of South Australia. Bampton J was considering an appeal from a decision of Judge Tilmouth of the District Court, dismissing an appeal from a Master of that court, who decided that the State of South Australia was the appropriate defendant in the proceeding, and refusing leave to join the Director of DECS as a defendant. Mr McDonald sought permission to appeal against the decision of Bampton J. That permission was refused and an application to the High Court for permission to appeal against the decision of the Full Court was similarly refused.
[62] McDonald v State of SA [2014] SASC 120.
As a result there is no utility in answering the questions postulated by Mr McDonald and there is a second reason for not so doing. The State of South Australia has conceded that it is vicariously liable for the conduct of all persons who had any involvement in the factual issues and circumstances from which Mr McDonald claims his causes of action derive. There is no utility in the joinder of any other party to the proceeding because of the position taken by the State of South Australia. This also means that the State of South Australia has accepted that none of the relevant persons involved have committed any act of serious and wilful misconduct: s 54(4a) of the WRC Act.
In the result, the proper defendant in the proceedings is the State of South Australia and the 2013 proceedings, which raise identical questions as the 2014 proceedings, may be addressed on their merits in light of the state of the pleadings in the 2013 proceedings.
The proposed pleading (FDN 59A) in the 2013 action was used by Nicholson J to consider the application of the defendant under 6 SCR 104 and 6 SCR 193 for dismissal of the actions.
The matters raised in the first grouping of the grounds of appeal (1-10 inclusive, 13-19 inclusive and 25) deal with the insistence of Mr McDonald that despite the 2013 action, the proper defendant is not the State of South Australia and that those proper defendants are the persons named as defendants in the 2014 proceedings. Connected to that issue is the question of the identity of the employer of Mr McDonald and also the personal entity who or which allegedly owed duties to Mrs Rhoda McDonald. Those matters are reflected in [90] of the judgment of Nicholson J. That paragraph reads as follows:
By way of summary, Mr McDonald makes or adverts to the following causes of action or bases for causes of action.
(i)Vicarious liability of the State of South Australia (the 2013 proceedings) and the Minister (the 2014 proceedings) for breach of duty of care in negligence owed by each of the employees in Mr McDonald’s work places between 1996 and 2003 who are named in the statement(s) of claim, resulting in personal injury to Mr McDonald.
(ii)Liability of each of Mr Mitchell, Ms Hyde and Mr Mackie for breach of their respective duties of care in negligence owed to Mr McDonald, arising from their conduct in Mr McDonald’s work places between 1996 and 2003, resulting in personal injury to Mr McDonald.
(iii)Breach by the State of South Australia (the 2013 proceedings) and the Minister (the 2014 proceedings) of a contractual duty of care owed to Mr McDonald by failing to provide him with safe systems of work and a safe work place during 1996-2003, resulting in personal injury to Mr McDonald.
(iv)Breach by the State of South Australia (the 2013 proceedings) and the Minister (the 2014 proceedings) of a duty of care owed to Mr McDonald, under the Occupational Health, Safety and Welfare Act 1986, resulting in personal injury to Mr McDonald.
(v) Unparticularised acts of conspiracy resulting in personal injury to Mr McDonald.
(vi)Injurious falsehood committed by one or more employees in Mr McDonald’s work places between 1996-2003 and for which the State of South Australia (the 2013 proceedings) and the Minister (the 2014) action are vicariously liable, resulting in personal injury to Mr McDonald.
(vii)Defamation of Mr McDonald by the acts of one or more employees in Mr McDonald’s work places between 1996 and 2003 and for which the State of South Australia (2013 action) and the Minister (the 2014 proceedings) are vicariously liable, resulting in personal injury to Mr McDonald and, although not expressly pleaded but to be inferred, general damages for injury to reputation and to feelings and for vindication.
(viii)Breach by the State of South Australia (the 2013 proceedings) and the Minister (the 2014 proceedings) of various statutes and departmental policies resulting in personal injury to Mr McDonald whilst he was engaged at his work places between 1996 and 2003.
(ix)Breach by the State of South Australia (the 2013 proceedings) and the Minister (the 2014 proceedings) of a duty of care owed to Mr McDonald not to bully his son, Mr Brennan McDonald, at school, resulting in personal injury to Mr McDonald (Mr McDonald’s “derivative” claim).
The fate of the 2014 proceedings is determinable first on the basis of the content of the pleaded case that is disclosed in FDN 2 filed in that proceeding.[63] That pleaded case is identical to the case proposed to be pleaded in FDN 59A of the 2013 proceedings.[64] They are properly described as parallel proceedings that identify defendants who Mr McDonald had much earlier unsuccessfully sought to join in the 2013 proceedings. As the pleaded cases are identical, the 2014 proceedings must be struck out as they are an abuse of the process of the court. Mr McDonald may not, by a side wind of a second proceeding, overcome the insuperable difficulties faced in the first proceeding by merely commencing new proceedings against a person or persons whom he was unable to join in the first proceeding. I would dismiss each of the appeal grounds 1 – 10, 13 – 19 and 25.
The individuals: Mr Peter Mitchell, Ms Sue Hyde and Mr Don Mackie (the 2014 proceedings: appeal grounds 11 and 12)
[63] AB 621-688.
[64] AB 3-71.
Mr McDonald’s claims and the claims of Mrs Rhoda McDonald, are for personal injuries said to have been caused by the conduct of a number of people. In this appeal, the State of South Australia reaffirmed the position that it had announced before Nicholson J that it accepted vicarious liability for the conduct of the persons named in any proceedings. This also means that the State of South Australia raises no issue or suggestion that the conduct of those persons may be described as serious and wilful misconduct or that the conduct of those persons in any way forfeited or postponed the vicarious liability of the State of South Australia.
These issues are relevant at a number of levels. The most important is the issue of the proper defendant to respond to the claims of Mr McDonald. That issue has been resolved in the 2013 action and in that process, permission was sought by Mr McDonald to join the Director of the Department (DECS) and the individuals named as defendants in the 2014 proceedings apart from Mr Mackie. That application failed. The State of South Australia is responsible to answer to Mr McDonald for the loss allegedly suffered by him as a result of any civil wrongs which he alleges in his claims and that position has not changed. That question should not be, and may not be, agitated afresh. There is no utility or reason for permission to be given for that matter to be recanvassed in this court.
Under ss 5[65] and 7[66] of the Education Act 1972 (SA) the Minister is defined to mean the Minister of Education or any other Minister of the Crown for the time being exercising and discharging the responsibilities of the Minister. The Minister shall be a body corporate with perpetual succession, capable of acquiring or incurring legal rights and liabilities and of suing or being sued. And there is a presumption associated with the application of the seal of the Minister.
[65] 5—Interpretation
[66] 7—The Minister
Although the Minister (for Education) is treated as a separate incorporated entity, this does not affect the position of the Minister as a Minister of the Crown. This form of incorporated usage is common and serves the practical purpose of allowing a Minister separately to enter transactions in a legally binding way. This in turn obviates the necessity for the Minister to act as an agent of the Crown under which the Minister would be required to exercise the prerogative (as a Minister) of the Crown. This “device” avoids any doubt that may arise about the capacity/authority of the Minister as the agent of the Crown.
By this device, the Minister is deemed to be a body corporate. That position is different from other forms of incorporated entities such as statutory corporations that intentionally have a separate legal existence and so a separate responsibility for their own torts and the torts of their employees. This is not such a case because by operation of ss 4 and 5 of the Crown Proceedings Act 1992 (SA) “the Crown” includes a Minister. As a result, the Minister for Education, as an example, remains the Crown irrespective of the capacity in which the Minister or, in this instance, the Director of Education, is sued.
Under the operation of s 74 of the Public Sector2009 (SA) (PSA), the acts of individual public officials exercising or purporting to exercise official powers and functions are the acts of the Crown. Thus, any liability arising therefrom becomes the liability of the Crown. Under that section, no civil liability attaches to a public sector employee and others for an act or omission in the purported exercise of official powers. Any action that would lie against an individual public sector employee lies instead against the Crown. For reasons that are discussed below, I am satisfied that Mr Mackie’s position came within the operation of s 74 of the PSA. This is a complete answer to any application for the joinder of Mr Mackie, rendering such application inutile.
I have earlier identified that the majority of the claims in respect of alleged common law torts or in contract are therefore personal to the claimants. The breaches alleged are also said to have caused damage. The claims that fall within the purview of the operation of s 74 of the PSA fall upon the State of South Australia. An action against the State of South Australia will, insofar as relevant, include the conduct of those persons covered under the PSA when exercising their official powers or functions.
The third cause of action pleaded is a breach of duty of care owed under the OHSW Act to employees of the employer. The plaintiffs, Mr McDonald and Brennan McDonald, plead a fourth cause of action of a breach of a duty of care owed to parents and their children by the educational authority under the Education Act 1972 (SA). Finally, in the fifth cause of action pleaded, the plaintiffs claim injurious falsehood and defamation in tort or under statute. I will not here consider the claims of Brennan McDonald as there is no challenge to the order of Nicholson J that the claims of Brennan McDonald should be remitted to the District Court, on terms, for hearing.
In considering these further claims, it is necessary to keep in mind that in the 2004 proceedings, Mr McDonald made claims for breach of his contract of employment. He alleged that the defendants had committed a repudiatory breach of the contract of his employment as a teacher which he accepted and so brought the contract to an end. One basis of conduct which allegedly justified Mr McDonald treating the contract as at an end was an alleged breach of what was said to be an implied term of mutual trust and confidence. The Full Court held in its judgment that in the particular circumstances of the employment of Mr McDonald, such an implied term does not arise. In Commonwealth Bank v Barker,[67] the High Court held that such a duty did not form part of the Australian common law.
[67] (2014) 253 CLR 169.
The questions for consideration in the 2013 and 2014 actions derive from contractual issues and duties alleged to have arisen thereunder that were said to have been breached. At [2] of his judgment in the 2004 action, Anderson J said:
Mr McDonald claims that during the course of his employment and in particular at Mount Barker and Brighton, DECS was in breach of its contractual duty to take care for his safety and welfare by providing a safe system of work. He also claims that in particular at Brighton he was harassed, victimised and bullied. …
Anderson J made findings that Mr McDonald’s contract of employment had been breached and then proceeded to assess Mr McDonald’s damages. The method of assessment of damages followed by Anderson J is very familiar and it is intended to place Mr McDonald in the position as if the contract had been fulfilled, assessed by reference to the matters known to the parties at the date of the contract (commonly described as the rule in the first limb of the decision in Hadley v Baxendale).[68]
[68] (1854) 9 Ex Ch 341 at 354; 156 ER 145 at 151.
Part of the assessment of damages derive from an acceptance by Anderson J at [365] et seq that the employer of Mr McDonald had breached a duty imposed on it to provide a safe system of work to its employee. This duty was said to arise both in contract and in tort. Irrespective of whether the claim of Mr McDonald is brought in contract or in tort or both, the subject matter or substratum of fact of the claim is the relationship of employment of Mr McDonald and the conduct in that relationship of which he complains. Paragraph 1 of the 2014 proceedings (FDN 59A) pleads as follows:
Introduction
1.This is a personal injury claim against the body corporate known by the corporate name the Minister for Education and Child Development for it owed a duty of care to Francis, Rhoda and Brennan McDonald. It breached the duty of care owed and caused harm and injury to the Plaintiffs through its negligent acts or omissions and those of its employees. As the Education Authority and the employer under the Act the corporate body is vicariously liable for its breach of duty of care owed and the Plaintiffs seek damages in the form of General and Special damages or Aggravated and Exemplary damages or other forms of relief the court thinks fit for the harm and injury caused by the defendant’s negligent acts or omissions.
I have earlier described the causes of action pleaded in paragraph (2) of those pleadings and the new matters in paragraphs (4), (5) and (6). There is an obvious similarity between the pleaded causes in the 2013 and 2014 actions and those pleaded in the 2004 action decided by Anderson J. I consider that if any causes of action are said to arise out of the relationship of employment of Mr McDonald, then they could have been and should have been heard and determined before Anderson J.
Mr Mackie stands in a slightly different position to Ms Hyde and Mr Mitchell: both of them were designated employees for the Education Act 1972 (SA). Nicholson J found that Mr Mackie held an appointment under the Public Sector Management Act 2009 (SA) and so was entitled to the benefit of the operation of s 74 of that Act. No serious challenge has been made to that finding and on the material before the court none could be made. And different to Mr Mackie, Ms Hyde and Mr Mitchell gave evidence in the trial before Anderson J; his Honour assessed their evidence and later made findings about that evidence including credit findings. I consider that in the application of principle, an unacceptable burden would be imposed on Ms Hyde and Mr Mitchell were the court to require them to give evidence again touching upon the same matters that were canvassed and finally decided in the 2004 action. This intolerable burden would include that the memories of witnesses would be vexed by having to recall events that occurred so long ago. The trial before Anderson J was the appropriate venue in which to ventilate all of these issues concerning the conduct of Ms Hyde and Mr Mitchell and of the other persons allegedly involved; Ms Schupelius, Mr Parsons, Mr Hill and Ms Thornton.
The causes of action pleaded in the 2013 action and the 2014 action are the same and the issues for determination remain the same. If those actions or one of them were now to proceed it would be necessary to canvass and decide upon the conduct of senior bureaucrats, school officials and other individuals within the educational system, towards Mr McDonald, the application of policies and procedures and to assess whether such conduct gave rise to any cause of action. The possibility of inconsistent findings between such decisions of the courts would arise from the need to recanvas the same material as was considered by Anderson J.
The rule requiring the end to litigation[69] is usually described as a public policy requirement. Citizens must not be burdened by continual or repetitious litigation by the same party and/or arising out of the same factual issues.
[69] Interest republicae ut sit finis litium; see generally Smith v NSW Bar Association (1992) 176 CLR 252 at 265; State Rail Authority NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29 at 38-39, 45-46.
Such a rule is not abrogated by, for example, the joinder of one or more further parties to an action who may have had an involvement at some time or in the events said to give rise to the cause(s) of action. The joinder of such further persons, without more, does not create any point of difference in the application of the public policy rule. The joinder of Mr Mackie as a further defendant in the 2014 proceedings does not change the position. The proposed 2014 action remains an abuse of process notwithstanding that Mr Mackie was not joined as a party in the action before Anderson J as I am satisfied that both actions would require the same issues to be heard giving rise to the possibility of inconsistent findings.
At [91] et seq of his judgment, Nicholson J characterised the nature of Mr McDonald’s claims in the 2013 and 2014 claim, at their highest, as an injury claim of a physical and mental type. This description remains, irrespective of the bases upon which Mr McDonald brings his claims: whether for breach of duty or under some form of intentional tort such as alleged misfeasance in public office.
I turn then to the issues of the individuals sought to be joined in the 2013 action and named in the 2014 action, and the question of serious and wilful misconduct (and in this discussion I will leave aside s 54 WRC Act). There is no allegation in any pleading of any action by Mr Mitchell, Ms Hyde or Mr Mackie which caused Mr McDonald physical harm or of any psychiatric or psychological sequelae. Mr McDonald has made bare assertions that unspecified and unparticularised conduct amounted to serious and wilful misconduct. The plea does not specify whether one, some or all of the identified persons engaged in any particular conduct or aspect of such conduct. Such a pleading is irreparably flawed. It cannot be saved by amendment as the allegations relate to conduct alleged to have occurred. I consider that as a matter of formality, there is only one place within the pleadings where the topic of serious and wilful misconduct is actually raised, albeit in an indirect way. Paragraph 344 pleads as follows:[70]
344. The body corporate and employees of the body corporate under the Ministers direction breached s59(3) of the Civil Liability Act 2003 for their acts and omissions amounted to serious and wilful acts of misconduct which caused injury to another.
The plaintiffs then purport to plead consequential loss, damage and costs suffered by them and then at paragraph 406 plead:[71]
406. By reason of the matters pleaded herein, the Plaintiffs should be awarded exemplary damages or special damages for the deliberate acts or omissions of the corporate body and its employees’ serious and wilful acts of misconduct which were conducted outside the authorised mode of their employment …
[70] AB 60.
[71] AB 68.
Under s 59(3) Civil Liability Act 1936 (SA) there is an exclusion from the right of vicarious liability for the benefit of employees who, for example, commit an actionable civil wrong in the course of their employment. An employee will lose the right to claim vicarious liability in respect of acts committed in the course of an employment relationship if that person commits serious and wilful misconduct in the course of the employment and that conduct constitutes a tort. In those circumstances, there would be a forfeiture of the rights of an employee to claim against an employer for vicarious liability. That is not in any sense the creation of a right said to be provided to a wronged party. It is the exclusion of the ability of an employee who may have committed an actionable wrong in the course of that person’s employment to be indemnified by that person’s employer. Self-evidently these are serious matters. Any such conduct must be established by an employer seeking to avoid the burden of vicarious liability. Such conduct must be specifically alleged and proved. This Mr McDonald has failed to do. It follows that any reference in the pleaded claims to s 59(3) of the Civil Liability Act 1936 (SA) is otiose and requires no further consideration.
I agree with the decision of Nicholson J at [130][84] that the content of paragraphs (i), (ii) and (v) are not capable of carrying any defamatory meaning. The balance of the complaints within the pleading will have to be considered in another context namely the defence of qualified privilege and the question of malice.
[84] AB 575.
There is no specific pleading in relation to document three. At [131],[85] Nicholson J identifies that document three is a minute addressed to the Chief Executive from Trevor Fletcher.
[85] AB 576.
Document four is alleged to have been published by employees on 16 September 2004. It is dated Friday 17 September 2004 and is an internal note kept by Trevor Potts, Principal of BSS about interactions between Mr Potts and Mr McDonald. The topic of the discussion was an appointment made to discuss Brennan McDonald’s place within the music programme at BSS. The note records what then transpired. I can see no indication that the document has been published or was ever intended to be published.
Paragraph 317 of FDN 59A then sets out four allegedly malicious statements. The chapeau of the pleading alleges that in the document Mr Don Mackie used malicious statements to defame Mr McDonald. That cannot be correct. The document is an internal note kept by Mr Trevor Potts, Principal. Nicholson J considered the alleged defamatory meanings at [133] and found that none of those statements or assertions appear in document four. I agree with that finding. There is a further pleading at paragraph 318 concerning document four alleging that Trevor Potts then used malicious statements to defame Mr McDonald’s good name and reputation as follows:
(i)I then decided that the meeting was no longer appropriate and told Frank. He became aggressive and demanded that it continue.
(ii)Frank was so agitated he could not use the phone effectively.
(iii)Frank then left, taking Brennan with him, uttering any number of threats towards me around harassment and bullying and that I would have to deal with the consequences.
I have already indicated that the document is an internal memorandum. There is no evidence that it was ever published to anybody. It was a private note kept by Mr Potts. There was no pleading as to the person or persons to whom it may have been published.
Document five and document thirteen are the same document. It is a handwritten facsimile transmission to Mr Rodney Gracey from Ms Susan Hyde dated 16 September 2003. In the pleading at paragraph 319, two malicious statements are attributed to Ms Hyde in defamation of Mr McDonald’s good name and reputation. They are:
(i)The following letter add further information to the threatening and abusive behaviour of Mr McDonald. Please add this to the documents before Trevor considers my response.
(ii)Once that is done he and I will do a letter to Mr McDonald to explain that he can’t manipulate and bully the school or teacher and tackle the attendance issue again.
That content reflects a note of a conversation on 10 September 2003 between Ms Hyde and Mr Mackie.
Document six is a letter from DECS to Ms Jan Andrews, Acting Commissioner for Public Employment dated 17 November 2003 and signed by Margery Evans. The defamatory content pleaded is as follows:
(i)Mr McDonald is himself being investigated in relation to allegations of abuse towards a teacher at GPS concerning his son’s education;
(ii)The Principal of BSS has also written to DECS with concerns about Mr McDonalds behaviour should his son attend BSS in 2004.[86]
[86] GPS is an acronym for Glenelg Primary School; BSS is an acronym for Brighton Secondary School.
Nicholson J identifies at [136][87] that Ms Hyde gave evidence about this document in the trial before Anderson J; this document was tendered in evidence.
[87] AB 577.
Document seven also concerns Ms Margery Evans. This is a minute to the Chief Executive DECS signed by Ms Margery Evans and dated 4 March 2004. The issue of the minute is the query raised by the Commissioner for Public Employment about whether records pertaining to Mr McDonald had been misplaced by DECS and the suitability of the response to the Premier on the issue of Mr McDonald. I have read the documents. None of the pleaded complaints could carry a defamatory meaning. Also, Ms Hyde was examined on this document when she gave evidence before Anderson J and the document was tendered in evidence before his Honour.
Document eight is a minute signed by Dave Mellen, Director, HR and Industrial Relations Services dated 19 November 2003 directed to the Executive Director Strategic HR Management and Organisational Development. The issue addressed by the minute was the Officer for Public Employment’s request for urgent consideration of Mr McDonald’s grievance against DECS regarding his claims that DECS did not investigate his grievance. Mr McDonald alleges in paragraph 322 of his pleading four malicious statements defaming him arising from his document. They are as follows:
(i)Mr McDonald has also placed a grievance regarding his son’s classroom teacher at Glenelg Primary School. Mr McDonald has alleged that the teacher has victimised and bullied his son. However, attempts to remedy the situation has resulted in Mr McDonald refusing all offers and that Mr McDonald would take over the discussion and threaten the teacher and the District Superintendent.
(ii)The Principal of Brighton Secondary School has also been concerned of the affect of Mr McDonald’s son enrolled at Brighton Secondary School will have on the psychological health of various staff members at the school.
(iii)Although Mr McDonald wrote to the Employee Ombudsman on 24 June 2003 stating that DECS was “in breach of contract and had failed in a duty of care” he has omitted relevant information that several meetings and regular correspondence (documented) had taken place between the Principal, Acting Principal, District Superintendent and various DECS personnel to try to resolve Mr McDonald’s grievances.
(iv)Whilst various departmental staff have tried to conduct meetings to resolve Mr McDonald’s grievance, Mr McDonald has been intimidating in his language and threats. This has proved difficult in reaching an outcome.
The content of this minute was the subject of oral evidence before Anderson J and it was tendered in evidence. In my view, as with all the other documents tendered before Anderson J, if there was an issue of defamation arising from this document, then the place to have ventilated that issue was before his Honour.
Document nine is an undated memorandum from Mr John Binks-Williams to Ms Marylen Bechara. It refers to a letter proposed to be sent to Mr McDonald. The memorandum asks for comments upon the letter. The letter is not included. Two defamatory statements are said by Mr McDonald at paragraph 323 to be contained within the memo as follows:-
(i)Frank McDonald has caused numerous problems at Brighton Secondary School;
(ii)This is only one of the many instances in which Frank will arrive at the School and demand to see a teacher and then threaten the teacher.
Document ten is a letter from BSS signed by Mr Peter Mitchell addressed to Mr Trevor Fletcher, Executive Director Schools and Children’s Services. It is undated. A copy appears to have been sent to Ms Hyde. The defamatory statements alleged to be contained in the letter are as follows:
(i)I bring this to your attention at this time, not in order for you to take action, but so that you are aware that the enrolment will probably bring significant difficulties. The boy’s father, Mr Frank McDonald, is a disaffected former staff member of this school. Mr McDonald recently attempted to bring a case to the Industrial Relations Commission, concerning his failure to be reappointed here. He took sick leave in the middle of 2002, after being told he was not short-listed for a Brighton Secondary Coordinator position. At that time, he was quite threatening to a number of staff here. He had on earlier occasions been abusive, threatening and overbearing to staff. There are records available elsewhere, of issues that Mr McDonald raised while at Brighton, and reports which outline more of the above. Our current district superintendent, Ms Susan Hyde, is well briefed in relation to Mr McDonald, and acquainted with him.
(ii)I can tell you that there are staff here who have significant concerns about his future role as a parent at Brighton Secondary. This is especially so, given the anger that he has demonstrated towards them and others in the past, the resentment he appears to have felt towards a number of people here and his frequent threats of litigation.
(iii)We will have a plan in place as to the management of this situation. I am already aware of issues of conflict between Mr McDonald and his child’s current school, and of likely points of conflict with our school. I will be ensuring that any new District Director is briefed as to what may be expected and will discuss our conflict management processes with him/her.
Document eleven is the same as document two. The pleading in relation to document eleven alleges a further new allegation that the District Superintendent tried to explain that she was concerned that Mr McDonald would take over the discussion and threaten the teacher again. The topic of the email is the wellbeing and behaviour of Brennan McDonald. It records that Mr McDonald threatened the grade 7 teacher at Glenelg Primary School on several occasions. It also refers to other conversations with Mr McDonald in another context.
Document fourteen is a letter from Wendy Bruce, Director of Schools and Children’s Services to Mr McDonald dated 15 October 2003. It records a recommendation that Brennan McDonald remain in his class and not be moved. The letter requests Mr McDonald’s support of Brennan McDonald’s teacher. Any communication should be through Mr Mudge, the author of document twelve and the Principal of Glenelg Primary School. The plea concerns the allegation of the dispute between Mr McDonald and the class teacher and the request to not approach the class teacher directly. The document does not disclose any defamatory meaning.
Document fifteen is a minute signed by Ms Judy Day, Director School and Children’s Services and Mr Trevor Fletcher, Executive Director Schools and Children’s Services addressed to the Chief Executive dated 18 August and 19 August 2003 respectively. The issue discussed in the minute is that Mr McDonald has written to the Chief Executive to request a review of a music audition at BSS conducted in June 2003. This was because Brennan McDonald was unsuccessful in entering the music program at BSS through the audition process.
Three allegedly defamatory meanings are said to be contained within the minute. They are:
(i)Mr Binks-Williams cannot add any further detail and has reaffirmed that the information he provided was both complete and accurate;
(ii)Mr Binks-Williams confirms that the condition of Brennan McDonald’s flute was not mentioned by any person present at the audition;
(iii)Mr McDonald sat beside the head of Music faculty throughout the audition without commenting at that time or after the audition about the instrument or any problem he may have perceived relating to his son’s performance on it.
None of these pleaded matters are capable of carrying any defamatory meaning towards Mr McDonald.
Similar to the approach of Nicholson J, I have also assumed that insofar as the position of any particular person is not identified or identifiable from the documents, those persons are relevantly either employees of DECS or are otherwise persons for whom there is vicarious liability. Similar to the approach of Nicholson J, I will approach the matter from the point of view of taking Mr McDonald’s claims at their highest.
Appeal ground 30 also makes reference to a communication to a Robert Keage. There is no pleading in these paragraphs of any publication by or to Robert Keage of any defamatory materials. I will therefore not consider that matter further.
Earlier in these reasons, I have identified those pleadings of matters that I consider are incapable of carrying a defamatory meaning. That expressed view does not deal with the whole of the allegedly defamatory material. As an example, in paragraph 316, the pleading about document two, there remains for consideration sub-paragraphs iii, iv, vi and vii. Nicholson J referred to the defence filed by the defendant (respondent) to the 2014 statement of claim[88] which by order of the court on 22 June 2016 was treated as the defence to the 2013 action. This was despite the absence of any orders for joinder of all parties making claims in the 2013 action.
[88] FDN 2 AB 621-688.
Nicholson J identified at [148] that each publication was made on an occasion of qualified privilege at common law. I turn now to that issue.
I have gone to some length to describe each document. I have also had regard to the affidavit material filed by the respondent.[89] I consider that each document is fairly made by the author of the document in the discharge of a public duty, namely the operation by the State of South Australia of its educational institutions, is fairly warranted and is honestly made. I have not been able to identify any document that discloses any absence of honesty or suggests that it is not fairly warranted. The documents therefore attract the protection that they are published on an occasion of qualified privilege because they are protected for the common convenience and the welfare of society.
[89] Fourth Affidavit of Loretta Maria Condoluci sworn 29 January 2015 (AB 95-106).
In light of my acceptance of the availability of the defence of qualified privilege, it would be necessary for Mr McDonald to plead malice in order to overcome that defence. At [148] et seq, Nicholson J identified the paragraphs of Mr McDonald’s reply that make reference to a plea of malice (paragraphs 30, viz paragraph 30(c)(i); and paragraph 32). Nicholson J then discussed the decisions of the High Court in Roberts v Bass (Roberts).[90]
[90] (2002) 212 CLR 1 at [8] – [10], [15], [76] – [79], [83] – [84].
Malice may defeat a claim of qualified privilege. What constitutes sufficient malice will depend upon the circumstances. In Roberts,[91] the plurality held that in order to establish malice it is necessary to identify the interest or duty to make a publication and then to identify factors such as knowledge of falsity, recklessness, lack of positive belief in the truth of the statement or the identification of some other motive other than duty or interest to make the publication. Then it is necessary to prove that some or all of these features actuated the publication. There are exceptions so that, for example, a person who was under a legal duty to make the communication will not abrogate the privilege.
[91] Ibid.
A person who knowingly publishes false information will usually lose the benefit of the privilege because such a circumstance ordinarily will involve some improper motive on the part of the person. In Roberts, the plurality emphasised that knowledge of falsity or lack of an honest belief are not to be equated with some separate head or class of malice. The question is whether such conduct constitutes an improper motive.
There are separate questions of fact and degree to be considered. In Roberts, the plurality accepted that in exceptional cases mere recklessness alone or in combination with other circumstances or factors may justify a finding of malice. Such recklessness would or may be the equivalent of wilful blindness on the part of the person making the publication. If that is combined with what may be described as extreme or unreasoned prejudice, such recklessness may be sufficient. It is difficult to see how such a level of prejudice may be anything but unreasoned but this is indicative of the level of conduct necessary to be identified and proved in order to make such a plea of malice.
This in turn brings into sharp focus those issues of pleadings discussed by Nicholson J at [150] et seq of his Honour’s judgment. There his Honour held that it is necessary to properly particularise the factual basis pertinent to each publisher and each publication to substantiate a plea of malice. This, Mr McDonald has not done and he appears incapable of so doing.
At [153] Nicholson J records the relevant circumstances that this plea[92] was the last opportunity (after many) to be given to Mr McDonald to properly plead his case. I agree with Nicholson J that this pleading suffers the same deficiencies as the previous attempts because of the un-particularised assertions of malice. On no view of the facts or law could they be permitted to stand.
[92] FDN 59A of the 2013 action AB 3-71; FDN 2 of the 2014 action AB 621-688.
I also agree with the further findings of Nicholson J at [155]-[156] that when it is known that the defamation proceedings are so far out of time and no plea of a new material fact has been made, the question whether an extension of time would be granted looms large in considerations. I consider that a reasonable inference arises that the absence of a pleading of any new material fact was a deliberate decision on the part of Mr McDonald. This inference reasonably arises due to the number of opportunities given to Mr McDonald to bring in a proper pleading on this topic and the failure to plead any new material fact in the last iteration of the proposed pleading.
I have earlier set out in some detail the tests that are to be addressed on the question of proof of malice and the pleading requirements. Questions of fact will be important in the assessment of these matters. It will also now be clear that these relevant factual matters cover much of the same territory as was covered by Anderson J in the 2004 action. If a proper plea of malice was to materialise, it would need to canvass the same factual material as was canvassed before Anderson J. I agree with the findings made by Nicholson J at [158], [160] and [165] that Mr McDonald should be precluded from doing so because of the operation of the principles of Anshun estoppel, or that an abuse of process arises because he would seek to re-litigate settled controversies. And a plea of malice of the generality of that contained in the identified pleadings cannot be allowed to stand because of its embarrassing nature and it should be struck out. No further permission should be given to Mr McDonald to attempt to re-plead.
I also agree with the decision of Nicholson J at [166] that Mr McDonald’s derivative claim alleged to arise in his favour due to some allegedly wrongful treatment of Brennan McDonald should be struck out. No challenge was made to that decision of Nicholson J in the appeal hearing. I would dismiss appeal ground 30.
Mrs Rhoda McDonald’s claim: appeal grounds 24, 26, 27, 28 and 29
At [169] Nicholson J summarised the basis for the claims sought to be brought by Mrs Rhoda McDonald as a party to be joined to the 2013 proceedings and as a party to the 2014 proceedings. That paragraph reads as follows:
[169] The potential or adverted to bases for Mrs McDonald’s claims, as pleaded
By way of summary, Mrs McDonald makes or adverts to the following causes of action or bases for causes of action.
(i)Breach by the State of South Australia (the 2013 proceedings) and the Minister (the 2014 proceedings) of a duty of care owed to Mrs McDonald not to bully her son, Mr Brennan McDonald and not to bully and otherwise cause personal injury to her husband, Mr McDonald, resulting in personal injury to Mrs McDonald (Mrs McDonald’s “derivative” claims).
(ii)Breach by the State of South Australia (the 2013 proceedings) and the Minister (the 2014 proceedings) of various duties as an employer of Mr McDonald said to arise under the Occupational Health, Safety and Welfare Act 1996 resulting in personal injury to Mrs McDonald.
(iii)Breach by the State of South Australia (the 2013 proceedings) and the Minister (the 2014 proceedings) of section 59(3) of the Civil Liability Act such that the acts and omissions complained of amounted to “serious and wilful acts of misconduct” resulting in personal injury to Mrs McDonald.
His Honour held at [170] that the claims in (ii) and (iii) were untenable. I agree with his Honour’s judgment. Mrs Rhoda McDonald was not ever an employee of any defendant and therefore the OHSW Act had no application. Also, as Mrs Rhoda McDonald was not an employee, the pleading cannot stand generally because there is no plea of any physical harm allegedly suffered by her.
Section 33 of the Civil Liability Act 1936 (SA) provides that a defendant does not owe a duty to a plaintiff not to cause mental harm except in quite specific and confined circumstances of foreseeability and s 53 of the Civil Liability Act 1936 (SA) prescribes the very limited circumstances in which a party may be awarded damages for mental harm. The proposed pleaded claims are linked to the consequence for Mrs Rhoda McDonald of the treatment of Brennan McDonald and Mr McDonald and for Mr McDonald arising from the treatment of Brennan McDonald. These are rolled up pleadings that attempt to render actionable at the suit of those plaintiffs every sleight which they perceive or was communicated to them by one or the other of Brennan McDonald and Mr McDonald. This includes what is typically described as the compounding effect of those matters.
This approach is flawed for many reasons. There is no pleading of an incident or accident in respect of Brennan McDonald and so an essential integer of pleading is absent. In the context of Mr McDonald and following the decision of the High Court in King v Philcox,[93] in the absence of a pleading of an occurrence or an event, the pleading of a litany of interpersonal events is insufficient to satisfy the requirements of the section. I also agree with his Honour’s findings at [181] and [186] that at common law, the pleaded facts do not support a finding that any defendant owed Mr McDonald a duty of care in the context of their conduct towards Brennan McDonald, or to Mrs Rhoda McDonald in the context of their conduct towards Brennan McDonald and Mr McDonald. These matters were not seriously ventilated in the appeal and it is only necessary that I indicate my general agreement with the conclusions expressed by Nicholson J at [186], [191] and [193]. I agree with the further findings made by Nicholson J at [194]-[196] and the conclusions and orders of his Honour at [197]-[200] inclusive. I would dismiss appeal grounds 24, 26, 27, 28 and 29.
Appeal grounds 21, 22 and 23: appeal against the refusal of Nicholson J to recuse himself; appeal against the decision of Nicholson J refusing to restrain the defendants’ solicitors
[93] (2015) 255 CLR 304.
I have earlier mentioned that prior to the commencement of the defendants’ application to dismiss the 2013 and 2014 proceedings, Nicholson J heard the plaintiffs’ application that he recuse himself from further hearing. It was alleged that there was an apparent apprehended bias described as a conflict of interest resulting from previous involvement by Nicholson J in various matters raised by Mr McDonald. His Honour published reasons refusing this application.[94]
[94] McDonald and Anor v State of South Australia; McDonald and Ors v Minister for Education and Child Development and Ors [2015] SASC 141 at [9]-[11]; AB 512-513.
As I have earlier indicated, very few, if any, submissions were put to this court on this topic and I am unable to identify any error being complained of by the appellant. The plaintiffs/appellants applied to the Full Court for permission to appeal against the earlier decision of Nicholson J, which permission was refused, and a further application for special leave to appeal to the High Court was dismissed.[95]
[95] McDonald and Anor v State of South Australia; McDonald and Ors v Minister for Education and Child Development and Ors [2016] SASCFC 39; AB 605; [2017] HCASL 1; AB 611.
The State of South Australia pointed out that in relation to appeal grounds 21, 22 and 23 an error has been identified in the affidavit evidence read in the applications before Nicholson J[96] about the positions of the three individually named defendants in the 2014 proceedings. This came to light only after the recusal and restraint application had been disposed of by the court and there were no further applications on those issues. Allied to that issue was a question of a mis-description by the State of South Australia of the position of Ms Hyde. I have earlier identified that Ms Hyde acted as a District Superintendent but the affidavit of Mr Calvert deposed to the fact that Ms Hyde held an appointment under the PSM Act, similar to Mr Mackie. That was an error. That material was read in evidence before Nicholson J.[97] The correct description of the position of Ms Hyde was that she held an appointment under the Education Act 1972 (SA) as a District Superintendent.[98] In the result, Ms Hyde did not have the protection under s 74 of the Public Sector Management Act (SA) same as Mr Mackie. However, as I have already indicated, Nicholson J dismissed the claim against Ms Hyde under s 54(4a) of the WRC Act;[99] also on the basis of an Anshun estoppel and or an abuse of process by re-litigation;[100] and also on the basis that there has been delay and the pleadings are hopelessly inadequate. I have earlier agreed with and accepted his Honour’s decision. I would dismiss appeal grounds 21, 22 and 23.
[96] Affidavit of Steven Calvert prepared for the Federal Court proceeding: AB 450; affidavit of Michael Papps 15 April 2016: AB 475.
[97] Ms Hyde was the sixth respondent in the Federal Court proceedings before Besanko J; as to the assertion of Ms Hyde holding an appointment under the Public Sector Management Act AB 471; see generally the affidavit of Loretta Maria Condoluci filed 23 February 2016 AB 446-449.
[98] Affidavit of Michael Papps paragraphs 4 – 21; AB 476-478.
[99] Judgment at [105]; AB 568-569.
[100] Judgment at [98] – [102] and [117]; AB 566-572.
Conclusion
I would dismiss each ground of appeal which I have summarised in [58] above.
As a result of the way that Mr McDonald argued this appeal, it essentially became a re-litigation of the same arguments as were put to Nicholson J. This has given rise to a tendency to write these reasons in like manner. In the absence of the appellant pointing to error in the approach of Nicholson J the argument becomes that the findings made were not open.
As has been seen, far from concluding that the findings made by Nicholson J were not open, I agree with all of the conclusions his Honour reached.
I would dismiss the appeals.
GILCHRIST AJ: I have read the decision of Slattery AJ and agree that the appeal should be dismissed for those reasons.
(a) a worker suffers a compensable disability (not being a disability that arises out of the use of a motor vehicle and gives rise to a liability of a kind referred to in subsection (2)); and
(b)the disability is attributable to the negligence of another worker—
(i)who was acting in the course of employment with the same employer; and
(ii)whose negligence did not arise from, or in the course of, serious and wilful misconduct,
the worker has no right of action against the other worker.
(1)In this Act, unless the contrary intention appears—
the Minister means the Minister of Education or any other Minister of the Crown for the time being exercising and discharging the functions and responsibilities of the Minister of Education;
(1)The Minister—
(a)shall be a body corporate with perpetual succession and a common seal; and
(b)shall be capable in his corporate name of acquiring, holding and disposing of real and personal property; and
(c)shall be capable of acquiring or incurring any other legal rights and liabilities and of suing or being sued; and
(d)shall have the powers, authorities, duties and obligations prescribed by or under this Act.
(2) Where an apparently genuine document purports to bear the common seal of the Minister, it shall be presumed, in the absence of proof to the contrary, that the common seal of the Minister was duly affixed to that document.
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