Wilczynski v District Court of South Australia - [2023] SASCA 82

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
WILCZYNSKI & ANOR v DISTRICT COURT OF SOUTH AUSTRALIA & ORS
[2023] SASCA 82
Judgment of the Court of Appeal (ex tempore)
(The Honourable Justice Bleby and the Honourable Justice David)
2 August 2023
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT - GENERALLY
PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - INHERENT AND GENERAL STATUTORY POWERS - TO PREVENT ABUSE OF PROCESS
COURTS AND JUDGES - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS
This is an application for leave to appeal against a decision of a single judge striking out the applicants’ Notice of Appeal from a decision on an application for judicial review of a minor civil review in the District Court, pursuant to r 212.5 of the Uniform Civil Rules 2020 (SA). The judge struck out the Notice of Appeal on the basis that it constituted an abuse of process. The applicants had been successful on the application for judicial review and the matter was remitted to the District Court.
The applicants have filed amended appeal grounds containing 51 separate grounds of appeal and seeking 13 orders. Broadly speaking, the applicants contend that the judge failed to have regard to a number of facts and findings made throughout the lengthy history of this matter. The applicants also allege that the judge did not explain on what basis the Notice of Appeal was an abuse of process and that he did not adequately justify his findings. They further claim that he erred in failing to disqualify himself from hearing the application. The applicants’ final ground asserts that the order deprives them of the opportunity to assert their rights and exposes them to secondary victimisation.
Held (by the Court), refusing leave to appeal:
1. The judge did not err in not disqualifying himself from hearing the application.
2.The Notice of Appeal fails to engage with the fact that the applicants obtained the only relief to which they were entitled, which was the setting aside of the earlier decision and a fresh hearing in the District Court.

Barristers’ Conduct Rules (SA) r 137; Uniform Civil Rules 2020 (SA) rr 32.3(1)(c), 212.5, referred to.
Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; M, K v Chief Executive of the Department for Child Protection [2021] SASCA 27; Southern Wire Pty Ltd v Clover Communications Pty Ltd [2023] SASCA 18; Wilczynski & Anor v District Court of South Australia & Ors [2022] SASCA 144; Wilczynski v District Court of South Australia [2017] SASCFC 102; Wilczynski v District Court of South Australia [2022] SASC 115; Wyness v Roennfeldt [2023] SASCA 77, considered.

WILCZYNSKI & ANOR v DISTRICT COURT OF SOUTH AUSTRALIA & ORS
[2023] SASCA 82
Court of Appeal – Civil: Bleby and David JJA

THE COURT (ex tempore):     The applicants seek leave to appeal against a decision of Livesey P on 6 December 2022[1] striking out the applicants’ Notice of Appeal in respect of an earlier decision of this Court,[2] on the basis that the Notice of Appeal constituted an abuse of process.[3]
[1] [2022] SASCA 144.
[2]     Wilczynski v District Court of South Australia [2022] SASC 115.
[3]     R 212.5 of the Uniform Civil Rules 2020 (SA).
On 21 December 2022, the applicants filed amended appeal grounds, alleging 51 separate grounds of appeal against Livesey P’s decision and seeking 13 orders. Broadly speaking, the applicants contend that Livesey P failed to have regard to a number of facts and findings made throughout the lengthy history of this matter. The applicants also allege that his Honour did not explain on what basis the Notice of Appeal was an abuse of process and that he did not adequately justify his findings. The applicants’ final ground asserts that the order of Livesey P deprives them of the opportunity to assert their rights and exposes them to secondary victimisation. Consequently, the applicants seek the following 13 orders:
1. Restoration of the factual and legal state of the Court Records for the period from 2014 to 2022.
2. Setting aside the Decision of Judge Slattery [2020] SADC 153.
3. Setting aside the Decision of Justice Blue [2022] SASC 115.
4.     Setting aside the Decision of Justice Livesey – CIV-22-011993, FDN 4.
5.     Explanation of a violation of our rights, which have occurred in state courts.
6. Determining the parties to the court process and the scope of their liability in accordance with the facts and law.
7. Confirmation of the responsibility of Mrs Matejko and Oknalux for abuse of the process, violation of our rights in court processes and violating of our personal rights, including basic human rights - the right to a fair trial in a reasonable time.
8.Reimbursement of costs and losses to which we were exposed by the Courts, the Court Administration, Ms Matejko and Oknalux Pty Ltd in total over $200,000.00 plus interest by the State, Ms Matejko and Oknalux Pty Ltd.
9. Compensation for my wife’s business losses and my professional losses of approximately $350,000.00 as a result of unfair trials and excessive length of court proceedings by the State, Ms Matejko and Oknalux Pty Ltd.
10. Compensation to be assessed for protracted lawsuits; violation of our basic human rights - the right to a fair trial at a reasonable time; exposure to a false accusation before the Federal Court SAD188-20; exposure to undue stress, humiliation and intimidation; secondary victimisation and disruption to our private lives for nine years by the State, Ms Matejko and Oknalux. The amount will be presented during the trial.
11.     Order the respondents to pay the costs of the Appeal.
12.     Supplementing the court files in case SCCIV-15-1564 with missing documents.
13.     Supplementing the court files in case CIV-21-000033 with missing documents.
Background
This is long-running litigation. In 2014, Mrs Wilczynski was defendant and counterclaimant in a minor civil action in the Magistrates Court concerning the supply and installation of some windows and doors. The claim was dismissed, and Mrs Wilczynski was successful on the counterclaim, but not to the full value counterclaimed. She unsuccessfully sought to review the outcome of that matter in the District Court, during which proceedings Mr Wilczynski was joined, as was a further respondent, Oknalux Pty Ltd.
The applicants then applied for judicial review of the District Court decision, essentially on the grounds alleging a want of procedural fairness. A single judge dismissed the application and the applicants appealed. The Full Court allowed the appeal on the basis that the District Court judge had permitted an expansion of the controversy to include a further respondent but did not adjudicate that controversy.[4] The Full Court remitted the matter to the District Court for rehearing of the minor civil review and ordered that each party was to bear their own costs of the judicial review and of the appeal.
[4] Wilczynski v District Court of South Australia [2017] SASCFC 102.
The applicants then made an application to the High Court of Australia for special leave to appeal, which was dismissed.
A different District Court judge then reheard the minor civil review. That judge ordered:[5]
1.   The application for review of the decision of the learned Magistrate about the liability of the partners of Varmhus for the supply of windows and doors is dismissed.
2.   The counterclaim against Oknalux Pty Ltd is dismissed.
3.   The Court is not in a position to pronounce upon the rights of the applicants against Mr Dubec or Mr Banasiak as those persons have not been served with the application for review and are not responding parties before the court.
[5]     See Wilczynski v District Court of South Australia [2022] SASC 115 at [9].
The applicants brought an application for judicial review of this decision. Blue J, who heard that application, found that the District Court judge made several jurisdictional errors that were material. He set aside the District Court orders of 29 October 2020 and ordered that the minor civil action review was to be remitted for a fresh hearing and determination before another judge of the District Court.[6]
[6] Wilczynski v District Court of South Australia [2022] SASC 115.
The hearing before Livesey P
The applicants filed a Notice of Appeal from Blue J’s decision. That Notice of Appeal contained 29 separate grounds of appeal and sought seven orders. The Notice of Appeal was referred to Livesey P by the registry, seeking directions pursuant to r 13.3 of the Uniform Civil Rules. The Deputy Registrar was concerned that the appeal was ‘frivolous, vexatious, scandalous or an abuse of the process of the Court’ within the meaning of r 32.3(1)(c) of the Uniform Civil Rules.
Application for disqualification
The applicants applied for Livesey P to disqualify himself from hearing the application. His Honour addressed that application first. The basis of the application was expressed to be that Livesey P was disqualified due to a ‘conflict of interest’. In 2017, the applicants had made a complaint against their former barrister about his conduct of their matter. Livesey P, who was then a member of the South Australian Bar, had considered the complaint in his capacity as Chair of the Professional Responsibility Committee of the South Australian Bar Association. He made a ruling that it was appropriate to take no action in accordance with r 137(e) of the Barristers’ Conduct Rules of the South Australian Bar Association, because there was no prima facie case for a finding of breach by the barrister, as was required by r 137(f). He indicated that the complaint should ‘now be treated as being at an end’.
At the hearing of the application for permission to appeal, the applicants submitted that Livesey P’s earlier ruling affected their capacity to pursue a claim in negligence against their former barrister. They also suggested this ruling affected several of their other legal rights. His Honour held that the ruling addressed, and addressed only, the complaint which was made to the South Australian Bar Association. He concluded that the ruling had no impact on the applicants’ legal rights and did not preclude them from pursuing a claim in negligence against their former barrister. He held that the applicants had disclosed no basis for a finding that he was disqualified from the hearing.[7]
[7] Citing Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337.
Livesey P’s consideration of the Notice of Appeal
Livesey P considered that the essential difficulty with the Notice of Appeal from the decision of Blue J was that the applicants had succeeded in their application for judicial review. They obtained the relief to which they were entitled, that being the setting aside of the earlier decision and a having fresh hearing in the District Court.
The Appeal Grounds attached to that Notice of Appeal are difficult to follow. They include various complaints of omissions from the judgment of Blue J of various historical factual matters. They also include a complaint with respect to the extent of liability of one of the cross-defendants on the original counterclaim and a complaint to the effect that the decision was ‘with incorrect parties’.
Before Livesey P, the applicants articulated that, among other things, they wanted the Court of Appeal to restore ‘[t]he factual state of the Court Records’. His Honour held that to the extent that he understood what was sought, it was beyond the jurisdiction of the Court of Appeal. The applicants also sought to pursue claims for compensation in respect of business losses and costs that were articulated in the orders sought. These losses were claimed to be in the hundreds of thousands of dollars. His Honour’s reasons record that he explained that such claims fall outside the proper ambit of an application for judicial review.
Finally, Livesey P’s reasons record the applicants’ submissions to the effect that the proper parties had not been before the Court and that those parties had not been properly represented. His Honour indicated that he was not in a position to address that complaint or otherwise determine precisely what the applicants sought. He concluded that such issues could be addressed in the District Court on the remittal of the minor civil review.
Consequently, his Honour held that the Notice of Appeal constituted an abuse of process and struck it out, pursuant to r 212.5 of the Uniform Civil Rules.
Leave to appeal
The Notice of Appeal from the decision of Livesey P expresses 51 grounds of appeal. The applicants seek leave to appeal on the following grounds, as expressed by them:
1.     As explained in my Grounds of Appeal.
2.     According to the facts supported by court records, we have not abused the process.
3. Unknown reasons and lack of justification for the order CIV-22-011993, FDN 4 by the Honourable Justice Livesey. This order deprives us of the possibility of asserting our rights, the right of defence and exposes us to secondary victimization.
4. Refusal to restore the factual and legal status of Court Records for the years 2014‑2022.
5. The Honourable Justice Livesey overlooked the fact that the Honourable Justice Blue granted us a rehearing in the District Court contrary to our applications. This order disregards the facts and deprives us of the possibility of asserting our rights, the right of defence and exposes us to secondary victimization.
6. The Honourable Justice Livesey overlooked the fact that that Ms Matejko and Oknalux have violated our rights and exposed us to years of unfair lawsuits and huge costs that we cannot claim in a minor civil case and/or in a new lawsuit.
7. The Honourable Justice Livesey declined to exclude Himself from this trial, despite being involved in this case since 2017.
8. These State Court proceedings exposed us to false accusation before the Federal Court SAD188-20.
9.     Wrong parties to court proceedings and the scope of the case.
10. Incorrectly classifying a lawsuit as a minor civil case after the parties to the trial were exchanged (Ms Matejko t/a Varmhus for Oknalux).
11. The right to a fair trial within a reasonable time. Denial of procedural fairness and unequal treatment.
12.     A breach of our constitutional rights.
As noted by this Court in Southern Wire Pty Ltd v Clover Communications Pty Ltd,[8] the question of whether to grant leave to appeal looks to the following considerations:[9]
·whether the decision is attended with sufficient doubt to warrant its reconsideration on appeal;
·whether the decision raises an issue of general principle or importance; and
·whether allowing the decision to stand would work a substantial injustice to the applicant.
[8] [2023] SASCA 18; see also Wyness v Roennfeldt [2023] SASCA 77 at [29].
[9] M, K v Chief Executive of the Department for Child Protection [2021] SASCA 27 at [7] (Doyle and Livesey JJA).
The applicants set out the lengthy procedural history in their written submissions. It is not necessary to traverse that history.
It is convenient to start with Ground 45 of the Notice of Appeal, which complains that Livesey P in his former role of the Bar Association’s Professional Responsibility Committee was ‘dealing with’ the applicants’ complaint and had been involved with their case since 2017. However, the applicants have not addressed the substance of Livesey P’s decision that his ruling in his previous capacity only addressed the complaint they made to the Bar Association and did not extend to anything concerning their legal rights.
The principle governing questions of apprehended bias are well understood. In Ebner v The Official Trustee in Bankruptcy, the High Court described it as being that:[10]
… a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.
[10] Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6].
The mere fact that Livesey P made a ruling in his former capacity about the applicants’ complaint about their former barrister does not give rise to a reasonable apprehension of bias when considering the question to grant leave to appeal against the decision of Blue J. This ground is not reasonably arguable.
Turning to the balance of the matters raised on the Notice of Appeal, the applicants submitted that Livesey P was ‘unable to convey’ to them the concerns raised by the Deputy Registrar or to explain how the content of their Notice of Appeal that was ‘frivolous, vexatious, scandalous or an abuse of the process of the Court’. The Notice of Appeal complains that this failure amounted to a denial of procedural fairness. The applicants assert that his Honour overlooked that the Deputy Registrar had been negligent in the administration of the Court, leading to the applicants being ‘groundless[ly] accused of an abuse of process’. They further contended that Livesey P overlooked ‘many other facts’, including the following, which we quote directly from the first applicant’s written submissions:[11]
[11] Written Submissions of Joseph Wilczynski at [65].
- Magistrate Milazzo refused to allow Mr. Wilczynski to join the court case ELCCI-14-3109 as a party,
- The Full Court Judgment [2017] SASCFC 102 confirmed that the Wilczynskis did not have a fair trial in the lower courts.
- This decision allowed Ms Matejko, as a partner of Varmhus, to avoid liability, and Oknalux to join the trial, where no claims have been filed against Oknalux.
- Mr and Mrs Wilczynski appealed against the decision of the Full Court to the High Court of Australia A31 of 2017. [E1-2.]
- On 29.11.2019, for unknown reasons, the Supreme Court initiated a hearing of the District Court DCCIV-14-1811 with Judge Slattery. Forcing Mr and Mrs Wilczynski to a court trial to an extent unknown to them.
- Judge Slattery’s Judgment [2020] SADC 153 [G8.] was set aside by Justice Blue [2022] SASC 115 [H5.].
-      Judge Blue issued orders to the extent that the Wilczynskis did not bring to the court.
- The lawsuits were conducted in disregard of the Wilczynskis' rights and in disregard of the facts.
- Mr and Mrs Wilczynski cannot be forced to lawsuits regarding contracts they did not conclude.
- The costs and losses to which Mr and Mrs Wilczynski were exposed as a result of errors of the courts and lawyers, negligence of the judicial administration, actions of Ms Matejko as a partner of Varmhus and Oknalux amount to over $200,000 and cannot be qualified as a small civil case.
-      There have been collective violations of procedures and our rights in lawsuits.
-      Etc.
The applicants contended that the lengthy ‘facts’ set out in their written submissions show that they did not commit an abuse of process. They submitted that these facts show that their ‘fundamental human rights have been flagrantly violated’.
The applicants also complain, and made extensive oral submissions, about the joinder of the second respondent to the proceedings in the District Court. It appears, however, that the joinder was not opposed at the time. This Court is not in a position to address that complaint on this application for leave to appeal.
More broadly, the applicants’ submissions extended to complaints that they have received no access to justice, no fair hearing and no hearing within a reasonable time. They further submitted that no South Australian judge is able to hear the matter, as the Chief Justice has previously presided over their matters. They also complain that the assistant to the District Court judge who heard the minor civil review was the daughter of the Chief Justice.

The Notice of Appeal contains some further complaints that can be separately identified. Ground 3 complains that Livesey P erred in not restoring ‘the factual and legal state of the Court Records for the period from 2014 to 2022’. The applicants contended that without this, they cannot successfully assert their rights which, in their submission, is a breach of the right to a fair trial.
Livesey P’s reasons record that to the extent that he was able to understand this submission, he explained to the applicants that the Court of Appeal cannot restore ‘the factual and legal state of the Court Records. The applicants were here seeking relief that went beyond the Court’s jurisdiction.
Ground 33 of the Notice of Appeal complains that there was a ‘procedural clash’, as a mediation before Blue J in file number CIV-21-000033 was preceded by the decision of Livesey P. The applicants sought to have the hearing before Livesey P rescheduled to after the mediation before Blue J on 12 December 2022. In their submission, this precluded them from having a fair mediation. The applicants have not addressed this in their written submission. It is unclear how they say the decision of Livesey P affected their hearing. The applicants have not identified any arguable error in this regard.
These observations do not cover the breadth of the grounds of appeal. It is unnecessary to do so. The applicants were successful on the application for judicial review. The Notice of Appeal fails to engage with the fact that, as Livesey P noted, the applicants obtained the only relief to which they were entitled, which was the setting aside of the earlier decision and a fresh hearing in the District Court.
It follows that the applicants have failed to show that Livesey P’s decision was attended with sufficient doubt to warrant its reconsideration on appeal. The Notice of Appeal from the decision of Blue J complains about not having obtained relief to which the applicants were not entitled on the application for judicial review. The decision of Livesey P does not raise an issue of general principle or importance. Allowing the decision to stand would not work a substantial injustice to the applicants.
The complaints now made do not go to the decision of Livesey P alone but rather to the procedural history which, in the applicants’ submission, have denied them access to justice, a fair hearing and one within reasonable time. The Court of Appeal is not the right forum in which to pursue these complaints. The applicants’ concerns can be addressed in the District Court on the remittal of the review.
Conclusion
The orders of the Court will be:
1.Mrs Matejko has leave to represent Oknalux Pty Ltd on the hearing of this application.
2.We refuse leave to appeal.