Wilczynski v District Court of South Australia - [2022] SASCA 144

Supreme Court of South Australia
(Court of Appeal: Civil)
WILCZYNSKI & ANOR v DISTRICT COURT OF SOUTH AUSTRALIA & ORS
[2022] SASCA 144
Judgment of the Honourable President Livesey (ex tempore)
6 December 2022
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
The applicants filed a notice of appeal against the decision of an appeal judge by which he allowed the application for judicial review challenging a minor civil decision.
The notice of appeal set out 29 grounds of appeal and sought seven orders, a number of which were outside the power of the court of appeal to grant.
An interlocutory hearing was listed before a single judge of the Court of Appeal to provide the applicants an opportunity to clarify the basis for the appeal proceedings in circumstances where they were successful in the judicial review proceedings before the appeal judge.
The Court held:
1.There is no basis for the application to disqualify the judge from proceeding with the hearing.
2.The notice of appeal was abuse of process and ought to be struck out pursuant to rule 212.5 of the Uniform Civil Rules 2020 (SA).

Uniform Civil Rules 2020 (SA) r 32.3, 212.5, referred to.
Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; LE v The Public Advocate [2021] SASCA 55 ; JLS v Chief Executive of Dept for Child Protection [2021] SASCA 136, considered.

WILCZYNSKI & ANOR v DISTRICT COURT OF SOUTH AUSTRALIA & ORS
[2022] SASCA 144
Court of Appeal - Civil
LIVESEY P.

Introduction

This matter today concerns a notice of appeal which has been filed by Mr and Mrs Wilczynski, the appellants, following a judgment published by Blue J on 13 October 2022. The notice of appeal contains 29 separate grounds of appeal, and seven orders are sought. Those orders are as follows:
1. Restoration of the factual state of the Court Records for the period from 2014 to 2022.
2. Annulment of the Decision of Judge Slattery [2020] SADC 153.
3. Annulment of the Decision of Justice Blue [2022] SASC 115.
4. Reimbursement of costs and losses to which we were exposed by the Courts and 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.
5. 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.
6. Compensation to be assessed for protracted lawsuits; exposure to undue stress, humiliation and intimidation; secondary victimisation and disruption to our private lives for eight years by the State and Ms Matejko and Oknalux.
7. Order the respondents to pay the costs of the Appeal.
This appeal was referred to me by the registry, seeking directions pursuant to r 13.3 of the Uniform Civil Rules 2020 (SA). 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 2020 (SA).
I have called the matter on today so as to afford the appellants an opportunity to address these issues.[1]
[1] Mr Priestley has attended as a courtesy but he has not been called upon.
Before I come to the issues, at the outset Mr and Mrs Wilczynski made an application that I disqualify myself from proceeding with today's hearing.
The application for disqualification
At the hearing I was handed a copy of an interlocutory application dated

2 August 2021 which, at paragraph 2, mentions me along with a number of other judges as being disqualified by reason of what is described as a “conflict of interest”.
Mr Wilczynski has very helpfully provided me with a bundle of material this morning which demonstrates that, during 2017 he and Mrs Wilczynski made a complaint against their former barrister about his conduct of their matter. That complaint was considered by me in my capacity as Chairman of the Professional Responsibility Committee of the South Australian Bar Association.
After reviewing the large volume of evidence provided, I made a ruling that it was appropriate to take no action in accord 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 rule 137(f) would require. I indicated that the complaint should “now be treated as being at an end”.
Mr Wilczynski has pointed out that he was dissatisfied with that ruling and wrote to me on 14 April 2019, indicating his views about my ruling.
When I inquired today what it was about that ruling that disqualified me from proceeding with the hearing today, it was said to me that my ruling affected the capacity of Mr and Mrs Wilczynski to pursue a claim in negligence against their former barrister. It was also suggested my ruling affected a number of other legal rights of Mr and Mrs Wilczynski.
With great respect, those views, whilst no doubt genuinely held, are wrong in law. The ruling made by me addressed, and addressed only, the complaint which was made to the South Australian Bar Association. I made no ruling or finding which extended beyond the complaint. My ruling had no impact on Mr and Mrs Wilczynski’s legal rights and it did not preclude them from pursuing a claim in negligence, if they wished, against their former barrister.
Consistently with the ruling of the High Court in Ebner v The Official Trustee in Bankruptcy, no basis has been disclosed for a finding that I am disqualified from proceeding with the hearing of the matter this morning.[2]
[2] Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337.
The notice of appeal
The background to this long-running litigation is that Mr and Mrs Wilczynski participated in a minor civil action in the Magistrates Court some years ago. Being dissatisfied with the outcome, a review was pursued in the District Court. Being dissatisfied with the outcome of that, an application for judicial review was made and ultimately upheld by the Full Court.[3] After that, Mr and Mrs Wilczynski made an application to the High Court of Australia for special leave to appeal but that application was dismissed.
[3] Wilczynski v District Court of SA [2017] SASCFC 102.
The District Court review then proceeded before a different District Court judge. Being dissatisfied with the outcome of that review, another application for judicial review was pursued in the Supreme Court and that was heard and determined by Blue J. His Honour found that there were jurisdictional errors made by the District Court judge and he ordered that the orders made in the District Court on 29 October 2020 be set aside and the minor civil action review be remitted for a fresh hearing and determination before another judge of the District Court.[4]
[4] ‘Record of Outcome – Judgment’ made by Blue J on 3 November 2022.
The notice of appeal filed by Mr and Mrs Wilczynski was lodged before final orders were made in the proceedings by Blue J. Nonetheless, as final orders were later made on 3 November 2022 the notice of appeal is not problematic for that reason, though an amendment would be required.
The essential difficulty with the notice of appeal is that the appellants, having made an application for judicial review, succeeded with that application. They obtained the relief to which they were entitled, which was the setting aside of the earlier decision and a fresh hearing in the District Court. Mr and Mrs Wilczynski were not able to explain what more they could properly have hoped to achieve from the hearing before Blue J.
Mr and Mrs Wilczynski’s contentions
In answer to my questions this morning, Mr and Mrs Wilczynski have explained that, amongst other things, they want the Court of Appeal to restore the record, or as it is described in the orders which are sought, “The factual state of the Court Records”. To the extent that I understand what this order seeks, I have explained that that is beyond the jurisdiction of the Court of Appeal.
Next, Mr and Mrs Wilczynski have explained that they wish to pursue, amongst other relief, the various claims for compensation that they set out in the orders sought. I have explained that claims such as these fall outside the proper ambit of an application for judicial review.
Finally, Mr and Mrs Wilczynski, really Mrs Wilczynski in particular, are most aggrieved that the proper parties have not been before the court and those parties have not been properly represented. I am not in a position to address that complaint during the hearing this morning or otherwise get to the bottom of precisely what it is that Mr and Mrs Wilczynski seek. It is far from clear that any issue about the proper parties was thought by Blue J to preclude success on the judicial review application.
The issue may be that not all parties attended today. Needless to say, concerns such as these can be addressed in the District Court on the remittal of the review.
Conclusion
In all of these circumstances, the notice of appeal is properly viewed as an abuse of process. I strike it out (together with the grounds of appeal) pursuant to r 212.5 of the Uniform Civil Rules 2020 (SA).[5]
[5] See LE v The Public Advocate [2021] SASCA 55 and JLS v Chief Executive of Dept for Child Protection [2021] SASCA 136.
I will make no order as to costs.