ATTORNEY-GENERAL In Person [2026] SASC 19

Applicant: ATTORNEY-GENERAL In Person Counsel: MR B GARNAUT - Solicitor: CROWN SOLICITOR (SA) Respondent: MR F.T MCDONALD In Person Hearing Date/s: 02/02/2026 File No/s: CIV-21-010182 B SUPREME COURT OF SOUTH AUSTRALIA (Civil: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. ATTORNEY-GENERAL v MCDONALD [2026] SASC 19 Judgment of the Honourable Justice Gray (ex tempore) 2 February 2026 PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - VEXATIOUS LITIGANTS, PROCEEDINGS AND RELATED MATTERS - OTHER MATTERS This is an application for permission to institute proceedings in this Court by Mr McDonald. The application is brought in action number CIV-21-010182, that is the vexatious litigant proceedings. The question before the Court to be considered is whether Mr McDonald should have permission to file the proposed proceedings, being the proceedings annexed to Mr McDonald’s affidavit. Mr McDonald sought to file proceedings against the Minister for Education. Mr McDonald also argued, in addition to naming the Minister for Education as a respondent that the claim itself has never been considered on its merits and, in those circumstances, ought not be captured by the orders previously made by Bampton J in Attorney-General (SA) v McDonald & Anor [2024] SASC 67. Held, dismissing the application for leave to file pursuant to section 39(1) of the Supreme Court Act 1935 (SA): (1) The proposed statement of claim is an attempt to institute a proceeding which raises the same subject matter over which Mr McDonald has been declared a vexatious litigant: [16] (2) The prior judgments to which Mr McDonald refers are void ab initio as opposed to valid until set aside; Re Macks; Ex parte Saint [2000] HCA 62 at [217]-[218]; see also Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11: [31] (3) There are strong discretionary reasons as to why the orders of Bampton J being valid orders a declaration should not now be made granting permission for the proceedings to be instituted: [32] Supreme Court Act 1935 (SA) s 39, s 39(1); Uniform Civil Rules 2020 (SA) r 32.4; Workers Rehabilitation and Compensation Act 1986 (SA) s 54; Education Act 1972 (SA) s 7, referred to. Attorney-General (SA) v McDonald & Anor [2024] SASC 67; Re Macks; Ex parte Saint [2000] HCA 62, discussed. -- 1 of 9 -- Attorney-General (SA) v McDonald & Anor [2024] SASC 67; Attorney-General v Kowalski (No 5) [2017] SASC 120; McDonald & Anor v Attorney-General (SA) (No 4) [2025] SASCA 43; McDonald v State of South Australia [2008] SASC 134; Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; South Australia v McDonald [2009] SASC 219, considered. -- 2 of 9 -- ATTORNEY-GENERAL v MCDONALD [2026] SASC 19 Civil GRAY J: 1 On 24 May 2024, on application of the Attorney-General (SA), Bampton J ordered that Francis Thomas McDonald (Mr McDonald), was prohibited from instituting further proceedings in a prescribed court, without permission from this Court. Justice Bampton also permanently stayed any proceedings already instituted by Mr McDonald, pursuant to s 39(1) of the Supreme Court Act 1935 (SA) (‘SC Act’).1 Mr McDonald was declared to have persistently instituted vexatious proceedings.2 The same orders were made in respect of Mr McDonald’s wife. 2 The orders of Bampton J were subsequently appealed to the Court of Appeal unsuccessfully. Leave was not granted in respect of the appeal insofar as it was required, and the appeal was dismissed.3 The High Court refused a special leave application.4 3 The matter before the Court today concerns an application for permission to institute proceedings in this Court by Mr McDonald. The application is brought in action number CIV-21-010182, that is the vexatious litigant proceedings. The question before me today is whether Mr McDonald should have permission to file the proposed proceedings, being the proceedings annexed to Mr McDonald’s affidavit. 4 In the vexatious litigant proceedings Bampton J held in respect of the procedural history of the past two decades concerning the type of litigation instituted by Mr McDonald and his wife as follows:5 For over 20 years, the State of South Australia has been vexed by defending the inordinate number of proceedings commenced or attempted to be commenced by Mr and Mrs McDonald. Identifying the “true identity” of the defendant(s) in these proceedings has consumed Mr McDonald despite the defence having made plain that no point has, or will be, taken with the identity of the defendant, and that vicarious liability is admitted by the State. Further, as a Judge of this Court noted, the proper forum for the “heartland” of Mr McDonald’s claims was the Worker’s Compensation Tribunal, given that s 54 of the Workers Rehabilitation and Compensation Act 1986 (SA) (“the WRC Act”) operates to prevent those claims being prosecuted in this Court. The characterisation of his former employer and whether the “heartland” of his claims can be prosecuted in this Court are 1 Attorney-General (SA) v McDonald & Anor [2024] SASC 67 (Bampton J). 2 Attorney-General (SA) v McDonald & Anor [2024] SASC 67 at [179] (Bampton J). 3 McDonald & Anor v Attorney-General (SA) (No 4) [2025] SASCA 43 (Livesey P, S Doyle and Bleby JJA). 4 [2025] HCA Disp 129. 5 Attorney-General (SA) v McDonald & Anor [2024] SASC 67 at [3] (Bampton J). -- 3 of 9 -- [2026] SASC 19 Gray J 2 issues that have been finally determined. Regardless, Mr McDonald has wilfully sought time and time again to relitigate these settled controversies. (citations omitted) 5 Mr McDonald seeks to commence proceedings against the Minister for Education (‘the Minister’) and file and serve a proposed statement of claim as annexed to the affidavit of Mr McDonald affirmed on 24 December 2025.6 Mr McDonald states in a number of documents the application he seeks to make. The nature of the orders sought are as follows: 1. Pursuant to s 39 of the Supreme Court Act 1935 (SA), leave be granted to file this application and supporting material;7 2. Pursuant to s 39 of the Supreme Court Act 1935 (SA) and/or per the Court’s inherent jurisdiction, a declaration be made that the order made by Bampton J on 24 May 2024 in action CIV-21-010182, declaring Mr McDonald to have persistently instituted vexatious proceedings, does not apply to the proposed statement of claim; 3. Costs in the cause; and, 4. Such other orders this Court deems fit. 6 The affidavit supporting the application contains a proposed statement of claim. The proposed statement of claim seeks to establish that a prima facie case for breach of contract and negligence arises from Mr McDonald’s employment as a teacher by the Minister. The grounds upon which the application is brought include the following: 8 1. The Proposed Claim discloses a prima facie arguable cause of action for breach of contract and negligence arising from the Applicant's employment as a teacher. 2. The Proposed Claim is founded on a clear and arguable legal principle, established by the High Court in Byrne v Australian Airlines Ltd (1995) 185 CLR 410, that an employer acting under a statutory framework has no unilateral power to fundamentally vary the nature of an employee's statutory appointment. The Respondent's sustained conduct, as pleaded, constituted a series of unlawful attempts to vary the Applicant's statutory appointment as a teacher, rendering the purported variations void. 3. The 2008 proceeding was brought against the incorrect legal entity ("The State of South Australia") and not against the true contracting party and employer, the Minister for Education (a body corporate by virtue of section 7 of the Education Act 1972). 4. The stare decisis principle confirms the identity of the employer under the Education Act is the Minister for Education (a body corporate by virtue of the Education Act 6 Affidavit of Francis McDonald affirmed 24 December 2025, Exhibit FM2-8. 7 See Interlocutory Application (FDN 91), Draft Order (FDN 93), Further Application (FDN 94), Affidavit of Francis McDonald affirmed 24 December 2025 (FDN 90). 8 (FDN 94) entitled “Application for leave to institute proceedings pursuant to section 39 of the Supreme Court Act 1935 (SA)” at [2]-[6]. -- 4 of 9 -- [2026] SASC 19 Gray J 3 1972) and a teacher employment relationship is with the Minister (body corporate) under the Education Act, not the State of SA - Costi v Minister of Education (1973), Cusack v Parsons (1989), Evdokiou v Minister for Education (1996) and Cava v Marshall [2003]. 5. The prior judgment of the Honourable Justice Anderson in McDonald v State of South Australia [2008] SASC 134 is a legal nullity (void ab initio) due to a fundamental jurisdictional error in relation to these claims. 6. A nullity creates no rights, gives rise to no estoppel, and cannot be the subject of a valid appeal. This principle is supported by authority: a judgment founded on jurisdictional error is a legal nullity (Kable; Re Macks; Bhardwaj) and cannot give rise to res judicata or estoppel. The doctrines of res judicata and Anshun estoppel therefore have no application to bar the Proposed Claim. 7 Mr McDonald further contends: 8. The claims in the Proposed Claim have never been heard or determined on their merits by a court of competent jurisdiction. Permitting the Proposed Claim to proceed against the correct defendant for the first time does not constitute an abuse of process and is in the interests of justice. (emphasis in original) 8 The nature of the proceedings considered by Anderson J in his Honour’s decision, McDonald v State of SA, concerned a contractual dispute arising from Mr McDonald’s employment with the Department of Education.9 9 The proposed statement of claim arises from the same events the subject of previous litigation. In the proposed statement of claim annexed to Mr McDonald’s affidavit, Mr McDonald claims: a. a declaration that the respondent repudiated the contract of employment and that the applicant’s resignation on or about 28 April 2003 constituted a constructive dismissal; b. damages for breach of contract; c. damages for negligence; d. aggravated damages; e. interest pursuant to statute; f. costs; g. any further relief the Court deems fit. 10 In essence, Mr McDonald seeks to file proceedings to bring proceedings against the Minister for Education. Mr McDonald also argues, in addition to 9 [2008] SASC 134. -- 5 of 9 -- [2026] SASC 19 Gray J 4 naming the Minister for Education as a respondent that the claim itself has never been considered on its merits and, in those circumstances, ought not be captured by the orders of Bampton J. 11 I have had regard to the material placed before the Court by Mr McDonald.10 The Attorney-General has also filed written submissions.11 I have had regard to both sets of written submissions and to all the relevant materials filed by both parties. I have also received oral submissions from both Mr McDonald and the Attorney-General. I have considered all of the submissions before the Court. 12 In respect of the orders of this Court dated 24 May 2024, being the orders of Bampton J, it is appropriate that FDN 91 be accepted for filing, being the application itself which seeks a grant of leave to file the proposed statement of claim. I have afforded Mr McDonald an opportunity to address the Court in respect of FDN 91. Mr McDonald being unrepresented, I also propose to receive on this application, and for the purposes of assessing FDN 91, each of the documents that Mr McDonald has sought to file in these proceedings including those handed up in Court today in addition to the application itself, and FDN 92, FDN 93 and FDN 94. 13 Mr McDonald’s exhibits to his affidavit, as I have indicated, a proposed Statement of Claim.12 The proposed statement of claim asserts causes of action in contract and negligence arising out of his employment between 1996 and 2003. The proposed respondent is the Minister for Education. In addition to damages, Mr McDonald seeks a declaration that the Minister for Education constructively dismissed him from employment on or around 28 April 2003. 14 The proceedings found by Bampton J to be vexatious included a significant number of proceedings in which Mr McDonald had sought to litigate the matters complained about in the proposed statement of claim. 15 As I have indicated, I have received both written and oral submissions of the parties and I take those matters into consideration in coming to a decision on this application. 16 For the reasons that follow, I would order that Mr McDonald be refused permission to institute the proceedings set out in the annexure to FDN 92. FDN 91, FDN 93 and FDN 94 and the proposed statement of claim are clearly an attempt to institute a proceeding which raises the same subject matter over which Mr McDonald has been declared a vexatious litigant. 17 I note the Attorney-General’s contention that the application should not have been filed in the finalised vexatious litigant proceedings (CIV-21- 010182). 10 See Interlocutory Application (FDN 91), Draft Order (FDN 93), Further Application (FDN 94), Affidavit of Francis McDonald affirmed 24 December 2025 (FDN 90). 11 Applicant Written Submissions dated 23 January 2026 (FDN 96). 12 FDN 92 (exhibit FM 2-8). -- 6 of 9 -- [2026] SASC 19 Gray J 5 However, as Mr McDonald is self-represented I would not direct that the documents be refused, or not accepted, for filing. The more fundamental issue is that the proposed proceedings are an attempt to re-litigate the same subject matter over which Mr McDonald has been declared a vexatious litigant. 18 Whilst I would direct that the application and supporting documents FDN 91, FDN 92, FDN 93 and FDN 94 be accepted for filing, I would dismiss the application for leave pursuant to s 39(1) of the Supreme Court Act 1935. 19 It follows from that order that whilst I will issue an administrative direction to the Registrar pursuant to r 32.4 of the Uniform Civil Rules 2020 (SA) that the Registrar accept for filing FDN 91, FDN 92, FDN 93 and FDN 94, I would dismiss the application pursuant to s 39(1) and the proposed statement of claim annexed to the affidavit should not be accepted for filing. 20 The reasons for the above orders and directions may be briefly stated. 21 The general principle is that the Court should only usually give leave to file to a vexatious litigant if the new proceeding is reasonably arguable and is not brought for an ulterior purpose and is not vexatious.13 Circumstances in which leave to file may be given include if there is a new legal right that has accrued to Mr McDonald concerning a matter unrelated to the proceedings in which he was declared vexatious, or unrelated to the reasons why he was declared vexatious. 22 Mr McDonald has filed the proposed statement of claim in support of his application, however, that proposed statement of claim addresses issues which have been the subject of previous litigation over the past two decades. The merit of the claim was first determined by this Court by Anderson J in 2008 and relief was granted, albeit not to the extent claimed by Mr McDonald.14 That relief was overturned by the Full Court in 2009.15 Attempts to further litigate the matter have been made numerous times in this Court and in the District Court, as well as to both the Federal Court and the High Court. As Bampton J noted, Mr McDonald’s attempts can be seen in:16 1. more than 30 judgments in respect of allegations made by Mr and/or Mrs McDonald, published by the Supreme and District Courts including seven judgments of the Full Court or Court of Appeal; 2. five judgments published by the Federal Court in respect of Mr McDonald’s allegations. The Federal Court has also made orders limiting Mr McDonald’s ability to litigate further; 3. four applications to the High Court for special leave to appeal brought by Mr and/or Mrs McDonald; and 13 Attorney-General v Kowalski (No 5) [2017] SASC 120 at [18] (Blue J). 14 McDonald v South Australia [2008] SASC 134; (2008) 172 IR 256 (Anderson J). 15 South Australia v McDonald [2009] SASC 219; (2009) 104 SASR 344 (Doyle CJ, White and Kelly JJ). 16 Attorney-General (SA) v McDonald & Anor [2024] SASC 67 at [28] (Bampton J). -- 7 of 9 -- [2026] SASC 19 Gray J 6 4. four decisions published by the Workers Compensation Tribunal in respect of Mr McDonald’s applications. 23 The substantive issue which the applicant seeks to raise has been litigated and relitigated a number of times. I do not accept the submissions of Mr McDonald that the issues are now being raised by the proposed statement of claim, have not been heard and determined on their merits. 24 The orders of Bampton J are valid orders. There has been no demonstrated change in circumstance following the orders of Bampton J which would warrant a declaration that those orders do not apply or support the argument that the proceedings sought should be allowed to be instituted. Mr McDonald seeks to re-litigate issues which have been previously considered by this Court, and he should not be permitted to do so. 25 Although the applicant contends, in his written submissions at paragraph [1], [2] and [4] as follows:17 • The applicant contends that this matter concerns a jurisdictional error affecting the exercise of power under s 39 of the Supreme Court Act 1935 (SA) by Bampton J. • The applicant contends that he does not seek to re-agitate the substantive merits of the underlying employment dispute. The challenge is anterior in nature and concerns whether the court could lawfully exercise its exceptional power under s 39. • Further, Mr McDonald goes on to contend that the s 39 orders proceeded on the assumption that a lengthy litigation history constituted valid proceedings without determining a foundational jurisdictional fact the identity of the applicant’s correct statutory employment under South Australian law. 26 To the extent that Mr McDonald seeks to raise a threshold jurisdictional issue, in my view he should not now be permitted to do so. 27 Mr McDonald, if his arguments are valid, could have raised these issues prior to now and in particular I refer to paragraphs 77-80 of the decision of Bampton J in which the issue as to the identity of the defendant has been previously raised by Mr McDonald. 28 In any event, I do not consider that the prior judgments to which Mr McDonald refers are void ab initio as opposed to valid until set aside. I refer in particular to the decision of Re Macks; Ex parte Saint particularly at paragraphs 217-218.18 17 Applicant’s Written Submissions particularly at [1], [2] and [4] (FDN 100). 18 Re Macks; Ex parte Saint [2000] HCA 62. See also Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11. -- 8 of 9 -- [2026] SASC 19 Gray J 7 29 Even if I am wrong about that, for the purposes of determining the s 39 application it is difficult to see how the issue of orders being void ab initio as opposed to valid until set aside is relevant. There are strong discretionary reasons as to why the orders of Bampton J being valid orders a declaration should not now be made granting permission for the proceedings to be instituted. 30 I will issue the direction that I have outlined above to the Registrar, namely that materials submitted for filing by Mr McDonald in support of the application for permission to institute the proposed proceedings be accepted for filing by the Supreme Court Registry, but I would refuse the application for permission to file the proposed proceedings contained in the statement of claim annexed to Mr McDonald’s affidavit. I would refuse the application for leave to institute proceedings pursuant to s 39 of the Supreme Court Act. 31 The order of this Court is: 1. Leave to file the proposed statement of claim is refused. 2. FDN 94 and FDN 91 are otherwise dismissed. -- 9 of 9 --