[2025] SASCA 1

Appellants: FRANCIS THOMAS MCDONALD AND RHODA LOUISE MCDONALD No Attendance Respondent: ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA No Attendance Hearing Date/s: In Chambers File No/s: CIV-24-005708 B SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) 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. MCDONALD & ANOR v ATTORNEY-GENERAL (SA) (No 2) [2025] SASCA 1 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice Bleby) 9 January 2025 COURTS AND JUDGES - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - GENERALLY In June 2024, the appellants lodged an appeal against vexatious litigant orders, prohibiting them from instituting further proceedings without the permission of the Supreme Court, and permanently staying existing proceedings. The Judge found that the appellants had persistently instituted vexatious proceedings within the meaning of s 39 of the Supreme Court Act 1935 (SA). In December 2024, on being advised of the composition of the coram for the appeal hearing in February 2025, the appellants applied for orders that Livesey P, Doyle and Bleby JJA not sit on their appeal. This application was dismissed on 13 December 2024. In January 2025, the appellants filed a second application seeking the disqualification of the coram for the appeal hearing on 6 February 2025. Held (the Court) dismissing the application: 1. In large measure this second application repeats the earlier application and the ruling made in December 2024 applies to this application. The application does not demonstrate what might lead the coram or any member of it to resolve the appeal other than on its legal and factual merits. 2. Chief Justice Kourakis was not involved in the allocation of judges to the coram for the appeal hearing in February 2025, nor has he been allocated to the present coram. Supreme Court Act 1935 (SA) ss 9A, 39, referred to. McDonald & Anor v Attorney-General (SA) [2024] SASCA 144; State of South Australia v McDonald (2009) 104 SASR 344, considered. -- 1 of 5 -- -- 2 of 5 -- MCDONALD & ANOR v ATTORNEY-GENERAL (SA) (No 2) [2025] SASCA 1 Court of Appeal – Civil: Livesey P, Doyle and Bleby JJA THE COURT. Introduction 1 This is the second application by Mr and Mrs McDonald, the appellants, to disqualify the present coram from sitting on the appeal listed for hearing on 6 February 2025. 2 The earlier application was dismissed in mid-December 2024.1 3 This application is dated 24 December 2024, and attempts were made to file it this week. Although the application was regarded by Registry as technically deficient, the Court accepted it for filing. The application is made without reference to the ruling made a few weeks ago. It is necessary to read this ruling together with that earlier ruling. The second disqualification application 4 Indeed, in large measure this 19-page application simply repeats the earlier application, essentially complaining about what are claimed to be incorrect and adverse decisions by members of the coram in various previous cases. Many of these were concerned with earlier attempts by the appellants to re-litigate the decision of the Full Court in State of South Australia v McDonald.2 The ruling made in December 2024 accordingly applies to this second application, including the finding that any issue about the family relationship between one member of the Full Court in 2009 and a member of this Court in 2025 has been waived and, in any event, is unlikely to raise the requisite apprehension where the present case is primarily concerned with whether vexatious litigant orders should have been made under s 39 of the Supreme Court Act 1935 (SA) and not with the correctness of the 2009 decision. 5 Some observations should however be made concerning this second application. 6 First, the application addresses what is claimed to be a conflict of interest which precludes Kourakis CJ from being involved in this appeal. The Chief Justice was Solicitor-General at the time of the 2009 decision. Secondly, this conflict is relied on to suggest that, in so far as his Honour was involved in the allocation of the present coram that undermines the appearance of impartiality concerning the present coram. As the appellants put it: 1 McDonald & Anor v Attorney-General (SA) [2024] SASCA 144. 2 State of South Australia v McDonald (2009) 104 SASR 344. -- 3 of 5 -- [2025] SASCA 1 The Court 2 Chris Kourakis before becoming Chief Justice was the Solicitor General for the State of SA and he was advising the government and Crown Solicitors on legal issues in action SCCIV-04-418. CS Braddick, Condoluci and Golding were receiving legal advice from Chris Kourakis in the period 2009 to 2011 in action SCCIV-04-418 and in action SAD 178 of 2010 in the Federal Court. Chris Kourakis as the Chief Justice has a conflict of interest in the CIV-24-5708 action for as part of that litigation there is action CIV-21-585 and action CIV-21-132 which fall under his management of the Registry. The CIV-21-585 action concerns the maladministration of the Registrar Steve Roder and his management of files in action SCCIV-04-0418, 13-1574, 14-1564 and the complaints were made to Chris Kourakis as Roder’s manager about the obstruction of files being placed on the record under R53 and the bullying events that the Appellant experienced at the Registry by Jim Davoli over a sustained period of time. The CIV-21-132 action deals with the mismanagement of files under the control and the direction of Kourakis CJ and again he has a conflict of interest in this matter given the Registry was part of his responsibilities as the Chief Justice. It could be said as Gordon J noted they ie the Coram and Chris Kourakis are members of the same club. A fair-minded lay observer might have a reasonable apprehension that Livesey P, Doyle J and Bleby J as the Coram on Appeal might not bring an impartial mind to the adjudication of the issues on Appeal in action CIV-24-5708 given their past performance on Appeals presented by the Appellants and the legal issues they were required to turn their minds to and provide an impartial decision. Also because the Court Administration Authority is part of the Attorney Generals Department which brings in another conflict of interest. The Appellant points out in this recusal application the apprehension of bias in respect of Livesey P or Doyle J or Bleby J necessarily results in the Coram lacking the appearance of justice to date on the decisions it has made and the logical connection between judicial officers who were once employed in the Attorney Generals and the feared deviation from the course of deciding the Appeal in action CIV-24-5708 on its merit. According to the Ebner test the lack of the appearance of justice denies the Appeal Court jurisdiction over the Appeal. An apprehension of bias negates jurisdiction no matter how small that bias might be. The Appellant contends a fair-minded lay person on an examination of the Appeals involving the Appellants, and considering the relationship between Doyle J’s decision on Appeal and his father’s decision in 2009 and the relationship between Bleby J and the Attorney Generals Department and persons in the Crown Solicitors Office, might have a reasonable apprehension the Coram’s impartiality has been compromised and no matter how much evidence comes their way it will not change their minds in the Appeal process. Their minds are already made up. 7 There is no foundation for the contention that Kourakis CJ was involved in the allocation of the present coram. In so far as the appellants cite statements made at earlier callovers, they have misunderstood and misquoted what was said. The present coram was allocated by the President pursuant to the present practice of the Court of Appeal, in accordance with the authority conferred by s 9A of the Supreme Court Act 1935 (SA), without any direction from the Chief Justice. -- 4 of 5 -- [2025] SASCA 1 The Court 3 8 In fact, on 12 July 2024 Mr McDonald was asked by Livesey ACJ whether there was any objection to various judges sitting. This was raised in a preliminary way, before the appellants were advised who would comprise the coram and asked to consider making a formal disqualification application. Mr McDonald then said there was no objection to Kourakis CJ sitting on the appeal. On 19 July 2024 the appellants were advised by Livesey ACJ that no new proceedings would be entertained pending the determination of the appeal against the vexatious litigant orders made under s 39 of the Supreme Court Act 1935 (SA). On 24 October 2024 Bleby JA said nothing about Kourakis CJ and ruled on a number of the appellants’ applications.3 9 Chief Justice Kourakis has not been allocated to the present coram and has not been involved in the allocation of any judges to that coram. Conclusion 10 This application does not demonstrate what might lead the coram or any member of it to resolve the appeal other than on its legal and factual merits. The second disqualification application must be dismissed. 11 The question of costs should be reserved to the Court of Appeal. 3 McDonald & Anor v Attorney-General (SA), ruling of Bleby JA delivered on 11 October 2024 (ex tempore). -- 5 of 5 --