[2025] SASCA 42

Appellants: FRANCIS THOMAS MCDONALD AND RHODA LOUISE MCDONALD Respondent: THE ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA Counsel: MR B GARNAUT - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: On the papers 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 3) [2025] SASCA 42 Decision of the Court of Appeal (ex tempore) (The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice Bleby) 17 April 2025 PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - VEXATIOUS LITIGANTS, PROCEEDINGS AND RELATED MATTERS - VEXATIOUS LITIGANT On 9 April 2025, this Court heard argument concerning the appellants’ appeal against the vexatious litigant declaration and orders made by the primary judge on 24 May 2024. On 14 April 2025, the appellants made two urgent applications in the appeal proceedings, where the first asked for what was described as an “URGENT stay on the reserved judgment decision” and the second sought urgent judicial review. The judicial review application was misconceived. It is well established that the Supreme Court has no power to exercise judicial review over the decisions of its own judges. Accordingly, a judge of the General Division gave the Registrar a direction that the documents be rejected for filing under r 32.4 of the Uniform Civil Rules 2020 (SA). What was left is the possibility that the stay application should be viewed as another bias application, or an application for a rehearing given procedural unfairness, which the appellants wanted addressed urgently by the Court of Appeal, before reasons were delivered. The matter was referred to this Court accordingly. HELD (the Court): dismissing the urgent applications for disqualification, rehearing and a stay: 1. No basis for a finding of bias (whether actual or ostensible) has been made out. 2. In so far as complaints are made about the conduct of the appeal hearing, Mr McDonald’s complaint is effectively that he was not permitted to address, in an open-ended fashion, the very many arguments he wished to put as to why earlier decisions affecting the appellants should be set aside as wrong and unjust. 3. The appellants were not permitted to go behind the many decisions which have been made over a period of around 20 years and press what amounted to a series of de facto appeals. To -- 1 of 7 -- confine the oral argument in that way did not involve a denial of procedural fairness, especially where extensive written submissions and over 130 grounds of appeal articulated the challenges the appellants wished to mount. 4. There is no utility in ordering a stay. 5. Judgment will now be delivered in the appeal against the vexatious litigant declaration and orders made under s 39 of the Supreme Court Act. Supreme Court Act 1935 (SA) ss 6A, 39; Uniform Civil Rules 2020 (SA) r 32.4, referred to. Choi v Secretary, Department of Justice and Communities (2022) 405 ALR 714; McDonald & Anor v Attorney-General (SA) (No 4) [2025] SASCA 43; McDonald v Attorney-General (SA) [2024] SASCA 144; McDonald v Attorney-General (SA) (No 2) [2025] SASCA 1; McDonald v Supreme Court of South Australia and Anor [2019] SASC 201; Penson v Titan National Pty Ltd [2015] NSWCA 404; R v Commonwealth Court of Conciliation and Arbitration; Ex parte Amalgamated Engineering Union (1953) 89 CLR 636; R v Wright; Ex parte Waterside Workers’ Federation of Australia (1955) 93 CLR 528; State of South Australia v McDonald (2009) 104 SASR 344, considered. -- 2 of 7 -- MCDONALD & ANOR v ATTORNEY-GENERAL (SA) (No 3) [2025] SASCA 42 Court of Appeal – Civil: Livesey P, S Doyle and Bleby JJA THE COURT (ex tempore): Introduction 1 On 9 April 2025, this Court heard argument concerning the appellants’ appeal against the vexatious litigant declaration and orders made by the primary judge on 24 May 2024. Mr McDonald for the appellants announced to the Court that the appellants did not accept the rulings earlier made by the coram on the question of bias. However, in circumstances where no new allegations or applications were made, that submission was put to one side.1 2 The Court reserved its decision. One day later, Mr McDonald on behalf of the appellants wrote a letter of complaint.2 3 On 14 April 2025, the appellants then made two urgent applications in the appeal proceedings, where the first asked for what was described as an “URGENT stay on the reserved judgment decision” and the second sought urgent judicial review. 4 For the following reasons, in so far as the appellants applied for a stay pending a rehearing on the grounds of bias or for procedural unfairness, those applications should be dismissed. The applications received on 14 April 2025 5 The appellants applied for the following orders by way of interlocutory application: 1. An URGENT stay on the reserved judgment decision in action CIV-24-5708. 2. The reserved judgment arises from proceedings tainted by apprehended bias (Livesey P, Doyle J, and Bleby JJ), 3. The decision on 9 April was a breach of procedural fairness and it was unfair and prejudicial to the Applicants. 4. Rule 215.4 (stay pending review) and the common law test for stays (Jennings Construction Ltd v Burgundy Royale (1986) 161 CLR 681) 1 McDonald & Anor v Attorney-General (SA) (No 4) [2025] SASCA 43, [50] (Livesey P, Doyle and Bleby JJA), referring to McDonald v Attorney-General (SA) [2024] SASCA 144 (Livesey P, S Doyle and Bleby JJA); and McDonald v Attorney-General (SA) (No 2) [2025] SASCA 1 (Livesey P, S Doyle and Bleby JJA). The Court rejects the allegations of bias and procedural unfairness. 2 McDonald & Anor v Attorney-General (SA) (No 4) [2025] SASCA 43, [30]-[31] (Livesey P, Doyle and Bleby JJA). -- 3 of 7 -- [2025] SASCA 42 The Court 2 5. Given the imminent risk of the reserved judgment being delivered, the Applicants request an URGENT hearing of this application takes place within 7 days. 6. Delivery of the judgment would render the judicial review moot and cause irreparable harm to the Applicant’s rights (Criminal Assets Recovery Authority v Vu [2009] NSWSC 689.) 7. Costs. 6 In a separate application, the appellants sought urgent judicial review. The grounds for review were as follows: 1. Bias (jurisdictional error). 2. Procedural Unfairness (denial of oral submissions). 3. Irreparable Harm (risk of mootness). 4. Urgency (imminent judgment delivery). (Original emboldening.) 7 The prayer for relief in the judicial review application seeks the following orders: 1. An URGENT stay on the reserved judgment decision in action CIV-24-5708. 2. The reserved judgment arises from proceedings tainted by apprehended bias (Livesey P, Doyle J, and Bleby JJ), 3. The decision on 9 April was a breach of procedural fairness and it was unfair and prejudicial to the Applicants. 4. Rule 215.4 (stay pending review) and the common law test for stays (Jennings Construction Ltd v Burgundy Royale (1986) 161 CLR 681) 5. Given the imminent risk of the reserved judgment being delivered, the Applicants request an URGENT hearing of this application takes place within 7 days. 6. Delivery of the judgment would render the judicial review moot and cause irreparable harm to the Applicant’s rights (Criminal Assets Recovery Authority v Vu [2009] NSWSC 689.) 7. Costs. 8 The orders sought on the judicial review application mirror the orders sought on the interlocutory application. In support of these applications, Mr McDonald filed an affidavit. Mr McDonald’s affidavit is in the following terms: 1. This affidavit is filed in support of the Interlocutory Application for a stay and for Judicial Review dated 14 April 2025. ‘A stay preserves the integrity of the judicial process by ensuring no judgment issues from a Court tainted by bias – a foundational principle of justice.’ -- 4 of 7 -- [2025] SASCA 42 The Court 3 2. An Interlocutory Application requesting an order for a stay on the reserved judgment decision made by Justice Livesey in action CIV-24-5708 on 9 April 2025 has been prepared and uploaded to courtsa. 3. An Application for judicial review has been prepared and sent to Courtsa requesting a review of incidents that occurred at the hearing on 9 April 2025 in action CIV-24-5708. 4. Since transcripts are not yet available the applicants reserve the right to file a supplementary affidavit with transcripts excerpts upon receipt of transcripts. 5. This affidavit demonstrates apprehended bias and procedural unfairness in Appeal CIV-24-5708. 6. Justice Doyle presided over an appeal reviewing his father’s decision in 2009 in this matter, while Justice Bleby previously advised the Crown on related issues. “A fair-minded lay observed would reasonably apprehend bias given Justice Doyle’s father’s involvement in the 2009 decision and Justice Bleby’s prior advisory role (Ebner v Official Trustee* (2000) 205 CLR 337).”* 7. The bias of the Coram is not merely a procedural defect – it voids the proceedings from inception. 8. A stay is the only shield against a judgment rendered by a Court that lacked jurisdiction (Kirk v Industrial Court (NSW) (2010) 239 CLR 541. 9. An Affidavit with excerpts from transcripts of 9 April 2025 will be delivered as soon as we receive a copy of the transcript from the Registry. 9 The evident purpose of the interlocutory application is to preserve the present position pending an urgent hearing of the judicial review application. The purpose of the application for judicial review is to review what occurred during the hearing on 9 April 2025. The ultimate objective appears to be a rehearing of the appeal. The determination of the application 10 The reference in paragraph 2 of Mr McDonald’s affidavit to the “reserved judgment decision made by Justice Livesey … on 9 April 2025” is a reference to the announcement made at the conclusion of the oral hearing that judgment was reserved. 11 The affidavit refers to apprehended bias and procedural unfairness and gives, as one example, Doyle JA presiding over an appeal reviewing his father’s decision in 2009. Quite apart from whether Doyle JA did preside over the recent hearing in the Court of Appeal, the appeal against the vexatious litigant declaration and orders did not require that he “review the decision” of the Full Court made in 2009 and in which Doyle CJ participated as one of the members of that Court.3 The 3 State of South Australia v McDonald (2009) 104 SASR 344 (Doyle CJ, White and Kelly JJ). -- 5 of 7 -- [2025] SASCA 42 The Court 4 decision was effectively treated as an historical fact, against which the litigation that followed was evaluated. 12 In so far as the example is given of Bleby JA previously advising the Crown on “related issues”, that phrase is so general as to be largely meaningless. There is no suggestion that Bleby JA provided any advice to the Crown such as may have disqualified him from hearing this appeal. 13 In so far as complaints are made about the conduct of the hearing, Mr McDonald’s complaint is effectively that he was not permitted to address, in an open-ended fashion, the very many arguments he wished to put as to why earlier decisions affecting the appellants should be set aside as wrong and unjust. 14 By contrast, Mr McDonald, on behalf of the appellants, was given an opportunity to address the real issues arising on the appeal. These largely concerned whether, or to what extent, material errors had been made by the primary judge in her determination that 24 of 25 proceedings reviewed came within s 39 of the Supreme Court Act 1935 (SA), as well as whether the other elements of s 39 were made out. Finally, Mr McDonald was also given an opportunity to address whether, or to what extent, material error was made in connection with the exercise of her Honour’s discretion under s 39 of the Supreme Court Act 1935 (SA). 15 The hearing of the appeal against the vexatious litigant declaration and orders was not to be treated as a form of appeal against the decisions previously made. Those decisions were made in the course of the 2004 proceedings, by the Full Court in 2009, and by the High Court when it dismissed the application for special leave to appeal later that year. 16 The same point may be made concerning the attack the appellants wished to make regarding the 25 proceedings reviewed by the primary judge. That same point has even more force in connection with the attacks the appellants wished to make concerning the decisions of the Federal Court and the High Court which were relied on by the Attorney-General only in so far as they were relevant to the exercise of the court’s discretion under s 39 of the Supreme Court Act 1935 (SA). 17 To be clear, the appellants were not permitted to go behind the many decisions which have been made over a period of around 20 years and press what amounted to a series of de facto appeals. To confine the oral argument in that way did not involve a denial of procedural fairness, especially where extensive written submissions and over 130 grounds of appeal articulated the challenges the appellants wished to mount. 18 The appellants sought orders from the Supreme Court by way of judicial review concerning certain decisions of judges of the Court of Appeal. The Court of Appeal is a division of the Supreme Court of South Australia.4 It is well 4 Supreme Court Act 1935 (SA), s 6A. -- 6 of 7 -- [2025] SASCA 42 The Court 5 established that the Supreme Court has no power to exercise judicial review over the decisions of its own judges.5 19 The judicial review application was misconceived. Accordingly, a judge of the General Division has already given the Registrar a direction that the documents be rejected for filing under r 32.4 of the Uniform Civil Rules 2020 (SA). 20 What was left is the possibility that the stay application should be viewed as another bias application, or an application for a rehearing given procedural unfairness, which the appellants want addressed urgently, before reasons are delivered. The matter has been referred to this Court accordingly. 21 The Court has reviewed the materials on that basis. For the reasons just given, in so far as the application comprises an application that the coram be disqualified and there be a rehearing, whether on the grounds of bias (whether actual or ostensible) or for procedural unfairness, there is no basis for it and that application must be dismissed. There is no utility in ordering a stay. Conclusion 22 The urgent applications for disqualification, rehearing and a stay are dismissed. 23 Judgment will now be delivered in the appeal against the vexatious litigant declaration and orders made under s 39 of the Supreme Court Act 1935 (SA). 5 This was the effect of the ruling made in Proceedings numbered 14, McDonald v Supreme Court of South Australia and Anor [2019] SASC 201, [16]-[19] (Lovell J). Judicial review is a remedy available in superior courts concerning the decisions of inferior courts and tribunals, R v Commonwealth Court of Conciliation and Arbitration; Ex parte Amalgamated Engineering Union (1953) 89 CLR 636, 647-648 (Dixon CJ, Webb, Fullager and Kitto JJ). See also Penson v Titan National Pty Ltd [2015] NSWCA 404, [8]-[9] (Meagher, Gleeson and Simpson JJA): “The orders of judges of the Supreme Court, including the Court of Appeal, are not amenable to review…”, even if they are characterised as administrative, citing R v Wright; Ex parte Waterside Workers’ Federation of Australia (1955) 93 CLR 528, 541 (Dixon CJ, McTiernan, Williams, Webb, Fullager, Kitto and Taylor JJ); Choi v Secretary, Department of Justice and Communities (2022) 405 ALR 714, [214] (Ward P, Meagher and Leeming JJA): “There is no power for this Court to exercise judicial review of the impugned decisions of its own judges”. -- 7 of 7 --