BRENDAN CONWAY HARRADINE In Person v THE STATE OF SOUTH AUSTRALIA [2024] SASCA 123

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE JUSTICE BAMPTON) CIV-20-000343 Applicant: BRENDAN CONWAY HARRADINE In Person Respondent: THE STATE OF SOUTH AUSTRALIA Counsel: MS J CLARE - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: On the papers File No/s: CIV-24-006570 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. HARRADINE v THE STATE OF SA [2024] SASCA 123 Judgment of the Court of Appeal (The Honourable President Livesey and the Honourable Justice Bleby) 23 October 2024 APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT - INTERLOCUTORY ORDERS AND JUDGMENTS This is an application for leave to appeal against three interlocutory decisions of a single judge of this Court. The judge dismissed applications seeking orders for the respondent’s counsel to be restrained from continuing to act, for default judgment under r 146.1 of the Uniform Civil Rules 2020 (SA), and for the judge to disqualify herself from hearing the r 146.1 application owing to an apprehension of bias. The Notice of Appeal raises eight grounds of complaint. Broadly speaking, the applicant claims that aspects of the primary Judge’s conduct regarding her purported advocacy for the respondent’s case, unqualified acceptance of the respondent’s explanations and disregard of the applicant’s submissions demonstrated bias, necessarily leading to error in her Honour’s failure to self-disqualify. He otherwise complains that the judge provided inadequate reasons in considering the applications which gave insufficient weight or no regard to submissions supporting the dismissed applications while placing undue reliance on those factors speaking to the application’s dismissal. Held (by the Court), refusing leave to appeal and ordering the applicant to pay the respondent’s costs of the application: 1. None of the orders appealed against determines a substantive right of the applicant or caused the applicant irreparable prejudice. 2. The applicant has not identified any serious issue of principle or general importance arising on the application. 3. The proposed grounds of appeal have little or no prospect of success. -- 1 of 12 -- Uniform Civil Rules 2020 (SA), referred to. Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Harris Scarfe Limited (Receivers and Managers Appointed) (In Liquidation) [2005] SASC 168, discussed. Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 27; Resi Corporation v Munzer [2016] SASCFC 15; Keith v Gal [2013] NSWCA 339; Testel Australia Pty Ltd v KRG Electrics Pty Ltd & Anor [2013] SASC 91; Kallinicos & Anor v Hunt (2005) 64 NSWLR 52; Coppola v Nobile [2012] SASC 42, considered. -- 2 of 12 -- HARRADINE v THE STATE OF SA [2024] SASCA 123 Court of Appeal – Civil: Livesey P and Bleby JA 1 THE COURT: This is an application for leave to appeal against three interlocutory decisions of a single judge of this Court. The judge dismissed applications seeking: • an order that the respondent’s counsel, Mr Ambrose, be restrained from continuing to act for the respondent (FDN 141); • judgment in default of compliance by the respondent pursuant to the Uniform Civil Rules 2020 (SA) (UCR) r 146.1 (FDN 120); and • that the primary judge disqualify herself from hearing the application FDN 120 on the grounds of apprehended bias. The applicant made this application orally following his oral submissions in support of FDN 120. 2 It is not necessary to describe the factual history of this matter other than briefly. In 2014, the applicant was arrested and, for a few hours, denied bail in respect of charges concerning allegations of sexual assault that the applicant’s former wife made against him. On 8 April 2015, the DPP tendered no evidence in the Adelaide Magistrates Court and all charges were dismissed. 3 On 29 May 2020, the applicant commenced proceedings against a member of SAPOL and the respondent. The Claim, as amended, asserts causes of action in wrongful arrest, false imprisonment and malicious prosecution. The action has been discontinued against the member of SAPOL but remains on foot against the respondent. 4 The matter has had a long procedural history. The applicant has alleged numerous defaults by the respondent in the course of that history. By an annexure to written submissions filed in support of its interlocutory applications in the primary proceedings,1 the applicant alleged some 97 instances of default. The respondent provided a response to each asserted instance in an annexure to its own written submissions.2 The respondent accepted that in some instances, it was in default. The discovery process has, on any view, been drawn out. 5 We have viewed the list of the breaches complained of, and the responses, for the purposes of informing ourselves of the background to the present application for leave to appeal. In his written submissions on this application, the applicant has given examples of what he claims are defaults and which, he submits, ‘especially expose an artful use of specious untenable, deflective and misleading 1 FDN 155. 2 FDN 158. -- 3 of 12 -- [2024] SASCA 123 The Court 2 assertions; conduct which he submits constitutes an abuse of the trust placed by the Court in its officers’. The primary judge’s disposition of the applications 6 The applications before the primary judge were argued over the course of a day. At 1:06 pm, the primary judge ruled on FDN 141. The judge noted that the power to restrain a practitioner from acting was to be exercised cautiously and only in exceptional circumstances. She held that the conduct of Mr Ambrose complained of did not amount to conduct that was so offensive to common notions of fairness and justice such as to warrant an order. 7 The judge summarised the lengthy complaints about Mr Ambrose: The applicant complained Mr Ambrose abused privilege during a hearing before Auxiliary Master Costello to harass and embarrass him and attributed to Mr Ambrose conduct in relation to the inspection of documents he said was calculated to further humiliate and embarrass him, as well as exacerbate his psychological conditions. He also complained that Mr Ambrose misled judicial officers, lacked candour during a hearing before me, and made unannounced applications in the Master’s jurisdiction. 8 The judge accepted that Mr Ambrose had made a mistake during a hearing before Auxiliary Master Costello on 24 October 2022, when referring to the applicant’s former wife. She noted that Mr Ambrose corrected himself and apologised when the error was brought to his attention. She also noted that Mr Ambrose acknowledged that he ‘may have slightly confused matters’ when he referred to the wrong document and apologised for being misleading. 9 The judge also addressed complaints about Mr Ambrose in relation to processes of disclosure and inspection. Mr Ambrose had suggested that inspection of certain documents take place at SAPOL offices as a certain computer program was required to view them. He gave an explanation for the presence of a security officer at the Crown Solicitor’s Office when the applicant’s inspection was supervised by a security officer. 10 The judge found that Mr Ambrose had explained a process of further disclosure that had been made just prior to an appeal heard by Blue J in another matter. She found that the respondent had acknowledged in correspondence dated 1 February 2023 that there was reason to doubt it had complied with its discovery obligations and took steps to rectify the situation. 11 With respect to the unannounced applications during interlocutory hearings, the judge found that they may well have been better dealt with by giving advance email notice. She found, however, that the applications were of a nature that were made orally as a matter of course in the Master’s jurisdiction. 12 The judge concluded, having considered the impugned transcripts of earlier hearings, that Mr Ambrose had not at any time misled the Court other than by the -- 4 of 12 -- [2024] SASCA 123 The Court 3 mistake he had acknowledged, or that he lacked candour. She dismissed the application to restrain Mr Ambrose from acting. 13 The Court then adjourned for lunch. When it resumed at 2:17 pm, the judge commenced hearing the application FDN 120, which sought judgment in default of compliance by the respondent pursuant to UCR r 146.1. The applicant made submissions until 3:22 pm. At that point, he indicated that he felt like he was ‘winding down’, but that he and an awful feeling that he had forgotten to say something to the judge. The judge indicated that he would have an opportunity in reply to raise anything he had forgotten. The Court the adjourned until 3:39 pm. Upon resumption, the application immediately made an oral application that the judge disqualify herself. The transcript of the application and its determination is short. It comprises simply the following: MR HARRADINE: Your Honour, with great respect, I have an application to make, your Honour. HER HONOUR: Yes? MR HARRADINE: Your Honour, I apply that your Honour recuse herself. HER HONOUR: Right. MR HARRADINE: I say your Honour has repeatedly made comments favouring the Crown, opposing my reasonable complaints of their behaviour, and with great respect, I ask that your Honour recuse herself. HER HONOUR: I have indicated to you that, as the master did, you're entitled to be frustrated by the discovery process - I've indicated that to you. MR HARRADINE: Yes, your Honour. With great respect, I consider that your Honour has taken a contrary approach to my submissions, at times when that approach was not reasonable, and with great respect, I press my application that your Honour recuse yourself. HER HONOUR: Do you wish to be heard on that, Mr Ambrose? MR AMBROSE: Not unless there's anything I can assist your Honour with, except to say I oppose it and it's unfounded. HER HONOUR: I decline to recuse myself. I am satisfied that a fair-minded lay observer would not reasonably apprehend that I would not bring an impartial and unprejudiced mind to this matter. 14 The judge then proceeded to hear FDN 120. She delivered her ruling at 4:14 pm. At the outset, she announced her decision that the discretion to give default judgment under UCR r 146.1 had not been enlivened. She then returned to the application for disqualification, saying: I record that after making oral submissions in support of FDN 120, the applicant requested that I recuse myself on grounds of apprehended bias. I declined to recuse myself, stating that a fair-minded lay observer would not reasonably apprehend that I might not bring an -- 5 of 12 -- [2024] SASCA 123 The Court 4 impartial and unprejudiced mind to the resolution of the questions I was required to decide in determining this application. 15 We pause to note here that on this occasion, the judge expressed the test, in ruling on the application, correctly in accordance with Ebner v Official Trustee in Bankruptcy.3 That expression differed from what is recorded in transcript just after lunch. We are satisfied that the second iteration constituted the judge’s settled reasons for refusing the application. 16 On FDN 120, the judge accepted that the applicant was entitled to be frustrated about the drawn-out discovery process. She recorded two occasions when Mr Ambrose had acknowledged serious embarrassment and the steps that the Crown Solicitor had taken to rectify omissions in discovery. 17 The judge then turned to the schedule of the 97 instances of conduct said by the applicant to be improper and thereby enlivening the discretion to order default judgment, and the respondent’s responses. She did not traverse these. She simply said: Neither individually nor collectively do these instances enliven the discretion to order default judgment pursuant to r 146.1. 18 The judge also noted that no order had been made against the respondent in relation to delays in making discovery or failure to make discovery. She noted that many other matters had occurred in the course of the interlocutory steps in the action. She observed that if the applicant ultimately succeeds in his action, he will be entitled to interest on any damages awarded to compensate any delay caused by the respondent. She dismissed the application FDN 120. The application for leave to appeal 19 The Notice of Appeal contains eight grounds of appeal. Grounds 1, 2 and 6 are particularised at length. In summary, the applicant complains: • the judge erred in failing to disqualify herself, having regard to various aspects of her conduct in the course of the hearing, which included advocating for the respondent’s case, explaining away the respondent’s ‘questionable conduct’, accepting the respondent’s explanations uncritically while questioning the applicant’s submissions, showing antipathy to the applicant and his case and failing to have sufficient regard to the material (Ground 1); • the judge failed to provide adequate reasons for dismissing the two interlocutory applications (Ground 1.6); • the judge failed to have regard or sufficient regard to the applicant’s submissions and affidavit material setting out ‘a litany of improper conduct’ 3 (2000) 205 CLR 337 at [6]-[7]. -- 6 of 12 -- [2024] SASCA 123 The Court 5 relevant to the enlivening of the discretion under UCR r 146.1 (aspects of which are particularised) (Grounds 1.8 and 2); • the judge failed to have regard to various matters and placed unreasonable weight on the apologies of Mr Ambrose in dismissing FDN 141 (Grounds 3, 4 and 5); • the judge, in dismissing the application FDN 120 for default judgment, took into account various irrelevant (particularised) considerations, made a ‘plainly unreasonable’ finding that Mr Ambrose had not at any time misled the Court other than the mistake he acknowledged and erred in that the decision was plainly unreasonable (Grounds 6, 7 and 8). 20 The respondent resisted the application for leave on the bases that the orders sought to be appealed against do not finally determine the rights of the applicant, that the Notice of Appeal raises no issue of principle or general importance, and that the grounds are not reasonably arguable. 21 The Court will not readily grant leave to appeal against an interlocutory order concerning matters of practice and procedure, that is, if the order does not determine substantive rights.4 As Bleby J observed in Harris Scarfe Limited (Receivers and Managers Appointed) (In Liquidation) v Ernst & Young (No 2):5 What is a common thread running through the cases, however, is that there is a general unwillingness to grant leave to appeal from interlocutory orders which do not either directly or by their practical effect finally determine the substantive rights of a party. The Court should be slow to encourage unnecessary, costly and time consuming appeals having the effect of unduly disrupting the orderly conduct of litigation, particularly litigation of a complex nature such as this. 22 This consideration has weight in the present case. The matter has already had a delayed history. None of the orders appealed against determines a substantive right of the applicant. It is true that were this Court, on appeal, to find for the applicant in respect of his complaints relating to the judge’s treatment of FDN 120, that might open the door, at least, to default judgment. However, the failure of the primary judge to grant default judgment does not affect the applicant’s substantive rights. It simply means he must go to trial. 23 The applicant submitted that the respondent’s conduct that provoked the application under UCR r 146.1 has caused him ‘irreparable prejudice’. Later in his written submissions, he submitted that: the conduct of the respondent has undoubtedly prejudiced the proper and expeditious conduct of the action for at least 2 years and relevantly constitutes breaches of the UCR, its duties of candour, honesty and fairness and the onerous duties at common law as to discovery’. 4 Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 at 177. 5 [2005] SASC 168 at [14]. -- 7 of 12 -- [2024] SASCA 123 The Court 6 (Emphasis in original) 24 These submissions did not identify irreparable prejudice. To the extent that the applicant maintains that the respondent had not made adequate discovery, we note the primary judge’s observation that no order has been made against the respondent in this regard. As far as the delay is concerned, as the judge noted, delay properly laid at the feet of the respondent can be addressed by an order for interest. 25 We turn to the question whether the application raises any issue of principle or general importance that would warrant leave being granted. UCR r 146.1 provides: 146.1—Judgment in default of compliance (1) If a party- (a) commits serious or persistent breaches of these Rules or an order of the Court which seriously prejudice the proper and expeditious conduct of an action; (b) fails to file a substitute originating process, pleading or affidavit within the time specified by the terms of leave granted under r 70.3, 85.1 or 87.1; or (c) manifests an inability or unwillingness to prosecute or defend an action with due diligence, another party may apply for default judgment against that party. Another party may apply for default judgment against that party. 26 The applicant has not identified any serious issue of principle or general importance arising on this application. He has identified, at length, his complaints about the conduct of the respondents and made comprehensive submissions about why the discretion to enter default judgment should have been made in his favour. That is not the same thing. 27 The applicant’s submissions extend to submitting that the ‘invaluable purpose’ of the rule would be undermined if the respondent’s conduct in committing ‘serious and persistent breaches’ was its typical modus operandi. That does not of itself raise a serious issue of principle. The applicant did not adduce any evidence of a modus operandi, other than his complaints and the matters he relied on with respect to his characterisation of the respondent’s conduct in this matter. 28 As to the application FDN 120 and the oral application that the judge disqualify herself, the applicant did not identify any serious question of principle arising. The contentions he raised in support of these applications show them to be simply occasions of application of established principles to the facts. 29 We turn to whether the grounds are reasonably arguable. 30 Ground 1 concerns the refusal of the primary judge to disqualify herself following the applicant’s submissions in support of FDN 120. The entire transcript -- 8 of 12 -- [2024] SASCA 123 The Court 7 relating to that oral application is set out above. The applicant did not identify how the matters of which he complained met the test in Ebner v Official Trustee in Bankruptcy.6 His complaint was grounded in his assertion that the judge had, in the course of argument, made comments that he regarded as favourable to the respondent. His view of the undue nature of that favourability appears to be grounded in his perception of the reasonableness of his arguments. 31 The particularisation of this ground of appeal expands considerably upon the complaint made on the oral application. The applicant did not, on the application, identify what it was that might cause the judge to decide the matter on a basis other than its legal and factual merits. Neither did he identify the logical connection between the matter identified and ‘the feared deviation from the course of deciding the case on its merits’.7 His complaint did not rise beyond saying that the judge, in the course of argument, made comments that indicated disagreement with his submissions, which submissions he regarded as reasonable. 32 In any event, the transcript does not support the applicant’s complaint that the judge ‘repeatedly questioned’ the applicant’s submissions while ‘uncritically accepting’ the respondent’s, ‘repeatedly advocated’ for aspects of the respondent’s case, ‘repeatedly sought to explain away questionable conduct of the respondent’ or ‘uncritically accepted flawed and untenable submissions of the respondent’ (Grounds 1.2-1.5). Neither does it bear out that the judge ‘generally displayed an attitude of antipathy to the appellant and his case’ (Ground 1.7). 33 The prospects of success on an appeal against the judge’s refusal to disqualify herself are negligible. 34 With respect to the complaint of inadequate reasons (Ground 1.6), the judge’s reasons for dismissing the two interlocutory applications were brief. On the disqualification application, the brevity of the reasons reflected the manner in which the complaint was articulated. There is no basis to doubt the adequacy of the judge’s disposition of that complaint. 35 More generally, it is well accepted that the obligation to give reasons requires that ‘the essential ground or grounds upon which the decision rests should be articulated’.8 The extent and content of the reasons required will depend on the particular case under consideration and the matters in issue.9 Here, on the application to restrain Mr Ambrose, the judge clearly articulated her reasons for refusing the application, by reference to the ills of which the applicant complained. It was not required for the judge to traverse the evidence in detail. 36 With respect to the application FDN 120, the material on which the applicant relied was considerable. He expanded, in his written submissions on this 6 (2000) 205 CLR 337 [6]-[7]. 7 (2000) 205 CLR 337 [8]. 8 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280 (McHugh JA). 9 Resi Corporation v Munzer [2016] SASCFC 15 at [71]; Keith v Gal [2013] NSWCA 339 at [110]. -- 9 of 12 -- [2024] SASCA 123 The Court 8 application for leave, on a number of instances of procedural default or ‘improper conduct’ on the part of the respondent. 37 It is true that her Honour dealt with the complaints in her reasons compendiously, having addressed the applicant’s schedule of 97 instances of conduct and the respondent’s schedule in response, by simply describing them. Her Honour concluded that ‘neither individually nor collectively do these instances enliven the discretion to order default judgment pursuant to r 146.1’. 38 Several things may be said about this. First, her Honour’s disposition of the complaint was brief. It did not traverse the evidence. However, it must also be remembered that this was an interlocutory application for default judgment. It was not practicable to go through the 97 instances raised by the applicant. The judge was required to consider the complaints. Her reasons indicate that she did so. Moreover, she prefaced her regard to the annexure with the following paragraph, which indicated that she had had regard to the history of the matter as complained of by the applicant: As Judge Dart noted, the applicant is entitled to be frustrated about the very drawn-out discovery process in this matter. A review of the interlocutory history of this matter reveals that the respondent has been making ongoing discovery. Mr Ambrose acknowledged that he has been seriously embarrassed by two occasions when the respondent realised that discovery of certain documents had not been made: the first was in relation to the late disclosure of the investigation officer’s handwritten notes just prior to the appeal to be heard by Blue J, and the second was in relation to the documents that were identified during the preparation of the affidavit of Jaime Michael Dolan. The Crown Solicitor, upon recognising the deficiency, wrote to the applicant on 22 September 2023 serving the affidavit of Mr Dolan, detailing the new documents that had been identified, and advising those new documents would be sent by express post. (Footnotes omitted) 39 In all of the circumstances and having regard to the volume of material of which the applicant relied before the primary judge, it may be faintly arguable that more was required by way of reasons. Against that was the need, in the circumstances of the interlocutory application, to address in an efficient way whether the applicant’s complaints, compendiously, warranted an order under UCR r 146.1. The judge did that. The applicant’s prospects of success on Ground 1.6 are poor. 40 With respect to Grounds 2, 6, 7, and 8, the applicant’s submissions go into some length about the asserted defaults of the respondent upon which the applicant founded his application under UCR r 146.1. We have considered each of them. The applicant gives three examples of ‘breaches of orders’. These express the applicant’s view of non-compliance by the respondent and take issue with the position taken by the respondent in the various instances. They do not establish non-compliance such as could be said to seriously prejudice the proper and expeditious conduct of the proceedings. -- 10 of 12 -- [2024] SASCA 123 The Court 9 41 The applicant also devoted considerable submissions to what he described as ‘the respondent’s persistent breaches concerning Discovery’. The complaints in this regard included that the respondent’s position, that it has produced documents pursuant to its obligations of ongoing discovery, are ‘untenable’. That opinion does not advance the prospects of success on the application. 42 The applicant also made lengthy submissions on the reasons behind the provision of the affidavit of Mr Dolan, identified in the passage quoted from the primary judge’s reasons, above. We infer that the applicant proposes to make these arguments in the Court of Appeal in support of his argument that the judge erred in refusing the application under UCR r 146.1. These submissions do not enjoy any prospect of success. They amount to a close parsing of a specific instance of non-compliance. There have been instances of non-compliance. This was one of them. However, as the respondent submitted, the ordinary remedy for mere non-compliance with the Rules is to make orders for costs, adjournments or to exercise one of the general powers under UCR r 12. The prospects that the applicant will establish that the judge’s exercise of her discretion miscarried on this account, in not ordering the extreme step of default judgment, is remote to say the least. 43 In respect of specific grounds relating to the r 146.1 application, Grounds 2 and 1.8 complain that the judge failed to have regard or sufficient regard to relevant material and assertions of the appellant. These complaints overlap the inadequate reasons complaint, to an extent. This was an interlocutory application, the transcript of which showed a considerable understanding of the materials and submissions by the judge. The judge’s reasons were brief. The applicant has not identified the materials that he claimed the judge did not consider. Ground 2 does particularise the assertions of the applicant that he complains the judge did not consider at all or sufficiently. Ultimately, however, it is clear from the judge’s reasons that she found that none of the matters the applicant relied on established a basis for the exercise of the discretion. 44 As to Ground 6.1, the description by the judge that the power ‘is to be exercised in rare and exceptional circumstances’ is not demonstrative of error. It is well understood that the power is to be used as a last resort.10 The judge’s choice of phrase reflected the accepted approach to the remedy of default judgment. Otherwise, the asserted ‘irrelevant considerations’ listed in Ground 6 were not irrelevant to the exercise of the discretion. 45 With respect to the grounds concerning the application to restrain Mr Ambrose from acting, the power to so restrain a practitioner will only be exercised in rare cases.11 The applicant asserted that Mr Ambrose had acted in various ways that were so offensive to common notions of fairness and justice that 10 Testel Australia Pty Ltd v KRG Electrics Pty Ltd & Anor [2013] SASC 91 (Blue J). 11 Kallinicos & Anor v Hunt (2005) 64 NSWLR 561 at [76]; Coppola v Nobile [2012] SASC 42 at [22] (Stanley J). -- 11 of 12 -- [2024] SASCA 123 The Court 10 he should be restrained from acting.12 Having regard to the specific matters raised by the applicant in this regard, no error is discernible in the judge’s reasons refusing the application. These grounds have no prospect of success. Conclusion 46 Leave to appeal is refused. The applicant must pay the respondent’s costs of the application. 12 Coppola v Nobile [2012] SASC 42 at [20] (Stanley J). -- 12 of 12 --