THE ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA [2024] SASC 67

Applicant: THE ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA Counsel: MR B GARNAUT - Solicitor: CROWN SOLICITOR (SA) Respondents: FRANCIS THOMAS MCDONALD AND RHODA LOUISE MCDONALD In Person Hearing Date/s: 27/02/2023, 28/02/2023, 28/03/2023 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 (SA) v MCDONALD & ANOR [2024] SASC 67 Judgment of the Honourable Justice Bampton 24 May 2024 PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - VEXATIOUS LITIGANTS, PROCEEDINGS AND RELATED MATTERS - VEXATIOUS LITIGANT Application by Attorney-General for a declaration and orders under s 39 of the Supreme Court Act 1935 (SA) and/or the inherent jurisdiction of the Court – respondents have over 20 years persistently instituted proceedings against the State of South Australia, Ministers, government employees, and the Court seeking to establish liability for alleged wrongs done to the first respondent in his former employment – whether proceedings have been instituted in a prescribed court – whether proceedings have been instituted without reasonable ground and/or for an ulterior purpose – whether proceedings have been instituted persistently – whether the Court’s discretion to exercise the power under s 39 of the Supreme Court Act 1935 (SA) has been enlivened. HELD: The application is granted, and the following declarations and orders are made: 1. The discretion to make orders under s 39 of the Supreme Court Act 1935 (SA) has been enlivened. 2. Each of the respondents has persistently instituted vexatious proceedings. 3. Pursuant to s 39(1) of the Supreme Court Act 1935 (SA), each of the respondents is prohibited from instituting further proceedings in a prescribed court without the permission of the Supreme Court. 4. Proceedings already instituted by each or both of the respondents are permanently stayed. Supreme Court Act 1935 (SA) s 39, referred to. McDonald v State of South Australia (2008) 172 IR 256; State of South Australia v McDonald (2009) 104 SASR 344; McDonald v Department of Education and Children’s Services [2011] SAWCT 18; McDonald v Department of Education and Children’s Services [2011] SAWCT 36; McDonald v State of South Australia [2011] FCA 297; McDonald v State of South Australia [2011] FCA 1251; McDonald v The State of SA [2012] SADC 54; McDonald v State of South Australia [2013] SASC -- 1 of 68 -- 31; McDonald v The Workers Compensation Tribunal [2013] SASC 34; McDonald v State of South Australia [2013] SASC 36; McDonald v Minister for Education [2013] SASC 101; McDonald v State of SA [2014] SASC 120; McDonald & Anor v State of South Australia [2015] SASCFC 15; McDonald & Anor v State of South Australia; McDonald & Ors v Minister for Education and Child Development & Ors (No 3) [2015] SASC 141; McDonald & Anor v State of South Australia; McDonald & Ors v The Minister for Education and Child Development & Ors (No 2) [2015] SASC 188; McDonald & Anor v The State of South Australia [2015] HCASL 118; McDonald & Anor v State of South Australia; McDonald & Ors v Minister for Education and Child Development & Ors [2016] SASCFC 39; McDonald & Anor v State of South Australia; McDonald & Ors v The Minister for Education and Child Development & Ors (No 3) [2016] SASC 79; McDonald & Anor v The State of South Australia; McDonald & Ors v The Minister for Education and Child Development & Ors [2017] SASCFC 146; McDonald & Anor v The State of South Australia; McDonald & Ors v The Minister for Education and Child Development & Ors [2017] HCASL 1; McDonald v Federal Court of Australia [2017] FCA 1216; McDonald v State of South Australia [2018] SASC 41; McDonald v State of South Australia (No 2) [2018] SASC 57; McDonald v The State of South Australia; McDonald & Anor v Minister for Education and Child Development & Ors [2018] HCASL 43; McDonald v Supreme Court of South Australia & Anor [2019] SASC 201; McDonald v Colbran [2019] FCA 1937; McDonald v Registrar of the Supreme Court of South Australia [2021] SASC 57; McDonald & Anor v Attorney-General for the State of South Australia & Ors [2021] SASCA 57; McDonald & Anor v Attorney-General for the State of South Australia & Ors (No 2) [2021] SASCA 146; McDonald & Anor v The State of South Australia & Ors [2022] SASC 17; McDonald & Anor v Attorney-General for the State of South Australia [2022] SASCA 43; McDonald & Anor v The State of South Australia & Ors; McDonald & Anor v Attorney-General for the State of South Australia [2022] SASCA 81; McDonald & Anor v Attorney-General for the State of South Australia [2023] SASCA 132; Mitsubishi Motors Australia Ltd v Kowalski [2004] SASC 302; Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154; Kowalski v Mitsubishi Motors Australia Ltd (2011) 198 FCR 153; Attorney-General (SA) v Kowalski [2014] SASC 1; Attorney-General for the State of South Australia v Burke (1997) 190 LSJS 28; Attorney-General v Wentworth (1988) 14 NSWLR 481; Brogden v Attorney-General [2001] NZAR 809; Jones Lang Lasalle (Qld) Pty Ltd v Dart [2005] FCA 1614; Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125; Mbuzi v Griffith University (2014) 323 ALR 248; Bird v Registrar, Federal Court of Australia [2016] FCAFC 188; Shire of Katanning v Bride (No 2) [2016] WASC 314; Mathews v Queensland [2015] FCA 1488; Commonwealth Trading Bank v Inglis (1974) 131 CLR 311; Georganas v Barkla [2021] SASC 47; Fokas v Mansfield as Trustee of the Bankrupt Estate of Maria Fokas (No 2) [2020] FCA 30; Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; Ramsey v Skyring (1999) 164 ALR 378; Workcover Corporation of South Australia v Moore-McQuillan [2016] SASC 191; Garrett v Mildara Blass Ltd [2009] SASC 19; Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398; Clone Pty Ltd v Players Pty Ltd (In Liq) & Ors (2018) 264 CLR 165, considered. -- 2 of 68 -- ATTORNEY-GENERAL (SA) v MCDONALD & ANOR [2024] SASC 67 Civil: Application BAMPTON J. Introduction.......................................................................................................... 3 Mr McDonald’s former employment ......................................................................................... 5 The unfair dismissal proceedings .............................................................................................. 7 The 2004 proceedings ................................................................................................................. 7 Trial of SCCIV-04-418 ............................................................................................................................ 8 The “lost appeal” .................................................................................................................................... 8 Full Court appeal and cross-appeal ..................................................................................................... 16 First application for special leave ........................................................................................................ 17 Since commencement of the 2004 proceedings ....................................................................... 17 The Attorney-General’s vexatious litigant application .................................. 18 Applying s 39 of the Act............................................................................................................ 18 The first threshold matter ...................................................................................................................... 18 The second threshold matter ................................................................................................................. 20 The third threshold matter .................................................................................................................... 21 Determining a vexatious litigant application .......................................................................... 21 Inherent power.......................................................................................................................... 23 Mr and Mrs McDonald’s submissions in opposition to the Attorney-General’s application .......................................................................................................... 23 Summary of the “proceedings so tortuous and protracted” .......................... 25 Workers Compensation Tribunal proceedings group ............................................................. 25 Initial compensation claim .................................................................................................................... 25 1: Appeal to the Full Bench of the Workers Compensation Tribunal......................................... 25 2: Application for permission to seek judicial review of Hannon DPJ’s decision to strike out . 26 3: Appeal to single Judge of the Supreme Court from Judge Withers’ decision ........................ 27 The 2013 and 2014 proceedings group .................................................................................... 29 The District Court proceedings ............................................................................................................. 29 Appeal to a single Judge of the Supreme Court from the decision of Judge Rice ................................ 29 Pleading issues arising from the identity of the defendant ................................................................... 30 4: Appeal to a District Court Judge from Master Blumberg’s decision ...................................... 30 5: Proposed appeal to a single Judge of the Supreme Court from Judge Tilmouth’s decision ... 30 6: Application for permission to appeal to the Full Court from Bampton J’s decision .............. 31 Second application for special leave ............................................................................................... 31 The Supreme Court proceedings ........................................................................................................... 32 Application for the disqualification of Nicholson J......................................................................... 32 7: Application to restrain CSO lawyers from acting ................................................................... 33 8: Application for permission to appeal to the Full Court from Nicholson J’s decision ............ 34 Third application for special leave .................................................................................................. 34 The death knell of the 2013 and 2014 proceedings............................................................................... 35 9: The 2013 proceedings ............................................................................................................. 35 10: The 2014 proceedings ............................................................................................................. 37 11: Appeal to the Full Court from Nicholson J’s order ................................................................ 38 -- 3 of 68 -- [2024] SASC 67 Bampton J 2 Fourth application for special leave................................................................................................. 38 Federal Court actions group .................................................................................................... 39 Decisions of Besanko J and Lander J ................................................................................................... 39 Challenges to the Federal Court Registrar’s decisions ........................................................................ 41 Attempts to set aside or re-open the 2004 proceedings ........................................................... 42 Unsuccessful attempts to file new actions and appeals......................................................................... 42 12: Application to re-open the 2009 Full Court appeal................................................................. 43 13: Application for orders against the Registrar ........................................................................... 44 14: Judicial review of Judge Bochner’s and Judge Dart’s decisions ............................................ 45 2020 and 2021 proceedings .................................................................................................................. 45 15: Application for leave to appeal to the Court of Appeal from Hughes J’s decision ................ 45 16: Application for leave to appeal to the Court of Appeal from David JA’s decision ................ 46 17: Stay of the 2021 proceedings .................................................................................................. 46 18: Dismissal of the 2020 proceedings ......................................................................................... 47 Other actions and appeals since the commencement of the vexatious litigant proceedings . 47 2021 judicial review applications ......................................................................................................... 47 19: Judicial review of the Supreme Court Registrar’s conduct..................................................... 48 20: Judicial review of interlocutory steps following the 6 August 2007 decision in the 2004 proceedings .................................................................................................................... 48 Appeals to the Court of Appeal against injunctions .............................................................................. 48 21: Application for leave to appeal against injunction.................................................................. 48 22: Appeal against extended interim injunction ............................................................................ 49 The short-lived return of the 2020 proceedings .................................................................................... 49 23: Application for leave to appeal to the Court of Appeal .......................................................... 49 Proceedings instituted in defiance of the injunction ............................................................................. 50 24: Application for judicial review of decision to reject documents ............................................ 50 25: Application for leave to appeal to the Court of Appeal from Bampton J’s recusal refusal .... 50 Conclusion .......................................................................................................... 51 Declaration ............................................................................................................................... 53 Orders ........................................................................................................................................ 53 Annexure 1 ......................................................................................................... 55 Annexure 2 ......................................................................................................... 62 -- 4 of 68 -- [2024] SASC 67 Bampton J 3 Introduction 1 Francis McDonald (“Mr McDonald”) “decided in 2003 to sue his employer for breach of contract and … breach of … [a] contractual duty of care to provide him with safe systems of work and a safe [workplace] and [to bring] a negligence claim against third parties for causing harm and injury”.1 Mr McDonald alleges these wrongs occurred during his former employment as a high school teacher in the period between 1990 and April 2003 (“former employment”). 2 Since making that decision, Mr McDonald and his wife, Rhoda McDonald (“Mrs McDonald”), have initiated an extraordinary number of proceedings against the State of South Australia, Ministers, government employees and the courts, in essence seeking damages for the wrongs they allege were done to Mr McDonald during his former employment. 3 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)2 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,3 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.4 The characterisation of his former employer and whether the “heartland” of his claims can be prosecuted in this Court are issues that have been finally determined. Regardless, Mr McDonald has wilfully sought time and time again to relitigate these settled controversies. 4 As the years have passed Mr McDonald has broadened his complaints, making allegations of misconduct, fraud and conspiracy against former colleagues, non-parties, and legal practitioners employed in the Crown Solicitor’s Office. He has sought to set aside a Full Court judgment alleging it was obtained by misconduct that constituted actual fraud. He has also accused judicial officers of bias, fraud, misconduct, colluding with the Crown Solicitor’s Office, lacking independence, and failing to apply the law. He has alleged the Supreme Court 1 CIV-21-010182, FDN 75 at [2]. 2 Whilst rule 1.4(4)(b) of the Uniform Civil Rules 2020 (SA) (“UCR”) prescribes that, in respect of a proceeding instituted before the commencement of the UCR on 18 May 2020, a party who was a defendant is now a respondent, I use the term defendant (other than with respect to the Workers Compensation Tribunal litigation) throughout my reasons as much of Mr and Mrs McDonald’s litigation took place prior to the commencement of the UCR and the numerous judgments of this Court that have ensued use the term defendant. 3 [2016] SASC 79 at [168] (Nicholson J). 4 On the commencement of the Return to Work Act 2014 (SA) on 1 July 2015, ‘Workers Compensation Tribunal’ was replaced with ‘South Australian Employment Tribunal’. Schedule 9, cl 49 of the Return to Work Act 2014 (SA) provides ‘Part 5 of this Act does not apply to or in relation to an existing injury or the death of a worker resulting from an existing injury (and section 54(1) of the repealed Act will continue to apply in respect of such an injury or death)’. -- 5 of 68 -- [2024] SASC 67 Bampton J 4 Registrar was negligent in the management of court files. He asserts he went on a 40-day hunger strike in his quest to obtain confirmation of the identity of his employer. He has made veiled threats of using the public arena with the support of expert bloggers to release the evidence he has gathered in the event his ability to litigate is curtailed. Mrs McDonald, who is prone to accusatory, shrill outbursts during hearings, believes there is something seriously criminal going on this Court and has also threatened to go on a hunger strike with the result that I might have a death on my hands:5 MS MCDONALD: … if you do throw us out of this court illegally, I personally as a 70-year-old woman will go on a hunger strike and that is 100%, because I cannot believe the injustice that has taken place with my husband, watching him work and work and work, sometimes up to 1 o’clock in the morning, and he was a young man when they bullied him in school, it’s an absolute disgrace what this court has done to us, and you think we’re idiots and that we don’t see what you’re doing? Judge David should’ve allowed my husband to go through his evidence. HER HONOUR: Mrs McDonald please sit down. MS MCDONALD: I can’t stand it – HER HONOUR: Mrs McDonald – MS MCDONALD: – and you might even have a death on your hands because I have gone mental because of what this court has done to my husband. MR MCDONALD: Just stay quiet, just go quiet, go on, off you go, quiet. HER HONOUR: Okay, thank you. MS MCDONALD: I can’t stand what you have done to us, you think we’re idiots and we don’t know what should be done. We’ll get the outside people to judge you. MR MCDONALD: Yeah, so we know exactly where we are all going with this. 5 The State of South Australia has had enough. The Attorney-General for the State of South Australia (“the Attorney-General”) has made an originating application under the vexatious proceedings provisions of the Supreme Court Act 1935 (SA) (“the Act”) (“the Attorney-General’s application”). The Attorney-General seeks to satisfy the Court that Mr and Mrs McDonald have persistently instituted vexatious proceedings such that the Court should declare them vexatious litigants and make consequential orders pursuant to s 39(1)(a) and (b) of the Act. 5 Transcript of proceedings, Attorney-General for the State of South Australia v McDonald & Anor (Supreme Court of South Australia, Bampton J, 4 March 2022) at 13.7-31. -- 6 of 68 -- [2024] SASC 67 Bampton J 5 Mr McDonald’s former employment 6 To provide background to Mr and Mrs McDonald’s litigious activities, I gratefully adopt Besanko J’s summary of Mr McDonald’s former employment in McDonald v State of South Australia as follows:6 [Mr McDonald] was first employed as a teacher with the South Australian Department of Education and Children’s Services (‘DECS’) in 1990. On the hearing of this application [Mr McDonald] made a number of submissions regarding the precise identity of his employer and I will come back to that topic. [Mr McDonald] had previously worked as a teacher in Scotland, with qualifications in teaching business education and economics. He had experience with word processing but not with computing generally. In 1996 [Mr McDonald] was appointed to Mount Barker High School, where he was asked to take on the role of network manager of the school’s computing systems, in addition to his teaching load. The role involved repairing and maintaining computers and other equipment. This was not work for which [Mr McDonald] was qualified and he found it stressful. His workload affected [Mr McDonald’s] health adversely. Over the course of several conversations, [Mr McDonald] informed Mr Boaden, the second respondent, who was then the Assistant Director of Personnel with DECS, about the difficulties he was experiencing. Mr Boaden was aware that Brighton Secondary School needed to fill the position of Co-ordinator of Information Technology and a Year 12 Computing teacher. [Mr McDonald] was appointed to teach computing to Year 12 and mathematics to Year 11 at Brighton High School for the following year. At Brighton Secondary School, [Mr McDonald] took on similar duties to those he had performed at Mount Barker, including managing the computer network. This was in addition to his teaching load. Ms Schupelius, the third respondent, was then the principal of Brighton. In April 1997 [Mr McDonald] was appointed Acting Coordinator of Information Technology Across the Curriculum (‘Co-ordinator’), and was confirmed in this position for a five-year term from January 1998 to January 2003. There was a reduction in his teaching hours, but [Mr McDonald] continued to find it difficult to manage his workload. Ms Schupelius was aware of this and engaged Mr Crompton to help [Mr McDonald] on a part-time basis. [Mr McDonald’s] teaching load was further reduced. [Mr McDonald] continued to be assisted with his workload by Mr Crompton, and later by his son, Damien McDonald, on a part time basis. The trial judge found that things proceeded ‘reasonably well’ for the remainder of 1998 to the end of 1999. A new computer network was installed at Brighton at the beginning of 2000 and a number of second-hand computers, requiring considerable work in order to make them suitable for the school’s use, were purchased throughout that year. [Mr McDonald] undertook that work and found it time-consuming. In late 2000 a part-time School Services Officer was employed to assist [Mr McDonald] with the task. The trial judge found that Ms Schupelius was aware that [Mr McDonald] continued to work long hours, and was not qualified for the work that he had undertaken. She offered to further reduce Mr McDonald’s teaching hours but the offer was refused. In late 2000 and early 2001, [Mr McDonald] began to fear that he would not be reappointed as Co-ordinator in January 2003. In January 2001 [Mr McDonald] wrote to Ms Schupelius 6 [2011] FCA 297 at [9]-[20]. -- 7 of 68 -- [2024] SASC 67 Bampton J 6 resigning from his employment on the basis of his ‘impossible work situation’ but this resignation was not treated as effective. As a result of the letter a meeting was held on 29 January 2001 between [Mr McDonald], Ms Schupelius, and Ms Cochram, the fourth respondent, who was at that time the District Superintendent. Ms Cochram understood [Mr McDonald] to be raising a grievance with her, and [Mr McDonald’s] workload, his difficulties with another staff member, and the information technology situation at Brighton were all discussed. A follow-up meeting occurred on 7 February 2001 and it was agreed that [Mr McDonald] would no longer provide technical support for the computing network at Brighton but instead concentrate on his role as Co-ordinator. Ms Schupelius had the responsibility of informing staff at Brighton about the change in [Mr McDonald’s] duties. At these meetings [Mr McDonald] also raised the issue of his tenure at Brighton and Ms Schupelius indicated that she thought that he had a ten-year tenure but was not sure. Ms Schupelius left Brighton to take up an overseas appointment some days afterwards and staff at Brighton were not informed of the change to [Mr McDonald’s] role. Ms Cochram did not follow up [Mr McDonald’s] grievance to ensure that the agreements had been implemented and did not inform the Acting Principal, Mr Potts, of the agreement. Mr McDonald did not seek a further meeting with Ms Cochram. As a result [Mr McDonald] continued to be asked by other staff to assist with matters which were no longer his responsibility. [Mr McDonald] raised this with Mr Potts, but nothing was done to resolve the issue. In early 2001, [Mr McDonald] also complained to Mr Potts that he was being bullied, victimised, and harassed by other staff. He raised with Mr Potts the issue of his tenure, which Mr Potts referred to Ms Cochram, but Ms Cochram did not respond. In July 2001, the fifth respondent, Mr Mitchell, was appointed Principal at Brighton. In October 2001, [Mr McDonald] wrote to Mr Mitchell raising his concerns regarding who was responsible for the computer network, and his problems with other computing staff. A meeting was held shortly after involving Mr Mitchell, [Mr McDonald] and other staff at which [Mr McDonald] became extremely angry. [Mr McDonald] apologised to Mr Mitchell and there were no further unpleasant meetings until June 2002. As a result of that meeting, it was made clear to Mr McDonald, to his satisfaction, that he was not responsible for the other computing staff. The harassment seems to have ceased from October 2001. By that time, a number of Mr McDonald’s functions as network manager had been taken over by technicians employed at Brighton. In May 2002, [Mr McDonald’s] position as Co-ordinator at the school was reviewed. The position was subsequently redefined in such a way as to make it unlikely that [Mr McDonald] would be the successful applicant. The Full Court noted that the trial judge did not make a finding that this was done deliberately so as to remove [Mr McDonald] from Brighton but that the trial judge did find that Mr Mitchell was aware this would likely be the consequence of the redefinition. The Full Court rejected the trial judge’s findings that this had been ‘inappropriate and unfair’ and that the decision not to interview Mr McDonald was ‘attributable to a desire to “get McDonald out of Brighton”’ on the part of Mr Mitchell (at [162]). The position was advertised and was to be taken up from January 2003. [Mr McDonald] applied for the position but a three-person panel, composed of Mr Mitchell, Ms Groves, who was a co-ordinator at Seacliff High School, and Ms Sara, a teacher at Brighton nominated by the Australian Education Union’s Brighton sub-branch, elected not to interview him for it. [Mr McDonald] was informed of this in late June 2002, and complained to Ms Hyde, the sixth respondent, who was now the District Superintendent. -- 8 of 68 -- [2024] SASC 67 Bampton J 7 [Mr McDonald] was greatly upset at the failure to interview him for the position and there was an angry confrontation with Mr Mitchell. From July 2002 to September 2002 [Mr McDonald] took sick leave on the basis that he was suffering from a ‘stress/anxiety disorder’. He returned to work for a brief period in late September 2002. At that time Mr Mitchell informed [Mr McDonald] that he was obliged to complete a DECS Placement Form to arrange appointment to another position, and [Mr McDonald] refused to do so on the basis that he had a ten-year appointment at Brighton. Mr Mitchell informed [Mr McDonald] that he would complete the form himself and did so. In July 2002 [Mr McDonald] telephoned Ms Hyde and informed her that he was initiating a grievance procedure. Ms Hyde did nothing to address [Mr McDonald’s] grievances. He subsequently lodged a written grievance in October 2002. Ms Hyde forwarded this to the Legal Department within DECS but took no other step. From October 2002 to December 2002 [Mr McDonald] took further sick leave for his stress and anxiety disorder. After that time he did not return to Brighton or to any other school. On 18 December 2002, [Mr McDonald] made a claim for compensation under the Workers Rehabilitation and Compensation Act. As a result he was provided with rehabilitation services by DECS and two positions were offered to [Mr McDonald] in other schools. However, he subsequently withdrew his claim before it could be determined. In April 2003 [Mr McDonald] wrote to the Pay Section of DECS, and to the Premier of South Australia with a copy to the Director-General of Education, informing them that he was treating himself as dismissed from his employment. 7 To provide further background, I turn now to explain the initial proceedings commenced by Mr McDonald, in particular Supreme Court action SCCIV-04-418. The unfair dismissal proceedings 8 Mr McDonald commenced proceedings for unfair dismissal in the Industrial Relations Commission on 13 May 2003. Mr McDonald asserts he was told by a Commission judicial officer that, as the Commission did not have jurisdiction to hear the breach of contract claim, he would have to discontinue those proceedings and issue proceedings for breach of contract in the Supreme Court. The 2004 proceedings 9 On 16 April 2004, Mr McDonald commenced Supreme Court proceedings against the Department of Education and Children’s Services (“DECS”) seeking relief in relation to allegations of breach of contract of employment, negligence, and misleading and deceptive conduct. Mr McDonald asserts that a Master of the Court, relying on a submission of the Crown Solicitor, ordered that he amend the name of the defendant to the State of South Australia or risk his claim being struck out. On 27 September 2004, an amended summons and statement of claim was filed substituting the name of the defendant for the State of South Australia pursuant to leave given by the Court on 4 August 2004. The proceedings continued as Francis Thomas McDonald v The State of South Australia and were assigned SCCIV-04-418 (“the 2004 proceedings”). 10 Mr McDonald’s pleaded causes of action pursuant to the WRC Act, the Occupational Health and Safety Act 1986 (SA), and the Trade Practices Act 1974 (Cth) including for misleading and deceptive conduct, as well as claims for -- 9 of 68 -- [2024] SASC 67 Bampton J 8 physical and mental harm, were struck out by Judge Lunn on 6 August 2007 following interlocutory argument on 25 July 2007 (“the 6 August 2007 decision”).7 Judge Lunn ordered that time for any appeal by Mr McDonald against the 6 August 2007 decision be extended to 14 days after 17 August 2007. Trial of SCCIV-04-418 11 The trial of the 2004 proceedings was heard over 28 days from October 2007 to February 2008 before Anderson J. Mr McDonald reassured Anderson J prior to the commencement of trial “that he was self-represented by choice as he was dissatisfied with the advice given to him by several lawyers, some of whom he had engaged to act but with whom he subsequently terminated instructions”. He was advised by Anderson J to obtain representation if necessary. Justice Anderson formed the view that Mr McDonald’s “preference was clearly to proceed as a litigant in person”.8 12 On 21 May 2008, Anderson J delivered judgment (“Anderson J’s judgment”) partly in favour of Mr McDonald, finding: 1. there was a contractual duty to provide a safe system of work which duty was breached, amounting to a repudiation of the employment contract; 2. there was an implied duty of mutual trust and confidence, which duty was breached; 3. the tort of deceit was not made out; and 4. Mr McDonald could not make a claim for damages at common law for non-economic loss because such a claim would be barred by the WRC Act s 54(1). 13 Justice Anderson awarded Mr McDonald damages in the sum of $392,850 in the main for past and future loss of earning capacity.9 The “lost appeal” 14 Before I discuss the appeal and cross-appeal to the Full Court from Anderson J’s judgment, I will deal with Mr McDonald’s complaint that he was denied his right to appeal against the 6 August 2007 decision. This complaint features prominently in Mr and Mrs McDonald’s submissions opposing the Attorney-General’s application and is said by them to found an entitlement to a retrial of the 2004 proceedings. 7 SCCIV-04-418, FDN 78, Reasons of Judge Lunn delivered 6 August 2007. 8 McDonald v State of South Australia (2008) 172 IR 256 at [466]. 9 McDonald v State of South Australia (2008) 172 IR 256 at [549]. -- 10 of 68 -- [2024] SASC 67 Bampton J 9 15 Mr McDonald maintains that he filed an appeal against the 6 August 2007 decision. The Court record pertaining to SCCIV-04-418 contains no record of a notice of appeal against the decision. 16 On 20 September 2021, Mr McDonald attended the Higher Courts Registry to inspect the file SCCIV-04-418. On the same day, having inspected the file, Mr McDonald asked to speak to the Deputy Registrar Higher Courts Civil. The Deputy Registrar attended upon Mr McDonald whereupon Mr McDonald showed him a document, which the Deputy Registrar copied, marked “A”, and attached to a memorandum prepared by him later that day. The Deputy Registrar recorded in the memorandum that Mr McDonald showed him the document and stated that it was located in the folder marked “Part 7” of the hardcopy record of SCCIV-04-418. A copy of the Deputy Registrar’s memorandum attaching the document marked “A” is annexed to these reasons. 17 The document marked “A” bears no date. It is a copy of a six-page typed document which commences as follows: McDonald v State of South Australia File 418 of 2004 Reasons why the defendant’s application to strike out parts of the eighth statement of claim are invalid. … The document marked “A” appears in the nature of further submissions, containing phrases such as “The plaintiff would like these paragraphs not to be struck out …” and “The plaintiff agrees to strike this out”. 18 In CIV-21-012132, an action stayed pending determination of the Attorney-General’s application, Mr McDonald seeks orders of a declaratory nature and a retrial of the 2004 proceedings. He also seeks to challenge interlocutory steps taken in 2007 by Anderson J in relation to a document he refers to as an “appeal or reply to [Judge] Lunn’s reasons for the strikeouts” in the 2004 proceedings. Mr McDonald asserts in a statement of facts, issues and contentions filed 4 November 2021,10 that he completed a front sheet at the Supreme Court Registry on 23 August 2007 and attached it to the “appeal or reply to [Judge] Lunn’s reasons for the strikeouts” whereupon it was accepted for filing. 19 Mr McDonald further asserts that he handed a letter addressed to Judge Lunn dated 23 August 2007 together with two copies of the “appeal or reply to [Judge] Lunn’s reasons for the strikeouts” to a Registry client services officer.11 Mr McDonald says the Registry client services officer affixed the Court’s seal to the letter and the copies of the “appeal or reply to [Judge] Lunn’s reasons for the strikeouts”. Copies of the letter to Judge Lunn and the “appeal or reply to [Judge] Lunn’s reasons for the strikeouts” are exhibited to Mr McDonald’s 10 CIV-21-012132, FDN 2. 11 CIV-21-012132, FDN 4. -- 11 of 68 -- [2024] SASC 67 Bampton J 10 affidavit affirmed 25 October 2021 filed in CIV-21-012132. The document Mr McDonald refers to as the “appeal or reply to [Judge] Lunn’s reasons for the strikeouts” appears to be a copy of the document marked “A” (without the marking “A”). 20 I note the letter to Judge Lunn and the “appeal or reply to [Judge] Lunn’s reasons for the strikeouts” forwarded with the letter do not bear the Court’s seal; rather, they are endorsed with a Supreme Court received stamp bearing the date 23 August 2007. The document marked “A” does not bear the Court seal or a received stamp. It is to be noted a received stamp does not mean that a document has been filed; rather, a Court seal and file document number indicate a document has been filed. 21 The letter addressed to Judge Lunn does not refer to an appeal but states, “Please find enclosed a reply to Judge Lunn’s correspondence on 3 August 2007 concerning matters heard 25 July 2007”. Judge Lunn’s personal assistant wrote to Mr McDonald on 24 August 2007 stating:12 I have referred your letter to Judge Lunn. He does not enter into correspondence concerning his decisions. He adheres to the decisions which he has made. If you wish to challenge his decision to strike out part of the Statement of Claim you will need to appeal to a Justice of the Court against his order. (Emphasis added) I infer Judge Lunn did not consider the document forwarded under cover of Mr McDonald’s letter 23 August 2007 was a notice of appeal. 22 Mr McDonald contends in CIV-21-012132 that he had a heated debate with Anderson J on 28 August 2007 regarding whether he had appealed the 6 August 2007 decision and “the fact the registry had lost or destroyed the document” as there was no Court record of the “appeal”. Mr McDonald alleges that Anderson J did not set down the “appeal” for argument and proceeded to trial without hearing it, thereby failing to treat him equally under the law and denying him procedural fairness. The transcript of the directions hearing on 28 August 2007 records Anderson J stating that he had a copy of the “reply” Mr McDonald had forwarded to Judge Lunn regarding the decision 6 August 2007, and the following exchange occurred:13 HIS HONOUR: What’s happened is the order of the court on 6 August signed by Judge Lunn is that those parts of the statement of claim that he has decided to strike out are struck out. So they are struck out. MR MCDONALD: On what grounds because I put forward that argument, first of all it says under the Acts Interpretation Act – 12 CIV-21-012132, FDN 4, exhibit FM2. 13 Transcript of Proceedings, McDonald v State of South Australia (Supreme Court of South Australia, Anderson J, 28 August 2007) at 4.34-5.37. -- 12 of 68 -- [2024] SASC 67 Bampton J 11 HIS HONOUR: You’re jumping ahead. They are struck out. You have to decide if you want to appeal against that decision. That’s your next step. MR MCDONALD: Right. I’d like to appeal. HIS HONOUR: You will have to go through the normal procedure and appeal. That will be heard by the Full Court of the Supreme Court, if you want to appeal. MR MCDONALD: I do because I reckon that I should have access as in the case of Nicolitch to the Trade Practices Act. HIS HONOUR: I’m not going to let the possible appeal interrupt our planning, so that will just happen. If you lodge your appeal straightaway, and you may well be advised to do that because you might be running out of time if you haven’t already. MR MCDONALD: Sure. HIS HONOUR: I don’t know what the time is to be quite frank off the top of my head. An appeal from a master, Mr Mills, do you know how long? MR MILLS: I’d be guessing. HIS HONOUR: It would be either 14 or 21 days. If it’s 14, you’re late; if it’s 21, you’re late. So you’re going to need an extension of time to appeal. MR MCDONALD: Now do I get an appeal in front of – like, do I go to the Chief Justice to get to the appeal? HIS HONOUR: You’ll go to three judges of the Supreme Court in what is called the Full Court, and I will expedite it if you do appeal, do what I can to expedite it so it can be heard in the next sessions if possible. MR MCDONALD: That’s lovely, that’s good. HIS HONOUR: There’s no guarantee of that. It depends on the workload of the court, but it will certainly be heard in September or October, okay. MR MCDONALD: Ok, I’m happy with that. (Emphasis added) 23 Justice Anderson also addresses what occurred at the hearing on 28 August 2007 in his judgment delivered following the trial of the 2004 proceedings:14 Mr McDonald earlier claimed damages under several causes of action. During the interlocutory stages of the proceedings, rulings were made striking out parts of the statement of claim dealing with the claim for damages. During the trial I disallowed some further proposed amendments. Mr McDonald pursued four main causes of action during the trial. He claimed damages against DECS for breach of implied terms of the contract of employment and for negligently failing to discharge the duty of care by not providing a safe workplace or system of work. He also claimed an estoppel for the failure to pay what 14 McDonald v State of South Australia (2008) 172 IR 256 at [441]-[449]. -- 13 of 68 -- [2024] SASC 67 Bampton J 12 he alleges were agreed rates of overtime and the failure to reimburse for additional work performed. Finally he alleged a deceit by Mr Boaden as to the type of work he would be performing at Brighton. He alleged that Mr Boaden guaranteed him that he would not have to perform maintenance and repair work. I have already indicated that I do not find that such a guarantee was given. Mr McDonald alleges that he suffered loss and damage by way of “loss of remuneration, loss of future economic loss, past economic loss, loss of dignity and reputation as a skilled teacher and educational leader, and also for solicitors’ costs of action”. He also claims costs and interest. He has particularised his loss and damage as including his “loss of remuneration of salary, loss of future economic loss, which takes account of superannuation and present and future long service leave”. He alleges that his “past economic loss takes account of the overtime due in areas of work outside of contractual agreement”. I will deal with each of these claims shortly. The causes of action struck out by a master of this Court were for breaches of the Trade Practices Act 1974 (Cth), a breach of the Workers Rehabilitation and Compensation Act 1986 (SA), a breach of the Occupational Health, Safety and Welfare Act 1986 (SA), physical and/or mental injury arising from employment with DECS and harassment, bullying and annoying conduct experienced in the workplace, and including the related damages claim for the associated pain and suffering. On 25 July 2007 the master heard an argument in relation to a strike out application brought by DECS in response to Mr McDonald’s eighth version of the statement of claim. Earlier versions had been drawn and settled by solicitors and/or counsel. He delivered his reasons on 6 August 2007. The master found that there was no cause of action available under the provisions of the Trade Practices Act 1974 (Cth) because DECS is not a body corporate for the purposes of the Education Act. The master also held that there was no cause of action available for common law damages under the Workers Rehabilitation and Compensation Act 1986 (SA) due to the operation of s 54(1). That section provides that no liability attaches to an employer in respect of a compensable disability arising from that employment except for a liability under the Education Act. The authority of Errington v Target Australia Pty Ltd (1995) 65 SASR 378 provided the basis for that decision. In relation to the tort of deceit the master also ruled out particular heads of damage. By reference to the case of Magill v Magill (2006) 226 CLR 551 it was found that the heads of damage claimed by Mr McDonald, namely, “social status and personal satisfaction” were found to be not claimable at law. It was also held that there was no cause of action for harassment known to the law in South Australia. His Honour held that as far as it was an adjunct to other causes of action Mr McDonald had pleaded it elsewhere. There were then several rulings which struck out parts of the statement of claim that pleaded evidence. The matter was then adjourned for a directions hearing before me on 28 August 2007. At the hearing of 28 August 2007 Mr McDonald raised concerns over the decision of the master. I advised him that he would need to file an appeal in order to challenge that decision and offered my assistance in expediting that process by attempting to have it heard as soon as possible. Mr McDonald indicated at the time that he intended to file a notice of appeal that day. No appeal was ever filed and the time for doing so had well and truly passed by the commencement of the trial. -- 14 of 68 -- [2024] SASC 67 Bampton J 13 The trial then proceeded on the basis that Mr McDonald was claiming damages for breach of implied terms in the contract of employment, damages for estoppel and damages for deceit. Emphasis added 24 It is clear by reference to Anderson J’s judgment and the transcript of the hearing 28 August 2007 that there was no notice of appeal against the 6 August 2007 decision as at 28 August 2007, and that his Honour gave Mr McDonald the opportunity to file a notice of appeal, the hearing of which he offered to expedite. A notice of appeal was not filed. Be that as it may, during the trial, Mr McDonald made an application for permission to further amend his statement of claim to reintroduce several of the causes of action struck out by the 6 August 2007 decision. Mr McDonald provided a handwritten document to Anderson J transcribed as follows: To: Alex From: Mr McDonald Attention Justice Anderson Non Economic Costs F McDonald v State of South Australia a) Pain and suffering of self and family b) Loss of home c) Loss of lifestyle d) Loss of work relationship e) Living with continuous uncertainty f) Not able to get on with your life and family not able to get on with their life. In ruling on the proposed further amended statement of claim, Anderson J said:15 Ruling on the proposed further amended statement of claim I will now deal with the issue that arose during the trial whereby Mr McDonald made an application for permission to further amend his statement of claim. Mr McDonald first gave notice of his intention to do this on 7 December 2007 (day 11 of the trial) and argument was eventually heard in relation to it on 23 January 2008 (day 25 of trial). Mr McDonald submitted to me a handwritten document of his proposed further amendments. He sought to have those further allegations included in his statement of claim. After discussing these proposed amendments with him, his submission was narrowed down. He wished to strike out paragraph 102(e) and claim instead by a proposed 15 McDonald v State of South Australia (2008) 172 IR 256 at [450]-[468]. -- 15 of 68 -- [2024] SASC 67 Bampton J 14 paragraph 102(d) for non-economic loss for pain and suffering, loss of dignity and reputation as a skilled teacher and educational leader, loss of enjoyment of lifestyle, loss of enjoyment of working relationship, and as a separate head of damage damages for psychiatric injury. DECS raised five main grounds of objection to the application. First, that the policy of the Workers Rehabilitation and Compensation Act 1986 (SA) prevented a claim for damages other than for a liability under that Act (see Errington v Target Australia Pty Ltd). Secondly, that Mr McDonald was statute barred from pleading any new causes of action outside the limitation of actions period laid down by the Limitation of Actions Act 1936 (SA). As proceedings were issued on 16 April 2004 claims in contract could not arise from events that occurred prior to 16 April 1998 and in tort prior to 16 April 2001. Thirdly, that the case of Hadley v Baxendale (1854) 156 ER 145 is authority for the proposition that the amendment should not be allowed because it relates to special circumstances which were not in the contemplation of the parties at the time of contracting. Fourthly, that the English authorities cited by Mr McDonald in support of his ability to claim damages for non-economic loss are distinguishable or unique to that jurisdiction. Fifthly, that the proposal to amend the statement of claim at such a late stage of proceedings was generally prejudicial to DECS because of the need to re-open areas of inquiry into causation and quantum of damages and call further evidence. I found as a matter of law and as part of the general discretion available to me that the application to amend the statement of claim should not be allowed. At the time I indicated that I would give reasons, which I now provide. Reasons for refusal of amendment during trial The main issue is whether Mr McDonald can make a claim for damages at common law for non-economic loss, notwithstanding the provisions of the Workers Rehabilitation and Compensation Act 1986 (SA). Section 54 states: (1) Subject to subsection (2), no liability attaches to an employer in respect of a compensable disability arising from employment by that employer except— (a) a liability under this Act; or (2) Subsection (1) does not affect a liability arising out of the use of a motor vehicle, being a liability against which the employer was or ought to have been insured under the law of compulsory third-party motor vehicle insurance. This section provides protection to an employer in that it bars non-statutory actions and establishes a system of indemnity insurance through the WorkCover Corporation in Pt 4 Division 7 of the Workers Rehabilitation and Compensation Act 1986. The intention of Parliament in this regard is clear: see Errington at page 384. The master delivered reasons for striking out parts of Mr McDonald’s claim as follows: While much of the plaintiff’s pleaded claim is for a constructive wrongful dismissal, which is maintainable in this Court, parts of his pleadings and submissions show that he also seeks to claim for physical and/or mental injury arising out of his employment by the defendant. This is barred by s 54(1). The plaintiff referred to a -- 16 of 68 -- [2024] SASC 67 Bampton J 15 number of authorities decided interstate and in England where such a claim is apparently maintainable, but they do not affect the operation of s 54(1) in this State. He can have no claim under the Workers Rehabilitation and Compensation Act 1986 in this Court: Errington v Target Australia Pty Ltd (1995) 65 SASR 378. See McDonald v State of South Australia (unreported, Supreme Court of South Australia, Judge Lunn, 6 August 2007) at [1]-[2]. I agree with the comments and reasoning of the master as set out above. The second reason for my decision to disallow the amendment is the risk of prejudice to DECS. If Mr McDonald were permitted at that late stage to plead the non-economic loss and psychiatric injury arising from the breach of contract, or in tort, further evidence would need to be called and some witnesses would need to be recalled. This would also require further witnesses to give evidence regarding the issue of the stress and anxiety Mr McDonald claimed to have suffered. It would also require Mr McDonald to give further evidence. Furthermore, Mr McDonald would clearly require expert evidence to establish the causal connection between his employment and his alleged loss. It would also be necessary for further evidence on the quantum of damages. The matter would require investigation by DECS and the right to call further evidence. All of these consequences would result in a significant and costly delay. In simple terms, the case would then have gone down the path of an assessment of damages for personal injuries. The issue of expert reports was discussed in the course of the directions hearings held prior to the trial. Any amendment at that stage of the trial would also be in contravention of the Supreme Court Civil Rules 1987 relating to the provision of expert reports. However, because Mr McDonald is self-represented in this action I would have allowed him some flexibility in an application for a late amendment were it not for the other matters I have mentioned. Prior to the commencement of the trial he reassured me that he was self-represented by choice as he was dissatisfied with the advice given to him by several lawyers, some of whom he had engaged to act but with whom he subsequently terminated instructions. I advised him, when the proceedings came before me, to seek a legal advisor immediately if he required one because I was not going to allow him to chop and change counsel or solicitors during proceedings. His preference was clearly to proceed as a litigant in person. I have taken all of these circumstances into account when assessing Mr McDonald’s position as a layperson, in the overall exercise of my discretion. The history of the pleadings was canvassed during the application to amend. It was brought to my attention and I noted that the amendments then sought to be included had, in the past, been included in various different ways in some of the earlier versions of the statement of claim. One example is the document filed on 27 February 2007. It was submitted to me that this was the first time psychiatric injury had been pleaded. That particular document was drafted by solicitors and settled by counsel. The allegation did not appear in the next statement of claim filed. I therefore disallowed the amendment, following the reasoning in Errington’s case and because of my view as to the potential prejudice to DECS and the delays in proceedings that would be caused by allowing such a late change. Apart from Errington’s case I consider that for the reasons set out I would not in any event have allowed the amendment in the exercise of my discretion. It was simply too late in the day and should have been dealt with by way of an appeal from the decision of the master. In these circumstances it -- 17 of 68 -- [2024] SASC 67 Bampton J 16 is not necessary to deal with the other grounds urged by the defendant to oppose the application to amend. 25 Shortly stated, Mr McDonald did not appeal the 6 August 2007 decision. As such, his allegations that he filed a notice of appeal, that he was denied the right to appeal, and that there has been a miscarriage of justice such that he is entitled have Anderson J’s judgment set aside and a retrial in the 2004 proceedings, are without any foundation and, in my view, scurrilous. I also note the Full Court’s finding (discussed below) to the effect that had an appeal against the 6 August 2007 decision been instituted, it would have had no prospects of success. Full Court appeal and cross-appeal 26 The State of South Australia appealed against Anderson J’s judgment and Mr McDonald cross-appealed. On 30 July 2009, the Full Court of this Court upheld the appeal, dismissing the cross-appeal, and dismissing the 2004 proceedings with costs (“the 2009 Full Court decision”). The Full Court held it was not necessary to decide whether Mr McDonald’s employment contract was with the Minister for Education or with the Crown and found: 1. there was no implied term of mutual trust and confidence. Further, the Full Court considered that had there been such a term, there would not have been a repudiatory breach; 2. with respect to the contractual duty of care, there was no repudiatory breach; and 3. “none of the grounds of complaint in the cross-appeal [were] made good”.16 In particular, the Full Court, in dismissing the grounds of cross-appeal, referred to the grounds of cross-appeal concerning pleadings struck out by the 6 August 2007 decision and stated:17 Ground One This ground covers a number of matters. Some of them are matters that were raised by an application that Mr McDonald made during the trial for permission to amend his Statement of Claim. The Judge refused permission: [458]-[468]. Other grounds relate to matters originally pleaded by Mr McDonald, which were struck out before trial by a Master. As the Judge pointed out in his reasons, Mr McDonald did not appeal against that decision, although it appears that he protested to the Judge about it: [448]. We now turn to the topics or matters raised in this rather lengthy ground. Mr McDonald complains that the Judge erred in not allowing him to lead medical evidence to support a claim for damages for non-economic loss suffered by him as a 16 State of South Australia v McDonald (2009) 104 SASR 344 at [396]. 17 State of South Australia v McDonald (2009) 104 SASR 344 at [397]-[402]. -- 18 of 68 -- [2024] SASC 67 Bampton J 17 result of injury caused by the negligence of the Minister, and to support a like claim for damages for deceit or for damages for breach of the contractual duty of care. The Master struck out the claim for damages for non-economic loss, treating that claim as barred by s 54 of the WRC Act. As we have said, there was no appeal from that decision. This complaint also appears to cover much the same ground as the proposed amendment to the Statement of Claim that the Judge disallowed. The Judge gave reasons for doing so at [450]-[457]. We agree with the Judge that s 54 of the WRC Act is a bar to the proposed claim for damages for non-economic loss. In any event, we agree with the Judge’s reasons for refusing to grant permission to amend the Statement of Claim during the trial. Mr McDonald also claims that the Judge should have allowed him to lead medical evidence to support damages for non-economic loss flowing from personal injury caused by the deceit of the Minister, his servants or agents. That claim failed on the facts: [482]-[483]. We are not persuaded that the Judge erred in making the findings of fact that he made. (Emphasis added) First application for special leave 27 Mr McDonald sought special leave to appeal to the High Court from the Full Court’s decision where he was represented by junior and senior counsel. Special leave was refused on 12 February 2010. Since commencement of the 2004 proceedings 28 In the wake of the 2009 Full Court decision, Mr McDonald (in certain instances with Mrs McDonald as co-plaintiff) has initiated, or attempted to initiate, asserted “new proceedings” in the Federal Court and then in the Supreme Court, seeking to relitigate the 2004 proceedings. Shortly stated, these proceedings or attempts to initiate proceedings are considered in: 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 4. four decisions published by the Workers Compensation Tribunal in respect of Mr McDonald’s applications. 29 The Attorney-General submits in addition to the matters listed in 1 to 4, registrars in State and Federal courts have considered voluminous materials which Mr and/or Mrs McDonald have lodged with their registries and, on many -- 19 of 68 -- [2024] SASC 67 Bampton J 18 occasions, have refused to accept them for filing (sometimes after seeking the advice of judicial officers). The Attorney-General’s vexatious litigant application 30 The Attorney-General contends that the result of all the litigation involving Mr and Mrs McDonald (other than of a few interlocutory applications resulting in orders permitting repleading) has been the consistent dismissal or rejection of the substance of Mr and McDonald’s allegations. It is argued that many judicial findings have been made to the effect that proceedings were instituted by Mr and Mrs McDonald without reasonable ground and/or for an ulterior purpose. 31 The Attorney-General seeks declarations and orders pursuant to s 39(1) of the Act and, in the alternative, the inherent power of the Court. 32 The Attorney-General submits that an order pursuant to s 39(1) of the Act is necessary and in the public interest to protect the courts, parties, and individuals from being besieged by current and future vexatious litigation instituted by Mr and Mrs McDonald. Applying s 39 of the Act 33 The purpose of vexatious litigant legislation is not to punish,18 but rather “to enable the protection of courts against unjustified use of their time and resources and protection of opposing litigants against incurring time and cost in defending applications without merit or made for an improper purpose”.19 It seeks to balance:20 1. the fundamental right under the Australian legal system of the individual to seek remedies from the courts “as a consequence of an alleged infringement of a person’s rights”;21 and 2. the need to protect the courts, prospective respondents, and the community from vexatious litigation and its effects.22 34 Upon being satisfied of three threshold matters, the discretion to exercise the power under s 39(1) is enlivened. The first threshold matter 35 First, the litigant must have “instituted … proceedings”. For the purposes of s 39(1), s 39(6) defines “proceedings” as “civil or criminal proceedings instituted in a prescribed court”. The authorities are clear that “proceedings” are not limited to an originating process and may include appeals and some forms of interlocutory 18 Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 at [3] (Perram J), cited in Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 at [56] (Beazley P, Emmett JA and Sackville AJA). 19 Attorney-General (SA) v Kowalski [2014] SASC 1 at [919] (Blue J). 20 Georganas v Barkla [2021] SASC 47 at [50]-[63] (Livesey J). 21 Soden v Croker (No 2) (2016) 334 ALR 540 at [7] (Perry J). 22 Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 at [3] (Perram J). -- 20 of 68 -- [2024] SASC 67 Bampton J 19 processes.23 In Workcover Corporation of South Australia v Moore-McQuillan, Blue J summarised (with reference to interstate authorities):24 In determining whether a particular type of application falls within the concept of a proceeding within the meaning of section 39, given the use of that term in the section, the question ought to be assessed as a matter of substance rather than form or the name applied to the particular type of application. The following general principles can be derived from the wording, context and evident purpose of section 39: 1. An action in which a party seeks a final determination of a justiciable issue or the exercise of any like power vested in the court (whether by way of action, cross action or third party action) is a “proceeding”. 2. An appeal from a judgment or order is a separate “proceeding” to the original application in respect of which the judgment or order was made (whether the appeal is to a different court or to the same court in which the original judgment or order was made). 3. An application to set aside a judgment or order which is substantively similar to an appeal should be treated in the same way as an appeal against the judgment or order would be treated. 4. An application which is interlocutory in nature relating to a matter incidental to the action as opposed to substantive rights is generally not a “proceeding”. 5. Even though an interlocutory application of the type referred to in 4 is not a “proceeding”, nevertheless an appeal from (or application to set aside) an order on such an interlocutory application is a “proceeding”. Application of the fourth and fifth general principles suggests that typically (subject to any unusual features in a particular case): 1. An application to a judicial officer to disqualify himself or herself on the ground of apprehended bias is not a proceeding. 2. An application for an adjournment or stay of proceedings or execution is not a proceeding. 3. An appeal against an order made on a disqualification, adjournment or stay application is a proceeding. 4. An application for leave or permission or an extension of time to appeal is the initiating step in an appellate proceeding and is a proceeding. (Footnotes omitted) 36 As the Attorney-General points out, of some relevance to this matter, and consistent with the above principles, each of the appeals instituted by Mr and 23 Garrett v Mildara Blass Ltd [2009] SASC 19 at [121]-[124] (Layton J); Workcover Corporation of South Australia v Moore-McQuillan [2016] SASC 191 at [349]-[360] (Blue J); Georganas v Barkla [2021] SASC 47 at [84]-[85], [88]-[89], [96]-[118] (Livesey J). 24 Workcover Corporation of South Australia v Moore-McQuillan [2016] SASC 191 at [358]-[360]. -- 21 of 68 -- [2024] SASC 67 Bampton J 20 Mrs McDonald are separate proceedings for the purposes of the s 39 definition notwithstanding the interlocutory nature of many of the orders appealed against. 37 Pursuant to s 39(6), the District Court and the Supreme Court are “prescribed courts” and the (former) Workers Compensation Tribunal (previously expressly identified as a “prescribed court”), falls within the definition of a prescribed court as a “court of the State”.25 Applications for special leave to the High Court and proceedings in the Federal Court do not fall within the s 39(6) definition.26 The second threshold matter 38 The proceedings must be “vexatious”. 39 Section 39(5) of the Act provides: (5) For the purposes of this section, proceedings are vexatious— (a) if instituted to harass or annoy, to cause delay, or for any other ulterior purpose; or (b) if instituted without reasonable ground. 40 The Attorney-General contends that Mr and Mrs McDonald have instituted “vexatious” proceedings pursuant to s 39(5) of the Act because they were instituted “without reasonable ground”. 41 The “without reasonable ground” condition is to be determined objectively, without reference to the individual’s intentions.27 It “corresponds with the criteria for one of the categories of abuse of process, namely that proceedings have been instituted without reasonable grounds”.28 42 The Attorney-General also relies upon the findings made in several judgments of Mr and Mrs McDonald’s ulterior purpose in instituting certain proceedings, which render the proceedings “vexatious” pursuant to s 39(5)(a) of the Act. 43 As Blue J explained in Attorney-General (SA) v Kowalski:29 Section 39(5)(a) draws on common law concepts of abuse of process. Civil and criminal proceedings can be permanently stayed as an abuse of process if they are instituted for an ulterior purpose. 25 Mitsubishi Motors Australia Ltd v Kowalski [2004] SASC 302; (2004) 236 LSJS 101 at [38] (Duggan J, with whom Besanko and Anderson JJ agreed). 26 The High Court is not a ‘court of the State’ for the purpose of s 39(6)(b): see Attorney-General (SA) v Burke [1997] SASC 6014; (1997) 190 LSJS 28 at [57]-[58] (Perry J). 27 Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154 at [17] (Bleby J); Kowalski v Mitsubishi Motors Australia Ltd (2011) 198 FCR 153 at [64] (Jacobson, Siopsis and Nicholas JJ). 28 Attorney-General (SA) v Kowalski [2014] SASC 1 at [1045] (Blue J). 29 Attorney-General (SA) v Kowalski [2014] SASC 1 at [1741]-[1742] (Blue J). -- 22 of 68 -- [2024] SASC 67 Bampton J 21 In the general law, there is a difference between motive and purpose. Motive refers to the person’s subjective reasons for seeking an objective. Purpose refers to the objective of the person engaged in the relevant conduct. Generally, a person’s purpose is ascertained by reference to the objective facts and circumstances. Evidence of the person’s subjective state of mind is relevant to, but not determinative of, purpose. There is a clear distinction between purpose and effect. Conduct may have various effects without their being the purpose of the person engaging in the conduct. (Footnotes omitted) The third threshold matter 44 The litigant must have instituted the proceedings “persistently”. Justice Blue explained in Attorney-General (SA) v Kowalski:30 The question whether vexatious proceedings have been instituted persistently involves a matter of judgment turning on questions of circumstance and degree.31 The term “persistently” suggests determination and continuing in the face of difficulty or opposition with a degree of stubbornness.32 Factors to be taken into account in assessing persistence include the number of proceedings, their character, the way in which they were conducted, the extent to which they represent attempts to re-litigate issues already conclusively determined and the extent of extravagant allegations which are not substantiated.33 (Footnotes in original) Determining a vexatious litigant application 45 Upon being satisfied the litigant has persistently instituted vexatious proceedings, the discretion as to whether to make the s 39(1) order is enlivened. In exercising the discretion, “the protective purpose which the order serves” is to be borne in mind “against the background of the fundamental principle that a person generally has a right to seek from the courts remedies for legal wrongs”.34 The following have been identified as factors which may inform the Court’s exercise of the discretion: 1. the prospect that vexatious litigation will continue unless and until the Court intervenes;35 2. the person’s ability to accept the outcomes of litigation where issues have been finally determined;36 30 [2014] SASC 1 at [1979]-[1980]. 31 Attorney-General for the State of South Australia v Burke (1997) 190 LSJS 28 at 35 per Perry J. 32 Attorney-General v Wentworth (1988) 14 NSWLR 481 at 492 per Roden J. 33 Brogden v Attorney-General [2001] NZCA 208; [2001] NZAR 809 at [21] per Thomas, Keith and Blanchard JJ. 34 Attorney-General (SA) v Kowalski [2014] SASC 1 at [1987] (Blue J). 35 Jones Lang Lasalle (Qld) Pty Ltd v Dart [2005] FCA 1614 at [43] (Kiefel J); Attorney-General (SA) v Kowalski [2014] SASC 1 at [1988] (Blue J). 36 Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 at [69]-[70] (Beazley P, Emmett JA and Sackville AJA); Attorney-General (SA) v Kowalski [2014] SASC 1 at [1989] (Blue J). -- 23 of 68 -- [2024] SASC 67 Bampton J 22 3. the person’s readiness to make threats of personal litigation to coerce desired outcomes;37 4. the person’s readiness to make baseless assumptions and accusations of wrongdoing or misconduct against respondents, judicial officers and court staff;38 5. the past effect of the litigation on respondents and individuals involved, and the waste of the Court’s scarce resources;39 and 6. the public expense and resources expended in defending baseless litigation.40 46 As submitted by the Attorney-General, the Court need not “go behind” the judgments and findings made in previous proceedings in determining a vexatious litigant application. In the circumstances of this matter, including where the central assertions of Mr and Mrs McDonald have been repeatedly rejected, it is appropriate that I “have regard to the result of the proceedings and, where appropriate, the findings of, and views expressed by, the various judicial officers who dealt with them”.41 47 The Attorney-General contends that 25 proceedings,42 identified in annexure 2 to these reasons, instituted by Mr McDonald (12 of which were also instituted by Mrs McDonald) in a prescribed court satisfy the threshold of being “vexatious” within the meaning of s 39 of the Act. I have identified each of these proceedings by numbering them 1 to 25 in my discussion below. 48 The Attorney-General does not submit that the 2004 proceedings, the 2009 Full Court appeal, or the first special leave application are vexatious. Rather, it is submitted these proceedings provide context to the litigation that has ensued. Further, the Attorney-General does not submit the unnumbered proceedings or other actions taken that are discussed below are “proceedings” for the purpose of s 39 of the Act. It is submitted, however, they should inform the exercise of the discretion to make orders under s 39 of the Act. 37 Mbuzi v Griffith University (2014) 323 ALR 248 at [190] (Collier J). 38 Bird v Registrar, Federal Court of Australia [2016] FCAFC 188 at [27] (Logan, Reeves and Markovic JJ); Attorney-General (SA) v Kowalski [2014] SASC 1 at [1989] (Blue J). 39 Shire of Katanning v Bride (No 2) [2016] WASC 314 at [74] (Tottle J). 40 Mathews v Queensland [2015] FCA 1488 at [134] (Reeves J). 41 Fokas v Mansfield as Trustee of the Bankrupt Estate of Maria Fokas (No 2) [2020] FCA 30 at [42] (Wheelahan J, quoting Patten AJ in Attorney-General (NSW) v Bar Mordecai [2005] NSWSC 142 which concerned an application under s 84(1) (since repealed) of the Supreme Court Act 1970 (NSW) at [5]). 42 Since hearing the Attorney-General’s application, the Court of Appeal has delivered its decision in McDonald & Anor v Attorney-General for the State of South Australia [2023] SASCA 132. -- 24 of 68 -- [2024] SASC 67 Bampton J 23 Inherent power 49 The Supreme Court, as a superior court of record, has broad general and inherent powers to prevent the abuse of its processes as well as those of the courts and tribunals of South Australia.43 50 In circumstances where the statutory criteria of s 39 of the Act are not satisfied, it may be appropriate to exercise the inherent powers of the Court to restrain further vexatious litigation.44 For example, where “the new proceeding involves the re-litigation of an issue or proceeding, or is otherwise concerned with an issue or proceeding, which has been finally determined”.45 Mr and Mrs McDonald’s submissions in opposition to the Attorney-General’s application 51 Mr and Mrs McDonald appeared at the bar table during the hearing of the Attorney-General’s application. Mrs McDonald confirmed at the outset of the hearing she adopted the filed written submissions prepared and the oral submissions to be made by Mr McDonald in opposition to the Attorney-General’s application “absolutely”.46 52 I have taken into account Mr and Mrs McDonald’s written and oral submissions. 53 In their written submissions,47 Mr and Mrs McDonald submit that the Attorney-General’s application to have them declared vexatious litigants “flows from the lost [Judge Lunn] appeal on 23 August 2007”. As detailed earlier in these reasons, Mr and Mrs McDonald argue that Mr McDonald was denied the opportunity to argue an appeal from the 6 August 2007 decision which he alleges was filed but lost or destroyed by the Supreme Court Registry. They contend that had the appeal been heard, a different outcome would have flowed from the trial heard by Anderson J in 2008. They further contend that the appeal would have unravelled the fact that DECS was not a body corporate and was not Mr McDonald’s employer. They assert that had the appeal been heard, the breach of contract claim and the third-party personal injury claim would have been “against the trading corporation and its employees … in the jurisdiction of the Supreme Court and the case would have been finalised”.48 54 Mr and Mrs McDonald argue49 in response to the Attorney-General’s submission regarding their extensive litigation history that “the CSO and hence the 43 Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 at 314 (Barwick CJ, McTiernan and Walsh JJ). 44 Georganas v Barkla [2021] SASC 47 at [16] (Livesey J). 45 Georganas v Barkla [2021] SASC 47 at [16] (Livesey J). 46 Transcript of proceedings, Attorney-General for the State of South Australia v McDonald & Anor (Supreme Court of South Australia, Bampton J, 27 February 2023) at 4.28-38. 47 CIV-21-010182, FDN 75 at [248]. 48 CIV-21-010182, FDN 75 at [249]. 49 CIV-21-010182, FDN 75 at [521]. -- 25 of 68 -- [2024] SASC 67 Bampton J 24 [Attorney-General] never had a problem dealing with the extensive litigation in the Courts when [they] had not collected the evidence” which they maintain shows “the CSO acting for SAFA set out to defraud Mr McDonald out of his substantive and statutory rights to a contract claim and a third party personal injury claim under Australian jurisprudence in the 2004 action in the Supreme Court”.50 55 Mr and Mrs McDonald argue that the Attorney-General is vigorously pursuing the application to have them declared vexatious to avoid going to trial, as the Attorney-General is conscious of the fact Mr and Mrs McDonald “have a high probability of proving the CSO committed actual fraud or conduct analogous to fraud and they want to avoid this for it would likely find its way into the public arena and [would] cast a long dark shadow over the integrity of the AGD, the CSO and the Courts”.51 56 Mr and Mrs McDonald complain in the further submissions received during the hearing of the Attorney-General’s application52 that I refused to permit them to call witnesses: … to prove they are not vexatious litigants and to show the [Attorney-General’s] application FDN 2 is itself vexatious, frivolous and an abuse of process designed to cover up the [Full Court’s] error in law and in jurisdiction in the 2004 action. They further complain: [T]he Full Court decision in the 2004 is on the face of the record plainly wrong and it failed to serve the interest of justice and the public interest and caused a substantial injustice to the Respondents and it stands contrary to the law and is illegal. 57 Mr and Mrs McDonald assert they would have called a number of expert witnesses, if I had not barred them, in order to prove they had reasonable grounds for instituting each of the proceedings numbered 1 to 25 listed in annexure 2 to these reasons and to prove that they are not vexatious litigants. 58 Mr and Mrs McDonald vehemently oppose the Attorney-General’s application and any submission to the effect that they have commenced litigation without reasonable ground and/or for an ulterior purpose. Their submissions boil down to a dissertation of alleged wrongs done to Mr and Mrs McDonald during this long saga and an attempt to reargue the merits of proceedings found by numerous judicial officers to have been instituted without merit. 50 SAFA is an acronym for the South Australian Government Financing Authority. 51 CIV-21-010182, FDN 75 at [522]. 52 Exhibit R7. -- 26 of 68 -- [2024] SASC 67 Bampton J 25 Summary of the “proceedings so tortuous and protracted”53 59 The structure of my discussion of the proceedings instituted or attempted to be instituted by Mr and Mrs McDonald generally mirrors the approach taken in the Attorney-General’s submissions. Workers Compensation Tribunal proceedings group Initial compensation claim 60 Mr McDonald commenced a compensation claim against DECS under the WRC Act on 3 September 2009, alleging he had suffered stress, anxiety, and depression as a result of “bullying, harassment and discrimination” in the course of his employment as a teacher. Following rejection of the claim, Mr McDonald issued a notice of dispute in the Workers Compensation Tribunal. 1: Appeal to the Full Bench of the Workers Compensation Tribunal54 61 On 11 March 2011, Hannon DPJ refused Mr McDonald’s application for an order amending the name of the respondent from “Department of Education and Children’s Services” to “Department of Education and Children’s Services (DECS) in the right of the Director General of Education”. The Deputy President determined there was a collateral purpose to the order sought by Mr McDonald:55 His purpose is to use any decision I make in this regard as a foundation upon which to identify various third parties against which to issue proceedings seeking damages for negligence or breach of statutory duty which he alleges have caused or contributed to his compensable disability, on the basis that such third parties, not being his “employer”, will be unable to seek protection against liability under s 54(1) if the Act as a consequence of my decision … 62 Mr McDonald appealed the decision on 25 March 2011 and, on 30 June 2011, the Full Bench of the Tribunal summarily dismissed Mr McDonald’s appeal stating:56 [Mr McDonald’s] grounds of appeal in respect of the ruling do not point to any specific error on the part of the learned Deputy President but seek to reargue his case before the learned Deputy President. The notice of appeal demonstrates his implacable belief that the identification of the employer in these proceedings is a matter of great moment. We approach this application for summary dismissal of the appeal on the basis that it is the respondent who … has the onus of establishing that it is obvious that the appeal cannot succeed … and we have concluded that such onus has been met. … 53 McDonald v State of SA [2014] SASC 120 at [27] (Bampton J). 54 WCT-09-6932. 55 McDonald v Department of Education and Children’s Services (Ruling, South Australian Workers Compensation Tribunal, Hannon DPJ, 11 March 2011) at [11]. 56 McDonald v Department of Education and Children’s Services [2011] SAWCT 18 at [14]-[15], [21]-[22]. -- 27 of 68 -- [2024] SASC 67 Bampton J 26 The learned Deputy President correctly determined that the application to amend the name of the respondent was an abuse of process as it was for a collateral and futile purpose. The appeal against the resultant ruling is a continuation of that abuse of process. In this regard we adopt the Deputy President’s succinct explanation of the abuse of process. … The appeal against the learned Deputy President’s ruling cannot succeed. 63 The Attorney-General submits the findings of the Full Bench of the Tribunal are to the effect that Mr McDonald’s appeal was instituted without reasonable ground and for an ulterior purpose and was therefore vexatious within the meaning of s 39(5) of the Act. 2: Application for permission to seek judicial review of Hannon DPJ’s decision to strike out57 64 In September 2011, during a directions hearing before Hannon DPJ, Mr McDonald said he intended to lodge a notice of discontinuance of his compensation claim and that he would bring proceedings before either the Federal Court or the Supreme Court wherein he would conduct a “whole retrial”.58 Mr McDonald also said that if his common law claim were unsuccessful, he “would have an option to” return to the Tribunal for determination of a workers compensation claim. 65 DECS sought an order striking out the compensation claim for want of prosecution. In his judgment striking out the claim, Hannon DPJ noted:59 Mr McDonald acknowledged that he had already brought unsuccessful proceedings against the State of South Australia claiming damages for an alleged breach of his employment contract. However he contended that the Supreme Court erred in that decision, and also in striking out a claim for negligence against the State on the grounds of the limitations on claims against employers under s 54(1) of the Act, on the basis, as I understand it, that his true employer was the Minister of Education, an entity said to be separate and divisible from the State of South Australia. He asserted that he had a right to pursue such a claim, and also a “vicariously liability claim against third parties” (sic),60 being fellow employees who allegedly had injured him through serious and wilful acts of misconduct. He stated that as the claims could not be made under the Act or be determined by this Tribunal, he was “not going ahead with the present claim which is before the Court”.61 … … the explanation and reason for the proposed delay in proceeding with the compensation claim is not satisfactory. The length of the proposed delay is indefinite, and on past experience, it may continue for a long time. The respondent will be prejudiced by the delay, whilst acknowledging the effect of that delay may be ameliorated to some extent by reliance upon the record of evidence already given. In any event, the existence of prejudice to the 57 SCCIV-12-1460. 58 McDonald v Department of Education and Children’s Services [2011] SAWCT 36 at [10]. 59 McDonald v Department of Education and Children’s Services [2011] SAWCT 36 at [9], [36]-[37]. 60 Directions hearing 20 September 2011 – tr 241.16. 61 Meaning the Workers Compensation Tribunal – 20 September 2011 tr 250.24. -- 28 of 68 -- [2024] SASC 67 Bampton J 27 respondent is not a necessary criterion. Accepting that he has an arguable claim, Mr McDonald will be prejudiced if the application to dismiss his claim is granted, but his implacable insistence upon now taking another path in pursuit of his perceived legal rights, despite the consequences of that path being made very clear to him, makes him the sole author of that prejudice. Every effort that it is appropriate for the Tribunal and the respondent to make in order to have Mr McDonald reconsider his desired course of action has come to nought. There is no relevant conduct on the part of the respondent which can weigh in favour of Mr McDonald. Mr McDonald has rejected the opportunity to have his compensation claim heard on the merits on the trial dates allocated. It is not up to him to decide if and when the case will proceed … I conclude that it is not appropriate to allow the hearing of the compensation claim to be put in abeyance to indulge Mr McDonald’s desire to pursue proceedings elsewhere. (Footnotes in original) 66 Thereafter, Mr McDonald, on 24 September 2012, applied to the Supreme Court for permission to seek judicial review of Hannon DPJ’s decision of 23 November 2011.62 67 The Supreme Court Rules in force at the time of the application required the Court to be satisfied of a reasonable basis on which the application might establish a right to an order for judicial review before granting permission to further proceed with the matter. 68 On 4 December 2012, in refusing permission to proceed with the judicial review, Judge Withers said:63 In all of the circumstances, in my view no material has been filed in this matter which demonstrates a reasonable basis on which the applicant might establish a right to an order for judicial review. The breadth of [Mr McDonald’s] submissions make it abundantly clear that his real concern is a passionate perception on his part that he and his family have been the victims of a conspiracy involving this Court and other institutions to prevent him and his family from obtaining just compensation for the consequences of the way in which he was treated as a teacher some years ago. An application for judicial review of a decision … which decision appears in the end to have been with the concurrence or at the request of [Mr McDonald], is not a process that provides a foundation for the airing of those complaints. 3: Appeal to single Judge of the Supreme Court from Judge Withers’ decision64 69 On 19 March 2013, in dismissing Mr McDonald’s appeal from Judge Withers’ decision, Nicholson J held that Judge Withers’ decision was correct and stated:65 … I have conducted my own examination of the reasons of Hannon DP in the context of Mr McDonald’s overarching complaints. The decision whether or not to strike out for want 62 SCCIV-12-1460. 63 McDonald v The Workers Compensation Tribunal (SASC, Judge Withers, 4 December 2012) at [30]. 64 SCCIV-12-1460. 65 McDonald v Workers Compensation Tribunal [2013] SASC 34 at [28] (Nicholson J). -- 29 of 68 -- [2024] SASC 67 Bampton J 28 of prosecution is essentially a discretionary one. Mr McDonald has been given every reasonable opportunity to have his claim heard in the Tribunal. I can discern no reasonable basis for an argument that Hannon DP erred in the exercise of the discretion open to him. No potential failure to have observed the requirements of House v R has been identified. In my view, Mr McDonald’s application for judicial review, were it to proceed, would have no prospects of success. He has not shown a reasonable basis on which he might establish a right to an order for judicial review. 70 The Attorney-General submits that these express findings as to there being no reasonable basis for a judicial review application demonstrate that both the initial application for permission to seek judicial review and the appeal heard by Nicholson J were “vexatious” within the meaning of s 39(5)(b) of the Act. 71 Mr and Mrs McDonald argue these three proceedings are not vexatious, contending the appeal from Hannon DPJ’s decision came about because the Crown Solicitor had informed Mr McDonald in a letter dated 16 February 2011 that if he wished to proceed with a Workcover claim he would need to make a claim against the State of South Australia in the right of “DECS”.66 I note that letter concludes reiterating: “As discussed before the Tribunal the identity of your employer is not an issue to be decided for the purposes of your claim or the dispute before the Tribunal”.67 72 I note Deputy President Judge Hannon stated that between July 2010 and November 2011 Mr McDonald:68 … became increasingly pre-occupied by a perceived need to have the Tribunal amend the name of the respondent to accord with what he submitted was its proper description. He sought to have the name changed to “Department of Children’s Services (DECS) in right of the Director-General of Education”. The purpose of this amendment appeared to be to facilitate the identification of other divisible instrumentalities of the Crown, such as the Minister of Education, or other third parties against which Mr McDonald could issue proceedings claiming damages for negligence and breach of statutory duty with respect to the mental injury the subject of the compensation proceedings in a context which fell outside the provisions of s 54(1) of the Act restricting such claims against employers. I declined to amend the name of the respondent. Mr McDonald unsuccessfully appealed against that decision to the Full Tribunal: McDonald v Department of Education and Children’s Services.69 (Footnote in original) 73 I am satisfied the separate appellate and judicial review proceedings numbered 1, 2, and 3 above were each instituted without reasonable ground and satisfy the criteria prescribed in s 39(5) of the Act. Further, in respect of the proceedings numbered 1, I am satisfied that the s 39(5) criteria are also satisfied 66 CIV-21-010182, FDN 75 at [282]. 67 Exhibit R5 at p 10. 68 McDonald v Department of Education and Children’s Services [2011] SAWCT 36 at [6] (Hannon DPJ). 69 [2011] SAWCT 18 – delivered 30 June 2011. -- 30 of 68 -- [2024] SASC 67 Bampton J 29 because the appeal was instituted for an ulterior purpose, as the Full Bench of the Workers Compensation Tribunal said:70 The learned Deputy President correctly determined that the application to amend the name of the respondent was an abuse of process as it was for a collateral and futile purpose. The appeal against the resultant ruling is a continuation of that abuse of process. The 2013 and 2014 proceedings group The District Court proceedings71 74 In action number DCCIV-05-29, Mr McDonald and his son, Brennan McDonald72 by Mr McDonald as his next friend, instituted proceedings in the District Court against the State of South Australia. The statement of claim filed on 12 January 2005 alleged the State “was negligent …, that it was deceitful, and that it defamed [Brennan] and caused psychological injury, loss of dignity and reputation and discrimination, in relation to [Brennan’s] education whilst he attended Paringa Park Primary School during 1997 - 2000”. Between January 2005 and August 2009, 10 versions of the statement of claim were filed or considered and decisions were delivered and/or orders made including with respect to the adequacy of the statements of claim. 75 On 11 July 2011, Master Norman refused to accept a further version of the statement of claim.73 The appeal from that decision was dismissed by Judge Rice on 20 April 2012.74 Following argument on the State’s application seeking that Mr McDonald’s claim in DCCIV-05-29 be dismissed as disclosing no cause of action, Judge Rice dismissed Mr McDonald’s claim on 7 August 2012.75 Appeal to a single Judge of the Supreme Court from the decision of Judge Rice76 76 Mr McDonald appealed Judge Rice’s decision of 20 April 2012 and order of 7 August 2012 dismissing his claim. Justice Nicholson allowed the appeal only in respect of the 7 August 2012 order dismissing Mr McDonald’s claim and permitted Mr McDonald to replead his claim, noting:77 However, Mr McDonald ought to be aware that in order to successfully plead his case he will need to make wholesale changes to that which he has proffered to this point. I risk speaking out of turn here. Nevertheless, Mr McDonald should understand that, based on the history of his previous attempts, this task is very likely to be beyond him in the absence of legal assistance. I remind Mr McDonald of this again now because this is likely to be the last opportunity he will be given to plead his case. 70 McDonald v Department of Education and Children’s Services [2011] SAWCT 18 at [21]. 71 DCCIV-05-29. 72 Date of birth 30 June 1991. 73 McDonald v South Australia (District Court of South Australia, Auxiliary Master Norman, 11 July 2011) (Decision 53 of 2011, FDN 69), with amended reasons which were published on 10 November 2011. 74 McDonald v The State of SA [2012] SADC 54 (Judge Rice). 75 McDonald v State of South Australia [2013] SASC 36 at [5] (Nicholson J). 76 Filed in SCCIV-12-1335. 77 McDonald v State of South Australia [2013] SASC 36 at [40]. -- 31 of 68 -- [2024] SASC 67 Bampton J 30 (Emphasis added) Pleading issues arising from the identity of the defendant 77 On 18 March 2013, Master Blumberg refused three interlocutory applications brought by Mr McDonald in DCCIV-05-29, one of which was an application to substitute the Minister for Education as the defendant in place of the State of South Australia. 4: Appeal to a District Court Judge from Master Blumberg’s decision78 78 Mr McDonald appealed against Master Blumberg’s decision. On 23 May 2013, Judge Tilmouth noted that there was no utility in substituting the defendant proposed by Mr McDonald for the State of South Australia. The Judge also noted that Mr McDonald and Brennan McDonald did not wish to agitate an application to include Mrs McDonald as a plaintiff in the DCCIV-05-29 proceedings until the Court had made orders as to the description of the defendant. 5: Proposed appeal to a single Judge of the Supreme Court from Judge Tilmouth’s decision79 79 On 10 April 2014, Mr McDonald and his son filed a notice of appeal in this Court against Judge Tilmouth’s decision on 23 May 2013. As the time to appeal against an interlocutory judgment had expired, the proposed appeal required an order extending the time to seek permission to appeal. The matter came on for hearing before me. As Brennan McDonald by this time was sui juris and overseas, I permitted Mr McDonald to speak on his behalf at the hearing. On 27 August 2014, I refused to make an order extending the time to seek permission to appeal. In my reasons for decision, I indicated that if the proposed appeal had merit or was arguable an extension of time would have been granted.80 80 Mr McDonald had submitted during the hearing that the application to change the name of the defendant to the “Minister for Education” ought to have been permitted because the Minister for Education was the proper defendant. He argued that his employer was not the State of South Australia; rather, it was the “Body corporate and independent legal entity created under the Education Act 1972 known as the Minister for Education and Child Development”. I held that “[t]here is no basis to Mr McDonald’s submission that the Minister is not part of the Crown” and that there was “no utility” in making the order sought. 78 DCCIV-05-29. 79 SCCIV-13-1574. 80 McDonald v State of SA [2014] SASC 120 at [31]. -- 32 of 68 -- [2024] SASC 67 Bampton J 31 6: Application for permission to appeal to the Full Court from Bampton J’s decision81 81 On 3 September 2014, Mr McDonald and Brennan McDonald applied for permission to appeal my decision to the Full Court. On 24 February 2015, the Full Court refused permission to appeal, remarking:82 The applicants’ original interlocutory application to change the name of the defendant has been heard by a District Court Master, a District Court Judge and now a Supreme Court Judge. In each case the application has been found to be without merit. Detailed reasons have been given for this finding by each of those judicial officers. It is not necessary to traverse those reasons yet again. The decision of Bampton J was correct and an appeal from that decision would enjoy no prospect of success. Permission to appeal is refused. (Emphasis added) Second application for special leave 82 Mr McDonald and Brennan McDonald applied for special leave to appeal to the High Court against the 24 February 2015 decision of the Full Court. On 13 August 2015, in dismissing the application, the High Court said:83 The Full Court’s refusal of permission to appeal on this question of practice and procedure was plainly correct. An appeal to this Court would have no prospect of success. 83 The Attorney-General contends that each of the appellate proceedings numbered 4, 5, and 6 above are vexatious within the meaning of s 39(5)(b) of the Act. The Attorney-General relies on the Full Court’s express agreement that the application to change the name of the defendant was “without merit” and the fact that the High Court regarded the Full Court’s decision as being “plainly correct”. 84 Mr and Mrs McDonald’s submissions regarding the 2013 and 2014 action group amount to an attempt to reargue the merits of each decision, alleging for example that:84 The Respondent submits ‘any fair minded reasonable informed member of the public would conclude’ Justice Bampton discriminated and victimised Mr McDonald as a litigant-in- person in the Supreme Court by deliberately not allowing him the benefit of the law he was entitled to in his cause of action for the employers’ breach of its contractual duty of care to him and his right to a third party personal injury claim in the Supreme Court. The Respondent submits based on the evidentiary material facts and the precedents in this matter and SA legislation the Bampton J decision in 2014 was on the face of the record clearly wrong and Bampton J’s decision did not serve the interest of justice or the public interest and it resulted in a substantial injustice to Mr McDonald and it should have been set aside on appeal by the Full Court. 81 SCCIV-13-1574. 82 McDonald & Anor v State of South Australia [2015] SASCFC 15 at [6] (Gray, Sulan and Nicholson JJ). 83 McDonald & Anor v The State of South Australia [2015] HCASL 118 at [3] (Bell and Gageler JJ). 84 CIV-21-010182, FDN 75 at [342]-[343]. -- 33 of 68 -- [2024] SASC 67 Bampton J 32 85 Mr and Mrs McDonald argue that Judge Tilmouth’s judgment and my judgment are invalid, null and void, and not based on Australian law. They also argue that an appeal from Judge Tilmouth’s decision was accepted for filing on 11 June 2013 and Mr McDonald was told it would be given to the Registrar for consideration. Thereafter, Mr McDonald says he delivered an amended appeal (incorporating amendments requested by the Registrar) and an affidavit to the Registry on 20 June 2013. He asserts that despite many requests to the Registry, he did not hear further regarding the appeal until he complained to the Chief Justice, whereupon he was informed by the Registry he was allowed to “forward a notice of appeal” from Judge Tilmouth’s decision. I say again, if the proposed appeal had merit or was arguable, an extension of time to appeal would have been granted. 86 I am satisfied the separate appellate proceedings numbered 4, 5, and 6 above were instituted without reasonable ground and satisfy the criteria prescribed in s 39(5)(b) of the Act. The Supreme Court proceedings 87 On 7 November 2013, Master Blumberg ordered that the District Court proceedings DCCIV-05-29 be transferred to the Supreme Court. Upon transfer into this Court, the proceedings were assigned SCCIV-13-1574 (“the 2013 proceedings”). 88 On 20 November 2014, Supreme Court proceedings were commenced in action SCCIV-14-1564 (“the 2014 proceedings”) by Mr McDonald, Brennan McDonald, and Mrs McDonald. As submitted by the Attorney-General, the substantive content of the 2014 proceedings was “identical” to that of the 2013 proceedings,85 other than: • the 2013 proceedings named the State as the defendant (and the plaintiffs were not permitted to amend the defendant’s name), whereas the 2014 proceedings were brought against the Minister for Education and Child Development and three department employees, namely Mr Peter Mitchell, Ms Sue Hyde and Mr Don Mackie; and • while Mrs McDonald was an interested party wishing to become a plaintiff to the 2013 proceedings, she was named as the third plaintiff in the 2014 proceedings. Application for the disqualification of Nicholson J 89 Justice Nicholson assumed responsibility for managing the 2013 and 2014 proceedings following referral from a Master of this Court. Mr and Mrs McDonald made an interlocutory application on 19 August 2015, seeking that Nicholson J be 85 McDonald & Anor v State of South Australia; McDonald & Ors v Minister for Education and Child Development & Ors (No 3) [2016] SASC 79 at [3] (Nicholson J). -- 34 of 68 -- [2024] SASC 67 Bampton J 33 disqualified from managing the proceedings. In dismissing the application on 23 September 2015, Nicholson J remarked:86 There is no evidence relied on by the plaintiffs that would support a claim of actual bias. As far as the question of apprehended bias is concerned, and bearing in mind that my only involvement to this point has been at the interlocutory level as already explained, I am not satisfied that a fair minded, lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the interlocutory questions likely to come before me in these matters. 7: Application to restrain CSO lawyers from acting87 90 Mr and Mrs McDonald applied for 12 orders in both the 2013 and 2014 proceedings seeking to restrain solicitors from the Crown Solicitor’s Office (“the CSO”) from acting in those proceedings. Justice Nicholson dismissed the application on 1 December 2015. 91 Five of the orders sought an investigation into the conduct of CSO solicitors. Justice Nicholson held that the Court did not have the power to make such orders “and more importantly … nothing has been put on behalf of the plaintiffs to suggest … that any such investigation is called for”.88 92 Another order sought a direction to the Registry to reject the notice of acting filed by a CSO solicitor. Justice Nicholson held in respect of this proposed order that “[n]o basis has been established that would support the making of [the] order”.89 93 Justice Nicholson remarked in relation to five other orders sought:90 … the underlying contentions said to support the making of such orders are either contrary to the reasoning and decision of Bampton J … or are simply untenable or both. In addition, there is a real issue as to whether or not the plaintiffs would have standing to challenge the Crown Solicitor’s retainer (and as a consequence the assignment of the matter to solicitors employed in the Attorney-General’s Department). 86 McDonald & Anor v State of South Australia; McDonald & Ors v Minister for Education and Child Development & Ors (No 3) [2015] SASC 141 at [18]. 87 SCCIV-13-1574; SCCIV-14-1564. 88 McDonald & Anor v State of South Australia; McDonald & Ors v Minister for Education and Child Development & Ors (No 2) [2015] SASC 188 at [22]. 89 McDonald & Anor v State of South Australia; McDonald & Ors v Minister for Education and Child Development & Ors (No 2) [2015] SASC 188 at [22]. 90 McDonald & Anor v State of South Australia; McDonald & Ors v Minister for Education and Child Development & Ors (No 2) [2015] SASC 188 at [13]. -- 35 of 68 -- [2024] SASC 67 Bampton J 34 8: Application for permission to appeal to the Full Court from Nicholson J’s decision91 94 Mr and Mrs McDonald sought permission to appeal from Nicholson J’s decision to the Full Court. On 13 April 2016, in refusing permission to appeal, the Full Court held:92 The notice of appeal filed on this application fails to identify any error of law or fact. The notice of appeal is substantially a repetition of the orders sought on the initial interlocutory applications, with further general submissions that are more akin to pleadings in a statement of claim … . The summary of argument filed in support of the application for permission is in similar terms, and merely amounts to a restatement of the plaintiffs’ allegations. Neither document identifies any valid grounds of appeal. … Nothing in the material provided in support of the applications identifies any new matter or any error in approach by Nicholson J. … In our view, the reasons for refusing the grant of the orders sought are uncontroversial, and supported by authority. No reasonably arguable ground of appeal has been identified by the plaintiffs, nor are any readily apparent on the face of the decision of Nicholson J. In our view, the grounds of appeal, insofar as they can be discerned as grounds of appeal, do not identify any ground which is reasonably arguable. There is no basis to conclude that the refusal of Nicholson J to make the orders sought is attended with any doubt to warrant its reconsideration. No injustice is caused to the applicants by the refusal of permission to appeal. (Emphasis added) Third application for special leave 95 Mr and Mrs McDonald applied for special leave to appeal the 13 April 2016 decision of the Full Court to the High Court. On 2 February 2017, the High Court refused special leave, remarking that there was “no arguable ground of appeal” advanced and that “the Full Court’s refusal of permission to appeal was plainly correct. An appeal to this Court would enjoy no prospect of success”.93 96 It is clear by reference to the findings made by Nicholson J in refusing to make the 12 orders sought, and the remarks of the Full Court and High Court, the applications before Nicholson J and the application for permission to appeal to the Full Court were instituted by both Mr and Mrs McDonald without reasonable ground. I am satisfied the proceedings numbered 7 and 8 satisfy the criteria prescribed in s 39(5)(b) of the Act. 91 SCCIV-13-1574; SCCIV-14-1564. 92 McDonald & Anor v State of South Australia; McDonald & Ors v Minister for Education and Child Development & Ors [2016] SASCFC 39 at [11]-[13] (Sulan, Lovell and Doyle JJ). 93 McDonald & Anor v The State of South Australia; McDonald & Ors v The Minister for Education and Child Development & Ors [2017] HCASL 1 at [1] (Nettle and Gordon JJ). -- 36 of 68 -- [2024] SASC 67 Bampton J 35 The death knell of the 2013 and 2014 proceedings 97 The 2013 proceedings and the 2014 proceedings culminated in the judgment of Nicholson J in McDonald & Anor v State of South Australia; McDonald & Ors v Minister for Education and Child Development & Ors (No 3)94 delivered on 3 June 2016 following four days of hearing. 9: The 2013 proceedings95 98 At this point in time, the statements of claim filed or proposed by Mr McDonald in the 2013 proceedings exceeded 25.96 In his judgment, Nicholson J summarised Mr McDonald’s claim in the 2013 proceedings:97 Mr McDonald seeks to agitate a number of causes of action said to be available to him in order to recover damages for personal injury, essentially, psychiatric harm and physical symptoms consequent on stress, anxiety and emotional harm caused by victimisation, bullying, harassment and other related wrongful conduct by the defendant(s) whilst Mr McDonald was an employed teacher between 1996 and 2003. He also seeks to press a claim in defamation. 99 His Honour considered in detail the deficiencies of each purportedly available cause of action pleaded or adverted to by Mr McDonald as follows:98 By way of summary, Mr McDonald makes or adverts to the following causes of action or bases for causes of action. (i) Vicarious liability of the State of South Australia (the 2013 proceedings) and the Minister (the 2014 proceedings) for breach of duty of care in negligence owed by each of the employees in Mr McDonald’s work places between 1996 and 2003 who are named in the statement(s) of claim, resulting in personal injury to Mr McDonald. (ii) Liability of each of Mr Mitchell, Ms Hyde and Mr Mackie for breach of their respective duties of care in negligence owed to Mr McDonald, arising from their conduct in Mr McDonald’s work places between 1996 and 2003, resulting in personal injury to Mr McDonald. (iii) Breach by the State of South Australia (the 2013 proceedings) and the Minister (the 2014 proceedings) of a contractual duty of care owed to Mr McDonald by failing to provide him with safe systems of work and a safe work place during 1996-2003, resulting in personal injury to Mr McDonald. (iv) Breach by the State of South Australia (the 2013 proceedings) and the Minister (the 2014 proceedings) of a duty of care owed to Mr McDonald, under the Occupational Health, Safety and Welfare Act 1986, resulting in personal injury to Mr McDonald. 94 [2016] SASC 79. 95 SCCIV-13-1574. 96 McDonald & Anor v State of South Australia; McDonald & Ors v Minister for Education and Child Development & Ors (No 3) [2016] SASC 79 at [22], fn 16. 97 McDonald & Anor v State of South Australia; McDonald & Ors v Minister for Education and Child Development & Ors (No 3) [2016] SASC 79 at [7]. 98 McDonald & Anor v State of South Australia; McDonald & Ors v Minister for Education and Child Development & Ors (No 3) [2016] SASC 79 at [90]. -- 37 of 68 -- [2024] SASC 67 Bampton J 36 (v) Unparticularised acts of conspiracy resulting in personal injury to Mr McDonald. (vi) Injurious falsehood committed by one or more employees in Mr McDonald’s work places between 1996-2003 and for which the State of South Australia (the 2013 proceedings) and the Minister (the 2014) action are vicariously liable, resulting in personal injury to Mr McDonald. (vii) Defamation of Mr McDonald by the acts of one or more employees in Mr McDonald’s work places between 1996 and 2003 and for which the State of South Australia (2013 action) and the Minister (the 2014 proceedings) are vicariously liable, resulting in personal injury to Mr McDonald and, although not expressly pleaded but to be inferred, general damages for injury to reputation and to feelings and for vindication. (viii) Breach by the State of South Australia (the 2013 proceedings) and the Minister (the 2014 proceedings) of various statutes and departmental policies resulting in personal injury to Mr McDonald whilst he was engaged at his work places between 1996 and 2003. (ix) Breach by the State of South Australia (the 2013 proceedings) and the Minister (the 2014 proceedings) of a duty of care owed to Mr McDonald not to bully his son, Mr Brennan McDonald, at school, resulting in personal injury to Mr McDonald (Mr McDonald’s “derivative” claim). 100 His Honour refused Mrs McDonald permission to be joined as a party to the 2013 proceedings, concluding her claim:99 … necessarily would involve a reconsideration of the evidence and claims dealt with by Anderson J and the Full Court which I have found should not be permitted. Further, Mrs McDonald’s claims, first brought forward in 2012, are substantially out of time and there is no adequately particularised application for an extension of time. 101 He ordered that the 2013 proceedings, insofar as Mr McDonald’s claim was concerned, were dismissed with judgment against Mr McDonald for the defendant. 102 His Honour further ordered that the 2013 proceedings insofar as Brennan McDonald’s claim was concerned were to be remitted back to the District Court, making very clear that Mr McDonald was to have nothing further to do with Brennan’s remaining action:100 … It is no longer appropriate for Mr McDonald to have any involvement vis-à-vis the 2013 defendant and the Court in conducting Mr Brennan McDonald’s claim who, it would appear, has been sui juris for some years now. Whilst, ultimately a matter for the Master who comes to manage the matter, any further steps needed to ready Mr Brennan McDonald’s claim for trial (such as finalisation of pleadings, disclosure and expert reports) should be engaged in by Mr Brennan McDonald either acting on his own behalf or through counsel. The history of this matter suggests that to allow any further 99 McDonald & Anor v State of South Australia; McDonald & Ors v Minister for Education and Child Development & Ors (No 3) [2016] SASC 79 at [191]. 100 McDonald & Anor v State of South Australia; McDonald & Ors v Minister for Education and Child Development & Ors (No 3) [2016] SASC 79 at [198] -- 38 of 68 -- [2024] SASC 67 Bampton J 37 involvement by Mr McDonald, even as some form of a “McKenzie” friend, would risk further delay and obfuscation of the proceedings. 10: The 2014 proceedings101 103 Justice Nicholson also granted the defendants’ application for dismissal of the whole of the 2014 proceedings with judgment against each of Mr and Mrs McDonald and Brennan McDonald for the defendants,102 stating:103 A fundamental concern of Mr McDonald has always been that the 2013 proceedings wrongly record the State of South Australia as the defendant. He insists that the proper defendants to his, Mr Brennan McDonald’s and Mrs McDonald’s asserted causes of action are those defendants recorded in the 2014 proceedings. Mr McDonald has failed with multiple attempts to obtain permission to amend the 2013 proceedings in this respect. Insofar as the 2013 plaintiffs and the 2013 defendant are concerned, this issue has been finally determined. I am satisfied that the 2013 plaintiffs, in November 2014, commenced the 2014 proceedings, by way of parallel proceedings in this Court, in direct response to Mr McDonald’s failure to have the 2013 proceedings amended so as to record those whom he regards to be the proper defendants. They did so by filing a summons and a statement of claim the latter being, substantively, in identical terms to FDN 59A insofar as the claims by Mr McDonald and Mr Brennan McDonald are concerned. In addition, Mrs McDonald has been included as a third plaintiff with the pleading replicating, as her claim, the claim proposed by her with respect to the 2013 proceedings. In short, the proposed statement of claim, FDN 59A, and the filed statement of claim, FDN 2, are in identical terms but with one exception. The one exception is that in FDN 2 the 2014 defendants have replaced the 2013 defendant. Were the 2014 proceedings to remain and go to trial, all of the claims by the 2014 plaintiffs would be out of time by many years. A time consuming and rather complex consideration of whether extensions of time pursuant to section 48 of the Limitation of Actions Act 1936 should be granted would be required. All to no purpose and entirely unnecessary given the existence of FDN 59A. For these reasons alone, in my view, the 2014 proceedings, insofar as they purport to present claims by Mr McDonald and Mr Brennan McDonald, constitute an abuse of process and should be struck out. Both Mr McDonald and Mr Brennan McDonald have failed to demonstrate an entitlement to sue the 2014 defendants and should not be permitted to do so by the device of filing fresh proceedings. Whether or not the 2014 pleading might remain in order to assert causes of action by Mrs McDonald but subject to any time limitation issues that might arise, may require further consideration depending on the validity of her claims. (Footnotes omitted) 104 Having regard to Nicholson J’s express characterisation of: • Mr McDonald’s claims in the 2013 proceedings as disclosing no reasonable cause of action and/or constituting an abuse of process, I am 101 SCCIV-14-1564. 102 McDonald & Anor v State of South Australia; McDonald & Ors v Minister for Education and Child Development & Ors (No 3) [2016] SASC 79 at [200(vi) and (vii)]. 103 McDonald & Anor v State of South Australia; McDonald & Ors v Minister for Education and Child Development & Ors (No 3) [2016] SASC 79 at [26]-[28] -- 39 of 68 -- [2024] SASC 67 Bampton J 38 satisfied the whole of the 2013 proceedings were instituted without reasonable ground; • Mrs McDonald’s proposed claim in the 2013 proceedings, I am satisfied Mrs McDonald’s application for joinder was instituted without reasonable ground; and • the 2014 proceedings as an abuse of process, I am satisfied the whole of the 2014 proceedings were instituted by Mr and Mrs McDonald without reasonable ground. 105 In summary, I am satisfied the 2013 proceedings (SCCIV-13-1574) and the 2014 proceedings (SCCIV-14-1564), numbered 9 and 10 respectively, above were both instituted by Mr and Mrs McDonald without reasonable ground and satisfy the criteria prescribed in s 39(5)(b) of the Act. 11: Appeal to the Full Court from Nicholson J’s order104 106 Mr and Mrs McDonald filed a notice of appeal in the 2013 and 2014 proceedings on 8 June 2016 appealing Nicholson J’s orders. On 2 November 2017, the Full Court dismissed the appeal. The Full Court agreed with Nicholson J’s reasons regarding the 2013 proceedings and agreed the 2014 proceedings were an abuse of process, remarking that they were “a device to overcome what became insuperable difficulties in the 2013 action arising out of [earlier interlocutory and appellate decisions]”.105 The Full Court said Mr McDonald did not point to any error in the approach of Nicholson J but instead argued that the findings made were not open106 such that the appeal:107 … essentially became a re-litigation of the same arguments as were put to Nicholson J … far from concluding that the findings made by Nicholson J were not open, [the Court] agree[d] with all of the conclusions his Honour reached. Fourth application for special leave 107 Mr and Mrs McDonald’s application for special leave to appeal the 2 November 2017 decision of the Full Court to the High Court was dismissed on 21 March 2018 on the basis that the “proposed appeals would not enjoy sufficient prospects of success to warrant the grant of special leave”.108 108 I am satisfied, having regard to the decision of the Full Court (and the High Court’s refusal of special leave to appeal from that decision), that the 104 SCCIV-13-1574; SCCIV-14-1564. 105 McDonald & Anor v The State of South Australia; McDonald & Ors v The Minister for Education and Child Development & Ors [2017] SASCFC 146 at [28]. 106 McDonald & Anor v The State of South Australia; McDonald & Ors v The Minister for Education and Child Development & Ors [2017] SASCFC 146 at [59]. 107 McDonald & Anor v The State of South Australia; McDonald & Ors v The Minister for Education and Child Development & Ors [2017] SASCFC 146 at [165]-[166]. 108 McDonald v The State of South Australia; McDonald & Anor v Minister for Education and Child Development & Ors [2018] HCASL 43 at [2] (Keane and Edelman JJ). -- 40 of 68 -- [2024] SASC 67 Bampton J 39 proceedings numbered 11 were instituted by Mr and Mrs McDonald without reasonable ground and that they satisfy the criteria prescribed in s 39(5)(b) of the Act. Federal Court actions group 109 To inform the exercise of the Court’s discretion to make an order pursuant to s 39(1) of the Act, the Attorney-General refers to Mr McDonald’s commencement of proceedings in the Federal Court over the last decade. It is also noted that orders prohibiting him from commencing new proceedings have been made by the Federal Court. Decisions of Besanko J and Lander J 110 In November 2010, Mr McDonald commenced Federal Court proceedings alleging causes of action against the State of South Australia and five employees of the Department of Education and Child Services, including breaches of implied terms of his contract of employment, breaches of a duty of care in tort, contraventions of the Trade Practices Act 1974 (Cth), breaches of the Workplace Relations Act 1996 (Cth) and an “action” under the WRC Act. Justice Besanko struck out the statement of claim issued by Mr McDonald and dismissed the proceedings as an abuse of process. His Honour, referring to judgments delivered in the 2004 proceedings, held: 1. the claims for breach of implied terms were precluded by operation of the doctrine of res judicata and/or Anshun109 estoppel;110 2. the claim in negligence was precluded by operation of the doctrines of res judicata, issue estoppel, Anshun estoppel and/or abuse of process by relitigation.111 Further, the claim was also barred by s 54 of the WRC Act;112 3. the Trade Practices Act 1974 (Cth) claims were an abuse of process by relitigation.113 Further, such claims were “obviously untenable” because the relevant provisions of the Trade Practices Act 1974 (Cth) did not apply;114 4. the Workplace Relations Act 1996 (Cth) claim was barred by operation of the doctrine of res judicata.115 Further, the claim was “obviously 109 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. 110 McDonald v State of South Australia [2011] FCA 297 at [51]. 111 McDonald v State of South Australia [2011] FCA 297 at [53]-[55]. 112 McDonald v State of South Australia [2011] FCA 297 at [52], [64]-[65]. 113 McDonald v State of South Australia [2011] FCA 297 at [56]. 114 McDonald v State of South Australia [2011] FCA 297 at [57]-[59]. 115 McDonald v State of South Australia [2011] FCA 297 at [60]. -- 41 of 68 -- [2024] SASC 67 Bampton J 40 untenable” because the relevant provisions did not apply to Mr McDonald’s employment;116 and 5. to the extent that Mr McDonald purported to have claims pursuant to other statutes, no such cause of action existed. 111 Justice Besanko remarked in response to Mr McDonald’s assertion that his employer was not the State:117 [Mr McDonald] argued that the Minister was vicariously liable for … conduct [of the Director-General or DECS] and an action against the Minister was not precluded by s 54(1) of the Workers Rehabilitation and Compensation Act because the Minister was not his employer. It appears that [Mr McDonald] raised the identity of the employer to overcome the difficulties as he perceived them with s 54(1). The Full Court found that [Mr McDonald] was appointed to the position of officer in the teaching service by the Minister and that it was unnecessary for it to determine whether his employment contract was with the Minister or the Crown (at 348-349 [2]). There is no reason to doubt the correctness of that finding. [Mr McDonald’s] arguments to the contrary seemed to be based on later amendments to the Education Act 1972 (SA). In any event, it seems to me to be fairly arguable that for the purposes of the doctrine of res judicata the relevant party is the Crown or State of South Australia and that party is the same in both cases. Furthermore, there are two other reasons why this contention does not advance [Mr McDonald’s] case. First, as I have said, the issues of breach have been decided against [Mr McDonald] and, irrespective of the precise identity of his employer, his claims are bound to fail. Secondly, any issue about the precise identity of [Mr McDonald’s] employer properly belonged to the Supreme Court action. 112 Mr McDonald sought permission to appeal from Besanko J’s judgment. Justice Lander refused permission to appeal on 7 November 2011 and observed:118 [Mr McDonald] and the State of South Australia and the Minister for Education and DECS have been involved in a long-running dispute for a number of years. … … I have no doubt that [Mr McDonald] has suffered very badly as a result of his dispute with DECS. Unfortunately, as the decision of the Full Court has already demonstrated, he has no remedy, or at least has not demonstrated any cause of action which would lead to a remedy in relation to that dispute. It is clear from the notice of appeal, the oral submissions, and the very lengthy written submissions that [Mr McDonald] wishes to relitigate in this Court matters which he brought in the Supreme Court, and which were dismissed in that Court after an appeal to the Full Court of the Supreme Court. The law, for the reasons given by the primary judge, does not allow such a course of action. 116 McDonald v State of South Australia [2011] FCA 297 at [60]-[61]. 117 McDonald v State of South Australia [2011] FCA 297 at [64]-[65]. 118 McDonald v State of South Australia [2011] FCA 1251 at [56], [61]-[63]. -- 42 of 68 -- [2024] SASC 67 Bampton J 41 Challenges to the Federal Court Registrar’s decisions 113 In 2017, Mr McDonald attempted to commence judicial review proceedings in the Federal Court after Charlesworth J directed the District Registrar to reject an application to adduce fresh evidence in the proceedings determined by Besanko J. On 10 October 2017, Kerr J summarily dismissed that application, holding that the “decision” of Charlesworth J was not reviewable.119 His Honour, recognising the possibility that Mr McDonald contemplated instituting further proceedings to “start all over again”, further ordered that:120 … any further originating application and statement of claim or any document that would seek to set aside the decision of Besanko J … not be filed without leave of a Judge of this Court. 114 On 4 March 2019, Mr and Mrs McDonald filed an originating application in the Federal Court seeking judicial review of a Judicial Registrar’s decision to refuse to accept another originating process for filing. The rejected originating process alleged that Besanko J’s 2011 decision was obtained by fraud and should be set aside. 115 On 29 November 2019, Charlesworth J dismissed the judicial review application and held that: 1. pursuant to Kerr J’s order made on 10 October 2017, Mr McDonald required leave to file the action.121 That leave was refused because her Honour was “not satisfied that there [was] a sufficiently arguable case of actual fraud to justify the grant of leave to commence a claim based on the principles stated in Clone”;122 2. in any case, the judicial review application should be dismissed on its substantive merits.123 Her Honour found that there were no facts alleged by Mr McDonald to support a claim of actual fraud,124 and that such a claim could not be “seriously maintain[ed]” as the purported “fresh and compelling evidence” Mr McDonald alleged was concealed by parties to the 2010 proceedings was publicly available enactments.125 Justice Charlesworth also made the following remarks:126 … In all of the circumstances described in these reasons, it is reasonable to infer, and I so find, that this pleading device has been employed by Mr McDonald as a means of reflecting 119 McDonald v Federal Court of Australia [2017] FCA 1216 at [64]. 120 McDonald v Federal Court of Australia [2017] FCA 1216 at [73]. 121 McDonald v Colbran [2019] FCA 1937 at [34] 122 McDonald v Colbran [2019] FCA 1937 at [93] 123 McDonald v Colbran [2019] FCA 1937 at [98]. 124 McDonald v Colbran [2019] FCA 1937 at [79]. 125 McDonald v Colbran [2019] FCA 1937 at [80]. 126 McDonald v Colbran [2019] FCA 1937 at [81]-[82], [132]. -- 43 of 68 -- [2024] SASC 67 Bampton J 42 the language of the High Court in Clone as the gateway through which he may re litigate old grievances arising out of his former employment. I am fortified in that view by the many attempts that have been made by Mr McDonald to commence a proceeding in this Court in connection with his former employment as a teacher and the content of the material he has lodged as evidence in Exhibit 2. Between lodging the 2017 documents and lodging the 2019 documents Mr McDonald made 18 attempts to commence a proceeding directly or indirectly connected with his former employment [in the South Australian District Registry of the Federal Court]. … From those materials, I infer that from at least July 2017, Mr McDonald has attempted to lodge documents to commence a proceeding to set aside the judgment of Besanko J on the grounds of actual fraud. On my calculations, the 2019 documents were the tenth attempt to commence such a proceeding. On each attempt, the documents were rejected and returned by a Registrar or Deputy Registrar of the Court. (Emphasis added) Attempts to set aside or re-open the 2004 proceedings Unsuccessful attempts to file new actions and appeals 116 In January 2013, Stanley J directed the Registrar of this Court to reject a purported summons and statement of claim lodged by Mr McDonald as “an abuse of the Court’s process” including because the proceedings sought to be instituted were an attempt to relitigate matters already finally determined.127 117 Subsequently, Sulan J directed the Registrar on 8 March 2013 to reject a notice of appeal by which Mr McDonald sought to appeal what were characterised by his Honour as the “administrative [acts]” of Stanley J and the Registrar.128 His Honour held there was no right of appeal against such acts and the notice of appeal was thereby “an abuse of the process of the Court”, further remarking that:129 The grounds of appeal … do not address the determination from which Mr McDonald seeks to appeal. The orders sought include a request to set aside the judgment of Anderson J … The grounds of appeal are a series of allegations which do not address the subject matter of the direction. 118 The Registrar was then directed on 27 June 2013 by Gray J to reject for filing three documents lodged by Mr McDonald, including a purported appeal against Sulan J’s decision, as abuses of process.130 127 McDonald v State of South Australia [2013] SASC 31 at [3] (Sulan J); McDonald v Minister for Education [2013] SASC 101 at [7] (Gray J). 128 McDonald v State of South Australia [2013] SASC 31 at [1], [7] (Sulan J). 129 McDonald v State of South Australia [2013] SASC 31 at [8] (Sulan J). 130 McDonald v Minister for Education [2013] SASC 101 at [10]-[13] (Gray J). -- 44 of 68 -- [2024] SASC 67 Bampton J 43 119 Permission to file 14 documents in the 2013 and 2014 proceedings was refused by Slattery AJ in January 2018, including because the proceedings had already been dismissed as abuses of process.131 120 Mr McDonald sought to file purported sets of a summon and statement of claim at least fifteen times between April 2018 and August 2019. On each occasion and in separate memoranda, the Registrar was directed to reject the documents as an abuse of process by a Master or Auxiliary Master. 121 On 28 November 2019, Peek J directed the Registrar to reject for filing further documents lodged by Mr McDonald as an abuse of process by relitigation, scandalous and vexatious content, and an obvious untenable claim. Justice Livesey subsequently directed the Registrar to reject lodged documents including a purported notice of appeal against Peek J’s direction as abuses of process. 122 Mr McDonald filed a notice of appeal on 27 July 2020 against the directions of Peek and Livesey JJ above, as well as the decision of Lovell J (proceedings numbered 14 below). The appeal was dismissed as incompetent by Kourakis CJ on 21 August 2020. 123 Mr McDonald lodged a notice of review on 11 April 2021 challenging the Deputy Registrar’s refusal to accept for filing a notice of appeal by which Mr McDonald sought to appeal against Anderson J’s judgment in the 2004 proceedings.132 The refusal was on the basis that the document was “frivolous, vexatious and an abuse of the process of the Court”; Blue J held the Deputy Registrar was correct to reject the notice.133 124 The Attorney-General does not contend the above attempts to lodge documents are separate proceedings but submits they inform the exercise of the discretion to make orders under s 39(1) of the Act. 12: Application to re-open the 2009 Full Court appeal134 125 Mr McDonald filed an interlocutory application on 12 February 2018 relying on “new, fresh, and compelling evidence” to seek leave to re-open the 2009 Full Court decision.135 Justice Vanstone dismissed the application on 28 March 2018 on the basis that it was “incompetent and an abuse of process”.136 126 The Attorney-General submits that the application constitutes separate proceedings and that, considering her Honour’s express finding, the proceedings are vexatious within the meaning of s 39 of the Act. 131 McDonald v South Australia (Supreme Court of South Australia, Slattery AJ, 11 January 2018). 132 McDonald v Registrar of the Supreme Court of South Australia [2021] SASC 57 at [1], [17] (Blue J). 133 McDonald v Registrar of the Supreme Court of South Australia [2021] SASC 57 at [23] (Blue J). 134 SCCIV-04-418. 135 McDonald v State of South Australia [2018] SASC 41 at [1] (Vanstone J). 136 McDonald v State of South Australia [2018] SASC 41 at [7] (Vanstone J). -- 45 of 68 -- [2024] SASC 67 Bampton J 44 127 I am satisfied the proceedings numbered 12 were instituted without reasonable ground and satisfy the criteria prescribed in s 39(5) of the Act. 13: Application for orders against the Registrar137 128 On 21 March 2018, the High Court delivered judgment in Clone Pty Ltd v Players Pty Ltd (In Liq) & Ors (“Clone”),138 which concerned the courts’ jurisdiction to set aside a perfected judgment on the basis of it being procured by actual fraud. The High Court relevantly held that such a challenge must be made by way of application in fresh proceedings issued in the same court.139 129 In an interlocutory application and supporting affidavit filed on 26 April 2018, Mr McDonald asserted he had attempted to file purported originating documents seeking to set aside final judgment in the 2004 proceedings in accordance with Clone, but that they had been rejected by the Registrar. Justice Vanstone described the interlocutory application as “an attempt to secure orders against the Registrar regulating his processing of fresh proceedings which Mr McDonald wishes to file”. 140 Her Honour struck out the application on 7 May 2018 as “an abuse of process” because “a perfected judgment… can only be set aside by separate proceedings”, and commented that the application was “filed for an improper purpose, namely to obtain an order directed to the Registrar to accept … originating documents proffered by Mr McDonald”.141 130 It should be noted that Vanstone J determined to deal with the application in chambers because there was “no justification for expending the further time of the respondent, or indeed of the Court, in relation to this matter”.142 131 The Attorney-General submits the proceedings numbered 13 are separate proceedings as they amount to an “application to reopen in the nature of in effect a further appeal”.143 Further, the Attorney-General submits, having regard to Vanstone J’s express finding, the proceedings numbered 13 are vexatious on the basis that they were instituted without reasonable ground and for an ulterior purpose. 132 I am not satisfied the proceedings numbered 13 are proceedings within the meaning of s 39 of the Act. Whilst the application was a means by which Mr McDonald sought to set aside the final judgment in the 2004 proceedings on the basis of fraud, the orders sought were to compel the Registrar to accept documents for filing. I am, however, satisfied the proceedings were instituted 137 SCCIV-04-418. 138 (2018) 264 CLR 165. 139 Clone at [61] (Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ). 140 McDonald v State of South Australia (No 2) [2018] SASC 57 at [3] (Vanstone J). 141 McDonald v State of South Australia (No 2) [2018] SASC 57 at [7]-[8] (Vanstone J). 142 McDonald v State of South Australia (No 2) [2018] SASC 57 at [4] (Vanstone J). 143 Transcript of proceedings, Attorney-General for the State of South Australia v McDonald & Anor (Supreme Court of South Australia, Bampton J, 27 February 2023) at 46.23-26; 47.1-3. -- 46 of 68 -- [2024] SASC 67 Bampton J 45 without reasonable ground and for an ulterior purpose, and that their institution informs the exercise of the discretion to make orders under s 39(1) of the Act. 14: Judicial review of Judge Bochner’s and Judge Dart’s decisions144 133 Mr McDonald filed a judicial review application on 26 July 2019 challenging Judge Bochner’s 5 March 2019 direction that the Registrar reject documents lodged by Mr McDonald and challenging Judge Dart’s 9 April 2019 refusal to reduce or remit the filing fee for the judicial review application.145 The application was dismissed by Lovell J, who held that the Supreme Court had no jurisdiction to judicially review decisions of members of the Court, including Masters.146 134 The Attorney-General submits the proceedings numbered 14 constitute separate proceedings and were vexatious within the meaning of s 39 of the Act on the basis that they were instituted without reasonable ground. 135 I am satisfied the proceedings numbered 14 were instituted without reasonable ground and satisfy the criteria prescribed in s 39(5) of the Act. 2020 and 2021 proceedings 136 Mr and Mrs McDonald filed an originating application and statement of claim on 11 December 2020,147 by which they sought to set aside Anderson J’s judgment in the 2004 proceedings on the basis of alleged actual fraud (“the 2020 proceedings”). Again, the issue of the correct defendant was relied upon as grounds to set aside the judgment. 137 Subsequently, Mr and Mrs McDonald commenced separate proceedings on 16 July 2021148 seeking to set aside the judgment of Nicholson J (the proceedings numbered 9 above) on the grounds of actual fraud or conduct analogous to actual fraud (“the 2021 proceedings”). 15: Application for leave to appeal to the Court of Appeal from Hughes J’s decision149 138 By way of an interlocutory application filed on 21 January 2021, the defendants in the 2020 proceedings sought orders for summary judgment against Mr and Mrs McDonald and summary dismissal or strike out of the proceedings (“the summary judgment application”). Pending determination of the application, Hughes J dispensed with the requirement that the defendants file a defence. Mr and Mrs McDonald filed a notice of appeal against Hughes J’s order on 26 March 2021. Leave to appeal was refused by Kelly P, Lovell and Doyle JJA 144 SCCIV-19-953. 145 McDonald v Supreme Court of South Australia & Anor [2019] SASC 201 at [1]-[2] (Lovell J). 146 McDonald v Supreme Court of South Australia & Anor [2019] SASC 201 at [16]-[19] (Lovell J). 147 CIV-20-006239, FDN 1, FDN 2, FDN 3. 148 CIV-21-007810. 149 CIV-21-002853. -- 47 of 68 -- [2024] SASC 67 Bampton J 46 on 10 June 2021, who said that “Mr McDonald has not identified any basis upon which to doubt the correctness of the decision he seeks to challenge”.150 16: Application for leave to appeal to the Court of Appeal from David JA’s decision151 139 After hearing argument on six interlocutory applications filed in the 2020 proceedings, David JA made orders on 13 August 2021 including dismissing an interlocutory application filed on 22 July 2021. That application requested that David JA inform Mr and Mrs McDonald whether she had decided to recuse herself (“FDN 66”). 140 It should be noted that during argument on the summary judgment application on 2 July 2021, David JA said, “at this stage I decline to recuse myself” and indicated that reasons would be provided at the time of judgment. This was reiterated in an order made by David JA from chambers on 23 July 2021, being the day following the filing of FDN 66. 141 Leave to appeal against David JA’s 13 August 2021 orders was refused by Lovell, Doyle and Bleby JJA on 9 December 2021 on the basis that the “complaints sought to be raised by [Mr and Mrs McDonald] do not have sufficient merit to warrant consideration by the Court of Appeal”.152 With respect to FDN 66, their Honours held:153 FDN 66 involved an application for an order that the primary judge inform the applicants whether she had made a judicial decision, or personal decision, not to recuse herself. The primary judge having said during the hearing on 2 July 2021 that she declined to recuse herself, there was no basis for this application. To the extent that there was any requirement for this to be formalised in an order, the judge did so on 23 July 2021. It follows that, quite apart from the lack of merit in the challenge to the order, there is no utility in the proposed appeal. Refusing leave to appeal will not result in any substantial injustice to the applicants. 17: Stay of the 2021 proceedings154 142 On the basis that they raised substantially the same matters as the 2020 proceedings, the 2021 proceedings were ruled an abuse of process and stayed on 23 December 2021 by David JA until the delivery of judgment in the 2020 proceedings. 150 McDonald & Anor v Attorney-General for the State of South Australia & Ors [2021] SASCA 57 at [14]-[18]. 151 CIV-21-010167. 152 McDonald & Anor v Attorney-General for the State of South Australia & Ors (No 2) [2021] SASCA 146 at [24]. 153 McDonald & Anor v Attorney-General for the State of South Australia & Ors (No 2) [2021] SASCA 146 at [14]. 154 CIV-21-007810. -- 48 of 68 -- [2024] SASC 67 Bampton J 47 18: Dismissal of the 2020 proceedings155 143 Granting the defendants’ interlocutory application, the 2020 proceedings were summarily dismissed by David JA on 1 March 2022. Her Honour relevantly held: 1. Mr and Mrs McDonald’s submission that the 2004 proceedings had miscarried because the proper defendant was the (incorporated) Minister for Education rather than the Crown or State of South Australia was “untenable”;156 2. Mr and Mrs McDonald’s allegations of actual fraud were not supported by evidence and therefore the claim seeking to set aside the perfected judgment was “vexatious and an abuse of process in its attempt to re-litigate judicially settled issues and contentions”;157 and 3. The allegations of fraud were not material to the 2009 Full Court decision such that no reasonable cause of action was disclosed and there was “no reasonable basis for prosecuting the claim”.158 Justice David also gave reasons for her decision not to recuse herself and dismissed Mr and Mrs McDonald’s remaining interlocutory applications filed in the 2020 proceedings.159 144 The Attorney-General submits that having regard to the findings and orders made in the proceedings numbered 15 to 18, each of the proceedings are vexatious within the meaning of s 39 of the Act because they were instituted without reasonable ground, and further that the proceedings numbered 18 were instituted for an ulterior purpose. 145 I am satisfied the proceedings numbered 15 to 18 were each instituted without reasonable ground and satisfy the criteria prescribed in s 39(5) of the Act. I am further satisfied the proceedings numbered 18 were instituted for an ulterior purpose. Other actions and appeals since the commencement of the vexatious litigant proceedings 2021 judicial review applications 146 I stayed the proceedings numbered 19 and 20 below until further order on 4 March 2022. The Attorney-General submits they are vexatious within the meaning of s 39 of the Act because the Court does not have jurisdiction to judicially review the impugned decisions and the applications were instituted to 155 CIV-20-006239. 156 McDonald & Anor v The State of South Australia & Ors [2022] SASC 17 at [45]. 157 McDonald & Anor v The State of South Australia & Ors [2022] SASC 17 at [47]. See also at [59]. 158 McDonald & Anor v The State of South Australia & Ors [2022] SASC 17 at [54]. 159 McDonald & Anor v The State of South Australia & Ors [2022] SASC 17 at [60], [62]-[74]. -- 49 of 68 -- [2024] SASC 67 Bampton J 48 seek retrial of the 2004 proceedings. As such, the Attorney-General submits they were instituted without reasonable ground and for an ulterior purpose. 19: Judicial review of the Supreme Court Registrar’s conduct160 147 Mr McDonald commenced an action for judicial review on 14 October 2021 seeking a declaration that he was denied procedural fairness in the 2004 proceedings on account of improper conduct of the Registrar relating to record keeping, as well as an order for a retrial. The application relies on alleged deficiencies he says he identified in the SCCIV-04-418 court file when he attended at the Supreme Court Registry to inspect it on 20 September 2021. 20: Judicial review of interlocutory steps following the 6 August 2007 decision in the 2004 proceedings161 148 Mr McDonald also commenced an action on 29 October 2021 seeking judicial review of interlocutory steps taken by Anderson J and Judge Lunn in the 2004 proceedings. He sought declarations and an order for retrial. I refer to my discussion earlier in these reasons under the heading “The lost appeal”. 149 I am satisfied the proceedings numbered 19 and 20 were each instituted without reasonable ground and satisfy the criteria prescribed in s 39(5) of the Act. Appeals to the Court of Appeal against injunctions 21: Application for leave to appeal against injunction162 150 On 24 March 2022, Mr and Mrs McDonald appealed against an interim injunction made by me on 4 March 2022 that restricted their ability to file documents and commence new proceedings.163 President Livesey and Bleby JA struck out as an abuse of process the part of the appeal by which Mr and Mrs McDonald sought to vary the interim injunction to enable the filing of a second notice of appeal against the 2009 Full Court decision.164 Leave was refused with respect to the balance of the appeal and their Honours held that were it necessary to determine, it would have been dismissed as being “without merit”.165 It should be noted that the Court also said “[a] reading of the voluminous grounds of appeal demonstrates that [Mr and Mrs McDonald] are not concerned with the merits of the [interim injunction]. Rather, they are concerned to agitate the merits of their various actions and contentions”.166 160 CIV-21-011585. 161 CIV-21-012132. 162 CIV-22-003237. 163 McDonald & Anor v Attorney-General for the State of South Australia [2022] SASCA 43 at [2] (Livesey P and Bleby JA). 164 McDonald & Anor v Attorney-General for the State of South Australia [2022] SASCA 43 at [10]-[11]. 165 McDonald & Anor v Attorney-General for the State of South Australia [2022] SASCA 43 at [24]. 166 McDonald & Anor v Attorney-General for the State of South Australia [2022] SASCA 43 at [20]. -- 50 of 68 -- [2024] SASC 67 Bampton J 49 151 The Attorney-General submits these proceedings are vexatious as they were both instituted without reasonable ground and for an ulterior purpose. 152 I am satisfied the proceedings numbered 21 were instituted without reasonable ground and satisfy the criteria prescribed in s 39(5) of the Act. I am further satisfied these proceedings were instituted for an ulterior purpose. 22: Appeal against extended interim injunction167 153 I made orders extending the interim injunction on 23 June 2022 such that it would remain in force until final determination of the Attorney-General’s application (“the injunction”). Mr and Mrs McDonald’s appeal against the injunction filed on 15 July 2022 was dismissed by the Court of Appeal as being “without merit”.168 154 The Attorney-General submits these proceedings are vexatious as they were instituted without reasonable ground. 155 I am satisfied the proceedings numbered 22 were instituted without reasonable ground and satisfy the criteria prescribed in s 39(5) of the Act. The short-lived return of the 2020 proceedings 23: Application for leave to appeal to the Court of Appeal169 156 On 18 March 2022, Mr and Mrs McDonald appealed David JA’s judgment summarily dismissing the 2020 proceedings. They again alleged that there had been fraud by reason of the 2004 proceedings being against the wrong defendant.170 Even if leave were not required, the Court of Appeal would have dismissed the appeal “as being without merit”.171 157 The Attorney-General submits these proceedings are vexatious for the same reasons as the proceedings numbered 15 to 18 above. 158 I am satisfied the proceedings numbered 23 were instituted without reasonable ground and satisfy the criteria prescribed in s 39(5) of the Act. 167 CIV-22-007750. 168 McDonald & Anor v The State of South Australia & Ors; McDonald & Anor v Attorney-General for the State of South Australia [2022] SASCA 81 at [23] (Livesey P, Doyle and Bleby JJA). 169 CIV-22-002819. 170 McDonald & Anor v The State of South Australia & Ors; McDonald & Anor v Attorney-General for the State of South Australia [2022] SASCA 81 at [12] (Livesey P, Doyle and Bleby JJA). 171 McDonald & Anor v The State of South Australia & Ors; McDonald & Anor v Attorney-General for the State of South Australia [2022] SASCA 81 at [20] (Livesey P, Doyle and Bleby JJA). -- 51 of 68 -- [2024] SASC 67 Bampton J 50 Proceedings instituted in defiance of the injunction 24: Application for judicial review of decision to reject documents172 159 The Deputy Registrar refused to accept for filing an originating application that Mr McDonald sought to file seeking review of my decision to not recuse myself, as well as review of the 2013 decision of Judge Tilmouth.173 160 On 25 July 2022, Mr McDonald sought judicial review of the Deputy Registrar’s refusal to accept the document for filing. Judge Bochner held that the Deputy Registrar was correct to reject the document on the basis that the injunction barred Mr McDonald from commencing any new proceedings and because my decision could not, in any event, be judicially reviewed.174 161 The Attorney-General submits these proceedings were vexatious because they were instituted without reasonable ground. 162 I am satisfied the proceedings numbered 24 were instituted without reasonable ground and satisfy the criteria prescribed in s 39(5) of the Act. 25: Application for leave to appeal to the Court of Appeal from Bampton J’s recusal refusal175 163 Finally, Mr and Mrs McDonald filed a notice of appeal on 12 October 2022 seeking leave to appeal against my decision to not recuse myself on 9 June 2022. The Attorney-General filed an interlocutory application seeking that the notice of appeal be struck out. 164 As the Court of Appeal had not delivered its decision prior to the hearing of the Attorney-General’s application, counsel for the Attorney-General asked me to take the application for leave to appeal filed 12 October 2022 as further vexatious proceedings. Mr and Mrs McDonald submitted that they would prefer that the Court of Appeal not deliver its decision until I had determined the Attorney-General’s application. As Mr and Mrs McDonald opposed the tendering by the Attorney-General in this application of: • their notice of appeal dated 12 October 2022; • their written submissions; and • the Attorney-General’s submissions on leave to appeal and seeking to strike out the appeal, 172 CIV-22-008071. 173 McDonald v Registrar of the Supreme Court of South Australia (Supreme Court of South Australia, Judge Bochner, 16 September 2022) at pp 1-2. 174 McDonald v Registrar of the Supreme Court of South Australia (Supreme Court of South Australia, Judge Bochner, 16 September 2022) at pp 1-2. 175 CIV-23-004570; CIV-22-011442. -- 52 of 68 -- [2024] SASC 67 Bampton J 51 I did not receive the documents into evidence. 165 Mr and Mrs McDonald filed a second notice of appeal on 20 April 2023, following the hearing of the Attorney-General’s application, seeking leave to appeal from my refusal on 28 March 2023 to entertain a second application that I recuse myself, together with my direction to the Registrar to not accept two further affidavits. 166 On 30 November 2023, the Court of Appeal refused leave to appeal with respect to both applications, stating the proposed grounds of appeal were not reasonably arguable.176 167 I am satisfied the proceedings numbered 25, being the proceedings instituted by the notice of appeal dated 12 October 2022 were instituted without reasonable ground and satisfy the criteria prescribed in s 39(5) of the Act. The proceedings instituted by the notice of appeal dated 20 April 2023 obviously were not addressed by the Attorney-General in submissions as they were not instituted until after the hearing of the Attorney-General’s application. In those circumstances, I will consider the fact of the institution of the appeal filed 20 April 2023, together with the Court of Appeal’s remarks that the proposed grounds of appeal were not reasonably arguable, as relevant to the exercise of the discretion under s 39(1) of the Act. Conclusion 168 I am satisfied, having regard to the previous findings and decisions in the proceedings discussed above, that 24 proceedings initiated by Mr McDonald, 12 of which were also instituted by Mrs McDonald, in South Australian courts since 2011 satisfy the threshold of being “vexatious” within the meaning of s 39(5) of the Supreme Court Act 1935 (SA). 169 Having regard to all the circumstances, it is patently clear that the vexatious proceedings have been instituted “persistently”. Mr and Mrs McDonald have sought to appeal many first instance decisions and to time and again relitigate issues already conclusively determined against them. 170 As I have found Mr and Mrs McDonald have persistently instituted vexatious proceedings, the discretion under s 39 of the Act to make an order prohibiting them from instituting further proceedings without permission of the Court and/or staying proceedings already instituted by them has been enlivened. In exercising the discretion, I bear in mind an order pursuant to s 39 of the Act is an extreme remedy which must be considered against the background of the fundamental principle that a person generally has a right to seek remedies from the courts for legal wrongs.177 176 McDonald & Anor v Attorney-General for the State of South Australia [2023] SASCA 132 at [35]. 177 Ramsey v Skyring [1999] FCA 907; (1999) 164 ALR 378 at [51] (Sackville J). -- 53 of 68 -- [2024] SASC 67 Bampton J 52 171 I am satisfied, having regard to Mr and Mrs McDonald’s litigious conduct as detailed in these reasons, if an order is not made pursuant to: 1. section 39(1)(a) of the Act, they will continue to commence proceedings and it is likely that such future proceedings will be vexatious. 2. section 39(1)(b) of the Act, they will prosecute vexatious proceedings which they have already commenced. 172 The exercise of the discretion is bolstered by Mr and Mrs McDonald’s inability to accept the outcomes of litigation where issues have been finally determined,178 their readiness to make threats to achieve their desired outcomes,179 and their readiness to make all manner of baseless assumptions and accusations of wrongdoing or misconduct against former colleagues, non-parties, legal practitioners employed in the Crown Solicitor’s Office, court staff, judicial officers and courts.180 But two examples are Mr McDonald accusing counsel for the Attorney-General of lying during the hearing of this application, while accusing me of actual bias, of not treating Mr and Mrs McDonald equally before the law and of causing them substantial injustice. 173 The effect of the inordinate litigation on those named in the proceedings, solicitors and counsel tasked with defending the proceedings instituted by Mr and Mrs McDonald and court staff cannot be ignored. So too, the extraordinary waste of the Court’s scarce resources,181 as well as the public expense and resources expended in defending baseless litigation.182 I also note that, as at April 2023, Mr and Mrs McDonald have had the benefit of just over $100,000 in fee waivers. Other than those granted in relation to the 2004 proceedings, the balance of the fee waivers have been a further unjustifiable use of the Court’s scarce resources. Numerous orders for costs have been made against Mr and Mrs McDonald in the wake of unsuccessful litigation, which I suspect have not been complied with. 174 Despite binding decisions of courts dismissing or rejecting their claims, Mr and Mrs McDonald belligerently continue to wage vexatious litigation. Mrs McDonald has vowed there will be no end to their quest and that their children will take up their cudgels:183 Because if you fling us out, we’ve been contacted by an investigative team regarding Mr Moles, I think his name was, Professor Moles and we will never give up because the injustice we feel and we know has taken place, we can’t let it go and we will never let it 178 Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 at [69]-[70] (Beazley P, Emmett JA and Sackville AJA); Attorney-General (SA) v Kowalski [2014] SASC 1 at [1989] (Blue J). 179 Mbuzi v Griffith University (2014) 323 ALR 248 at [190] (Collier J). 180 Bird v Registrar, Federal Court of Australia [2016] FCAFC 188 at [27] (Logan, Reeves and Markovic JJ); Attorney-General (SA) v Kowalski [2014] SASC 1 at [1989] (Blue J). 181 Shire of Katanning v Bride (No 2) [2016] WASC 314 at [74] (Tottle J). 182 Mathews v Queensland [2015] FCA 1488 at [134] (Reeves J). 183 Transcript of proceedings, Attorney-General for the State of South Australia v McDonald & Anor (Supreme Court of South Australia, Bampton J, 28 February 2023) at 175.25-37. -- 54 of 68 -- [2024] SASC 67 Bampton J 53 go. Even if we die, our children say they’ll take it up for us because it’s wrong, on every level it’s wrong what you’ve done to us. You’ve taken 19 years of a good family’s life from us and we didn’t deserve it. My husband was bullied in the workplace and you just don’t want to pay the money. That’s the bottom line of it. It’s like you’re all sheep for the Attorney-General’s office. 175 Mr McDonald cannot be swayed from his implacable belief that the identification of the employer is “a matter of great moment”.184 I say again:185 A defendant would not endure being a party to proceedings so tortuous and protracted if it were not the correct defendant. … It is plainly open for the State of South Australia to be sued and remain as a defendant. 176 Mr and Mrs McDonald persist in attempting to prosecute “the heartland” of their claims in this Court despite it being the improper forum and despite decisions against them. Their allegations regarding a purported lost or destroyed notice of appeal from the 6 August 2007 decision are scurrilous. 177 Mr and Mrs McDonald concluded their submissions opposing the Attorney-General’s application by accusing this Court and the Crown Solicitor’s Office of colluding. They asserted the Attorney-General in support of this application is relying: … on precedents set by this court and my argument is that those precedents are set because this court and the Crown Solicitor’s Office colluded with one another to get those judgments, knowing that I would have to appeal them and knowing that once I got a perfect judgment to the Full Court, nothing could disturb that unless you could prove actual fraud. That was the purpose of getting those precedents, thank you, your Honour. (Emphasis added) 178 I am satisfied the discretion prescribed by the Act should be exercised to make orders pursuant to s 39(1)(a) and (b). Declaration 179 I declare that each of Mr and Mrs McDonald has persistently instituted vexatious proceedings. Orders 1. Pursuant to s 39(1) of the Supreme Court Act 1935 (SA), I order: (a) that each of Mr and Mrs McDonald is prohibited from instituting further proceedings in a prescribed court without permission of the Supreme Court, and 184 McDonald v Department of Education and Children’s Services [2011] SAWCT 18 at [14]. 185 McDonald v State of SA [2014] SASC 120 at [27]-[28]. -- 55 of 68 -- [2024] SASC 67 Bampton J 54 (b) that proceedings already instituted by each or both of them are permanently stayed. 2. These orders do not prohibit the filing of a notice of appeal against the declaration and orders. -- 56 of 68 -- [2024] SASC 67 Bampton J 55 Annexure 1 -- 57 of 68 -- [2024] SASC 67 Bampton J 56 -- 58 of 68 -- [2024] SASC 67 Bampton J 57 -- 59 of 68 -- [2024] SASC 67 Bampton J 58 -- 60 of 68 -- [2024] SASC 67 Bampton J 59 -- 61 of 68 -- [2024] SASC 67 Bampton J 60 -- 62 of 68 -- [2024] SASC 67 Bampton J 61 -- 63 of 68 -- [2024] SASC 67 Bampton J 62 Annexure 2 No. Action No. Nature of proceeding Judgment date Judgment citation Judicial officer Outcome Also instituted by Mrs McDonald Finding to the effect of instituted without reasonable ground Finding to the effect of instituted for ulterior purpose 1 WCT-09-6932 Appeal to the Full Bench of the Workers Compensation Tribunal 30.06.2011 McDonald v Department of Education and Children’s Services [2011] SAWCT 18 Parsons, Farrell, McCouaig DPJJ Appeal summarily dismissed No [14]-[15] [20]-[21] 2 SCCIV-12-1460 Supreme Court judicial review 04.12.2012 McDonald v The Workers Compensation Tribunal (SASC, Judge Withers, 4 December 2012) Judge Withers Judicial review permission refused No [30] 3 SCCIV-12-1460 Appeal to the Supreme Court 19.03.2013 McDonald v The Workers Compensation Tribunal [2013] SASC 34 Nicholson J Appeal dismissed No [28] 4 DCCIV-05-29 Appeal to the District Court 23.05.2013 McDonald & Anor v The State of South Australia (SADC, Judge Tilmouth, 23 May 2013) Judge Tilmouth Appeal dismissed No p 3-4 (see also items 5 and 6 below) 5 SCCIV-13-1574 Appeal to the Supreme Court 27.08.2014 McDonald v State of SA [2014] SASC 120 Bampton J Extension of time to appeal refused No [30]-[31] 6 SCCIV-13-1574 Appeal to the Full Court 24.02.2015 McDonald & Anor v State of South Australia [2015] SASCFC 15 Gray, Sulan and Nicholson JJ Permission to appeal refused No [6] -- 64 of 68 -- [2024] SASC 67 Bampton J 63 No. Action No. Nature of proceeding Judgment date Judgment citation Judicial officer Outcome Also instituted by Mrs McDonald Finding to the effect of instituted without reasonable ground Finding to the effect of instituted for ulterior purpose 7 SCCIV-13-1574; SCCIV-14-1564 Supreme Court application to restrain non-parties 01.12.2015 McDonald & Anor v State of South Australia; McDonald & Ors v The Minister for Education and Child Development & Ors (No 2) [2015] SASC 188 Nicholson J Application to restrain legal representatives dismissed Yes [21] 8 SCCIV-13-1574; SCCIV-14-1564 Appeal to the Full Court 13.04.2016 McDonald & Anor v State of South Australia; McDonald & Ors v Minister for Education and Child Development & Ors [2016] SASCFC 39 Sulan, Lovell and Doyle JJ Permission to appeal refused Yes [12] 9 SCCIV-13-1574 Supreme Court claim (transferred from District Court) 03.06.2016 McDonald & Anor v State of South Australia; McDonald & Ors v Minister for Education and Child Development & Ors (No 3) [2016] SASC 79 Nicholson J Summary dismissal of claims by Mr and Mrs McDonald No186 [168], [186], [189]-[191], [194]-[19], [200] 10 SCCIV-14-1564 Supreme Court claim 03.06.2016 McDonald & Anor v State of South Australia; McDonald & Ors v Minister for Education and Child Development & Ors (No 3) [2016] SASC 79 Nicholson J Summary dismissal of claims by Mr and Mrs McDonald Yes [168], [186], [189]-[191], [194]-[19], [200] [26]-[28] 186 Mrs McDonald was an Interested Party in this proceeding. -- 65 of 68 -- [2024] SASC 67 Bampton J 64 No. Action No. Nature of proceeding Judgment date Judgment citation Judicial officer Outcome Also instituted by Mrs McDonald Finding to the effect of instituted without reasonable ground Finding to the effect of instituted for ulterior purpose 11 SCCIV-13-1574; SCCIV-14-1564 Appeal to the Full Court 02.11.2017 McDonald & Anor v The State of South Australia; McDonald & Ors v The Minister for Education and Child Development & Ors [2017] SASCFC 146 Vanstone J, Slattery and Gilchrist AJJ Appeal dismissed Yes [59], [165]-[166] 12 SCCIV-04-418 Supreme Court application to re-open previous appeal 28.03.2018 McDonald v State of South Australia [2018] SASC 41 Vanstone J Application dismissed No [7] 13 SCCIV-04-418 Supreme Court application to set aside final judgment 07.05.2018 McDonald v State of South Australia (No 2) [2018] SASC 57 Vanstone J Application struck out No [7] [8] 14 SCCIV-19-953 Supreme Court judicial review 26.11.2019 McDonald v Supreme Court of South Australia & Anor [2019] SASC 201 Lovell J Judicial review dismissed No [16]-[19] 15 CIV-21-002853 Appeal to the Court of Appeal 10.06.2021 McDonald & Anor v Attorney-General for the State of South Australia & Ors [2021] SASCA 57 Kelly P, Lovell and Doyle JJA Leave to appeal refused Yes [14]-[18] -- 66 of 68 -- [2024] SASC 67 Bampton J 65 No. Action No. Nature of proceeding Judgment date Judgment citation Judicial officer Outcome Also instituted by Mrs McDonald Finding to the effect of instituted without reasonable ground Finding to the effect of instituted for ulterior purpose 16 CIV-21-010167 Appeal to the Court of Appeal 09.12.2021 McDonald & Anor v Attorney-General for the State of South Australia & Ors (No 2) [2021] SASCA 146 Lovell, Doyle and Bleby JJA Leave to appeal refused Yes [14], [24] 17 CIV-21-007810 Supreme Court claim 23.12.2021 Reasons of Justice David in Supreme Court actions CIV-20-006239 and CIV-21-007810 David JA Stay of proceedings in CIV-21-007810 (stay continued by Bampton J on 4 March 2022) Yes p 6-7 18 CIV-20-006239 Supreme Court claim 01.03.2022 McDonald & Anor v The State of South Australia & Ors [2022] SASC 17 David JA Summary dismissal Yes [45]-[47], [54], [59] [47] 19 CIV-21-011585 Supreme Court judicial review 04.03.2022 Bampton J Proceedings stayed No 20 CIV-21-012132 Supreme Court judicial review 04.03.2022 Bampton J Proceedings stayed No 21 CIV-22-003237 Appeal to the Court of Appeal 05.05.2022 McDonald & Anor v Attorney-General for the State of South Australia [2022] SASCA 43 Livesey P and Bleby JA Specified paragraphs on the Notice of Appeal struck out; leave to appeal otherwise refused Yes [10]-[11]-, [24] [20] -- 67 of 68 -- [2024] SASC 67 Bampton J 66 No. Action No. Nature of proceeding Judgment date Judgment citation Judicial officer Outcome Also instituted by Mrs McDonald Finding to the effect of instituted without reasonable ground Finding to the effect of instituted for ulterior purpose 22 CIV-22-007750 Appeal to the Court of Appeal 12.08.2022 McDonald & Anor v The State of South Australia & Ors; McDonald & Anor v Attorney-General for the State of South Australia [2022] SASCA 81 Livesey P, Doyle and Bleby JJA Leave to appeal refused insofar as it is required, and the appeal is otherwise dismissed Yes [20] 23 CIV-22-002819 Appeal to the Court of Appeal 12.08.2022 McDonald & Anor v The State of South Australia & Ors; McDonald & Anor v Attorney-General for the State of South Australia [2022] SASCA 81 Livesey P, Doyle and Bleby JJA Leave to appeal refused insofar as it is required, and the appeal is otherwise dismissed Yes [23] 24 CIV-22-008071 Supreme Court judicial review 16.09.2022 McDonald v Registrar of the Supreme Court of South Australia Ex tempore reasons for decision of Judge Bochner Judge Bochner Application dismissed No p 2 25 CIV-23-004570; CIV-22-011442 Appeal to the Court of Appeal 30.11.2023 McDonald & Anor v Attorney-General for the State of South Australia [2023] SASCA 132 Livesey P and Doyle JA Leave to appeal refused Yes187 [35]-[37] [25] 187 Mrs McDonald was only an Interested Party in CIV-23-004570. -- 68 of 68 --